[Volume 5, Page 230]
Wilkes v. Wood98 Eng. Rep. 489, 498--99 C.P. 1763
The Lord Chief Justice then summoned up the evidence of the whole, and observed it was an action of trespass, to which the defendant had pleaded first not guilty, and then a special justification. He then went through the particulars relating to the justification, the King's speech, the libel No. 45.
Information given, that such a libel was published,
Lord Hallifax granting a warrant; messengers entering Mr. Wilkes's house; Mr. Wood directed to go thither only with a message, and remaining altogether inactive in the affair.[Volume 5, Page 231]
If the jury should be of opinion, that every step was properly taken as represented in the justification, and should esteem it fully proved, they must find a verdict for the defendant. But if on the other hand they should view Mr. Wood as a party in the affair, they must find a verdict for the plaintiff, with damages. This was a general direction his Lordship gave the jury, and he then went into the particulars of the evidence. The chief part of the justification, he observed, consisted in proving Mr. Wilkes the author, and the evidence given, together with the letters to Kearsley plainly shew, that Mr. Wilkes was generally so. Then as to No. 45, the evidence was of two sorts, first a letter to fix it upon him, and the other general: as to the proof of the republication of The North Britons given by Currie, supposing it of itself sufficient, of which there was a doubt, it did not extend to the present case, to justify a warrant issued several weeks previous to that period. As to the letter, the gentlemen must take that out with them, together with The North Briton, No. 45, and allow all the weight to the circumstance they think it will admit of.
If upon the whole they should esteem Mr. Wilkes to be the author and publisher, the justification would be fully proved. But that, to do this, it was essentially necessary to have the enclosed paper in the letter to Balff, as, without that, all the rest was but inference, and not the proof positive which the law required. As to Mr. Wood, he was described on one side as very active in the affair, and on the other side as quite inoffensive. Aiders and abetters are always esteemed parties: but if a person present remains only a spectator, he cannot be affected. The evidence on the one side had been positive, and on the other side only negative. Mr. Wood might have said and done as represented on the one side, when the evidences on the other side were not present: if upon the whole they should be of opinion, that Mr. Wood was active in the affair, they must find a verdict for the plaintiff with damages. His Lordship then went upon the warrant, which he declared was a point of the greatest consequence he had ever met with in his whole practice. The defendants claimed a right, under precedents, to force persons houses, break open escrutores, seize their papers, &c. upon a general warrant, where no inventory is made of the things thus taken away, and where no offenders names are specified in the warrant, and therefore a discretionary power given to messengers to search wherever their suspicions may chance to fall. If such a power is truly invested in a Secretary of State, and he can delegate this power, it certainly may affect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject.
And as for the precedents, will that be esteemed law in a Secretary of State which is not law in any other magistrate of this kingdom? If they should be found to be legal, they are certainly of the most dangerous consequences; if not legal, must aggravate damages. Notwithstanding what Mr. Solicitor-General has said, I have formerly delivered it as my opinion on another occasion, and I still continue of the same mind, that a jury have it in their power to give damages for more than the injury received. Damages are designed not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself.
As to the proof of what papers were taken away, the plaintiff could have no account of them; and those who were able to have given an account (which might have been an extenuation of their guilt) have produced none. It lays upon the jury to allow what weight they think proper to that part of the evidence. It is my opinion the office precedents, which had been produced since the Revolution, are no justification of a practice in itself illegal, and contrary to the fundamental principles of the constitution; though its having been the constant practice of the office, might fairly be pleaded in mitigation of damages.
He then told the jury they had a very material affair to determine upon, and recommended it to them to be particularly cautious in bringing in their verdict. Observed, that if the jury found Mr. Wilkes the author or publisher of No. 45, it will be filed, and stand upon record in the Court of Common Pleas, and of course be produced as proof, upon the criminal cause depending, in barr of any future more ample discussion of that matter on both sides; that on the other side they should be equally careful to do justice, according to the evidence; he therefore left it to their consideration.
The jury, after withdrawing for near half an hour, returned, and found a general verdict upon both issues for the plaintiff, with a thousand pounds damages.
After the verdict was recorded, the Solicitor-General offered to prefer a bill of exceptions, which the Lord Chief Justice refused to accept, saying it was out of time.
The Court sat at nine o'clock in the morning, and the verdict was brought in at twenty minutes past eleven o'clock at night.
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