blow aimed at the freedom of every fubject by the process of the fecretaries office.

In this conteft, administration had the advantage of the first blow. In the fpeech from the throne it was contrived, that mention fhould be made of the peace, in order to draw from parliament a reiterated approbation to that meafure; and to fignalize the triumph of the miniftry upon that very point on which the oppofition had been moft fuccefsful during the adjournment of the two houses. There was no doubt of their fuccefs. The parliament could not refuse to justify its own act; and this would not, indeed, neceffarily, but naturally enough, lead them to the cenfure of those writings which had involved men of all parties, and the whole legiflature, in one accufation.

It was in the fame fpirit they refolved on a stroke against that privilege on which their profecution had been eluded during the fummer, in order to defeat the adverfary in all his ftrong holds. Poffibly, fome friends of the miniftry might alfo think by this means to caft a fort of oblique reflection on the refpectable perfon, whofe judgment on this point had given their enemies fo great an advantage over them.

As their fuccefs in thefe matters muft give the miniftry the moft fignal advantage, and imprefs the public with the highest ideas of their power and ftability, fo the attempt was bold, and not unattended with difficulties. To perfuade parliament to cenfure a piece actually under legal examination; to proceed against their member, who was under a crimi

nal profecution; or to limit that privilege of parliament, which fo lately was confirmed, not by their own votes, but by the strict rules of a court of juftice, was an attempt of fome spirit.

On the other hand, the party in oppofition, befides the benefit which they derived from these circumftances, whilft they acted on the defenfive, had feveral advantages from them, if they chose to proceed offenfively. They had befides one capital charge of illegality, which they might, with great plaufibility, make upon the fecretaries warrants.

But, however violently these affairs were agitated before the meeting of parliament, when they came to be examined in the house, the fervour of the party feemed greatly to decline. The fpeech from the throne spoke as ftrongly as poffible of the attempts which had been made to divide the people. Both houses made as full a return as could be wifhed upon this article, as well as upon the peace, which they connected with it. But, before these addreffes could be formed, a complaint was laid before the commons, according to the ufual courfe, where any criminal process has been iffued against a member, in a meffage from government, informing them of the fuppofed offence of Mr. Wilkes, and of the proceeding against him. The exceptionable paper was then laid before the house.

Nov.

15th.

A very long and warm debate enfued. But the fpirit, which feemed to animate the argument, had not a proportionable influence on the opinion of the members the divifion against the question

was

the refolution, they proceeded without delay to their next measure, which was much more difficult, as well as important, the privilege.

On this, indeed, as on a much better ground, oppofition made a vigorous ftand in both houfes. For the queftion being put, that Nov. privilege of parliament does not extend to the case of 23d. writing and publishing seditious' libels, nor ought to be allowed to obstruct the ordinary course of the laws, in the speedy and effectual prosecution of so heinous and dangerous an offence, they faid, that the propofition itself was made without any fufficient reason, and that the doctrine, by which it was fupported, was new, dangerous, and unwarrantable, viz. "that the per"fonal privilege of both houses of "parliament has never held, and ought not to hold, in the case of any criminal profecution whatso66 ever;" by which all the records of parliament, all hiftory, all the authorities of the graveft and fobereft judges, are entirely refcinded; and the fundamental principles of the conftitution, with regard to the independencies of parliament, torn up and buried under its most establifhed rights.

That the very question itself, from the letter and fpirit of it, contradicts this affertion; for, whilft it only narrows privilege in criminal matters, it establishes the principle.

They maintained ftrenuously, that, by the reafon of the thing, by many authorities in law, by the late determination of the court of common pleas, and by two plain refolutions of the houfe of peers (fo far as the queftion concerned their particular privi[C] 3

lege)

lege) that the privilege of parliament does extend to all cafes whatsoever, except treafon, felony, and thofe offences in which sure ties of the peace may be demand. ed. If privilege will not hold throughout in the cafe of a libel, it is because it is fuch an offence. But were ever fureties of the peace demanded in cafe of a libel? Libels are breaches of the peace only by inference and by conftruction, and not actually and in their own nature. They are not included in any definition given of a breach of the peace in any writer of approved authority; nor is the cafe of a libel by any fuch writers enumerated amongst the breaches of peace. On the contrary, it is always defcribed as an act tending to excite, provoke, or produce breaches of the peace, and not as that offence itfelf; and though a fecretary of ftate may be pleased to add the enflaming epithets of treasonable, traitorous, or feditious, to a particular paper, yet no words are ftrong enough to alter the nature of things.

They expatiated further on the method of relaxing the rule of privilege cafe by cafe, as of the greatest inconvenience, by rendering the rule itself precarious and uncertain; in confequence of which, the judges will neither know how to decide with certainty, nor the fubject to proceed with fafety, in this perilous bufinefs.

Laftly, they answered to the fuppofed inconvenience, that would attend this prefervation of privilege in the cafe now before them, by faying, that it would equally hold in all other conftructive breaches of

the peace; and that this argument, therefore, proves too much. But the beft anfwer (because it removes all pretence of grievance) is this: that the two houfes, upon complaint made, have the power (which they will exert in favour of juftice) to deliver up the offender to profecution. For it is a difhonourable and an undeserved imputation upon them, to fuppofe, even in argument, that they would nourish an impious criminal in their bofoms, againft the call of offended justice, and the demand of their country.

1

Such were fome of the arguments which, with great vehe mence, and no fmall appearance of reafon, were urged against the refolution. It was fupported by expatiating on the dangerous nature of the offence of a libel, followed not only with confequences injurious to the peace of individuals, but pregnant in many cafes with danger to the fafety, and perhaps to the being of the commonwealth; that, therefore, a libel, which in fome cafes might poffibly be confidered as an affair of no great magnitude, might also, according to its object, be a crime of a much higher order, not only than many of thofe flight offences for which fureties of the peace are demanded, but greater than feveral fpecies of felony (all of which are allowed to be out of privilege), and bordering on treason itself.

The diftinction, faid they, of actual and constructive breaches of the peace is trifling and sophistical. The question is concerning the nature and weight of the offence, and not of the name by which it is called. That it would,

to

in fuch a cafe, be ridiculous to allow a feditious libeller advantages, which are denied to an ordinary breaker of the peace; when fedition is a crime of fo much greater guilt and importance than a menacing gefture, or even an actual affault. That the privilege of parliament is a privilege of a civil nature, inftituted to preferve the member from being diftracted in his attention to the bufinefs of the nation by litigations concerning his private property, but by no means prove a protection for crimes. If, faid they, this distinction of breaches of the peace were to hold, members of parliament might not only libel public and private perfons with impunity, but might, with the fame impunity, commit many other misdemeanours and offences of the groffeft nature, and the most deftructive to morality and order; because they, as well as libels, are breaches of the peace but by conftruction and in their confequence. If privilege were of this nature, the freedom of the members would be the flavery of the fubject, and the danger of the ftate.

Upon what had been afferted on the other fide," that no inconve"nience could arife by the prefer"vation of this privilege, becaufe, on application to that houfe of parliament of which the delinquent was a member, he would certainly be given up to juf "tice," they obferved, that this remedy might come too late; for, as the offender could not be arrested and held to bail, he might eafily efcape by the length of time neceffary to be taken in that mode of

procefs, and by the public nature of the complaint.

Befides, this argument, if at all admitted, will prove too much; the fame reafoning might hold as well in treason, felony, and actual breaches of the peace. No doubt, either houfe of parliament would,. on complaint, deliver up their members charged with fuch offences; yet it is allowed, that the privilege neither does nor ought to cover them. And no one criminal matter feems more within the reafon of privilege than another.

It is the argument in favour of criminal privilege that proves too much. The affertion, that this argument against it does fo too, is not grounded; for a good deal is intended to be proved. Thofe, who are for declaring the law of privilege not to extend to the cafe of libels, do not mean to fuppofe all thefe other heinous offences of the fame nature, upon which their declaration is filent, to be, therefore, within privilege. They deny it to exift in the cafe before them; that is all their prefent business ; but they do neither thereby affirm, or imply it, in any other.

Privilege of parliament, being defined folely by the difcretion of either houfe for itfelf, is a matter of the moft delicate nature; it is, therefore, to be used with the utmost moderation. If it fhould be fo exercifed as to appear incom patible with the public peace or order, or even, perhaps, with the fafety and quiet of individuals, the people might come to think that they lived under a conftitution, injudicioufly and even abfurdly framed, in which the perfonal liberty of the reprefentatives of a [C] 4

free

free people might become inconfiftent with their own. That the house, instead of enlarging its immunities beyond their original intention and fpirit, inftead of claiming an invidious and no very honourable privilege, ought to ftand forward in giving a noble example of its moderation and its regard to juftice. By agreeing to the refolution, it would give this practical leffon, and at the fame time this comfortable fecurity to the people, that no fituation was a fanctuary for those who prefumed to violate the law in any of its parts.

On fome fuch reafons,

Nov. the commons, though not

24th.

without a ftrenuous oppofition, agreed to the refolution; and in a conference, this refolution was communicated to the other house. They alfo concurred in it. Nov. The resistance in this houfe

29th.

was ftill more confiderable. A protest against it was figned by feventeen lords.

Dec. ift.

The North Briton having been declared a feditious libel by the concurring votes of both houfes, and as fuch burnt by the common hangman, the commons proceeded in the complaint against Mr. W. as the author of it. This profecution, which was begun and pushed forward with great earneftnefs, was, however, fome time refpited by an accident, which, though unfortunate to Mr. Wilkes, was advantageous to the party; for it ftill kept the popular fpirit and hopes alive, which probably would have expired under an early and final decifion of the house againft him; the people without doors would have cooled, when they found him condemned by

that body of which he was a mem ber, and difowned by that privilege to which he had fled for refuge.

In the heat of those disputes, in confequence of which fome words arofe, a duel was fought between Mr. W. and a gentleman of confideration ; one of those many whom Mr. W. had, perhaps with little malice, but much wantonnefs, attacked in those papers, which now drew on him at once, a legal profecution, a parliamentary complaint, and a perfonal combat..

In this duel, Mr. W. was wounded; and the state of his health being represented to the houfe, the hearing on the charge against him was adjourned from time to time. During these adjournments, Mr. W. obferving the decifion of all the preliminary queftions relative to his cafe, the vigour with which administration urged the profecution, and the coldnefs with which every thing that was perfonal to him in these difputes was treated almost by the whole party, he thought it expedient to remove into Dec. France, until a change in 24th. administration might produce difpofitions more favourable. to him.

The laft adjourned Jan. 19th, day of the complaint be1764. ing arrived, the house, certified that he had refused to admit furgeons fent by their authority to examine into the ftate of his wound, and his retreat into France rather indicating a diftruft of his caufe, than any thing amifs in his conftitution, proceeded regularly to hear evidence in fupport of the charge against him.

They