are once up, they may call every man's house a bawdy-house; and this is a general thing, it affects the whole nation.

Now to come to this instance. If you believe the evidence, Dammaree was concerned in pulling down two meeting-houses: he was not present at Drury-lane, that is, he was not proved to be there: but if he set others on to do it, it is his doing, and he as much pulled down that meeting-house in Drury-lane, as if he had pulled it down with his own hands. Besides, they tell you his declaration, that he would have all of them pulled down. Again, these gentlemen do not seem to deny, but if the intention were general, it would be levying war if it were general, where would it end? And it is taking on them the royal authority; nay, more, for the queen cannot pull them down till the law is altered: therefore he has here on him not only the royal authority, but a power that no person in England has. It concerns all that are against the meeting-houses on one side, and all that are for them on the other, and therefore is levying war.

They said, they would desire this point to be reserved to them on the account of the opinion of the lord chief justice Hale: But I believe this matter has been so often settled, that it would be strange for us to depart from such a settled rule of law; for these are only the same arguments that were offered by the lord-chiefjustice; and he offered the same arguments that were used in queen Elizabeth's reign; but it was then held to be treason, and has been held so ever since. His objection made them consider it then, and they did so; and I suppose they will not expect that it should have more weight out of their mouths than out of his. It was then settled, and has been taken for law at all times since, so that it is not a matter to be now called in question. And as to the statute of 13 Eliz. the intention to levy war is surely not an intention to do a thing, which when it is done, is not levying war.

Thus the matter stands in point of law: I take it to be clear that it is levying war, if you take him to be guilty of being at one of the meeting places, and leading them, and tempting them to another. Whether that is true, or not, must be left to your consideration. You have heard what has been said, and what difficulties arise in point of time, and on the other proofs: If you are of opinion, that he was present at Lincoln's-inn-fields, and did encourage them, and acted any otherwise than by force; if you believe he led, or invited them to another place, and pulled down that, then you will find him guilty of high treason. If you think he was not there, or was under a compulsion, then he will not be guilty.

(S.T. xv. pp. 606-610.)

XIV

WILKES AND GENERAL WARRANTS
(1763–1766)

[During the seventeenth century it had been customary for the Secretary of State from time to time to issue General Warrants for the arrest of the author or authors, publisher or publishers of alleged libellous papers, and for the seizure of the papers concerned. And the practice was continued after 1695, when the House of Commons refused to re-enact the Licensing Act, which had given special powers to the authorities for the arrest of libellers and seizure of their papers. On April 30, 1763, John Wilkes, a member of Parliament, who had published in the famous No. 45 of The North Briton a severe criticism of the King's Speech, was arrested by two of the King's Messengers on a General Warrant issued by the Earl of Halifax, Secretary of State, and committed to the Tower of London. On the same day in the Court of Common Pleas a writ of Habeas Corpus was moved for. On May 2 the return to the writ by the Messengers concerned certified that Wilkes "was not in their custody," whereupon another writ was directed to the Constable of the Tower, the return to which on May 3 certified as reason for his detention the warrant of commitment of two secretaries of state in terms similar to the General Warrant on which Wilkes had originally been arrested. Serjeant Glynn on behalf of Wilkes then moved the court for his discharge out of custody without bail on these grounds: (1) that there was no evidence he was the author or publisher of No. 45 of The North Briton; nor (2) that No. 45 was a seditious libel; (3) that Wilkes as a member of Parliament was privileged from arrest save for treason, felony, or breach of the peace. It is to be observed that the legality of a General Warrant was not before the court. Subsequently Lord Chief Justice Pratt, afterwards Lord Camden, gave judgment (Excerpt IV.) that Wilkes must be discharged from his imprisonment-a decision which caused "a loud huzza in Westminster Hall." Meanwhile the matter had been discussed in both Houses of Parliament, for accounts of which see the authorities cited below, and it ultimately occasioned several important cases in the law courts. See Leach v. Three of the King's Messengers (p. 314) and Entick v. Carrington (p. 316). The excerpts here given are: (1) two specimens of General Warrants; (2) the resolutions of the House of Commons in 1763 and 1764; (3) the resolutions of the House of Lords and a protest arising therefrom; (4) the judgment of Pratt, C.J., in Wilkes v. Lord Halifax; (5) a passage from the summing up of Pratt, C.J., in Wilkes v. Wood; (6) the resolutions of the House of Commons in 1766 declaring General Warrants illegal; (7) a passage from Lord Mansfield's speech in the House of Lords on January 9, 1770, concerning these resolutions. Extracts giving the incriminated passages of No. 45 of The North Briton will be found in App. to State Trials, xix. 1382-1401. See for the whole matter S.T. xix. 982-1175; Lecky, H.E. ch. ix. ; the Letters of Junius; May, C.H.E. ii. ch. 7, iii. ch. 11; Broom, C.L. 521–619; Fitzgerald, Life of Wilkes; The North Briton, Nos. 1-46, with notes 1769.]

I

GENERAL WARRANTS

A

It is his majesty's pleasure that you take into your custody the person of Francis Smith, Stationer, for having a hand in printing and compiling dangerous books, and that you keep him close prisoned till further orders from his majesty, and for so doing this shall be your warrant. Dated at the court at Whitehall this 15th day of August, 1681. EDWARD NICHOLAS.

To the Keeper of the Gatehouse, Westminster, or his Deputy. (S.T. 7, 946.)

B

George Montagu Dunk, Earl of Halifax, viscount Sunbury, and baron Halifax, one of the lords of his majesty's honourable privy council, lieutenant general of his majesty's forces, lord lieutenant general and general governor of the kingdom of Ireland, and principal secretary of state, etc. etc. these are in his majesty's name to authorize and require you, taking a constable to your assistance, to make strict and diligent search for John Entick, the author, or one concerned in writing of several weekly very seditious papers, intitled the Monitor or British Freeholder, No. 357, 358, 360, 373, 376, 378, 379, and 380, London, printed for J. Wilson and S. Fell in Pater Noster Row, which contains gross and scandalous reflections and invections upon his majesty's government, and upon both houses of parliament; and him having found you are to seize and apprehend, and to bring, together with his books and papers, in safe custody before me to be examined concerning the premises, and further dealt with according to law; in the due execution whereof all mayors, sheriffs, justices of the peace, constables and other his majesty's officers-civil and military, and loving subjects whom it may concern, are to be aiding and assisting to you as there shall be occasion; and for so doing this shall be your warrant.

Given at St. James's the sixth day of November 1762, in the third year of his majesty's reign, DUNK HALIFAX.

To Nathan Carrington, James Watson, Thomas Ardran, and Robert Blackmore, four of his majesty's messengers in ordinary.

(S.T. xix. 1034.)

II

THE PROCEEDINGS IN THE COMMONS

Mr. Chancellor of the Exchequer informed the House, that he was commanded by the King to acquaint the House, that his Majesty having received Information that John Wilkes Esquire, a Member of this House, was the Author of a most seditious and dangerous Libel, published since the last Session of Parliament; He had caused the said John Wilkes Esquire to be apprehended, and secured, in order to his being tried for the same by due Course of Law: And Mr. Wilkes having been discharged out of Custody by the Court of Common Pleas, upon account of his Privilege as a Member of this House; and having, when called upon by the legal Process of the Court of King's Bench, stood out, and declined to appear, and answer to an Information which has since been exhibited against him by His Majesty's Attorney General for the same Offence: In this Situation, His Majesty being desirous to show all possible Attention to the Privileges of the House of Commons, in every Instance wherein they can be supposed to be concerned; and at the same time thinking it of the utmost Importance not to suffer the Public Justice of the Kingdom to be eluded, has chosen to direct the said Libel, and also Copies of the Examination upon which Mr. Wilkes was apprehended and secured, to be laid before this House for their consideration: And Mr. Chancellor of the Exchequer delivered the said papers in at the Table.

(a) Resolved, Nemine contradicente, That an humble Address be presented to His Majesty, to return His Majesty the Thanks of this House for His most gracious Message, and for the tender Regard therein expressed for the Privileges of this House; and to assure His Majesty that this House will forthwith take into their most serious Consideration the very important Matter communicated by His Majesty's Message. . .

...

(b) Resolved, That the Paper intituled, "The North Briton No. 45" is a false, scandalous, and seditious Libel, containing Expressions of the most unexampled Insolence and Contumely towards His Majesty, the grossest Aspersions upon both Houses of Parliament, and the most audacious Defiance of the Authority of the whole Legislature; and most manifestly tending to alienate the Affections of the People from His Majesty, to withdraw them from their Obedience to the Laws of the Realm, and to excite them to traitorous Insurrections against His Majesty's Government.

Resolved, That the said Paper be burnt by the Hands of the common Hangman.

...

(c) Resolved, That it appears to this House that the said John Wilkes Esquire is guilty of Writing and Publishing the Paper, intituled, "The North Briton, No. 45," which this House has voted to be a false, scandalous and seditious Libel, containing Expressions of the most unexampled Insolence and Contumely towards His Majesty, the grossest Aspersions upon both Houses of Parliament, and the most audacious Defiance of the Authority of the whole Legislature; and most manifestly tending to alienate the Affections of the People from His Majesty, to withdraw them from their Obedience to the Laws of the Realm, and to excite them to traitorous Insurrection against His Majesty's government.

(d) Resolved, That the said John Wilkes, Esquire be, for his said Offence, expelled this House.

(C.J. xxix. 667.)

(e) Resolved, That Privilege of Parliament does not extend to the writing and publishing Seditious libels, nor ought it to be allowed to obstruct the ordinary course of the laws, in the speedy and effectual prosecution of so heinous and dangerous an offence. (C.J. November 24, 1763.)

III

PROCEEDINGS IN THE LORDS

And it being moved, "To agree with the Commons in the said Resolution:" (i.e. (e))

The same was objected to.

After long Debate thereupon;

The Question was put, "Whether to agree with the Commons in the said Resolution?"

It was resolved in the Affirmative.

"Dissentient.

1. Because we cannot hear without the utmost Concern and Astonishment, a Doctrine advanced now for the First Time in this House, which we apprehend to be new, dangerous, and unwarrantable; videlicet, That the Personal Privilege of both Houses of Parliament has never held, and ought not to hold, in the Case of any Criminal Prosecution whatsoever; by which, all the Records of Parliament, all History, all the authorities of the gravest and soberest Judges, are entirely rescinded; and the fundamental principles of the Constitu