and responsibility of state affairs. If the power and independence of ministers are sometimes impaired by the necessity of admitting the whole people to their councils,— their position is more often fortified by public approbation. Free discussion aids them in all their deliberations: the first intellects of the country counsel them: the good sense of the people strengthens their convictions. If they judge rightly, they may rely with confidence on public opinion; and even if they err, so prompt is popular criticism, that they may yet have time to repair their error. The people having advanced in enlightenment as well as in freedom, their judgment has become more discriminating, and less capricious, than in former times. To wise rulers, therefore, government has become less difficult. It has been their aim to satisfy the enlightened judgment of the whole community, freely expressed and readily interpreted. To read it rightly, to cherish sentiments in advance of it, rather than to halt and falter behind it,— has become the first office of a successful statesman. Concurrent increase of power and What theory of a free state can transcend this gradual development of freedom, in which the power of the people has increased with their capacity for intelligence self-government? It is this remarkable condition in the people. that has distinguished English freedom from democracy. Public opinion is expressed, not by the clamorous chorus of the multitude, but by the measured voices of all classes, parties, and interests. It is declared by the press, the exchange, the market, the club, and society at large. It is subject to as many checks and balances as the constitution itself; and represents the national intelligence, rather than the popular will. CHAPTER XI. Liberty of the Subject secured before Political Privileges: - General Warrants: Suspension of Habeas Corpus Act:- Impressment: - Revenue Laws as affecting Civil Liberty:- Commitments for Contempt: - Arrests and Imprisonment for Debt:- Last Relics of Slavery:- Spies and Informers: - Opening Letters: -Protection of Foreigners: -Extradition Treaties. - the subject political DURING the last hundred years, every institution has been popularized, every public liberty extended. Liberty of Long before this period, however, Englishmen assured had enjoyed personal liberty as their birthright. earlier than More prized than any other civil right, and more privileges. jealously guarded, it had been secured earlier than those political privileges, of which we have been tracing the development. The franchises of Magna Charta had been firmly established, in the seventeenth century. The Star Chamber had fallen: the power of arbitrary imprisonment had been wrested from the crown and privy council: liberty had been guarded by the Habeas Corpus Act: judges redeemed from dependence and corruption; and juries from intimidation and servile compliance. The landmarks of civil liberty were fixed: but relics of old abuses were yet to be swept away, and traditions of times less favorable to freedom to be forgotten. Much remained to be done for the consolidation of rights already recognized; and we may trace progress, not less remarkable than that which has characterized the history of our political liberties. Among the remnants of a jurisprudence which had favored prerogative at the expense of liberty, was that of General warthe arrest of persons under general warrants, rants, 1768. without previous evidence of their guilt or identification of their persons. This practice survived the Revolution, and was continued without question, on the ground of usage, until the reign of George III., when it received its death-blow from the boldness of Wilkes and the wisdom of Lord Camden. This question was brought to an issue by No. 45 of the "North Briton," already so often mentioned. There was the libel, but who was the libeller? Ministers knew not, nor waited to inquire, after the accustomed forms of law: but forthwith Lord Halifax, one of the secretaries of state, issued a warrant, directing four messengers, taking with them a constable, to search for the authors, printers, and publishers; and to apprehend and seize them, together with their papers, and bring them in safe custody before him. No one having been charged or even suspected, no evidence of crime having been offered, -no one was named in this dread instrument. The offence only was pointed at, not the of fender. The magistrate, who should have sought proofs of crime, deputed this office to his messengers. Armed with their roving commission, they set forth in quest of unknown offenders; and unable to take evidence, listened to rumors, idle tales, and curious guesses. They held in their hands the liberty of every man whom they were pleased to suspect. Nor were they triflers in their work. In three days, they arrested no less than forty-nine persons on suspicion, many as innocent as Lord Halifax himself. Among the number was Dryden Leach, a printer, whom they took from his bed at night. They seized his papers; and even apprehended his journeymen and servants. He had printed one number of the "North Briton," and was then reprinting some other numbers; but as he happened not to have printed No. 45, he was released, without being brought before Lord Halifax. They succeeded, however, in arresting Kearsley the publisher, and Balfe the printer, of the obnoxious number, with all their workmen. From them it was discovered that Wilkes was the culprit of whom they were in search: but - Wilkes. the evidence was not on oath; and the messengers received not allow April 30th, messengers, 1763. Wilkes and the printers, supported by Lord Temple's liberality, soon questioned the legality of the gen- Actions eral warrant. First, several journeymen printers against the brought actions against the messengers. On the July 6th, first trial, Lord Chief Justice Pratt, ing bad precedents to set aside the sound principles of English law, -held that the general warrant was illegal; that it was illegally executed; and that the messengers were not indemnified by statute. The journeymen recovered 3007. damages; and the other plaintiffs also obtained verdicts. In all these cases, however, bills of exceptions were tendered and allowed. Mr. Wilkes himself brought an action against Mr. Wood, under-secretary of state, who had personally super- Wilkes' intended the execution of the warrant. Wood, Dec. At this action against trial it was proved that Mr. Wood and the mes- 6th, 1763. 1 Almon's Corr. of Wilkes, i. 96-124; iii. 196-210, &c. sengers, after Wilkes' removal in custody, had taken entire possession of his house, refusing admission to his friends; had sent for a blacksmith, who opened the drawers of his bureau; and having taken out the papers, had carried them away in a sack, without taking any list or inventory. All his private manuscripts were seized, and his pocketbook filled up the mouth of the sack. Lord Halifax was examined, and admitted that the warrant had been made out, three days before he had received evidence that Wilkes was the author of the "North Briton." Lord Chief Justice Pratt thus spoke of the warrant : "The defendant claimed a right, under precedents, to force persons' houses, break open escritoires, and seize their papers, 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 af fect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject." The jury found a verdict for the plaintiff, with 1000 damages. Four days after, Wilkes had obtained his verdict against Leach v. 2 Mr. Wood, Dryden Leach, the printer, gained anMoney. Dec. other verdict, with 4007. damages, against the 10th, 1768. messengers. A bill of exceptions, however, was tendered and received in this, as in other cases, and came on for hearing before the Court of King's Bench, in 1765. After much argument, and the citing of precedents showing the practice of the secretary of state's office ever since the Revolution, Lord Mansfield pronounced the warrant illegal, saying, "It is not fit that the judging of the information should be left to the discretion of the officer. The magistrate should judge and give certain directions to the officer." The 1 So stated by Lord Camden in Entinck v. Carrington. 2 Lofft's Reports, St. Tr., xix. 1153. |