They confidered the letter and the apology he fent for his non-appearance, together with the tefti. mony of the French furgeons, which accompanied it, as quite nugatory. If his wound had been in the condition in which he re presented it, a journey to Paris was a ftrange measure; and the confequences arofe from his own voluntary act. The evidence appearing fatisfactory as to the author, and the houfe having previously paffed judgment on the piece, the queftion of expelling Mr. Wilkes was carried without difficulty; the divifion in his favour being inconfiderable. In this manner the party abandoned the moft zealous, the moft refolute, and one of the most useful of their champions. They thought it neceffary to purchase the credit of moderation even by this facrifice. They were willing to fhew that their oppofition was grounded upon principle, not upon difcontent; and that the, administration, who accused them fo freely of a factious procedure, could not, when the trial came, fhew a greater defire to preferve the dignity of the throne from every fpecies of affront. They hoped their conduct in that respect would appear even more dutiful than that of the miniftry itself; fince the miniftry, in the profecution of an affront to the throne, avenged their own private injuries; whilft the pppofition, in refpect to injured majefty, abandoned their best and moft fanguine friends. To fill the measure of the degradation of this late idol of the popu lace, a book, which he had privately printed and difperfed amongst his friends, was prefented by one of the fecretaries of state to the house of lords. This Jan book, full of indecent and 19th. profane ribaldry, reflected on the character of a right reverend member of that houfe, whofe vaft extent of erudition and genius adds dignity and luftre to his high ftation. The peers proceeded againft the author for a breach of privilege, while he was indicted in the courts below for blafphemy. And now expelled by one house; under the cenfure of the other; under a double profecution for libel and for blafphemy, he began to be abandoned by many of his warmeft friends. Even the populace, though they did not difrelifh faction, could not digeft profaneness; they could forgive party malice, but were fhocked at offences against decency and fober morals. Mr. W. was foon run to an outlawry, for not appearing to the indictments against him; and the fuits, which he had carried on against the secretaries of ftate, of courfe fell to the ground. Nov, lft. This compleated the ruin of that unfortunate gentleman, who engaged for fome time fo great a part of the public attention, and whofe wit, fpirit, and good-humour, if not carried to fuch unwarrantable exceffes, merited, and would probably have met with, a very different fortune, CHAP. CHAP VI. Question of general warrants. Debates thereupon. Administration hard pushed. Question adjourned. State of the national supplies. Scheme of ways and means criticised. Observations on that controversy. HITH ITHERTO the triumph of administration was compleat. Sentence had been paffed on the cause and on the perfon of a principal adverfary. They had even deprived all perfons for the future of that privilege, which had been lately thought the ftrong hold of writers for the oppofition. But their turn was now come to be attacked themselves, upon a point on which they were somewhat fore, and not extremely strong. On moft of the preceding quef tions, there was, at the bottom, but little difference between any of the parties; an offence, which comprehended, at once, an attack upon the peace; an indignity to the crown; and a cenfure of the parliament; was, in a manner, the common caufe. But on the queftion of the warrants ufed in the profecution of this offence fo unanimoufly condemned, the case was very different. The oppofition had here no measures to keep. They had gone too far in reprefenting these warrants as highly dangerous to liberty, to be able to recede with the leaft degree of decency. They had raised an alarm, and it was neceffary that they fhould have the merit of quieting it by the application of fome remedy adequate to the violence of the difeafe; or the advantage of keeping it up by the eclat of the should ma attempts they should make, and the zeal for liberty they nifeft, on the occafion. Neither of these methods could fail of anfwering their purposes. There was also a favourable opportunity for those parties, which fecretly divided the body that had hitherto fupported government, to play their game. The royal majefty was in nowife concerned in this question; no measure pursued by any party was cenfured; no general plan of government was affected; the law only was to be declared, and the minds of the fubject made eafy upon a practice, the ftrict legality of which had not been defended by the warmest advocates for the administration. Nothing even of a perfonal cenfure was intended. These appearances were plaufible; and many fober perfons were feriously alarmed, to obferve a practice prevalent in a great office contrary to what they confidered as the cleareft principles of law, and inconfiftent with the manner of governing in a free country. The long and filent continuance of this practice, instead of excufing, only added to the danger of it. Whatever the motives, that influenced the conduct and opinions of men on this point, might be, there was no doubt that, without aiming at the perfons, a confider able warrants. 1 able ftroke was aimed at the mi- nor a certain judicature by which nifterial character and confidera- it was to be tried; for, whilft he tion of those in high ftations. Ma- looked for the rule of legality ny of those, therefore, who relish- only in acts of parliament and in ed neither the administration, as the common law, and endeavourit was then formed, nor the op-ed thence to form a rule for his pofition, were of opinion, that conduct, there might, for aught the one might be humbled, and he knew, be another in the jouryet the others not materially exnals of the houfe of commons. An alted, by their appearing for a re- action of his, for which he might folution condemning the general ftand clear before his ordinary judges, may be condemned by that body. He might alfo conceive doubts of the authority, in this particular, though he could entertain none, of the power of the houfe. Thus distracted, between a dread of their power, and the neceflity of executing his own as a magiftrate, a general timidity and unfteadiness muft enfue in the administration of justice, which would produce the most fatal effects upon the peace and good order of fociety. Accordingly a refolution was propofed to the following effect: "That a general warrant "for apprehending and Feb. 15th. "feizing the authors, prin "ters, and publishers of a fedi"tious libel, together with their papers, is not warranted by law." This propofition drew on a very long and very warm debate. Thofe who oppofed it did not ground their oppofition on an affirmance of the legality of the warrants (for, in general, they either admitted their illegality, or put that matter out of the question), but on the impropriety of the method propofed for fettling the law of warrants. They argued that the house of commons, by itself, cannot declare law legiflatively, because it is only a part and not the whole of the legiflature; nor judicially, because it is neither the whole nor a part of any court of judicature. That no abufe of warrants was, in itself, so dangerous an illegality,, as an attempt to destroy the bounds which the wisdom of the conftitution has affigned to the distinct powers which compofe it; that this method could be productive of nothing but confufion, and injustice; of confufion, as the inferior acting magiftrate could never have a certain rule for his conduct, Nor would it introduce a lefs dangerous confufion in the fupreme courts of law, from the fame caufes. The conftitution has taught them to believe, that the judicial power refts in them; and that, in the exercife of it, they are to be guided only by the whole legiflature. But when they find that the houfe of commons takes upon itself to participate, if not to fuperfede, their power, and to alter their rule, with what degree of calmness of mind, and true judicial refolution, can they execute their high and important office? In vain are they made independent of the crown, if they are to be brought into a ftate of dependence on the houfe of commons. indifferent how they are influenced, if they are to take the direction of their judgments from any It is thing, but the known established laws of the land. But, if this refolution fhould pass, not only a general public confufion would arife from it, but a great deal of particular injuftice. The queftion of the legality or illegality of these warrants is, faid they, now actually depending in a bill of exceptions before the ordinary judges. Ought the queftion to be prejudged, and the parties, taking the due courfe which the law allows them, to have their cause revoked to the house of commons, and condemned there by an arbitrary resolution? That is, to condemn men who acted upon the moft numerous precedents, and of the best times; men, whofe known character, and the tenor of whose whole conduct, had fecured them from the leaft fufpicion of an ill intention to liberty; men who, if they have made any miftakes, have in themselves, or those who acted for them, been feverely animadverted on by the ordinary courts of justice. Though the words of the refolution extend only to the cafe of libels, yet the reafon and equity of this refolution extend to all general warrants, in all cafes whatfoever; and will it be thought prudent to deprive magiftrates of a power which is fo often neceffary to the public good? Confpiracies of the most dangerous nature have been nipped in the bud by thefe warrants. Manufacturers have been going off to foreign countries, who, if they had not been stopped and fecured by general warrants, could never have been prevented from transferring fome of the most valuable branches of our trade to other nations. 1 If fuch refolutions be at all proper, it is now at least premature. Why refufe to wait the determination of the courts? The courts may do that regularly, which is fought to be done with more trouble and lefs fatisfaction in this new and irregular way. If the courts do not fatisfy the expectation of the house' by their determination, then it will be time enough for the commons to interpofe. But if in reality the matter be fo preffing in time and importance, that the people cannot (as it is represented) be fatisfied that they are free, until the law on general warrants be declared, let it be declared in a way, that all are agreed is both effectual and constitutional, by act of parliament. The refolution propofed is neither the one nor the other. A bill, therefore, even on the principles of those who favour the refolution, is the only proper method. In this manner the advocates for the administration opposed the refolution. They who fupported it, infifted principally upon the evident illegality of the process by a general warrant. By fuch a warrant, the most innocent man may be dragged from his bed, and, at any hour of the night, be hurried to prifon; his papers, the moft fecret and material, expofed to the knowledge of mean and indifcreet people, and liable to be loft and deftroyed by their negligence. They said, that this kind of warrant had a peculiar and most monftrous quality, beyond almost all other kinds of oppreffive practices, by leaving a difcretionary power over the liberty of the fubject, not to magiftrates only, whose wisdom and regard to character might pof fibly fomewhat temper that arbitrary authority, but to the loweft, and fometimes the moft profligate of mankind, the inferior officers of juftice. For these officers were left entirely to judge, by the latitude of the defcription, whom they fhould fix upon as the offender. The illegality of the warrants being (as they faid) eftablished, the method propofed for preventing the future use of it was natural, conftitutional, and within their own power. They did not pretend that the house of commons was the whole legislature, nor any part of the judicature of this kingdom; but they afferted it to be their undoubted right, a right established by clear and frequent precedent, to cenfure by their refolution any illegal practice which they obferved to be prevalent; and this not to be cited as law in courts of justice, but to ferve as a threat and a monition to thofe courts, and to all perfons public and private, of what they are to expect, when they prefume to quit the limits of the law, and to make any excurfions into the regions of arbitrary power. Nothing can be less fatisfactory, faid they, than our hopes from the decifion of the courts, upon whofe flow and uncertain progress the liberty of Englishmen is defired to attend. Can we look with a paffive acquiefcence on this kind of legal ftruggle about our most important concerns, whilft we fee the privilege of parliament oppofed to the remedy of the fubject, and to prevent a determination upon a point of English liberty? Affairs have been fo managed, that the queftion of the warrants is not directly before the judges, and confequently this point is not in the way of being decided. How then does the house, by paffing this refolution, ufurp the jurifdiction of the courts, or predetermine a caufe judicially depending before them? It is not, nor ever will be, before them. With regard to the objection, that this refolution would tie up the hands of the magiftrate, on dangerous occafions, where fuch warrants might be abfolutely neceffary, they gave it this answer: that the refolution confined itself folely to the cafe of libels, without ftirring captiously so delicate a queftion of government. Anrufe of general warrants will be justified by its neceffity in fo critical an exigence. But is the cafe of a libel fuch a cafe of neceffity? The offence of a libel is not like, that of a confpiracy against the state. There you apprehend, to prevent as well as to punish. But, when the libel is published, the offence is carried as far as it can be carried; and you may wait without any public inconvenience, until proper information enables you to proceed against the offender by the known regular procefs of law. To bring in a bill for regulating warrants, would, indeed, be liable to thofe confequences which are fo improperly charged on the resolution: the refolution keeps a prudent filence upon points, on which a law would make perhaps, an indifcreet declaration; for if the proposed statute fhould wholly condemn fuch warrants, it would take away the use of them |