made public; that of this there had happened a most flagrant instance in the case of one of these persons, the apprehension of whom and of his papers had originally given rise to this debate; some letters of his, no way relative to the public, having transpired soon after the execution of the warrant against him and his papers. That, great as the mischiefs might be, with which general warrants for seizing the persons and papers of those guilty of writing seditious, and even treasonable libels, must be attended to individuals, those attending general warrants against the printers and publishers of such libels, unless these libels carry something seditious or treasonable in the very title, or they have been legally declared such, must be still greater to the public, since in that case printers and publishers, to be safe, must read every thing that goes through their hands; and of course would print and publish very little; the consequence of which must be a suppression of the press; an evil more prejudicial to the public than almost any abuse of it can be; that such printers and publishers cannot be considered in as bad a light as tale bearers, since it is impossible for a man to tell a thing without knowing what it is he tells, whereas no printer or publisher can be supposed to know what every thing is that he prints or publishes; and notwithstanding, by the laws of some of our wisest Saxon monarchs, the tale-bearer was to be kept in prison, only till he gave up his author, for that a printer or publisher of an offensive paper ought not to be seized and detained till he gave up the writer, was not in the least pretended by them. That the cases, if any, in which it might be proper to endeavour to secure, by a general warrant, the persons, and by almost any warrant, the papers of those concerned in the writing, printing, and publishing of seditious, and what a minister might think proper to style treasonable libels, were so few, that they might be justly ranked amongst those very uncommon events, against which the legislature has not thought proper to make any provision; because the providing against all such uncommon events would swell the law to an intolerable degree; that, besides, it was almost impossible to imagine any case in which every evil, with which such practices could be attended, might not be seasonably enough remedied, and even prevented by the presentment of a grand jury; or, at worst, an information in the court of King's bench. Such were the arguments now urged against ministers too freely attributing treason to libels, and their granting general warrants for seizing the persons and papers of the authors, printers, and publishers of seditious libels, and even such libels, as they might think proper to deem treasonable; and in both respects they must be allowed to have great weight, considering how much more the scale preponderates at present towards the safety of the people than the grandeur of the prince. For there is great reason to think, that, in some periods of English history, the imputation not only of sedition, but even treason, might have stuck to the writings now stigmatized as such by the ministers, whose friends accordingly did not fail to make use of them. There is, said they, in the statute called Westminster, chap. 24, a law against telling or publishing any false news or tales, whereby discord, or occasion of discord, or slander might grow between the king and his people, or the great men of the realm; and the so doing was reckoned sedition in the reign of that nursing mother of her people queen Elizabeth; and, as to the danger of hurting the reputation or fortune of innocent men, by encouraging an enquiry into the commitment of some offences, there is frequent mention made in the English records, of the king's sending orders to sheriffs or other magistrates to enquire into some particular sort of crime, then commonly committed within their district, and to seize and imprison the offenders; and at the time of issuing the general warrants that have given rise to this debate, what crime could be more common than that of telling or publishing false news and tales, whereby discord, or occasion of discord, or slander, might grow between the king and his people, and the great men of the realm ? That, in the case of offences not near so grievous, it has been an immemorial custom to disturb the peace of a whole country by that solemn alarm called hue and cry,' and thereby made it lawful for all inhabitants to stop, and all magistrates to enquire into the character of every stranger, for the sake of finding out one single delinquent. That to question the legality of general warrants, would be impeaching the character of the highest and most respectable tribunal, next to the House of Lords, in the whole realm; a tribunal, whose judges for many years past, that general war rants have been in use, have been allowed to be men of the soundest capacity and most unbiassed integrity; since it is not to be supposed, that they, who are always, even by the law, supposed to be of counsel for the prisoner, and cannot, there fore, but consider themselves as such, should overlook any flaw in an order to deprive a man of his liberty, though not taken notice of by the counsel of his own appointment; men, who have been not only so attentive to the spirit and letter of the law, as often to decide cases on motives never urged by the counsel of either plaintiff or defendant, but so watchful of the very shadow of it, as sometimes to dismiss causes for want of a scrupulous compliance with mere exterior forms. That, besides, it could not but be supposed, that many of the counsel employed on these occasions were lovers of liberty and very able lawyers, and that the silence of such men is, alone, of great weight, in the opinion of a chief justice, whose capacity and integrity their adversaries themselves, they were sure, could not suspect; an Opinion solemnly delivered from the bench, and in that cause too, which originally gave rise to the present debate*. That, if a law, made at the revolution, in the reign of William 3, who is universally allowed to have been as jealous of the prerogative of the crown as was consistent with the security of his new acquired possession of it, required that warrants, granted during the suspension of the Habeas Corpus Act, for the detaining or apprehending of such persons as his majesty should suspect were conspiring against his person or government, should be signed by six of the privy council; the last act passed for the same purpose required, that such warrants should be signed, either by six of the privy council, or one of the secretaries of state, by which the high authority of that office, which so many persons affected to consider in a mean light, is, if not recognized, at least established, since it is thereby made equal to that of six members of the privy council, six men, whose persons, next to those of the royal family, are held most sacred, a bare attempt upon their lives being felony without benefit of the clergy. That it must appear very extraordinary, if not ridiculous, that a House of Commons, which had made no law for the re Lord chief justice Pratt's Argument on delivering Mr. Wilkes from the Tower. lief of the most innocent persons even in domestic life, closely confined and cruelly treated in private mad-houses, without any judicial proofs of insanity, and merely at the instigation of persons no way related to them, or only related to them enough to have an interest in their confinement and death, and could overlook so great an evil notwithstanding the flagrant proofs of its actual existence, should now take so much pains to declare illegal the comparatively most mild detention of supposed offenders against the public, by orders of persons so high in dignity, and in the confidence of the prince, and even of the legis lature, as appears by the above law to make the opinion of one of them equal to that of six privy counsellors; men of such justice and humanity, that, in dismissing the persons confined in virtue of their warrants, they seldom or never failed to enquire of themselves, if they had received the full benefit of the ample allowance made for their support, and severely to resent any misapplication of it. What the friends of the ministry might want in these arguments against the illegality of general warrants, &c. they made it up, perhaps, in those for the propriety of stating the question, as a question now depending before the ordinary courts of justice in Westminster-hall. They remarked, that, if the proceedings there against the secretaries of state met with any obstacle, it was entirely owing to the parties seeking redress; who, in an offence deemed even by the opposite party to be of a public nature, chose, from a principle of avarice, to be plaintiffs for themselves, rather than prosecutors for the public: and accordingly had recourse to a court established for the distribution of civil justice, merely because they saw that court give as damages to the plaintiffs, what, in a higher court established for the infliction of vindictive justice, would have been exacted as a fine to the public, though they could not but know, that, in the court to which they applied, their proceedings were liable to be stopt by privilege of peerage; that the giving of such heavy damages could not be deemed entirely the act of a jury independent of the bench, since, on a motion to have such damages reduced as exorbitant, they were confirmed by the bench, independent of a jury. That, if any resolution was wanting, it seemed to be one for keeping distinct these departments of justice, and prevent ing any court's giving as damages to plaintiffs, what had ever been considered as fines upon criminals; that, if this was to be done, the propriety of which they did not deny in many cases, where no justice could be expected without throwing some powerful temptation in the way of the plaintiff, as in cases of usury and smuggling, it ought to be by an act of the legislature, and not the determination of any particular tribunal, whose decisions in such cases must be considered by all sober men as little less arbitrary and unconstitutional than those of a Starchamber. As to the propriety of the House's coming to any resolution upon this affair, when stated by the House itself as actually depending in the ordinary courts of justice, it was urged, that it was no more than what had been lately done in the case of Mr. Wilkes; when writings were voted libellous by the House, and he the author of them, and all without any proof upon oath, though at the very same time that gentleman was under a prosecution for them as libellous in the court of King'sbench; and consequently, both judges and jury might have been influenced by such resolution in their determinations concerning the nature of the offence and the person of the offender. To this answer was made, that it was impossible for the House not to come to some resolution on that occasion, since the person accused was a member of it, and by claiming privilege as such, could not but be construed to have voluntarily submitted to the jurisdiction of the House; that this, besides, was a particular case, in which the House acted more like an inquest or grand jury, whose decision was not to influence the petty jury, than as a court of justice, whose decisions were to be final and conclusive, and only claimed that jurisdiction over its own members, which so many inferior bodies of men have been always allowed over theirs; whereas the proposed declaration against the legality of general warrants is very general in its tendency; so general, as, in some respects, to be liable to the same objections with the general warrants of secretaries of state, merely as such.* Proceedings in the Commons on the Bill to vest the Isle of Man in the Crown.+] See Annual Register, 1765, p. 27. "It was found expedient for the prevention of frauds committed by smugglers, to January 21. The Chancellor of the Exchequer presented to the House, " A Bill for more effectually preventing the mischiefs arising to the revenue and commerce of Great Britain and Ireland, from the illicit and clandestine trade to and from the Isle of Man ;" and the same was read the first time. Feb. 13. A Petition of the most noble John duke of Athol, and Charlotte duchess of Athol, his wife, baroness Strange, was presented to the House, and read, setting forth, "That the Isle of Man, with its dependencies, was originally granted by king Henry the 4th, by letters patent under the great seal of England, dated the 6th of April, in the 7th year of his reign, to sir John Stanley, under whom the petitioner, the duchess, claims by lineal descent, his heirs and assigns; that family disputes having arisen many years subsequent to the grant, which were determined by an amicable adjustment, in consequence of a large pecuniary consideration paid by William, earl of Derby, king James the 1st, in order to effectuate the accommodation, and to extinguish the claims of the contending parties, who had been satisfied, was graciously pleased to make a new grant and settlement of the island, with its appurtenances, by letters patent under the great seal of England, dated the 7th of July, in the 7th year of annex the Isle of Man to the realm. This tenure; it was part of the crown, but not of small territory formed a domain of a singular the realm of England: it was under the allegiance of the king, but governed by its own laws and customs. In these respects it resembled Jersey and Guernsey; but in those islands the king appointed governors, and retained the jurisdiction of the admiralty; the superintendance of civil justice vested in the king in council, and he could prosecute a suit in his own name in any of the courts of Engand jurisdiction of those islands vested in the land; in a word, the prerogatives, royalties, crown, and the writs from the superior courts at Westminster were allowed to operate in them. But in the Isle of Man the king had no courts, no officers; and no suits arising there, whether at the instance of the party or of the crown, were determinable in England. It was even doubted if the great prerogative or mandatory writs, which issue to all places under subjection to the crown of England, would be valid there. This singular inheritance had been for nearly four centuries vested by parliamentary charter, in the family of the duke of Athol." Adolphus. tablishing of the Isle of Man, by which it was enacted, that the said William earl of Derby, and the lady Elizabeth his wife, during their lives, and the longer liver of them, and after their deaths the said James lord Stanley and the heirs male of his body, and in default thereof, Robert Stanley and his heirs male, and in default thereof, the heirs male of the earl, and for default of such issue the right heirs of the said James lord Stanley, should, and might for ever thereafter, have, hold, quietly enjoy, freely and clearly, against his majes his reign, in favour of the said William, then earl of Derby, and Elizabeth his wife, and James lord Stanley, their son and heir apparent, and thereby to grant all the isle, castle peel, and lordship, of Man, and all islands and dominions to the said island belonging, all royalties, franchises, liberties, sea ports, and all things to ports duly appertaining, lands, woods, forests, chaces, fisheries, marshes, waters, commons, lands gained or to be gained from the seas, and all profits, commodities, emoluments, hereditaments, and appurtenances whatsoever, situate, lying, or be-ty, his heirs and successors, under the teing within the said isle, castle peel, and lordship of Man, or within the seas contiguous and adjacent to the said island, or within any of the islands and dominions to the said island howsoever belonging; the patronage of the bishopric of Sodor and Man, courts of admiralty, courts port mote, wrecks of the sea, anchorage, groundage, and all other rights, royalties, jurisdictions, franchises, liberties, privileges, profits, and advantages whatsoever, in as full and ample a manner as any other person or persons theretofore held the said isle, castle peel, and lordship, or any other hereditaments within the same, or within the sea thereto belonging, had or ought to have held and enjoyed the same, by virtue of any former grants or letters patent from the kings or queens of England, or of any act or acts of parliament, lawful prescription, usage, or custom, or any other rights or title, and as fully and amply as his majesty or any of his royal predecessors, kings or queens of England, had, or ought to have held the same: To hold to the said William earl of Derby, and Elizabeth his wife, during the natural life of them and the longer liver of them, and, after their decease, to the said James lord Stanley and his heirs, to his and their only proper use and behoof; to be held of his majesty, his heirs and successors for ever, by homage liege, and the delivery of two falcons twice only, viz. immediately after the homage made, and afterwards to the kings of England on their coronation day, in lieu of all other customs, services, and demands, with divers other valuable and extensive privileges, and a stipulation, on the part of the crown, for a perpetual quiet enjoyment to the grantees of the Isle, and every thing therewith granted: That an act of parliament afterwards passed, in the same 7th year of his majesty king James the 1st, intituled, An Act for the assuring and es[VOL. XVI.] nures and services therein mentioned, and against the several persons therein named, the coheiresses of Ferdinando earl of Derby, and against the heirs of the said earl Ferdinando and Thomas Ireland, esq., his executors and administrators, the said isle, castle peel, lordship of Man, and all islands and hereditaments thereto belonging, royalties, franchises, liberties, sea ports, and all things to ports duly appertaining, courts admiral, courts port mote, customs, free customs, imports, profits, emoluments, and hereditaments whatsoever, situate or being, renewing or happening, within the said isle, castle peel, and lordship, or within the sea to the said island adjacent or belonging, or in or within any other islands, lands, manors, castles, farms, or lands, to the said Isle belonging, or in, to, or out of the same, or any of them, howsoever incident or belonging, or part or parcel of the same, or at any time theretofore had, known, accepted, enjoyed, or reputed, as part thereof, and the rents, duties, customs, and services, thereto incident or appertaining, and all liberties, franchises, privileges, jurisdictions, forfeitures, immunities, exonerations, acquittals, and hereditaments, granted by the preceding letters patent, and the general saving clause expressly excepted his majesty, his heirs and successors; and that, by an act, passed in the twelfth year of the reign of his majesty king George the 1st, intituled, An Act for the improvement of his majesty's revenues of customs, excise, and inland duties, it was enacted, for better enabling his majesty to prevent the frauds and abuses therein mentioned, in the exporting or importing goods and merchandizes to and from the Isle of Man, that it should be lawful for the commissioners of the treasury, on behalf of his majesty, his heirs and successors, and also for the then earl of Derby, and other persons named in the [C]. | act, and all other persons claiming under from the honours of their family, so anthe earl, or any of his ancestors, to treat, cient and princely a patrimony, the reward contract, and agree, for the absolute pur- of the services and the monument of the chase or sale, release or surrender, to the virtues of their ancestors, granted by use of his majesty, his heirs and succes- kings, and confirmed by parliament, and sors, of all or any estate, right, title, or derived to them by immediate lineal sucinterest, which the earl, his tenants, and cession, through a period of near 400 other the persons aforesaid, then had or years, do not presume to set their private claimed, or could or might have or claim, feelings and partial considerations in comin or to the said island or lordship, or all petition with public utility and convenior any regalities, powers, honours, supe- ence; and, if the service of the state deriorities, jurisdictions, rights, privileges, mands a resumption of their ancient hereduties, customs, revenues, profits, or other ditary rights and revenues, they throw advantages whatsoever, in, over, or about themselves, with the most dutiful submisthe said island of Man, or its dependen- sion, upon the pleasure of their sovereign, cies, for such sum or sums of money, or and the disposal of parliament, trusting upon such other terms or conditions, as with unlimited confidence in the justice they should think fitting; and, upon the of his Majesty and his parliament, distinexecution of such contract, and the con- guished, in all their acts, for their attenveyances to be thereby agreed on, the tion to, and tenderness of, the civil rights commissioners of the treasury were em- and property of the subject, and relying powered, out of any monies arisen, or to on the faith held out and pledged to them arise from any customs, subsidies, imposi- by the legislature on a former occasion; tions, or other duties upon the importation that the petitioners beg leave to make this or exportation of any goods or merchan- declaration, at a time when overtures have dizes, then or thereafter to be granted, or been made to them by the officers of the payable to his majesty, his heirs or suc- crown, under the powers of the said act; cessors, in Great Britain, Wales, or Ber- and when they observe, by the votes of wick upon Tweed, to direct the payment the House, that a Bill is depending for a of the monies to be agreed on for such second reading, intituled, A Bill for the purchase to the persons intitled to receive more effectual preventing the mischiefs the same; and that the said James, the arising to the revenue and commerce of last earl of Derby, died in 1736, when the Great Britain and Ireland, from the illicit island and its dependencies, by virtue of and clandestine trade to and from the Isle the limitations in the preceding letters of Man; by which, should the same pass patent and act of parliament, descended into a law, the petitioners apprehend, all to the most noble James duke of Athol, the valuable rights, privileges, and advanlate father of the petitioner the duchess, tages, granted to their ancestors, under as heir general to James lord Strange; the sanction of the legislative authority, and his grace delivered to his present Ma- so long exercised and enjoyed by them, jesty, upon his coronation, the two fal- to the extent of their grant, and so lately cons, reserved by the grant, and payable recognized by parliament, will be wrested upon that august solemnity; that the said and torn from the petitioners, without any James duke of Athol afterwards departed provision made for that recompence and this life on the 8th of January, 1764, and compensation, which the legislature, upon thereupon the said Isle, and its depen- a former hearing of the patentees right, dencies, devolved upon the petitioner the seemed to consider as a debt to be paid duchess, his only child: and that the peti- by the public, for the great consequential tioners, having so lately become proprie- advantages which would result to the comtors of the said Isle, are, in a great degree, munity, from a resumption expedient perunacquainted with the particular treaties haps for the state, but injurious and detriand negociations which have been carried mental to the proprietor: and therefore on between the great officers of the crown praying, that they may be at liberty to be and their ancestors, touching the pur-heard, by their counsel, against the said chase of the said Isle, and other their charter rights and jurisdictions, in and belonging to it, in consequence of the said act of the 12th of his majesty king George the 1st; but the petitioners, reluctant as they own themselves to be, to disunite Bill: and that the House will be pleased to take the premises into their consideration, and to grant the petitioners such relief therein, as the nature, circumstances, and justice of the case may require." Ordered, That the said Petition do lie |