"that this is the undoubted right of the Peers and inviol"ably has been enjoyed by them." Now what my reasoning from fuch premises muft be, may be easily gueffed. It was thus: Members are clearly intitled to Privilege in all misdemeanors, for which fureties of the peace cannot be demanded. But, fureties of the peace cannot be demanded but in actual breaches of the peace. The writing of any thing quietly in one's ftudy, and publishing it by the prefs, can certainly be no actual breach of the peace. Therefore, a Member who is only charged with this, cannot thereby forfeit his Privilege. I thought that no common man would allow any writing or publishing, efpecially where extremely clandeftine, to be any breach of the peace at all; and that none but lawyers, on account of the evil tendency fometimes of fuch writings, had first got them, by construction to be deemed fo. I had no idea that it was poffible for any lawyer, however fubtle and metaphyfical, to proceed fo far as to decide mere authorship, and publication by the prefs, to be an actual breach of the peace, as This laft seemed to express, ex vi termini, fome pofitive bodily injury, or fome immediate dread thereof at least; and that, whatever a challenge, in writing, to any particular might þe, a general libel upon public meafures, could never be conftrued to be fo. And I knew it was not required of any one in matters of law, to come up to the faith of an orthodox divine, who, in incredible points is ready to fay, Credo quia impoffibile eft. Indeed, I had originally conceived, upon a much larger scale of reasoning, that freedom from arreft for libel was a privilege incident and neceffary to a Houfe of Commons, because it was a fafe-guard against the power of the Crown, in a matter that was almost always a difpute between the minister and the subject, and no more than a natural fecurity of perfon for an independent part of the legiflature, against the arbitrary proceeding of a King's officer, in the leaft afcertained of all imputable offences. But this point has been lately cleared up to the contrary in St. Stephen's chapel, upon a debate of two fucceffive days, the last of which continued from three in the afternoon till two in the morning*. Nevertheless, the Commons of England * Vide the printed Votes of Wednesday the 23d of November 1763, and Thursday the 24th of November, 1763. at at large, having come to no new compact or furrender of ancient privileges, ftill poffefs their old right of being judges of the law in libel. I cannot help adding too, with regard to pledges for good behaviour, that, in my apprehenfion, they are not demandable by law in the cafe of a libel, before conviction; for this mifdemcanor is only made a breach of the peace, at all by political conftruction, nothing being an actual breach of the peace, but an affault or battery, the doing or attempting to do fome bodily hurt. Now, furety for the peace is calculated as a guard from perfonal injury; and articles of the peace can only be demanded from a man, who by fome pofitive fact has already broke the peace, and therefore is likely to do fo again; or where any one will make pofitive oath, that he apprehends bodily hurt, or that he goes in danger of his life. The articles which are every day exhibited in the court of King's Bench, are always for the prevention of corporal damage. No cafe is fo common as that of women exhibiting articles of the peace against their husbands; now, I do not believe, that if any wife was to allege as a foundation for fuch articles, her husband's having wrote a libel against her; let the libel be ever fo falfe, fcandalous and malicious; that Lord Mansfield would make the hufband find fureties for the peace, or for his future good behaviour on that account. Another reafon which ftrongly weighs with me is, that the writers upon bail, or the delivery of a man's perfon from prifon, never mention fureties for the behaviour, in any cafe of a libel or conftructive breach of the peace; and yet it would have been material for them fo to have done, if fuch fecurity muft be given before a man could obtain his liberty. My Lord Coke has wrote an exprefs treatife upon bail and mainprife, and confidered, the writs de homine replegiando, de odio atia, and Habeas Corpus, and yet it is plain he had no imagination of the thing. He fays, "Bail and mainprize is, when a man, detained in prifon for any offence for which he "is bailable or mainprizable by law, is by a complete "Judge or Judges of that offence, upon fufficient fure"ties, bound for his appearance and yielding of his body, "delivered out of prifon. As for example, if a man be "indicted of any felonies, publishing of any feditious "books, &c. contrary to the form of an act made in ' the the 23d year of Queen Elizabeth, he may be bailed, for the offence is made felony, and bail and mainprize "not prohibited." Now, in the cafe of a public libel, there is nobody who can come into the court of King's Bench and exhibit articles of the peace against the writer or publifher, fwearing that he believes himfelf to be in danger of bodily hurt from him, and that he walks in fear of his life. Befides, for words fcandalous in themselves or attended with confequential damages, or for a libel, the party traduced may bring an action of trefpafs on the cafe, which action however, lies only for a wrong without force against the peace. Now, this must mean and can only be a conftructive breach of the peace. For, if it were an actual breach of the peace, an action of trefpafs vi et armis (as the lawyers call it) would lie, as it does for an affault and battery and falfe imprisonment; but, I believe, no laywer ever heard of fuch an action being brought either for words, or for a libel, or would fay that in either cafe it would lie. This therefore is a proof that the Law does not regard a mere libel as an actual breach of the peace. It is further obfervable, that there is no adjudged cafe where this demand of furety for the peace in libel, has been determined to be legal; the crown hath in fome cafes, after infifting upon it, avoided having the point determined, and relinquished the claim to it; it is contrary to the general principles and notions of law; and it may be the means of great oppreffion. Any gentleman would therefore ferve his country, by refifting fuch a lawless demand, and by having it folemnly argued, upon the first occafion. When a man is charged with a libel, by an arbitrary information ex officio, he muft cry out, like a Roman of old, Provoca ad Populum; I appeal to my country, that is, to a Jury of my equals. I will give bail for my appearance to try the validity of this charge before them, but I will do nothing more. I never heard till very lately, that Attorney Generals, upon the caption of a man supposed a libeller, could infift upon his giving fecurities for his good behaviour. It is a doctrine, injurious to the freedom of every fubject, derogatory from the old conftitution, and a violent attack, if not an abfolute breach, of the liberty of the prefs. It is not law, and I will not fubmit to it. What What makes me infift the more upon all these points is, an affurance that the legal methods of proceeding in every cafe of a libel, are fufficiently fevere, and that therefore all illegality is totally inexcufable. The profecution is heavy, and if the fuppofed offender be found guilty by the Jury, his punishment may be extremely grievous. After the trial, all the circumftances that appeared are reported, by the Judge who prefided, to the King's Bench; and this Court gives judgment thereupon, after deliberation, and both can and will proportion the punishment to the cafe. They may, after conviction, pillory, fine, imprifon, and even infift upon fureties for the good behaviour, according to the nature and degree, the mifchievoufnefs and tendency of the libel. In bad times, Sir Samuel Bernardifton, for letters not very extraordinary, was fined 10,000l. In good times, Shebbeare, for the most feditious and treafonable libel that could be penned, was fined in no very great fum on account of his circumstances, but was pilloried, committed to prifon for two years, and obliged to find fecurity for his behaviour, in a pretty tolerable fum himself and two fureties in as much more, for seven years to come. All this may be done in the regular way of proceeding, and feems to be as much power of punishment as can be wanted, for a mere misdemeanor ; because I presume nobody chufes to revert to the additional punishments inflicted before the ftar-chamber was fuppreffed; fuch as public whippings, burning in the face, flitting the tongue and noftrils, cutting off the nose and ears, and long or perpetual imprifonment, which was the treatment of writers against Administrations in those days, and was abfolutely inflicted at one time upon the three liberal profeffions, in the perfons of a clergyman, a counfellor, and a phyfician. If the libel be upon the Legiflature, and the Libeller a Member, the Houfe will expel him, as Queen Anne's Tories did Sir Richard Steele, for charging the Queen, and her Ministry, with a defign of breaking the establishment and introducing the Pretender; and yet I fuppose now-a-days there is nobody who doubts in the least that Knight's having publifhed the truth when he faid fo. Indeed, he admitted himself the Author of the paper complained of, so that the then Commons were not obliged to help that neceffary fact out, by the reception of teftimony not hot upon oath. Nay, the Courtiers of that day thought the punishment of expulfion alone fo fevere (although Sir Richard's creditors were not more numerous than Mr. Wilkes's) that they ftopped there, and carried on no prosecution against him in Westminster Hall or any where else. I do not touch again upon Mr. Wilkes in this place as commiferating him particularly, having ever avoided his acquaintance, but merely to fay, what indeed the History of England from the beginning of the reign of Charles the Firit to the preferit time may illuftrate, that profecutions for libels generally arife from, and are purfued with a fpirit of party-revenge. Men are upon fuch occafions apt to do things which in cooler moments they would be ashamed of. With refpect to the last named Libeller, I muft however declare, had I been his constant comrade, and my doors open to him at all hours, much more the partaker of his loofeft pleasures, and of his moft fhameful blafphemies, I fhould not have flood forth either in the one Houfe or the other as the immediate mover of the poor devil's public difgrace, cenfure, profecution and ruin, or as the mercenary advocate of his purfuers, unlefs I had an inclination to convince mankind that I was regardless of all principle whatever, excepting that of serving a party for my own private intereft, and from that motive was wil ling to act upon any stage the moft inconfiftent and most abandoned of all parts, even againft the companions of my happiest moments, and to imprint this leffon upon the world, that no motive whatever of public good or private friendship was at the bottom of my conduct, or even the fmaller reftraint of common decorum. Real good-nature, friendlinefs, charity, (whatever you call it) will cover a multitude of fins, but mere companionable ease or mirth, with an unfeeling heart, only enhances the profligacy of a character. If debauchees will not fink below the worst of gangs, they should at least be true to each other, as kindred fouls. In my own opinion, this ludicrous Libeller did himself all that his fevereft enemies could wish, to turn his own cafe into ridicule, and to let the people fee that a love of farce and merriment predominated in all his actions; and that he had too much levity and viciousness of natural conftitution, to make the good of his country the rule of his conduct in any one action of his life. But the fight of |