THOMAS NUTHALL, ESQ. TO MR. PITT. (1)

SIR,

Crosby Square, July 7, 1763.

THE first of fourteen trials, in actions brought by the journeymen and people employed by one Leach, a printer, who were taken up by the secretary of state's warrant, and in custody of the messengers some hours, as the printers of the North Briton, No. 45., when in fact they were in nowise concerned in it, came on to be tried before Lord Chief Justice

(1) This letter contains a spirited report of the proceedings in the Court of Common Pleas, on the trial of the messengers, for taking certain journeymen printers into custody on account of the "North Briton." In consequence of strictures on the King's speech at the prorogation, which appeared in the 45th number of that publication, it was deemed expedient to issue a warrant from the Secretary of State's office, requiring four messengers in ordinary to make strict search for the authors, printers, and publishers of the above seditious and treasonable production, to apprehend and seize them, together with their papers, and bring them before the secretary of state. Under this authority, one Leach, a journeyman printer, to whom the messengers had been erroneously directed, was apprehended, but discharged. Kearsley, the avowed publisher, was next day taken into custody, and voluntarily acknowledged before Lord Halifax, that one Balfe was the printer, and Wilkes the author of the paper. The crownlawyers being of opinion, that the publication of a libel was a breach of the peace, and therefore not a case of privilege, the messengers were directed, by virtue of the same warrant, to bring Wilkes before the Secretary of State. He applied to the Court of Common Pleas for a writ of Habeas Corpus. The motion was granted; but, before the writ could be prepared, Wilkes was committed to the Tower. These were the circumstances which brought under public discussion the important question of the legality of general warrants.

Pratt, at nine yesterday morning, and lasted till eight at night; when the jury found a verdict for three hundred pounds damages against the messengers generally, and refused to find a special verdict; which was much pressed by the counsel for the defendants, namely, the attorney and solicitor general, and the four King's serjeants.

The plaintiffs' circumstances certainly were not taken into consideration by the jury, for much less had been sufficient in that view only; but they probably considered the danger of the precedent, and saw pretty plainly, by the manner in which the defence was conducted, that the messengers were well and sufficiently indemnified. Besides this, the defendant's counsel delivered in a bill of exceptions (a very unusual proceeding) to the chief justice's opinion on the questions of law, which much incensed the jury, and did not a little contribute to enhance the damages; for these exceptions must be argued before all the judges of the court of common pleas, and may afterwards be carried to the King's bench, exchequer chamber, and ultimately to the house of lords, which would be attended with great expence as well as delay to the plaintiff.

The two questions on which the bill of exceptions was founded were these: first, that by a late act of parliament constables must be sued with the justices of the peace, and not separately; and the justices must have a month's notice before action brought, in order that they may have an

opportunity of tendering amends or satisfaction to the party, and it was argued, that secretaries of state must be considered as justices of the peace, and messengers as constables; and therefore no notice having been given in the present case, nor any action brought against the secretary of state, this action could not be supported.

But this objection was overruled, for two reasons, by the chief justice; first, because the statute nowhere mentions secretaries of state, or messengers, nor are they within the purview or intent, more than within the letter of the act; and it is perhaps but a fiction in law to consider them as justices of the peace: secondly, supposing them to be justices of the peace, and the messengers to be constables, yet the latter could not be brought within this act, because they had no warrant for doing what they did; for the warrant was to apprehend the printers and publishers of the North Briton, No. 45, whereas they did not take up those people, but innocent men, who had never any concern with that paper, and therefore they were not entitled to the protection or sanction of the warrant, which expressly directed them to do what they did not.

The second point laboured by the attorney and solicitor general was, that there was a probable cause for apprehending these people, which was sufficient to justify the messengers, if considered as constables. The first answer to this is, that in actions of false imprisonment, probable cause is no

justification: it is so in seizures of run goods, to prevent officers of the revenue from being liable to costs; but this is by particular and express act of parliament, which can be extended only to the cases mentioned in that act. But how did the probable cause come out upon evidence? Thus,Mr. Carrington, the messenger, told three other messengers, who executed the warrant, that he had been told by a gentleman, who had been told by another gentleman, that Leach's people printed the paper in question. This was all the probable cause they could show; which had not the least shadow of probability in it.

Mr. Attorney-General opened the defence, with a long panegyric on the King's personal virtues; his love of liberty; the dreadful tendency of all the papers called North Britons; the good and great effects of the union; the personal bravery and qualities of the Scots in general, and the terrible consequences of reviving national prejudices and distinctions, &c. &c. &c. A very good speech upon the whole, if addressed to the King himself, but a very injudicious one to a jury of citizens of London.

Mr. Wilkes was present, and after the trial was followed out of Guildhall with loud acclamations; and, on the other hand, Mr. Solicitor-General had one continued hiss from the court into his chariot. The chief justice had warm work of it, yet he must sit till all the fourteen causes are tried. Had the verdict been for small damages,

probably the rest of the actions had been soon determined; but for fear of the like damages, by other juries, the counsel for the crown must now fight every cause through, or it may happen that all the secret service money left may not be sufficient to pay the damages found in all the causes.

The bill of exceptions filled two large skins of parchment, and had been settled before the trial began; so they could not trust the chief justice, it was very plain, and guessed at what his opinion would be.

It is a method of practice allowed in the law, but I never recollect its being once done since I was in business. It is arraigning the judgment of the judge, and a very ill compliment to him; and in these cases now depending I am persuaded will do their cause no good with the juries who are to try them, or with the public.

You will be pleased to observe, that the exceptions taken to the chief justice's determination on the questions of law are the more provoking and ungracious, as the objections made by the King's counsel did not at all affect or go to the merits, and tended only to nonsuit the plaintiff, for want of conformity to the mode prescribed by the act of parliament for bringing his action; so that all that was intended was to put off the trial and weary the plaintiff out by expense and delay. As these plaintiffs were not the printers of No. 45, North Briton, if the warrant they were imprisoned by was ever so legal, still it would be false im