for feizing papers as well as perfons is moft oppreffive. Even the author of the confiderations (fee p. 106.) admits, that though it be certain, that a crime has been committed, yet he by no means approves of general warrants, where fpecial can be of no effect, whereas in this cafe it is not certain that any crime had been committed, and it is certain a special warrant would have anfwered the end, because the fuppofed criminal was well known, nay, would attend the proper magiftrate, if defired, without any warrant, and was ready to declare from whom he had the book, pamphlet, or paper in queftion, or to take it upon himself, and anfwer any legal profecution that can be brought againft him. A general warrant efpecially one to feize papers as well as perfons, by which the clofets and fhops, perhaps of an hundred gentlemen and tradefmen, may be ranfacked and thrown into confufion, is therefore in this cafe fo abfolutely unneceffary, that there can be no reafon for, nor any defign in granting fuch warrant, but that of putting an end to the liberty of the prefs, by making it fo dangerous to publish any new performance, that in a little time we fhould have nothing published but panegyricks upon the then prefent minifters and meafures, and fatyrs upon every gentleman in the kingdom, that pretended to any honour or public fpirit. charge the conftable with him he was not to be imprifoned at all, but only to be bound over to appear as evidence. Yet, by our modern practice, a printer or bookfeller, who innocently prints or publishes a pamphlet, fuppofed by the doctrine of inuendo's to be feditious, is to have his books of account and papers all feized, his fhop thrown into confufion, and himself shut up in a messenger's prifon gartet, perhaps a week, till the fecretary of ftate has time to examine him, altho' he was ready to declare who was the author, and where he was to be heard of, the very first moment he was informed of his having printed or publifhed a pamphlet that was deemed by the fecretary of state to be feditious. Can this be law? Can it be common sense? Can uch a practice be continued with any other defign than that, as I have faid, of putting an end to the liberty of the preis? Nay, our enmity to the prefs may at last come to fuch a height, that it will be dangerous to print or publish a panegyric upon the king, or any of his minifters, left it should be fupposed to be an ironical fatire, which was the cafe at Rome in the time of fome of their first Emperors, as we may learn from Pliny's panegyric upon Trajan, where he tells us, that to a prince of real merit, one might fafely give due praife, because, fays he, non enim periculum eft ne, cum loquar de humanitate, exprobrari fibi fuperbiam credat: quum de frugalitate, luxuriam: quum de clementia, crudelitatem : quum de liberalitate, avaritiam : quum de benignitate, livorem: quum de continentia, libidinem: quum de labore, inertiam : quum de fortitudine, timorem. Surely the printing or publishing of a feditious, or even of a treasonable libel, by a tradesman in the way of his trade, and without knowing any thing of its contents, is not fuch a manifeft crime as that of a tale-bearer who repeats a falfe and flanderous tale: The latter must know the contents of what he repeats, Although this practice muft to every and as a tale-bearer is a fcandalous em- man of common understanding appear ployment, he can have no good reafon to be oppreffive, yet our modern lawfor repeating what he hears; whereas the yers have gone ftill farther, for they former cannot with any certainty be pre- have laid it down as a maxim, that fumed to know the contents of the book every man concerned in printing or or pamphlet he prints or publishes, and publishing a feditious libel, though they he has a good reafon for printing or pub- know nothing of the contents, yet they lifhing it, because he does it in his way are punishable. According to this docof trade, which is a lawful trade; yet in trine a printer or publisher, after he has the wife reign of our Edward the first, been thus treated, might be tried, conand by the faid 34th chapter of the first victed, and punished for having printed ftatute of Westminster, the tale-bearer or publifhed a feditious libel, though he was only to be kept in prifon till he had not fo much as a fufpicion of its brought the author of the tale into court, being feditious, until he was feized by confequently, if he was ready to bring the ftate meffenger, nor could he be a the author into court, that is to fay, to legal evidence against the author or edi tors tor, until he had got the king's pardon nay he would probably take care not to difcover the author or editor until he had got a pardon or at least a public promife of it in the Gazette, and this would of courfe give him the character of an informer or impeacher, which would render his evidence very fufpicious. This doctrine is therefore a fort of felo de fe, because it may prevent our being ever able to discover or punish the original and chief offender. How much more confonant then to law as well as common fense is that doctrine which fays, that no man can be guilty of publifhing or printing a feditious libel unless he knows that it is a feditious libel: A man is never condemned for buying stolen goods, unlefs it be proved to the fatisfaction of the jury that he bought them knowing them to be ftolen: In many cafes a man's knowledge as well as the fact must be proved; therefore when a pamphlet or paper is to be profecuted as a feditious libel, we should confider, whether it be apparently and upon the face of it feditious, or only may be fhewn to be fo by interpretation and inuendo; and we should confider, whether the printer or bookfeller printed and published it at his own expence and risk without any knowledge of the author or editor, or upon the faith and at the defire of the author or editor. If the pamphlet be apparently and upon the face of it feditious, and if the printer or bookfeller printed and published it at his own expence and risk, without any knowledge of the author or editor, we must fuppofe, that he perufed it, in order to judge, whether the fale of it would answer the expence of printing and publishing, and confequently we must conclude, that he printed and publifhed a feditious libel, knowing it to be a feditious libel: But if it be not apparently and upon the face of it feditious, we are to confider, that a plain honest tradelman might upon perufal have thought that to be an innocent harmless book or paper, which by an artful attorney general's interpretation or inuendo may afterwards be thewn to be feditious; therefore with respect to any copies he printed and fold, before he had notice by proper authority of it's being feditious, we are not to conclude that he printed and publifhed a feditious libel, knowing it to be a feditious libel; for no man is to be prefumed guilty, if there be any probability of his being innocent. Then again, if the printer or bookfeller printed and publifhed a book, pamphlet, or paper, upon the faith and at the defire of the author or editor, there is not only a possibility, but the highest probability that he printed and published it without having ever fo much as once perused it; confequently with respect to any copies he printed and fold before he had notice by proper authority of it's being feditious, we cannot conclude, that he printed and published a feditious libel knowing it to be a fedìtious libel, no not even though it be apparently and upon the face of it feditious, and much more if it can only be fhewn to be fo by interpretation and inuendo; and therefore if the printer or bookfeller be in this cafe ready to declare the name of, and to enter into a recognizance for appearing against the author or editor when apprehended, he ought not to be imprifoned or detained in custody a moment after he has entered into fuch recognizance, even though the author or editor should in the mean time make his ef cape; for there is this difference between a tale bearer and a printer or bookfeller, that the former cannot repeat a flanderous, or in the modern phrafe, feditious tale, without, knowing it to be fo, whereas the latter may print and publish a feditious book without knowing it to be fo; and that of a talebearer was never yet fet up or allowed as a trade in any country, but that of a printer or bookfeller is a trade not only allowed, but fuch a one as ought to be encouraged in every country, becaufe it is for the benefit of mankind in general as well as of every particular fociety. I have been the more particular upon this fubject, in order to combat that flavifh and tyrannical doctrine that a printer or bookfeller, who prints or fells a feditious libel, though he knows nothing of the contents, yet he is puniable: a doctrine firit broached by iome knave of a lawyer, and fince induftriously propagated by the tools of bad minifters; and the reason they give for it is ftill more ridiculous, if poffible, than the doctrine itfelf: Becaufe, fay they, the public peace is more to be regarded than a private intereft: Is the public peace more to be regarded than the public intereft and public liberty! This is the very reason aligned by every tyrant for difarming the peo ple ple, and for a like reafon all buying and felling may be prohibited, left the people fhould buy and fell tolen goods, or all free converfation, left they fhould ftir up one another to infurrection or rebellion; for if it should be made neceffary for every printer and bookfeiler to read and confider every book and paper and often to have the advice of council learned in the law upon it, before he could venture to print or publish it, which would be the confequence of this doctrine, no man would ever be bred to the business, becaufe no man could live by the trade. Therefore, I hope all juries will for the future adopt the rules I have endeavoured to eftablish, and always bring in their verdict not guilty, unless it evidently appears to them, that the prifoner printed or published the book, pamphlet, or paper in queftion, knowing it to be a fcandalous or feditious libel. I fay all juries, because I think the jury and they alone, are judges of the knowledge as well as of the fact of printing or publishing; for I do not know of its having been ever as yet contended, that in a tryal for buying ftolen goods knowing them to be stolen, the jury were to find as to the fact of buying only, and leave it to the court to determine, whether the buyer knew that they were stolen; and unless the jury be convinced, that the libel is manifeftly fcandalous or feditious, furely they cannot upon oath find, that the prifoner knew it to be fcandalous or feditious. I hope I have now fhewn, that a general warrant for apprehending and feizing the authors, printers, and publifhers of a feditious libel, is not warranted by law: That the adding of these words, together with their papers, is not only illegal but of the most dangerous confequence, and unneceffarily oppreffive: That this is the cafe even when the libel has been privately printed and difperfed; but that when it has been openly and avowedly printed and published, and for what we know innocently, by a tradesman, in the ufual way of a lawful trade, the iffuing of fuch a general warrant is not only illegal and unneceffary; but ridiculous, because it tends towards rendering it impoffible to difcover fo as to convict the original, and perhaps the only offender. Now with regard to the motion as it was afterwards amended, the adding the word treasonable, does not make a warrant le gal which is in itself illegal. A general warrant to apprehend all traitors would be ridiculous, because every man is by law obliged to apprehend a man who has been declared a traitor, or who is seen in the very act of treafon, and every good fubject will do fo if it be in his power. We know what is treafon, because it is fully and particularly fet forth in the act 25. Edward 3, ftat. 5. c. 2. and because it is enacted by the act 1 H. IV. c. 10. that nothing fhall be deemed treason but, what is declared to be so by the said act of Edward 3; but we do not know what is meant by the word treasonable, because like the word feditious it depends entirely upon opinion, and that may be deemed treasonable by one man, which by most other men would be deemed extremely loyal, and highly meritorious. As treafon is a more heinous crime than fedition, treasonable must be more criminal than feditious, and the more criminal any fact is for which you grant a general warrant, the more difcretionary power you put into the hands of a low and mean officer to opprefs and raise contributions upon the innocent; confequently a general warrant to apprehend the authors, &c, of a feditious and treasonable libel must be more illegal, than one to apprehend the authors &c. of a feditious libel. Then as to fuch a warrant's having been iffued according to the ufage of office, the ufage of no, office in this kingdom, not even of his majesty's most honourable privy council, can make that to be law which was not law before. Such an ufage may justly be pleaded in extenuation of the crime of him who laft followed it; but after notice being once taken of it's being illegal and unconfti. tutional, whoever follows it afterwards, muft follow it at his own peril, and would deferve to be impeached and condignly punished, because of his being before apprifed of it's being an unwarrantable ufage. And as to fuch a warrant's having been frequently produced to, and the validity thereof never debated in the court of King's Bench, but the parties bailed by the faid court; it may be urged as argument for accufing the judges of neglect of duty, if the warrant was actually read in court, because they are by the mild laws of this kingdom obliged to be of counsel with the prisoner at the bar, bar, and ought to have informed the prifoner that as the warrant was illegal, he had a right to move for being difcharged; but as the warrant was never debated, it is poffible to fuppofe that it was never read in court, and confequently cannot properly be faid to have been produced to the court, and it is certain, that in most cases of this kind the prifoner was only continued upon his recognizance by the court of King's Bench, as he had before given bail at the fecretary's office not only for his appearance, but alfo for his good behaviour: fo that a writ of habeas corpus was never brought, but when the perfon apprehended refused to give bail at the fecretary of state's office for his good behaviour as well as for his appearance; for to infift upon fuch bail was likewife the ufage of that office, and was as little warranted by law, as their ufage of iffuing general warrants; therefore if any prifoner apprehended even upon a particular and legal warrant from a fecretary of ftate, as being a justice of the peace, and in commiflion for the county where the libel was printed, difperfed, or published, which I believe no fecretary of ftate ever was for the city of London: I fay, if any fuch prifoner fhould offer unexceptionable bail for his appearance, I believe, he would have a good action of falfe imprisonment, both against the fecretary of state and the meffenger, and would recover damages for every hour he was detained, after his tender of fuch bail. Thus, I think, it must now appear that, if the reason for the House of Commons not agreeing to the motion as first propofed was, because they did not think the question of fuch importance as to require the interpofition of that houfe, the amendments made to that motion would have added to that importance: for if the ufage of the secretary's office, and the filence of the court of King's Bench, could have made that to be law which was fo inconfiftent with the fundamental rules of our conftitution, their agreeing to fuch a refolution would have been neceffary, as a foundation for a new bill; but as the contrary of this was very certain, the houfe was convinced, that the iffuing, of fuch a warrant would be declared to be illegal, the very first time the queftion came to be debated in the court of King's Bench; and after its being there declared illegal, it would be fo high It We may now fee the true and, I believe, the chief reafon why the house of commons refused to agree to this motion, either as first offered, or as afterwards amended: They could not cenfure the judges of the court of King's Bench for not giving their opinion upon a queftion that had never been started, much lefs debated in that court : As little could they cenfure the fecretaries of state who had laft iffued fuch general warrants, as it had been the ufage of that office for a great number of years, and never once declared to be illegal by any court of juftice: And it would have been ridiculous to pass a new law for declaring that to be illegal, which was fo clearly and evidently fo by the laws then in being. The motion therefore if agreed to, could not have been followed by any fort of further proceeding; and it is not agreeable to our conftitution for that houfe to declare by their refolution, what is law, or what is not law, merely for the fake of giving their opinion, and without a view to any further proceeding: They are the makers of law, but they are not by our conftitution the interpreters of kiw, in any cafe but what relates to their own privileges: To have an important point of law determined by a refolution of fuch a numerous affembly, where there are fo many members that do not pretend to understand any thing of law, would be of the most dangerous consequence to our conftitution: They might fometimes be right: They would have been right in the refolution then propofed; but they might often be wrong; as a refo. lution may hastily and precipitately be agreed to, without going through thofe forms, or requiring that deliberation, which is ufual and neceffary, generally Speaking, for paffing any bill into a law. Therefore, as their agreeing to what was then propofed would have been a molt dangerous precedent, it was moved and agreed to, that this debate be adjourned till this day four months. The only other affair that did not occafion any bill, which I think neceffary to take any particular notice of, was as follows: On the 23d of January a committee was appointed, to inquire to the management and application of all fuch fums of money, as had been collected within twelve years then laft pailed, by virtue of any act of parliament for repairing any particular highway; and to report the inatters as they fhould appear to them, together with obfervations and opinions thereupon, from time to time, to the houfe. To this committee all that came were to have voices and on the 29th of March Sir John Phillips reported, that the committee had come to feveral refolutions, which were then read at the table a firtt and fecond time, and agreed to, as follows: That it is the opinon of this committee, ft. That in most of the turnpikes they have inquired into, there has been great milimanagement of the public money. ad. That the faid mifmanagement is chiefly owing to the acting trustees having been employed or interefted in the works carried on by the faid truft. 3d. That no perfons, for the future shall act as trustees, in any turnpikeroad, who are employed or interested in the works carried on by the faid truft. And after thefe refolutions were agreed to, it was ordered, that the faid report and appendix, together with the proceedings of the houfe thereupon, be printed; but although thefe refolutions were well founded, and although the 3d. mult be allowed to be both wife and juft, yet query, whether fuch perfons can be excluded from acting in the truft, if there be no claufe for excluding them in the act which established the trust. And as I have always taken notice of thofe honourable and grateful acknowledgments made by parliament, to thofe officers who, in any eminent degree, ferved their country in the late glorious and fuccefsful war, either by fea or land, I cannot conclude the hiftory of this feffion without obferving, that on the 28th of November, Mr. Speaker acquainted the house, that in obedience to their commands of the 19th of April then last, he~ had fignified to Brigadier General Draper and Vice Admiral Cornish, the thanks of that houfe, for the eminent fervices they had performed to their king and country, in affifting in the conquest of Manila, and the reduction of the Philippine islands; (fee 1763, p. 208.) and that he had upon the 21st day of April then laft, received the following antwer from Brigadier General Draper. "SIR, Pallmall, April 21, 1763. I am this moment honoured with your moft polite and obliging letter, fignifying the fenfe which the Houfe of Commons has been pleafed to entertain of my poor fervices. The attention, that the gentlemen of that honourable Houfe have conftantly fhewn even to the smallest degree of military merit, during the late war, can be the only reafon for which they have condefcended to take notice of me. I fhall ever efleem it the great honour of my life, to have had their thanks and approbation. I am, Sir, &c. WILLIAM DRAPER." To this I fhall only add, that on the 19th of April his majefty came to the Houfe of Peers, and after giving the royal |