might design to keep it private, yet after his death it might fall into such hands as might be injurious to the government; and therefore men ought not to be allowed to have such evil instruments in their keeping. Carthew 409. In Salkeld's report of the same case, Holt chief justice says, if a libel be publicly known a written copy of it is evidence of a publication. Salk. 418.

If all this be law, and I have no right at present to deny it, whenever a favourite libel is published (and these compositions are apt to be favourites) the whole kingdom in a month or two becomes criminal, and it would be difficult to find one innocent jury amongst so many millions of offenders.

I can find no other authority to justify the seizure of a libel, than that of Scroggs and his brethren.

If the power of search is to follow the right of seizure, everybody sees the consequence. He that has it or has had it in his custody; he that has published, copied, or maliciously reported it, may fairly be under a reasonable suspicion of having the thing in his custody, and consequently become the object of the search-warrant. If libels may be seized, it ought to be laid down with precision, when, where, upon what charge, against whom, by what magistrate, and in what state of the prosecution. All these particulars must be explained before this general proposition can be

and proved to be law, established.

As therefore no authority in our books can be produced to support such a doctrine, and so many Star Chamber devices, ordinances, and acts have been thought necessary to establish a power of search, I cannot be persuaded, that such a power can be justified by the common law.

I have now done with the argument, which has endeavoured to support this warrant by the practice since the Revolution.

It is then said, that it is necessary for the ends of Government to lodge such a power with a state officer; and that it is better to prevent the publication before than to punish the offender afterwards. I answer, that if the legislature be of that opinion they will revive the Licensing Act. But if they have not done that, I conceive they are not of that opinion. And with respect to the argument of state necessity, or a distinction which has been aimed at between state offences and others, the common law does not understand that kind of reasoning, nor do our books take notice of any such distinctions.

Sergeant Ashley was committed to the Tower in the 3rd of Charles 1st, by the House of Lords only for asserting in argument, that there was a 'law of state' different from the common law; and

the Ship-Money judges were impeached for holding, first, that statenecessity would justify the raising money without consent of parliament; and secondly, that the king was judge of that necessity.

If the king himself has no power to declare when the law ought to be violated for reason of state, I am sure we his judges have no such prerogative.

Lastly, it is urged as an argument of utility, that such a search is a means of detecting offenders by discovering evidence. I wish some cases had been shown, where the law forceth evidence out of the

owner's custody by process. There is no process against papers in civil causes. It has been often tried, but never prevailed. Nay, where the adversary has by force or fraud got possession of your own proper evidence, there is no way to get it back but by action.

In the criminal law such a proceeding was never heard of; and yet there are some crimes, such for instance as murder, rape, robbery, and house-breaking, to say nothing of forgery and perjury, that are more atrocious than libelling. But our law has provided no papersearch in these cases to help forward the conviction.

Whether this proceedeth from the gentleness of the law towards criminals, or from a consideration that such a power would be more pernicious to the innocent than useful to the public, I will not say.

It is very certain, that the law obligeth no man to accuse himself; because the necessary means of compelling self-accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it should seem that search for evidence is disallowed upon the same principle. There too the innocent would be confounded with the guilty.

Observe the wisdom as well as the mercy of the law. The strongest evidence before a trial, being only ex parte, is but suspicion; it is not proof. Weak evidence is a ground of suspicion, though in a lower degree; and if suspicion at large should be a ground of search, especially in the case of libels, whose house would be safe?

If, however, a right of search for the sake of discovering evidence ought in any case to be allowed, this crime above all others ought to be excepted, as wanting such a discovery less than any other. It is committed in open daylight, and in the face of the world; every act of publication makes new proof;, and the solicitor of the treasury, if he pleases, may be the witness himself.

The messenger of the press, by the very constitution of his office, is directed to purchase every libel that comes forth, in order to be a witness.

Nay, if the vengeance of government requires a production of the

author, it is hardly possible for him to escape the impeachment of the printer, who is sure to seal his own pardon by the discovery. But suppose he should happen to be obstinate, yet the publication is stopped, and the offence punished. By this means the law is satisfied, and the public secured.

Before I conclude, I desire not to be understood as an advocate for libels. All civilized governments have punished calumny with severity; and with reason; for these compositions debauch the manners of the people; they excite a spirit of disobedience, and enervate the authority of government; they provoke and excite the passions of the people against their rulers, and the rulers oftentimes against the people.

After this description, I shall hardly be considered as a favourer of these pernicious productions. I will always set my face against them, when they come before me; and shall recommend it most warmly to the jury always to convict when the proof is clear. They will do well to consider, that unjust acquittals bring an odium upon the press itself, the consequence whereof may be fatal to liberty; for if kings and great men cannot obtain justice at their hands by the ordinary course of law, they may at last be provoked to restrain that press, which the juries of their country refuse to regulate. When licentiousness is tolerated, liberty is in the utmost danger; because tyranny, bad as it is, is better than anarchy, and the worst of governments is more tolerable than no government at all. (S.T. xix. 1044-1076.)

XVII

WILKES AND THE MIDDLESEX ELECTION

1768-9.

[In 1764 Wilkes had been condemned in the Court of King's Bench by default to outlawry for "a false, malicious, and scandalous libel." He remained abroad till February, 1768, when he returned to stand for the city of London. Defeated there, he stood for Middlesex and was elected. The sentence of outlawry was quashed on technical grounds, but on the original charge of libel he was fined £1,000 and sentenced to imprisonment for twenty-two months. In November he petitioned the House of Commons, claiming his privileges against further imprisonment. The claim was disallowed, and on February 17, 1769, he was expelled the House, and a new writ for Middlesex issued. Wilkes was elected unopposed a second time, and a second time a new writ was issued; Wilkes stood a third time and

a third time was elected. Col. Luttrell, the ministerial candidate, who had been defeated by 1043 to 296 votes, was then, in spite of a petition against his return, declared to be the true member for Middlesex, and accordingly took his seat. In 1774 Wilkes was again returned for Middlesex and was allowed to sit unquestioned. Finally in 1782, under the Rockingham Government, the resolutions of 1769 were by vote expunged from the Commons Journals. The excerpts give: (1) the resolutions of 1769; (2) a Protest of dissentient Peers which summarises the arguments of the opposition; and (3) the resolution of the Commons in 1782. For the whole question see The Letters of Junius; Grafton's Autobiography (ed. Anson); Parlt. History, xvi., especially Chatham's speech, 657 et seq.; Lecky, H.E. iii. ch. x.; Anson, L.C.; 142-177; May, C.H.E. ii. ch. vii; ib. P.P. 57-142; The Annual Register for 1769 (probably written by Burke); Rogers, P.L. ii. 68, 99-110.]

I

Ordered, That the Deputy Clerk of the Crown do attend this House immediately, with the Return to the Writ for electing a Knight of the Shire to serve in this present Parliament for the County of Middlesex, in the room of John Wilkes, Esquire, expelled this House.

And the Deputy Clerk of the Crown attending, according to order:

The said Writ and Return were read.

A Motion was made, and the Question being proposed, That John Wilkes, Esquire, having been, in this Session of Parliament, expelled this House, was, and is, incapable of being elected a Member to serve in this present Parliament;

The House was moved, That the entry in the Journal of the House, of the 6th Day of March, 1711, in relation to the Proceedings of the House, upon the Return of a Burgess to serve in Parliament for the Borough of King's Lynn in the County of Norfolk, in the room of Robert Walpole, Esquire, expelled the House, might be read.

And the same was read accordingly.

The House was also moved; that the Resolution of the House, of Friday the 3rd Day of this Instant February, relating to the Expulsion of John Wilkes, Esquire, then a Member of this House, might be read.

And the same being read accordingly;

An Amendment was proposed to be made to the Question, by inserting after the word "House," these Words, "for having been the Author and Publisher of what this House hath resolved to be

an insolent, scandalous, and seditious Libel; and for having been convicted in the Court of King's Bench, of having printed and published a seditious Libel, and three obscene and impious Libels; and having, by the Judgment of the said Court, been sentenced to undergo Twenty-two months Imprisonment, and being in Execution under the said Judgment."

And the Question being put, That those Words be there inserted; The House divided.

The Yeas went forth,

J Sir Joseph Mawbey,

Mawbevort:}

Tellers for the Yeas Mr. Nicholson Calvert: 102.

:{

Mr. Edward Bayntun, 228.

Mr. Burrell.

So it passed in the Negative.

Then the main Question being put, That John Wilkes, Esquire, having been, in this Session of Parliament, expelled this House, was, and is, incapable of being elected a Member to serve in this present Parliament;

The House divided.

The Yeas went forth.

Tellers for the Yeas

Tellers for the Noes

89.

Lord John Cavendish,
Mr. Hotham.

So it was resolved in the Affirmative.

A Motion being made, That the late Election of a Knight of the Shire to serve in this present Parliament for the County of Middlesex, is a void Election;

A Member, in his Place, informed the House, that he was present at the last Election of a Knight of the Shire to serve in this present Parliament for the said County; that there was no other Candidate than the said Mr. Wilkes; that there was no Poll demanded for any other Person, nor any kind of Opposition to the Election of the said Mr. Wilkes.

Resolved, That the late Election of a Knight of the Shire to serve in this present Parliament for the County of Middlesex, is a void Election.

Ordered, That Mr. Speaker do issue his Warrant to the Clerk of the Crown, to make out a new Writ for the Electing a Knight of the Shire to serve in this present Parliament for the County of Middle