Rex v. Wilkes95 Eng. Rep. 737 C.P. 1763
Lord Chief Justice Pratt, after stating the warrant of commitment, said, there are two objections taken to the legality of this warrant, and a third matter insisted on for the defendant, is privilege of Parliament.
The first objection is, that it does not appear to the Court that Mr. Wilkes was charged by any evidence before the Secretaries of State, that he was the author or publisher of the North Briton, Number XLV. In answer to this, we are all of opinion, that it is not necessary to state in the warrant that Mr. Wilkes was charged by any evidence before the Secretaries of State, and that this objection has no weight. Whether a justice of peace can, ex officio, without any evidence or information, issue a warrant for apprehending for a crime, is a different question: if a crime be done in his sight, he may commit the criminal upon the spot; but where he is not present, he ought not to commit upon discretion. Suppose a magistrate hath notice, or a particular knowledge that a person has been guilty of an offence, yet I do not think it is a sufficient ground for him to commit the criminal; but in that case he is rather a witness than a magistrate, and ought to make oath of the fact before some other magistrate, who should thereupon act the official part, by granting a warrant to apprehend the offender, it being more fit that the accuser should appear as a witness than act as a magistrate. But that is not the question upon this warrant; the question here is, whether it is an essential part of the warrant that the information, evidence, or grounds of the charge before the Secretaries of State, should be set forth in the warrant? And we think it is not. Thomas Rudyard's case, 2 Vent. 22, cannot be applied to this case, for in the case of a conviction it is otherwise. It was said that a charge by witness was the ground of a warrant; but we think it not requisite to set out more than the offence, and the particular species of it. It may be objected, if this be good every man's liberty will be in the power of a justice of peace. But Hale, Coke, and Hawkins take no notice that a charge is necessary to be set out in the warrant. In the case of The Seven Bishops their counsel did not take this objection, which no doubt but they would have done if they had thought there had been any weight in it. I do not rely upon the determination of the Judges who then presided in the King's Bench. I have been attended with many precedents of warrants returned into the King's Bench; they are almost universally like this; and in Sir William Wyndham's case, 1 Stra. 2, 3, this very point before us is determined. And Hawkins, in his 2 Pl. Coron. 120, sect. 17, says, "It is safe to set forth that the party is charged upon oath; but this is not necessary; for it hath been resolved that a commitment for treason, or for suspicion of it, without setting forth any particular accusation, or ground of suspicion, is good;" and cites Sir William Wyndham's case, Trin. 2 Geo. Dalt. cap. 125. Cromp. 233 b.
The second objection is, that the libel ought to be set forth in the warrant in haec verba, or at least so much thereof as the Secretaries of State deemed infamous, seditious, &c. that the Court may judge whether any such paper ever existed, or if it does exist, whether it be an infamous and seditious libel or not. But we are all of a contrary opinion: a warrant of commitment for felony must contain the species of felony briefly, "as for felony for the death of J. S., or for burglary in breaking the house of J. S. &c.; and the reason is, because it may appear to the Judges upon the return of an habeas corpus, whether it be felony or not." The magistrate forms his judgment upon the writing, whether it be an infamous and seditious libel or not, at his peril, and perhaps the paper itself may not contain the whole of the libel; inuendoes may be necessary to make the whole out: there is no other word in the law but libel whereby to express the true idea of an infamous writing; we understand the nature of a libel as well as a species of felony; it is said the libel ought to be stated, because the Court cannot judge whether it is a libel or not without it; but that is a matter for the Judge and jury to determine at the trial. If the paper was here, I should be afraid to read it. We might perhaps be able to determine that it was a libel, but we could not judge that it was not a libel, because of inuendoes, &c. It may be said, that without seeing the libel we are not able to fix the quantum of the bail; but in answer to this, the nature of the offence is known by us; it is said to be an infamous and seditious libel, &c.: it is such a misdemeanor as we should require good bail for, (moderation to be observed,) and such as the party may be able to procure.
The third matter insisted upon for Mr. Wilkes is, that he is a member of Parliament, (which has been admitted by the King's Serjeants,) and entitled to privilege to be free from arrests in all cases except treason, felony, and actual breach of the peace, and therefore ought to be discharged from imprisonment without bail; and we are all of opinion that he is entitled to that privilege, and must be discharged without bail. In the case of The Seven Bishops the Court took notice of the privilege of Parliament, and thought the bishops would have been entitled to it if they had not judged them to have been guilty of a breach of the peace; for three of them, Wright, Holloway, and Allybone, deemed a seditious libel to be an actual breach of the peace, and therefore they were ousted of their privilege most unjustly. If Mr. Wilkes had been described as a member of Parliament in the return, we must have taken notice of the law of privilege of Parliament, otherwise the members would be without remedy where they are wrongfully arrested against the law of Parliament; we are bound to take notice of their privileges, as being part of the law of the land. 4 Inst. 25 says, the privilege of Parliament holds unless it be in three cases, viz. treason, felony, and the peace; these are the words of Coke. In the trial of The Seven Bishops the word peace, in this case of privilege, is explained to mean where surety of the peace is required. Privilege of Parliament holds in informations for the King, unless in the cases before excepted; the case of an information against Lord Tankerville for bribery, 4 Annae, was within the privilege of Parliament. See the resolution of the Lords and Commons, anno 1675. We are all of opinion that a libel is not a breach of the peace: it tends to the breach of the peace, and that is the utmost. 1 Lev. 139. But that which only tends to the breach of the peace cannot be a breach of it. Suppose a libel be a breach of the peace, yet I think it cannot exclude privilege, because I cannot find that a libeller is bound to find surety of the peace, in any book whatever, nor ever was, in any case, except one, viz. the case of The Seven Bishops, where three Judges said, that surety of the peace was required in the case of a libel: Judge Powell, the only honest man of the four Judges, dissented, and I am bold to be of his opinion, and to say that case is not law; but it shews the miserable condition of the State at that time. Upon the whole, it is absurd to require surety of the peace or bail in the case of a libeller, and therefore Mr. Wilkes must be discharged from his imprisonment: whereupon there was a loud huzza in Westminster-Hall. He was discharged accordingly.
The Founders' Constitution
Volume 5, Amendment IV, Document 5
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