declares generally, that no lord of parliament, fitting the parliament, or within the ufual times of privilege of parliament, is to be imprifoned or reftrained, without fentence or order of the houfe, unless it be for treafon or felony, or for refusing to give security for the peace, and refufal to pay obedience to a writ of habeas corpus.

The firft of thefe orders was made after long confideration, upon a difpute with the king, when the precedents of both houfes had been fully infpected, commented upon, reported, and entered in the journals, and after the king's council had been heard. It was made in fober times, and by a houfe of peers, not only loyal, but devoted to the crown; and it was made by the unanimous confent of all, not one diffenting. These circumstances of folemnity, deliberation, and unanimity, are fo fingular and extraordinary, that the like are scarce to be found in any inftance among the records of parliament,

When the two cafes of furety for the peace, and habeas corpus, come to be well confidered, it will be found that they both breathe the fame fpirit, and grow out of the fame principle.

The offences that call for furety and habeas corpus, are both cafes of prefent continuing violence, the proceedings in both have the fame end, viz. to reprefs the force, and to difarm the offender. The proceeding ftops in both when that end is attained; the offence is not profecuted or punished in either; the neceffity is equal in both, and, if privilege was allowed in either, fo long as

the neceffity lafts, a lord of parliament. would enjoy a mightier prerogative than the crown itself is entitled to. Lastly, they both leave the profecution of all mifdemeanours ftill under privilege, and do not derogate from that great fundamental, that none fhall be arrested in the course of profecution for any crime under treason and felony.

These two orders comprise the whole law of privilege, and are both of them ftanding orders, and confequently the fixed laws of the house, by which we are all bound until they are duly repealed.

The refolution of the other houfe, now agreed to, is a direct contradiction to the rule of parliamentary privilege, laid down in the aforefaid ftanding orders, both in letter and fpirit. Before the reasons are ftated, it will be proper to premise two obfervations.

First, that in all cafes where fecurity of the peace may be required, the lord cannot be committed till that fecurity is refufed, and confequently the magistrate will be guilty of a breach of privilege if he commits the of fender without demanding that fe curity.

Secondly, although the fecuririty fhould be refused, yet, if the party is committed generally, the magiftrate is guilty of a breach of privilege, because the party refufing ought only to be committed till he has found fureties; where as, by general commitment, he is held faft, even though he fhould give fureties; and can only be difcharged by giving bail for his appearance.

This being premised, the firft objection is to the generality of

this refolution, which, as it is penned, denies the privilege to the fuppofed libeller, not only where he refufes to give fureties, but likewife throughout the whole profecution, from the beginning to the end; fo that, although he fhould fubmit to be bound, he may, notwithstanding, be afterwards arrefted, tried, convicted, and punished, fitting the parliament, and without leave of the houfe, wherein the law of privilege is fundamentally mifunderftood, by which no commitment whatsoever is tolerated, but that only which is made upon the refufal of the fureties, or in the other excepted cafes of treafon or felony, and the habeas corpus.

If privilege will not hold throughout in the cafe of a feditious libel, it must be because that offence is fuch a breach of the peace, for which fureties may be demanded; and if it be fo, it will readily be admitted, that the cafe comes within the exception, "Provided always, that fureties have been refused, and that the party is committed only till he fhall give fureties."

But first, this offence is not a breach of the peace; it does not fall within any definition of a breach of the peace, given by any of the good writers upon that fubject, all which breaches, from menace to actual wounding, either alone or with a multitude, are described to be acts of violence against the perfons, goods, or poffeffions, putting the fubject in fear by blows, threats, or geftures. Nor is this cafe of the libeller ever enumerated in any of these writers among the breaches of peace; on

the contrary, it is always defcrib ed as an act tending to excite, provoke, or produce, breaches of the peace; and although a fecretary of ftate may be pleased to add the inflaming epithets of treafonable, traitorous, or feditious, to a particular paper, yet no words are ftrong enough to alter the nature of things. To fay then, that a libel, poffibly productive of fuch a confequence, is the very confequence fo produced, is, in other words, to declare, that the cause and the ef fect are the fame thing.

Secondly, but if a libel could poffibly, by any abuse of language, or has any where been called, inadvertently, a breach of the peace, there is not the leaft colour to say, that the libeller can be bound to give fureties for the peace, for the following reafons:

Because none can be fo bound unlefs he be taken in the actual commitment of a breach of the peace; ftriking, or putting fome one or more of his majesty's fubjects in fear:

Because there is no authority, or even ambiguous hint, in any law-book, that he may be fo bound:

Because no libeller, in fact, was ever fo bound:

Because no crown lawyer, in the moft defpotic times, ever infifted he should be fo bound, even in days when the prefs fwarmed with the most envenomed and virulent libels, and when the profecutions raged with fuch uncommon fury againft this fpecies of offenders; when the law of libels was ranfacked every term: when lofs of ears, perpetual imprisonment, banifhment, and fines of ten and

twenty

impreffion; nay, it is not only a new law, narrowing the known and ancient rule, but it is like. wife a law ex post facto pendente lite, et ex parte, now firft declared to meet with the circumstances of a particular cafe; and it must be further confidered, that this house is thus called upon to give a fanction to the determinations of the other, who have not condefcended to confer with us upon this point till they had prejudged it themselves.

By this doctrine, every man's liberty, privileged, as well as unprivileged, is furrendered into the hands of a fecretary of ftate; he is by this means impowered, in the first inftance, to pronounce the paper to be a feditious libel, a matter of fuch difficulty, that fome have pretended, it is too high to be intrufted to a fpecial jury of the first rank and condition; he is to understand, and decide by himfelf, the meaning of every inuenhe is to determine the tendency thereof, and brand it with his own epithets; he is to adjudge the party guilty, and make him author or publisher as he fees good; and laftly, he is to give fentence by committing the party. All thefe authorities are given to one fingle magiftrate, unaffifted by council, evidence, or jury, in a cafe where the law fays, no action will lie against him becaufe he acts in the capacity of a judge.

do;

it

From what has been obferved, appears to us, that the exception of a feditious libel from privilege is neither founded on ufage or written precedents, and therefore this refolution is of the first

This method of relaxing the rule of privilege, cafe by cafe, is pregnant with this farther inconvenience, that it renders the rule precarious and

uncertain. Who can foretel where the house will ftop, when they have, by one infringement of their own standing orders, made a precedent, whereon future infringements may, with equal reafon, be founded? How fhall the fubject be able to pro→ ceed with fafety in this perilous bufinefs? How can the judges decide on these or the like questions, if privilege is no longer to be found in records and journals, and standing orders? Upon any occafion privilege may be enlarged, and no court will venture for the future, without trembling, either to recognize or to deny it,

We manifeftly fee this effect of excluding, by a general refolution, one bailable offence from privilege to-day, that it will be a precedent for doing fo by another, upon fome future occafion, till, instead of privilege holding in every cafe not excepted, it will, at last, come to hold in none but such as are exprefsly faved.

When the cafe of the habeas forpus

corpus is relied upon as a precedent to enforce the declaration, the argument only fhews, that the mifchief aforementioned has taken place already, fince one alteration, though a very juft one, not at all applicable to the prefent queftion, is produced to juftify another that is unwarrantable.

But it is ftrongly objected, that if privilege be allowed in this cafe, a lord of parliament might endanger the conftitution by a continual attack of fucceffive libels; and if fuch a perfon fhould be fuffered to efcape, under the shelter of privilege, with perpetual impunity, all government would be overturned; and therefore it is inexpedient to allow the privilege now, when the time of privilege, by prorogations, is continued for ever, without an interval.

This objection fhall be answered in two ways. Firft, if inexpediency is to deftroy perfonal privilege in this cafe of a feditious libel, it is at least as inexpedient that other great mifdemeanours should stand under the like protection of privilege; neither is it expedient that the fmaller offences fhould be exempt from a profecution in the perfon of a lord of parliament; fo that if this argument of inexpediency is to prevail, it muft prevail throughout, and fubvert the whole law of privilege in criminal matters; in which method of reasoning there is this fault, that the argument proves too much.

If this inconvenience be indeed grievous, the fault is not in the law of privilege, but in the change of times, and in the management of prorogations by the fervants of

the crown, which are so contrived as not to leave an hour open for juftice. Let the objection neverthelefs be allowed in its utmost extent, and then compare the inexpediency of not immediately profecuting on one fide, with the inexpediency of ftripping the parliament of all protection from privilege on the other. Unhappy as the option is, the public would rather wish to fee the profecution for crimes fufpended, than the parliament totally unprivileged, although, notwithstanding this pretended inconvenience is fo warmly magnified on the present occafion, we are not apprised that any fuch inconvenience has been felt, though the privilege has been enjoyed time immemorial.

But the second and beft answer, because it removes all pretence of grievance, is this, that this house, upon complaint made, has the power (which it will exert in favour of juftice) to deliver up the offender to profecution.

It is a dishonourable and an undeferved imputation upon the lords, to fuppofe, even in argument, that they would nourish an impious criminal in their bofoms, againft the call of offended justice, and the demand of their country.

It is true, however, and it is hoped, that this houfe will always fee (as every magiftrate ought that does not betray his truft) that their member is properly charged; but when that ground is once laid, they would be afhamed to protect the offender one moment; furely this truft (which has never yet been abused) is not too great to be repofed in the high court of par, liament; while it is ladged there,

the

It is not to be conceived, that our ancestors, when they framed the law of privilege, would have left the cafe of a feditious libel (as it is called, the only unprivileged misdemeanor. Whatever elfe they had given up to the crown, they would have guarded the cafe of fuppofed libels above all others with privilege, as being moft likely to be abufed by outrageous and vindictive profecutions.

But this great privilege had a much deeper reach; it was wifely planned, and hath hitherto, through all times, been refolutely maintained.

It was not made to fcreen criminals, but to preferve the very being and life of parliament; for when our ancestors confidered, that the law had lodged the great powers of arreft, indictment, and information in the crown, they faw the parliament would be undone, if, during the time of privilege, the royal procefs fhould be admitted in any misdemeanor whatfoever: therefore they excepted none. Where the abufe of power would be fatal, the power ought never to be given, because redrefs comes too late.

A parliament under perpetual terror of imprisonment can neither be free, nor bold, nor honeft; and if this privilege was once removed, Vol. VII.

the most important queftion might be irrecoverably loft, or carried by a fudden irruption of meffengers, let loofe against the members half an hour before the debate.

Laftly, as it has already been obferved, the cafe of fuppofed libels is, of all others, the moft dangerous and alarming to be left open to profecution during the time of privilege.,

If the feverity of the law touching libels, as it hath fometimes been laid down, be duly weighed, it muft ftrike both houfes of parliament with terror and difmay.

The repetition of a libel, the delivery of it unread to another, is faid to be a publication; nay, the bare poffeffion of it has been deemed criminal, unless it is immediately deftroyed, or carried to a magiftrate.

Every lord of parliament then, who hath done this, who is falfely accufed, nay, who is, though without any information, named in the fecretary of ftate's warrant, has loft his privilege by this refolution, and lies at the mercy of that great enemy to learning and liberty, the meffenger of the prefs.

For thefe and many other forcible reafons, we hold it highly unbecoming the dignity, gravity, and wisdom of the house of peers, as well as their juftice, thus judicially to explain away and diminifh the privilege of their perfons, founded in the wisdom of ages, declared with precifion in our ftanding orders, fo repeatedly confirmed, and hitherto preferved inviolable by the spirit of our ancestors, called to it only by the other house, on a particular occafion, and to ferve a particular purpose, ex post [N]

facto,