Parties are either too indigent to contend with the Crown, or elfe the Crown buys them off. Attornies too, for the moft part, are afraid both of incenfing men in power and of lofing their cofts, by being concerned for poor and obnoxious clients, who may either run away or be tampered with by the Solicitor for the Treafury. For which reafons, it is extremely difficult to cite adjudged cafes, in fuch very clear points: and, therefore, one muft decide upon upon them by general maxims and principles of common law, which are, indeed, a much more unerring guide than any particular cafe, of which it is ten to one whether you can obtain any correct and authentic report.

If fuch a power of feizing papers could be fupported by law, is it to be imagined that no declaration of it fhould have been made from the Bench, by the feveral able and learned Chief Juftices of England, who have prefided in the King's Courts fince this practice has taken place. Many of them have been warm friends of adminiftration, and they could not have rendered a minister so formidable, especially in times of violent party and dif affection, by any other means whatever. Nay, fome of them have had opportunities of making this declaration, and yet have ftudioufly avoided it, for which no reason ean be affigned, but their knowing the practice to be illegal. A ftronger negative argument can hardly be produced.

Nothing, as I apprehend, can be forcibly taken from any man, or his houfe entered, without fome specific charge upon oath. The manfion of every man being his caftle, no general fearch-warrant is good. It must either be sworn that I have certain ftolen goods, or fuch a particular thing that is criminal in itself, in my cuftody, before any magiftrate is authorised to grant a warrant to any man to enter my house and seize it. Nay further, if a pofitive oath be made, and such a particular warrant be iffued, it can only be executed upon the paper or thing fworn to and fpecified, and in the prefence of the owner, or of fomebody intrufted by him, with the cuftody of it. Without thefe limitations, there is no liberty or free enjoyment of perfon or property, but every part of a man's moft valuable poffeffions and privacies, is liable to the ravage, inroad and infpection of fufpicious minifters, who may at any time harrafs, infult and expofe, and perhaps,

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undo

undo him. Nay, whenever they fufpect there is evidence against themselves, they may, by this boundless authority, feize and carry it away, in order to defeat profe

cution.

In misdemeanor, felony or treafon, before conviction, the perfonal property of the accufed, remains unaltered; no magiftrate has a right to examine the whole, nor to feize any particular part, without fome fpecial information on oath as to individual things. And upon what legal foundation, a contrary practice has been fet afoot, I am totally at a lofs to guess.

The first warrant that ever was granted for feizing papers generally was, by Lord Townfhend, in the reign of George the Ift, until that time, no fecretary of state, ever went farther than to direct the feizure of fome papers particularized.

In fuch a party-crime, as a public libel, who can endure this affumed authority of taking all papers indifcriminately? When, in fuch a crime as Forgery, or any other felony; or even in that dangerous crime, high treafon by correspondence with traitors or the king's enemies; all men would cry out against it, and moft defervedly! Nothing can be touched without fome criminal charge in law fpecifically fworn against it. And where, there is even a charge against one particular paper, to feize all, of every kind, is extravagant, unreasonable and inquifitorial. It is infamous in theory, and downright tyranny and defpotism in practice. We can have no pofitive liberty or privacy, but muft enjoy our correfpond encies, friendships, papers and studies at difcretion, that is, at the will and pleasure of the minifters for the time being, and of their inferior agents!

Had Charles the fecond thought his minifters intitled to this prerogative, he would not have reforted to parliament for fweeping warrants, to fearch for and feize all feditious and treafonable books and pamphlets. His meffenger of the prefs would have ranged through the fhops of bookfellers and printers, and the ftudies of difaffected perfons, that is, of fticklers for liberty, upon the mere warrant of a fecretary of state or privy counsellor, without the aid of this licenfing ftatute.

And let me here afk a queftion. If a libel be no actual breach of the peace, and fureties for the peace or the

be

behaviour be not demandable of the fuppofed libeller; by what colour of law, or by what warrant or capias, can any man charged as the writer or publisher have his doors and locks broken open, for the apprehenfion either of himself or his papers? Can fuch force be authorised by virtue of any legal process whatever, in this fpecies of mifdemeanor, before verdict, nay before judgment?*

The Attorney having flightly paffed over the feizure of papers, after talking of it as a mere picture for which he happened to have no tafte, intirely omits the fubfequent grievance of the clafe confinement; and, my fon, having fomewhat touched that matter in his letter, I fhall not expatiate upon the fubject, fo much, at leaft, as the importance of it would otherwise have inclined me to. Any body, however, who looks at the warrant of commitment, will fee the direction to the conftable of the Tower, is not merely to keep Mr. Wilkes fafe, but to keep him "fafe and clofe, until he fhall be delivered by due courfe, " of law." Now, the cuftody here directed, is un

*In a printed account of the tranfaction of Mr. Wilkes' cafe, it is ftated thus. "The 26th of April, a general Warrant was iffued against the Authors, Printers and Publishers of N° 45, and 49 Perfons were apprehended by it before the 29th, and among them a reputable tradefman. This laft was taken out of bed from his wife and a child dangerously ill, his house difordered and his papers ranfacked, and his perfon detained three days after his innocence known. The 29th, the Secretaries of State received complete information that Mr. Wilkes was the author and publisher; and, the general warrant ftill remaining in the meffengers hands, by virtue thereof, on the 30th, Mr. Wilkes's houfe was forcibly entered, his doors and locks broken open, all his papers thrown into a fack and committed to the hands of common meffengers, without any schedule or fecurity for the return of them, Mr. Wilkes himfelf was carried before Lord H. where it was immediately made known that an Habeas Corpus was applied for and expected every moment, but, to avoid the effect of that writ, he was hurried away to the Tower, and there all access was denied to him, as well as the ufe of pen, ink and paper." And I will add, from my own knowledge, that those who had the fearching of his papers divulged the contents of fome private letters, which might have been very prejudicial to the writer of them, and have hurt his interest and his friendship with other friends.

It has been afferted that, in fearch of Monfieur D'Eon, found a libeller by a Jury, in order to take and bring him into the King's Bench, to receive judgment on the verdict, the doors and locks of chambers, clofets and fcrutores, were broke open; altho' it was denied he was there, and it afterwards appeared he was not there. This was faid to be done by virtue of a Capias from the K. B. by fome, and by others of a Secretary of State's warrant, but without any information upon oath of his being in fuch house, and merely upon a flight fufpicion, that he might be there, grounded upon his having been seen about two months before going to the house.

war

warrantable in law, in the cafe of a mifdemeanor, nay irt any cafe.

The common commitments ufed by Juftices of the peace, even in cafes of robbery on the highway, and other felonies, not entitled to clergy, are to receive into your goal, and him fafely to keep, or that you fafely keep, or there to remain (untill delivered by law); falvo cuftodiri, ad falvo cuftodiendum, falvo cuftodias, in falva cuftodia ut detineatur, or at moft faluo & fecure cuftodiri: infomuch, that out of all the various forms of mittimus's to be met with in Burn's Justice, or the Regiftrum Brevium, there is not one where the word clofe or arta, is inferted.

When a goaler is to keep his prifoner fafe, he is only to reftrain him so as to prevent his escape, and no perfon not dangerous, in that refpect, is to be hindered from having accefs to him, in the day-time. But, when the order is to keep the prifoner fafe and clofe, the goaler is to fhut him up from all the world. By a printed paper too, handed about, I learn that the warders of the Tower, in this laft cafe, are never to leave their prifoner one moment alone. And, in a paper which Mr. Wilkes difperfed, he afferted that these orders were ftrictly observed with refpect to him, infomuch, that altho' he was committed Saturday the 30th of April, yet it was Tuesday May the 3d, after having been brought up by Habeas Corpus to the Court of Common Pleas, and remanded, before his friends had for the first time, free access to him. His Council and Attorney had made repeated applications for admiffion on Saturday, Sunday and Monday, as well as his brother, a noble Earl, and feveral people of diftinction; and on the Monday, he happened to fee himfelf a written order upon Major Ransford's table, directing him even to take down, the names of all perfons applying for admittance. The common report about town was, that the fecretary of ftate went to his country-house on the Saturday morning, and did not return till Tuesday noon, and therefore no order for the admiffion of any perfon could he had, and that the Major would not break through his general orders about clofe prifoners at the defire of the folicitor of the treafury: but, this could never be the reason, as it was very eafy to have fent a messenger 10 or 12 miles out of town, to the fecretary's villa, when

the

the prifoner was a Member of Parliament, and the public begun to be alarmed.

I am more inclined to believe another report, namely, that the Major received, particular, pofitive, verbal orders at firft, to let nobody have access to him, and that he declared, had it not been for Thofe, he fhould not have fcrupled to have let in any of Mr. Wilkes's friends or relations, notwithstanding the word clofe was inferted in the warrant. In fhort, it was a mifconception of the lawful power. The great civil officers imagined there was no difference at all made by the law between the treatment of a prifoner committed for a misdemeanor, and of one for a capital crime, or before or after conviction.

Now, my opinion is, that before conviction the law does not warrant clofe confinement, fo as to debar a friend from access, in any case whatever; and that the fame is a breach of the great Habeas Corpus law, and of all the ftatutes de Homine replegiando. For, if a man when apprehended and carried before a magiftrate, is, by that magiftrate committed forthwith to close cuftody, fo that nobody can get at him, it will be impoffible for him to write a letter, or to make an affidavit, to get a Habeas Corpus. Indeed, it feems to me to be an abfolute deprivation of the right that every subject has to his liberty, "unless it shall appear that the party fo committed, is "detained upon a legal procefs, order or warrant, out "of fome court that has a jurifdiction of criminal mat"ters, or by fome warrant of fome Judge or Juftice of "Peace for fuch matter or offence for which by law the "prifoner is not bailable." This ftatute of Charles the 2d, takes notice of the great delays and other Shifts "of goalers and others, contrary to the known laws, whereby, many of the King's fubjects, may be long "detained in prifon, in fuch cafes, where by law they are bailable, to their great charges and vexation," and purports to be exprefly enacted," for the prevention "thereof, and the more fpeedy relief of all perfons im66 prifoned for any criminal or fuppofed criminal mat66 ters." Now, if I do not mifremember, the five members were committed to clofe confinement, for feditious difcourfes in parliament, by Charles the rft, and it was the agitation of this very question that firft fhook his throne; and yet, I do not know, that in the cafe of Mr.

Wilkes,