thefe very things fhould make grave men of all fides at tend to the conftitution in fuch contefts of profligacy, to prevent the laws of their country from being made either the fport or the facrifice of party upon the occafion. A point that is carried for the fake of punishing a worthless fellow, may be cited hereafter as a precedent for the most dangerous profecution and oppreffion of an excellent pa

triot.

The most respectful and constitutional of remonftrances from seven bishops, in behalf of the established religion, has been treated as a feditious libel, and nothing but the honesty of a Jury faved them from the most unjust condemnation. "The Attorney and Solicitor both affirmed "to James the 2d, That the honefteft paper relating to matters of civil government might be a feditious libel, "" when presented by perfons who had nothing to do with "fuch matters, as (they faid) the Bishops had not but in "time of parliament *."

Mr. Somers's modeft plea for the Church of England, underwent the fame denomination, although it was no more than a seasonable defence of our national worship, upon the true principles of the conftitution, against an ar'bitrary and Popish Court.

And I remember myfelf a tiny pamphlet, published by the Author of The Confiderations on the German war, queftioning the merits of the defence of Minorca, by argument, not by hard words or foul names, which was unfortunately on motion in the King's Bench deemed a libel, and an information in the ordinary way granted againft the writer, whereby he became a confiderable fufferer; and yet I believe any man who were to read this performance now, free from prejudice, would never concur in that opinion.

In short, one cannot guess what may, or may not, in fome unlucky time, be regarded as a libel by fome Judge or Attorney-general. The higheft or lowest of Authors, the nobleft or the moft fneaking, the Original or the Copy, the Patriot or the Tool, the Head of a Party or the Amanuenfis of a private Junto: in fhort, the most refpectable Commonwealthfman or the paltriest of Coffee-houfe

*See Lord Clarendon's State Letters, p. 317.

Lifteners

Lifteners and Political Eavesdroppers, may equally chance. to fall under this arbitrary brand.

Nay, if two foreigners here fhould happen to have a difpute relative to their refpective characters or appointments, and a difference should arise about the economy or charges of one fide and the other, and either should publish, by way of juftification of his pretenfions, letters that really paffed, they might, for aught I know, be held a libel, for which the Attorney-general might file an information, and whereto no defence, by the help of a little management, fhould be deemed poffible, and which counsel might fairly give up without the lofs of their character.

If a man was now to publish an ode, like that of Mr. Pulteney to Lord Lovel,

"Let's out for England's glory,"

inviting any courtier to join in measures of oppofition to the administration, and it was to be written with half the spirit and beauty, it might be the object of an information ex officio as a libel, altho' no man turned of thirty, I fuppofe, would think any placeman could be moved thereby to oppofe the court, and quit a part of his finery, for the fake of being a patriot.

Nay, if it be law, that a man may be guilty of a libel by writing against the dead (as well as the living) I do not fee how the world is ever to difcufs the actions of adminiftration, or any man to publish animadverfions upon their conduct in particular inftances; nor what is to become of the licensed hiftorian, with his rule of Nequid veri dicere non audeat. For example, if I was to fay of a late Great Chancellor, that I could not think he merited the appellation of a patriot, having ever regarded him as a decent, circumfpect, prerogative lawyer; that he leaned in his notions too much towards aristocracy; that he feemed, in his politics, to approach much nearer to the principles of the Earl of Clarendon than of Lord Somers; and that, at last, upon what public principles he joined the oppofition, after having been in all things with the court for forty years before, I could never learn. It seemed, that even his oppofition to, or rather difapprobation of, the peace, proceeded rather from a private diffatisfaction at the man who happened at last to have the making of it (his old friends being difplaced) than from any motive of public concern, and that fome of his reafons against it, were

D 2

thofe

thofe that most indifferent men, thought the ftrongeft in its behalf, namely, the boundaries in North America, which the courfe of a great river is made to be, and must for ever most notoriously remain as long as the world lafts. Indeed, I could never determine whether he had, or had not, a good conception of our foreign interefts, altho' I always imagined he had a thorough one of all the domeftic connections among us. I might add, he oppofed, curtailed and embarraffed the militia act in its formation, progrefs and execution, as much as he could, and yet, this was intended as a conftitutional force, or counterpoise against a ftanding army; that he was apparently a principal man in, if not the fole caufe of, defeating a new Habeas Corpus bill, calculated for the prevention of fome evafions of the old act; and that he projected, in concert with another new-made peer, the Marriage-act, and, having dif approved a fhort bill drawn by the Judges, obliging people to marry in churches, that their marriages might be regularly registered and capable of proof; had the reputation of drawing another, filled with claufes calculated for the prevention of all marriages without confent, with a view, as it fhould feem, to perpetuate, as much as might be, a fortune or family once made, by continuing, from generation to generation, a vaft power of property, and to facilitate at each defcent, the lumping of one great fum, or one great family, to another, by bargain and fale, in oppofition to the generous principles of equality and diffufive property, which free ftates have always encouraged. The royal family, however, was excepted out of his late act, altho' their marriages are alone a matter of any public concern or influence. I might afk too, whether his Lordfhip did not uniformly throughout life purfue his own private intereft, and raise the greatest fortune and provide the most amply for his family of any lawyer that ever lived; and whether, during his dominion, the judicial promotions were difpofed of upon ministerial motives or merely agreeable to profeffional defert. I might neverthelefs, and ought to add, that the fame illuftrious perfonage was bleffed with a good temper, and great worldly prudence, which are the two hand-maids in ordinary to profperity; that his whole deportment was amiable; and, that he poffeffed, in general, the foundeft underftanding in matters of law and equity, and the best talents

for

for judicature I had ever feen; that he might be cited as an example, in this country, of the perfect picture of a good Judge, which my Lord Bacon hath fo admirably drawn; and that he was, in fhort, a truly wife magiAtrate.

He was free from the levities, vices and expences, which frequently disfigure men of a lively and fruitful fancy. His ftation did not require, nor his genius furnish him with imagination, wit or eloquence. And, perhaps, had he poffeffed a true tafte for the fine arts and the politer parts of literature, he would never have been fo extenfive a lawyer, to which however the plainess of his education might have fomewhat contributed. In fhort, one might fay that, Lord Somers and He seem to have been the reverse of each other in every respect.

Now, this might be profecuted as a libel on the dead; whereas the writer penned no part of it maliciously, nor falfely as he believed, and did not mention a tenth part of what he might in fupport of the juftnefs of the character. And therefore, unless a matter be thoroughly, canvaffed, and gentlemen at the bar will speak out to a Jury, that they may have the proper information to deliberate upon, it is hard to fay what may not very glibly pafs at one time or other for a libel. Every thing feems to depend upon the Jury's confidering and determining both the law and fact.

I truft, therefore, this fingular privilege will ever be exercised by the people themselves. If they once give it up, they will never know any thing of public tranfactions, but from the most partial and leaft credited of all mankind, from writers employed by the authors of the meafures themselves, who, like Scotch Reviewers, may have the face to attempt to make Englishmen believe, that a man can be a conftitutional judge who quits the laws of the land and deviates from the established practice of courts, in fpight of common fenfe and the conftant declaration of our ancestors nolumus leges Anglia mutari. Let the dependent judges before the Revolution have advanced what doctrine they please, the fact has been, that juries have always exercifed the right of determining what is a libel. It hath faved this conftitution often, is the great bulwark of liberty, and fhould never be refigned but with the laft breath

Few

Few men know much of the nature of polity, and, of them, all do not fufficiently attend to the conduct of Administration, to obferve when flight innovations are made in the laws or in their Adminiftration; and, of thofe who do, very few indeed have that degree of underftanding which enables them to judge foundly of the confequences of fuch alterations, with refpect to their liberties in general. Again; of thefe very few, not more than one perhaps, has activity, refolution and public fpirit enough to publish his thoughts (as Mr. Somers did upon feveral occafions) concerning what is going forward, in order to alarm (like a good citizen) the reft of his fellow fubjects. Infomuch, that breaches in the conftitution, which by degrees bring on a total lofs of liberty, are ei ther, wholly unnoticed, or elfe are regarded as the mere violences of party, by which nobody can be affected but the immediate actors. Whereas, for the fake of compaffing their own ends, there is nothing which party-men will not do, per fas aut nefas; just as an established high churchman will perfecute even to death, any other man or divine that questions his authority or his doctrine. From hence arife precedents of all forts of illegal and unconftitutional practices. Minifters (as not one in a thousand is actuated by any principle of public good, or even by a defire of honeft fame) for the fake of power, title, riches, and pre-eminence of any kind, will deceive the best inclined Prince, and minifter to the humour, folly, vices and domination of the worst. On the Exclufion-bill, no more than two, even of the Bishops, would venture to vote for it, altho' their Bifhopricks depended upon the continuance of the Proteftant religion, which that bill was avowedly framed to preferve. Now, when an impartial man gathers this, both from his own experience and from history, how can he help being moved at the doctrine that is publickly held with refpect to writings that animadvert upon public proceedings, and the ufe that is made of that defperate fword an information, together with the means which are every day devised to make it more dreadful ?

I will venture to prophefy, that if the reigning notions concerning libels be pufhed a little farther, no man will dare to open his mouth, much lefs to ufe his pen, against the worst Administration that can take place, however much it behoves the people to be apprized of the condi