5. Lord George, born Jan. 26, 1715-16, member of parliament for Hythe. 6. Lady Carolina, married July 27, 1742, to Jofeph Damer, efq; member of parliament for Weymouth, fince created lord Milton, of Milton Abbey, in Dorfetshire.

Lady Catharine Thompson, at Low Layton.

14. Relict of fir Wm. Chapple, formerly one of the judges of the King's Bench, at Bath.

Lady Bayly, at Newnham in Oxfordshire.

17. The hon. mifs Windfor, filter to lord Windfor.--Relict of fir Charles Molloy, at Swift, Kent.

19. Sir Edward Blount, bart. at Bath.

20. Countess of Yarmouth, at Hanover, aged 56.

31. His royal highness Wm. Auguftus, duke of Cumberland, marquis of Berkhamstead in Hertfordshire, earl of Kennington in Surrey, vifc. of Trematon in Cornwall, baron of the ifle of Alderney, first and principal companion of the Bath, ranger and keeper of Wind for great park, chancellor of the univerfities of Dublin and St. Andrew's, fellow of the royal fociety, knight of the Garter, and one of the privy council, in the 46th year of his age.

Hon. Sewallis Shirley, efq; comptroller of his majesty's houfhold.

Nov. 7. Baron de Grofs, ambaffador from the emprefs of Ruffia. 8. Lady Elizabeth Egerton, at Bruton-Abbey, Somersetshire.

13. The princefs Sophia Dorothea, fifter to the king of Pruffia, and confort to the margrave of Brandenburg Scwedt.

14. Right hon. lord Torphichen, in Scotland.

30. lately, Barbara, lady Kinnaird.

Dec. 3. At Tour du Pin, on the Lake of Geneva, the right hon. lord John Philip Sackville, next brother to the prefent d. of Dorset, aged 53. His lordship had formerly a company in the foot guards, which he refigned in 1746. He was alfo member in two parlia ments for the borough of Tamworth; and married lady Frances, filter to the prefent earl Gower, by whom he has left iffue, the hon. John Sackville, efq; a minor, now on his travels, and a daughter.

4. Sir Thomas Ridge, at Portfmouth.

7. Lady Elizabeth Sherrard, fifter to the earl of Harborough. 8. Sir Trafford Smith, bart. Sir Edward O'Brien, bart. in Ireland.

13. Right hon. lord Somerville, at Edinburgh.

15 Moft rev. Dr. William Carmichael, archbishop of Dublin, and brother to the earl of Hyndford, at Bath.

Right hon. Alexander earl of Caithnefs, aged 81.

His royal highnefs the dauphin of France. [See our Chronicle.

24. Sir Ralph Atherton, bart. at Middleton in Lancashire, aged 73. The title is extinct.

29. His royal highness prince Frederick William, his majefty's youngest brother, in the 16th year of his age, being born May 24, 1750.

At Rome, Edward Francis, chevalier de St. George. [See our Chronicle.

AP

Lord chief juftice Pratt's argument on delivering Mr. Wilkes from the Torer.

OHN WILKES, efq; was committed to the Tower by the lords Egremont and Halifax, the two principal fecretaries of ftate, for refufing to enter into a recognizance to appear before the court of King's Bench; and being brought into the court of Common Pleas, by the deputy lieute nant of the Tower, upon an habeas corpus to him directed, the return was read, which Mr. ferjeant Glyn, the defendant's council, prayed might be filed; was ordered accordingly; and then he took two exceptions, and fubmitted further, that the defendant being a member of parliament, was intitled to his privilege, and ought for that reafon alone to be difcharged.

After folemn argument at the bar, and time taken for confideration, the chief juftice delivered the refolution of the court (which was unanimous) to the following effect:

"When this return was read, my brother Glyn, counsel for Mr, Wilkes, made two objections to it; and though the fe fhould fail him, he infifted that Mr. Wilkes, from the nature of his particular ftation and character, as being a member of the house of commons, was intitled to privilege of parliament, and ought, for that reafon alone, to be difcharged from his

prefent imprisonment. To begin with the objections. The first was, That it did not appear by the warrant that Mr. Wilkes flood charged upon any evidence with being the author of the libel defcribed in the warrant. The true queftion arifing from this objec tion is, Whether ftating the evidence be effential to the validity of the warrant and upon this point we are all clearly of opinion, that the warrant is good; we con fider the fecretaries in the light of common juftices of the peace; they, no more than any common juftices, can iffue warrants merely ex officio, or for offences within their private knowledge, being, in those cafes, rather witneffes than magiftrates; but though this be admitted, it will not affect the prefent queftion. The prefent queftion is, Whether the ftating the evidence be effential to the validity of the warrant? no authority has been cited by the defendant's council to fhew it. Rudyard's cafe in Ventr, 22. was indeed referred to; but, upon examining that cafe, it does not apply. The commitment there, was a commitment in execution, and therefore it was neceffary in that cafe to ftate the evidence. It was urged farther, that the ground of the juftices jurifdiction refted in the charge by witneffes; and if it were otherwife, every man's liberty would be in the power of the juftices. The objec tion deferves an anfwer; and if it had not been determined before, I fhould

I fhould have thought it very. weighty and alarming; but it has been fettled. Before I mention the cafe where it was folemnly ad judged, I would take notice, that neither lord Coke, lord Hale, nor Mr. Hawkins, all of them very able writers upon the crown law, have confidered such a charge as is contended for to be effential. In the trial of the feven bithops, though they were committed upon a fimilar warrant, their council did not make the fame objection. In refering to that great cafe, I am not to be understood as intending to give any weight to the determination of the judges who fat upon the bench in that caufe; I rely only on the filence of the defendant's council, who were all of them lovers of li berty, and the greatest lawyers of that age. We have feen precedents of commitments returned upon habeas corpus's into the King's Bench, where the warrants have been all in the fame form, and no fuch objection taken; but the very point was determined in the cafe of Sir W. Wyndham, 3 Vin. Abr. 550 515. Stra. 2, who was com. mitted for high treafon generally, and not on the charge of any body, ftated in the commitment. 2 Hawk. Pl. Cr. 120. chap. 17. fe&t. 17. refers to the cafe of Sir W. Wyndham, and fays, it is fafer to fet forth, that the party is charged upon oath, but that is not neceffary. Thus ftands this point on authorities. The other objection was, that the libel itfelf ought to have been fet forth, in hæc verba; but upon that point too, we are all of opinion that the warrant is good. It was urged that the fpecific cause of the detention ought to be stated with certainty; and

therefore if a man be committed for felony, the warrant must briefly mention the ípecies of felony. Now the fpecies of every offence must be collected by the magiftrate out of the evidence; but he is not bound to set forth the evidence, he is an fwerable only for the inference he deduces from it. As to a libel, the evidence is partly internal and partly external. The paper itself may not be complete and conclufive evidence, for it may be dark and unintelligible without the innaendos, which are the external evidence. There is no other nam: but that of libel applicable to the offence of libelling, and we know the offence fpecifically by that name, as we know the offences of horfe- ftealing, forgery, &c. by the names which the law has annexed to them. But two realons were urged why the libel ought to be ftated. First, it was faid, That without it the court cannot judge whether it be a libel or not. The answer is, That the court ought not in this proceeding to give any judgment of that fort, as it would tend to prejudication, to take away the office of a jury, and to create an improper influence. The other reafon was, That unless the libel be flated, the court cannot be able to determine on the quantity of bail. I anfwer, That regard to the nature of the offence, is the only rule in bailing. As to the offence of a libel, it is an high misdemeanor, and good bail (having regard to the quality of the offender) fhould be required; but . if the libel itfelf was ttated, we could have no other meature of bailing than this; befides, there has been no cafe thewn to warrant this realon, and it was not urged

in

1

in the cafe of the feven bishops. But then it remains to be confidered, Whether Mr. Wilkes ought not to be discharged; the king's council have thought fit to admit that he was a member of the house of commons, and we are bound to take notice of it. In the cafe of the seven bishops, the court took notice of their privilege from their defcription in the warrant; in the prefent cafe there is no fuit depend ing; here no writ of privilege can therefore iffue; no plea of privilege can be revived; it refts, and must reft on the admiffion of the council of the crown; it is fairly before us upon that admillion, and we are bound to determine it. In lord Coke, 4 Inj. 24, 25, after fhewing that privilege of parlia ment is connufable at common law, he fays, that privilege generally holds, unless it be in three cafes, viz treason, felony, and the peace. We have not been able to have re courfe to the original record, but in Cotton's Abridgment, fol. 596. you will find my lord Coke was right. The cafe I would refer to is that of William Lake, 9th of Henry VI. who being a member's fervant, and taken in execution for debt, was delivered by the privilege of the house of commons; the book adds (and for that purpose I refer to it) wherein it is to be noted, that there is no cause to arrest any fuch man, but for treafon, felony, and the peace. In the trial of the feven bithops, the words, "the peace," are explained to mean furety of the peace." In the cafe of the King against Sir Thonas Culpepper, reported in 12 Med. 10%. lord Holt fays, that whereas it is faid in our books, that privilege of parliament was

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not allowable in treason, felony, or breach of the peace, it must be intended, where furety of the peace is defired, that it shall not protect a man against a fupplicavit, but it holds as well in cafe of indictment, information for breach of the peace, as in cafe of actions. In the cafe of lord Tankerville, a few years ago, which, though not reported in any law book, is upon record in parliament, it was held, that bribery, being only a conftructive, and not an actual breach of the peace, fhould not ouft him of his privilege; there is no difference between the two houfes of párliament in refpe&t of privilege. The ftatutes of 12 and 13 Will. III. e. 3. and 2 and 3 An. c. 18. fpeak of the privilege of parliament in reference not to one house in particular, but to both houfes. What then is the prefent cafe? Mr. Wilkes, a member of the house of commons, is committed for being the author and publisher of an infamous and feditious libel. Is a libel o fatto in itfelf an actual breach of the peace? Dalton, in his Justice of the Peace, fol. 289. defines a libel as a thing tending to the breach of the peace. In Sir Baptift Hicks's cafe, Hob. 224. it is called a provocation to a breach of the peace. In Lev. 139. the King againft Summers, it was held to be an offence connufable before juftices, because it tended to a breach of the peace. In Hawk. Pl. Cr. 193. chap. 73. fect. 3. it is called a thing directly tending to a breach of the public peace. Now, that that which tends only to a breach of the peace, is not an actual breach of it, is too plain a propofition to admit of argument. But if it was admitted that a libel

was a breach of the peace, fill privilege cannot be excluded, unlefs it require furety of the peace; and there has been no precedent but that of the feven bhops cited to fhew that fureties of the peace are requireable from a libeller; and as to the opinion of the three judges in that cafe, it only ferves to thew the miferable itate of justice in those days. Allybone, one of the three, was a rigid and profeffed papift: Wright and Holloway, I am much afraid, were placed there for doing jobs; and Powell, the only honeft man upon the bench, gave no opinion at all. Perhaps it implies an abfurdity to demand fureties of the peace from a libeller; however, what was done in the cafe of the seven bishops, I am bold to deny was law.

Upon the whole, though it fhould be admitted, that fureties of the peace are requirable from Mr. Wilkes, still his privilege of parliament will not be taken away till fureties have been demanded and refused. Let him be difcharged. Eafter Term 3 Geo. 3. 1763. C. P. the King againft John Wilkes, Efq; [Digift of the laws concerning libels, fol. 49-54.

for his contempt. But during that term, there being only one judge upon the bench, no caufe was fhewn; the cafe being declared, upon the appearance of the defendant's council, of too much importance to be decided without a full bench Before the fucceeding term a new judge was made, and a fick one recovered In May therefore (Eafter term) the defendant's council, ferjeant Glyn and Mr. Dunning, in the court of King's Bench, before the three puifne judges of that court, exerted themselves with equal energy and force of reafoning againft that method of proceeding They acknowledged it to be in certain cafes, and on particular occafions, strictly conftitutional; they contended, however, that the affair now before the court is not one of thefe cafes: they cited precedents to prove, that a chief juftice of the moft indifputable abilities had declined the ufe of this mode of pro-. cefs: this was the great lord Coke. They obferved that the cause now depending is the most important, and the most effentially interefting to the liberty of the fubject, of any that ever had been brought before that judicature; that the method of trial by a jury is the inherent, the native, the peculiar privilege and mode of procefs was originally glory of Englishmen: that this founded on the beft, and the most folid principles; and that the wifdom of it had been approved by a long fucceffion of ages: that whenever it should be deemed expedient to alter it, and to adopt any other method of procedure, the legiflature, as it is the moft proper judge of this expediency, fo would it be [N]

the