The Constitutional History of England from 1760 to 1860

Chapter 1

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The Const.i.tutional History of England From 1760 to 1860.

by Charles Duke Yonge.

PREFACE.

Mr. Hallam"s "Const.i.tutional History" closes, as is well known, with the death of George II. The Reformation, the great Rebellion, and the Revolution, all of which are embraced in the period of which it treats, are events of such surpa.s.sing importance, and such all-pervading and lasting influence, that no subsequent transactions can ever attract entirely equal attention. Yet the century which has elapsed since the accession of George III. has also witnessed occurrences not only full of exciting interest at the moment, but calculated to affect the policy of the kingdom and the condition of the people, for all future time, in a degree only second to the Revolution itself. Indeed, the change in some leading features and principles of the const.i.tution wrought by the Reform Bill of 1832, exceeds any that were enacted by the Bill of Rights or the Act of Settlement. The only absolutely new principle introduced in 1688 was that establishment of Protestant ascendency which was contained in the clause which disabled any Roman Catholic from wearing the crown. In other respects, those great statutes were not so much the introduction of new principles, as a recognition of privileges of the people which had been long established, but which, in too many instances, had been disregarded and violated.

But the Reform Bill conferred political power on cla.s.ses which had never before been admitted to be ent.i.tled to it; and their enfranchis.e.m.e.nt could not fail to give a wholly new and democratic tinge to the government, which has been visible in its effect on the policy of all subsequent administrations.

And, besides this great measure, the pa.s.sing of which has often been called a new Revolution, and the other reforms, munic.i.p.al and ecclesiastical, which were its immediate and almost inevitable fruits, the century which followed the accession of George III. was also marked by the Irish Union, the abolition of slavery, the establishment of the principle of universal religious toleration; the loss of one great collection of colonies, the plantation of and grant of const.i.tutions to others of not inferior magnitude, which had not even come into existence at its commencement; the growth of our wondrous dominion in India, with its eventual transfer of all authority in that country to the crown; with a host of minor transactions and enactments, which must all be regarded as, more or less, so many changes in or developments of the const.i.tution, as it was regarded and understood by the statesmen of the seventeenth century.

It has seemed, therefore, to the compiler of this volume, that a narrative of these transactions in their historical sequence, so as to exhibit the connection which has frequently existed between them; to show, for instance, how the repeal of Poynings" Act, and the Regency Bill of 1788, necessitated the Irish Union; how Catholic Emanc.i.p.ation brought after it Parliamentary Reform, and how that led to munic.i.p.al and ecclesiastical reforms, might not be without interest and use at the present time. And the modern fulness of our parliamentary reports (itself one not unimportant reform and novelty), since the accession of George III., has enabled him to give the inducements or the objections to the different enactments in the very words of the legislators who proposed them or resisted them, as often as it seemed desirable to do so.

CONSt.i.tUTIONAL HISTORY OF ENGLAND.

CHAPTER I.

Mr. Hallam"s View of the Development of the Const.i.tution.--Symptoms of approaching Const.i.tutional Changes.--State of the Kingdom at the Accession of George III.--Improvement of the Law affecting the Commissions of the Judges.--Restoration of Peace.--Lord Bute becomes Minister.--The Case of Wilkes.--Mr. Luttrell is Seated for Middles.e.x by the House of Commons.--Growth of Parliamentary Reporting.--Mr.

Grenville"s Act for trying Election Pet.i.tions.--Disfranchis.e.m.e.nt of Corrupt Voters at New Sh.o.r.eham.

The learned and judicious writer to whom is due the first idea of a "Const.i.tutional History of England," and of whose admirable work I here venture to offer a continuation, regards "the spirit of the government"

as having been "almost wholly monarchical till the Revolution of 1688,"

and in the four subsequent reigns, with the last of which his volumes close, as "having turned chiefly to an aristocracy."[1] And it may be considered as having generally preserved that character through the long and eventful reign of George III. But, even while he was writing, a change was already preparing, of which more than one recent occurrence had given unmistakable warning. A borough had been disfranchised for inveterate corruption in the first Parliament of George IV.[2] Before its dissolution, the same House of Commons had sanctioned the principle of a state endowment of the Roman Catholic clergy in Ireland, and had given a third reading to a bill for the abolition of all civil restrictions affecting members of that religion. It was impossible to avoid foreseeing that the Parliamentary Reform inaugurated by the disfranchis.e.m.e.nt of Grampound would soon be carried farther, or that the emanc.i.p.ation, as it was termed, of all Christian sects was at least equally certain not to be long delayed. And it will be denied by no one that those measures, which had no very obscure or doubtful connection with each other, have gradually imparted to the const.i.tution a far more democratic tinge than would have been willingly accepted by even the most liberal statesman of the preceding century, or than, in the days of the Tudors or of the Stuarts, would have been thought compatible with the maintenance of the monarchy.

When George III. came to the throne, he found the nation engaged in a war which was occupying its arms not only on the Continent of Europe, but in India and America also, and was extending her glory and her substantial power in both hemispheres. _Inter arma silent leges_. And, while the contest lasted, neither legislators in Parliament nor the people outside had much attention to spare for matters of domestic policy. Yet the first year of the new reign was not suffered to pa.s.s without the introduction of one measure limiting the royal prerogative in a matter of paramount importance to the liberty of the people, the independence of the judges. The rule of making the commissions of the judges depend on their good conduct instead of on the pleasure of the crown had, indeed, been established at the Revolution; but it was still held that these commissions expired with the life of the sovereign who had granted them; and, at the accession of Anne, as also at that of George II., a renewal of their commissions had been withheld from some members of the judicial bench. But now, even before the dissolution of the existing Parliament, the new King recommended to it such a change in the law as should "secure the judges in the enjoyment of their offices during their good behavior, notwithstanding any demise of the crown;"

giving the proposal, which was understood to have been originally suggested by himself, additional weight by the very unusual step of making it the subject of a speech to the two Houses in the middle of the session. A bill to give effect to it was at once brought in, and, though the Houses sat only a fortnight longer, was carried before the dissolution.

The close of the year 1762, however, saw the restoration of peace; and the circ.u.mstances connected with the treaty which re-established it gave birth to a degree of political and const.i.tutional excitement such as had not agitated the kingdom for more than half a century. That treaty had not been concluded by the minister who had conducted the war. When George III. came to the throne he found the Duke of Newcastle presiding at the Treasury, but the seals of one Secretary of State in the hands of Mr. Pitt, who was universally regarded as the guiding genius of the ministry. The other Secretary of State was Lord Holdernesse. But, in the spring of 1761, as soon as the Parliament was dissolved,[3] that statesman retired from office, and was succeeded by the Earl of Bute, a Scotch n.o.bleman, who stood high in the favor of the King"s mother, the Princess Dowager of Wales, but who had not till very recently been supposed to be actuated by political ambition, and who was still less suspected of any statesman-like ability to qualify him for the office to which he was thus promoted. It was presently seen, however, that he aspired to even higher dignity. He at once set himself to oppose Pitt"s warlike policy; and, on the question of declaring war against Spain, he was so successful in inducing the rest of the cabinet to reject Pitt"s proposals, that that statesman resigned his office in unconcealed indignation. Having got rid of the real master of the ministry, Bute"s next step was to get rid of its nominal chief, and in the spring of 1762 he managed to drive the Duke of Newcastle from the Treasury, and was himself placed by the King at the head of the administration. So rapid an elevation of a man previously unknown as a politician could hardly fail to create very widespread dissatisfaction, which was in some degree augmented by the nationality of the new minister. Lord Bute was a Scotchman, and Englishmen had not wholly forgiven or forgotten the Scotch invasion of 1745. Since that time the Scotch had been regarded with general disfavor; Scotch poverty and Scotch greediness for the good things of England had furnished constant topics for raillery and sarcasm; and more than one demagogue and political writer had sought popularity by pandering to the prevailing taste for attacks on the whole nation. Foremost among these was Mr. John Wilkes, member for Aylesbury, a man of broken fortunes and still more damaged character, but of a wit and hardihood that made his society acceptable to some of high rank and lax morality, and caused his political alliance to be courted by some who desired to be regarded as leaders of a party; many of the transactions of the late reign having, unfortunately, not been favorable to the maintenance of any high standard of either public or private virtue. On Lord Bute"s accession to office, Wilkes had set up a periodical paper, whose object and character were sufficiently indicated by its t.i.tle, _The North Briton_, and in which the diligence of Lord Bute in distributing places among his kinsmen and countrymen furnished the staple of almost every number; while in many the Princess of Wales herself was not spared, as the cause, for motives not obscurely hinted at, of his sudden elevation. So pertinacious and virulent were the attacks thus launched at him, coinciding as they did, at least in one point, with the prejudices of the mult.i.tude, that they were commonly believed to have had some share in driving Lord Bute from office, which, in the spring of 1763, he suddenly resigned, hoping, as it might almost seem, thus to throw on his successor the burden of defending his measures. The most important of these measures had been the conclusion of the Treaty of Versailles, which, when it was first announced to Parliament, had been vehemently attacked in both Houses by Pitt and his followers, but had been approved by large majorities. Wilkes, however, not without reason, believed it to be still unpopular with the nation at large, and, flushed with his supposed victory over Lord Bute, was watching eagerly for some occasion of re-opening the question, when such an opportunity was afforded him by the King"s speech at the prorogation of the Parliament, which took place a few days after Lord Bute"s resignation.

Lord Bute had been succeeded by Mr. George Grenville, who had for a time been one of his colleagues as Secretary of State; and on him, therefore, the duty devolved of framing the royal speech the opening sentences of which referred to "the re-establishment of peace" in terms of warm self-congratulation, as having been effected "upon conditions honorable to the crown and beneficial to the people." Wilkes at once caught at this panegyric, as affording him just such an opportunity as he had been seeking of renewing his attacks on the government, which he regarded as changed in nothing but the name of the Prime-minister.[4] And, four days after the prorogation,[5] he accordingly issued a new number of _The North Briton_ (No. 45), in which he heaped unmeasured sarcasm and invective on the peace itself, on the royal speech, and on the minister who had composed it. As if conscious that Mr. Grenville was less inclined by temper than Lord Bute to suffer such attacks without endeavoring to retaliate, he took especial pains to keep within the law in his strictures, and, accordingly, carefully avoided saying a disrespectful word of the King himself, whom he described as "a prince of many great and amiable qualities," "ever renowned for truth, honor, and unsullied virtue." But he claimed a right to canva.s.s the speech "with the utmost freedom," since "it had always been considered by the Legislature and by the public at large as the speech of the minister."

And he kept this distinction carefully in view through the whole number.

The speech he denounced with bitter vehemence, as "an abandoned instance of ministerial effrontery," as containing "the most unjustifiable public declarations" and "infamous fallacies." The peace he affirmed to be "such as had drawn down the contempt of mankind on our wretched negotiators." And he described the present minister as a mere tool of "the favorite," by whom "he still meditated to rule the kingdom with a rod of iron." But in the whole number there was but one sentence which could be represented as implying the very slightest censure on the King himself, and even that was qualified by a personal eulogy. "The King of England," it said, "is not only the first magistrate of the country, but is invested by the law with the whole executive power. He is, however, responsible to his people for the due execution of the royal functions in the choice of ministers, etc., equally with the meanest of his subjects in his particular duty. The personal character of our present amiable sovereign makes us easy and happy that so great a power is lodged in such hands; but the favorite has given too just cause for him to escape the general odium. The prerogative of the crown is to exert the const.i.tutional power intrusted to it in such a way, not of blind favor and partiality, but of wisdom and judgment. This is the spirit of our const.i.tution. The people, too, have their prerogative; and I hope the fine words of Dryden will be engraven on our hearts, "Freedom is the English subject"s prerogative.""

These were the last sentences of No. 45. And in the present day it will hardly be thought that, however severe or even violent some of the epithets with which certain sentences of the royal speech were a.s.sailed may have been, the language exceeds the bounds of allowable political criticism. With respect to the King, indeed, however accompanied with personal compliments to himself those strictures may have been, it may be admitted that in a.s.serting any responsibility whatever to the people on the part of the sovereign, even for the choice of his ministers, as being bound to exercise that choice "with wisdom and judgment," it goes somewhat beyond the strict theory of the const.i.tution. Undoubtedly that theory is, that the minister chosen by the King is himself responsible for every circ.u.mstance or act which led to his appointment. This principle was established in the fullest manner in 1834, when, as will be seen hereafter, Sir Robert Peel admitted his entire responsibility for the dismissal of Lord Melbourne by King William IV., though it was notorious that he was in Italy at the time, and had not been consulted on the matter. But as yet such questions had not been as accurately examined as subsequent events caused them to be; and Wilkes"s a.s.sertion of royal responsibility to this extent probably coincided with the general feeling on the subject.[6] At all events, the error contained in it, and the insinuation that due wisdom and judgment had not been displayed in the appointment of Mr. G. Grenville to the Treasury, were not so derogatory to the legitimate authority and dignity of the crown as to make the writer a fit subject for a criminal prosecution. But Mr.

Grenville was of a bitter temper, never inclined to tolerate any strictures on his own judgment or capacity, and fully imbued with the conviction that the first duty of an English minister is to uphold the supreme authority of the Parliament, and to chastise any one who dares to call in question the wisdom of any one of its resolutions. But _The North Briton_ had done this, and more. No. 45 had not only denounced the treaty which both Houses had approved, but had insinuated in unmistakable language that their approval had been purchased by gross corruption (a fact which was, indeed, sufficiently notorious). And, consequently, Mr. Grenville determined to treat the number which contained the denunciation as a seditious libel, the publication of which was a criminal offence; and, by his direction, Lord Halifax, as Secretary of State, issued what was termed a general warrant--a warrant, that is, which did not name the person or persons against whom it was directed, but which commanded the apprehension of "the authors, printers, and publishers" of the offending paper, leaving the officers who were charged with its execution to decide who came under that description, or, in other words, who were guilty of the act charged, before they had been brought before any tribunal. The warrant was executed. Wilkes and some printers were apprehended; Wilkes himself, as if the minister"s design had been to make the charge ridiculous by exaggeration, being consigned to the great state-prison of the Tower, such a use of which was generally limited to those impeached of high-treason. And, indeed, the commitment did declare that No. 45 of _The North Briton_ was "a libel tending to alienate the affections of the people from his Majesty, and to excite them to traitorous insurrections against the government." Wilkes instantly sued out a writ of _habeas corpus_, and was without hesitation released by the Court of Common Pleas, on the legal ground that, "as a member of the House of Commons, he was protected from arrest in all cases except treason, felony, or a breach of the peace;" a decision which, in the next session of Parliament, the minister endeavored to overbear by inducing both Houses to concur in a resolution that "privilege of Parliament did not extend to the case of publishing seditious libels."

In his life of Lord Camden,[7] who was Chief-justice of the Common Pleas at the time, Lord Campbell expresses a warm approval of this resolution, as one "which would now be considered conclusive evidence of the law."

But, with all respect to the memory of a writer who was himself a Chief-justice, we suspect that in this case he was advancing a position as an author engaged in the discussion of what had become a party question, which he would not have laid down from the Bench.[8] The resolution certainly did not make it law, since it was not confirmed by any royal a.s.sent; and to interpret the law is not within the province of the House of Commons, nor, except when sitting as a Court of Appeal, of the House of Lords. We may, however, fully agree with the principle which Lord Campbell at the same time lays down, that "privilege of Parliament should not be permitted to interfere with the execution of the criminal law of the country." And this doctrine has been so fully acquiesced in since, that members of both Houses have in more than one instance been imprisoned on conviction for libel.

The legality of the species of warrant under which Wilkes had been arrested was, however, a question of far greater importance; and on that no formal decision was p.r.o.nounced on this occasion, the Lieutenant of the Tower, in his return to the writ of _habeas corpus_, and the counsel employed on both sides, equally avoiding all mention of the character of the warrant. But it was indirectly determined shortly afterward. The leaders of the Opposition would fain have had the point settled by what, in truth, would not have settled it--another resolution of the House of Commons. But, though it was discussed in several warm debates, Grenville always contrived to baffle his adversaries, though on one occasion his majority dwindled to fourteen.[9] What, however, the House of Commons abstained from affirming was distinctly, though somewhat extra-judicially, a.s.serted by Lord Camden, as Chief-justice of the Common Pleas. Wilkes, with some of the printers and others who had been arrested, had brought actions for false imprisonment, which came to be tried in his court; and they obtained such heavy damages that the officials who had been mulcted applied for new trials, on the plea of their being excessive. But the Chief-justice refused the applications, and upheld the verdict, on the ground that the juries, in their a.s.sessment of damages, had been "influenced by a righteous indignation at the conduct of those who sought to exercise arbitrary power over all the King"s subjects, to violate Magna Charta, and to destroy the liberty of the kingdom, by insisting on the legality of this general warrant."

Such a justification would hardly be admitted now. But, in a subsequent trial, a still higher authority, the Chief-justice of the King"s Bench, Lord Mansfield, held language so similar, that, once more to quote the words of Lord Campbell, "without any formal judgment, general warrants have ever since been considered illegal."

However, the release of Wilkes on the ground of his parliamentary privilege gave him but a momentary triumph, or rather respite. The prosecution was not abated by the decision that he could not be imprisoned before trial; while one effect of his liberation was to stimulate the minister to add another count to the indictment preferred against him, on which he might be expected to find it less easy to excite the sympathy of any party. Wilkes had not always confined his literary efforts to political pamphlets. There was a club named the Franciscans (in compliment to Sir Francis Dashwood, Lord Bute"s Chancellor of the Exchequer, who, as well as Lord Sandwich, the First Lord of the Admiralty, was one of its members), which met at Medmenham Abbey, on the banks of the Thames, and there held revels whose license recalled the worst excesses of the preceding century. To this club Wilkes also belonged; and, in indulgence of tastes in harmony with such a brotherhood, he had composed a blasphemous and indecent parody on Pope"s "Essay on Man," which he ent.i.tled "An Essay on Woman," and to which he appended a body of burlesque notes purporting to be the composition of Pope"s latest commentator, the celebrated Dr. Warburton, Bishop of Gloucester. He had never published it (indeed, it may be doubted whether, even in that not very delicate age, any publisher could have been found to run the risk of issuing so scandalous a work), but he had printed a few copies in his own house, of which he designed to make presents to such friends as he expected to appreciate it. He had not, however, so far as it appears, given away a single copy, when, on the very first day of the next session of Parliament, Lord Sandwich himself brought the parody under the notice of the House of Lords. If there was a single member of the House whose delicacy was not likely to be shocked, and whose morals could not be injured by such a composition, it was certainly Lord Sandwich himself; but his zeal as a minister to support his chief kindled in him a sudden enthusiasm for the support of virtue and decency also; and, having obtained a copy by some surrept.i.tious means, he now made a formal complaint of it to the House, contending that the use of the name of the Bishop of Gloucester as author of the notes const.i.tuted a breach of the privileges of the House.

And he was seconded by the bishop himself, whose temper and judgment were, unhappily, very inferior to his learning and piety. It is recorded that he actually compared Wilkes to the devil, and then apologized to Satan for the comparison. But the Lords were in a humor to regard no violence against Wilkes as excessive; and, submitting to the guidance of the minister and the prelate, resolved that the "Essay on Woman,"[10] as also another poem by the same writer, a paraphrase of the "Veni Creator," was "a most scandalous, obscene, and impious libel," and presented an address to the King, requesting his Majesty "to give the most effectual orders for the immediate prosecution of the author." And, in the course of the next few weeks, the House of Commons outran the peers themselves in violence and manifest unfairness. They concurred with the Lords in ordering No. 45 of _The North Briton_ to be burnt by the common hangman, an order which was not carried out without great opposition on the part of the London populace, who made it the occasion of a very formidable riot, in which the sheriffs themselves incurred no little danger; and, by another resolution, they ordered Wilkes to attend in his place to answer the charge of having published the two works. But at the time when they made this order it was well known that he could not obey it. A few days before he had been challenged by a Mr. Martin, who till very recently had been one of the Secretaries of the Treasury, and who was generally believed to have prepared himself for the conflict by diligent practice with a pistol; and in the duel which ensued Wilkes had been severely wounded. It was not only notorious that he had been thus disabled, but he sent a physician and surgeon of admitted eminence in their profession, and of unquestioned honor, to testify to the fact at the bar of the House; and subsequently he forwarded written certificates to the same purport from some French doctors who had special knowledge of gunshot wounds. But the Commons declined to accept this evidence as sufficient, and directed two other doctors to examine him. Wilkes, however, refused to admit them: his refusal was treated as a sufficient ground for p.r.o.nouncing him "guilty of a contempt of the authority of the House," and for deciding on his case in his absence; and, on the 19th of January, before the case had come on for trial, a resolution was carried that "Mr. Wilkes was guilty of writing and publishing _The North Briton_ (No. 45), which this House had voted to be a false, scandalous, and seditious libel, and that, for the said offence, he be expelled the House." At a later period of the year, he was tried on the two charges of publishing No. 45 and the "Essay on Woman," was found guilty of both, and, as he did not appear to receive judgment, in November, 1764, he was outlawed.

So far, it may be said to have been a drawn battle. If, on the one hand, the minister had procured the expulsion of Wilkes, on the other hand Wilkes had gained great notoriety and a certain amount of sympathy, and had, moreover, enriched himself by considerable damages; and again, if the nation at large was a gainer by the condemnation of general warrants, even that advantage might be thought to be dearly gained by the discredit into which the Parliament had fallen through its intemperance. But the contest between Wilkes and the ministry was only closed for a time; and when it was revived, a singular freak of fortune caused the very minister who had led the proceedings against him on this occasion to appear as his advocate. To avoid the consequences of his outlawry, he had taken up his abode in Paris, waiting for a change of ministry, which, as he hoped, might bring into power some to whom he might look for greater favor. But when, though in the course of the next two years two fresh administrations were formed, it was seen that neither Lord Rockingham, the head of the first, nor the Duke of Grafton and Mr. Pitt (promoted to the Earldom of Chatham), the heads of the second, had any greater sympathy with him than Mr. Grenville, he became desperate, and looked out for some opportunity of giving effect to his discontent. He found it in the dissolution of Parliament, which took place in the spring of 1768. In spite of his outlawry, he instantly returned to England, and offered himself as a candidate for London.

There, indeed, he did not succeed, though the populace was uproarious in his support, and drew his carriage through the streets as if in triumph.

But, before the end of the month, he was returned at the head of the poll for Middles.e.x, when the mob celebrated his victory by great riot and outrages, breaking the windows of Lord Bute, as his old enemy, and of the Lord Mayor, as the representative of the City of London, which had rejected him, and insulting, and even in some instances beating, pa.s.sers-by who refused to join in their cheers for "Wilkes and Liberty."

He had already pledged himself to take the necessary steps to procure the reversal of his outlawry; and, in pursuance of his promise, he surrendered in the Court of King"s Bench. But his removal to prison caused a renewal of the tumults with greater violence than before. The mob even rescued him from the officers who had him in custody; and when, having escaped from his deliverers, he, with a parade of obedience to the law, again surrendered himself voluntarily at the gate of the King"s Bench Prison, they threatened to attack the jail itself, kindled a fire under its walls, which was not extinguished without some danger, and day after day a.s.sembled in such tumultuous and menacing crowds, that at last Lord Weymouth, the Secretary of State, wrote a letter to the Surrey magistrates, enjoining them to abstain from no measures which might seem necessary for the preservation of peace, even if that could only be effected by the employment of the soldiery. The riots grew more and more formidable, till at last the magistrates had no resource but to call out the troops, who, on one occasion, after they had been pelted with large stones, and in many instances severely injured, fired, killing or wounding several of the foremost rioters. So tragical an event seemed to Wilkes to furnish him with exactly such an opportunity as he desired to push himself into farther notoriety. He at once printed Lord Weymouth"s letter, and circulated it, with an inflammatory comment, in which he described it as a composition having for its fruit "a horrid ma.s.sacre, the consummation of a h.e.l.lish plot deliberately planned." Too angry to be prudent, Lord Weymouth complained to the House of Lords of this publication as a breach of privilege, and the Lords formally represented it to the House of Commons as an insult deliberately offered to them by one of its members. There could be no doubt that such language as Wilkes had used was libellous. In its imputation of designs of deliberate wickedness, it very far exceeded the bitterest pa.s.sages of _The North Briton_; and Lord Weymouth"s colleagues, therefore, thought they might safely follow the precedent set in 1764, of branding the publication as a libel, and again procuring the expulsion of the libeller from the House of Commons. There were circ.u.mstances in the present case, such as the difference between the const.i.tuencies of Aylesbury and Middles.e.x, and the enthusiastic fervor in the offender"s cause which the populace of the City had displayed, which made it very doubtful whether the precedent of 1764 were quite a safe one to follow; but the ministers not only disregarded every such consideration, but, as if they had wantonly designed to give their measure a bad appearance, and to furnish its opponents with the strongest additional argument against it, they mixed up with their present complaint a reference to former misdeeds of Wilkes with which it had no connection. On receiving the message of the Lords, they had summoned him to appear at the bar of the House of Commons, that he might be examined on the subject; but this proceeding was so far from intimidating him, that he not only avowed the publication of his comment on Lord Weymouth"s letter, but gloried in it, a.s.serting that he deserved the thanks of the people for bringing to light the true character of "that b.l.o.o.d.y scroll." Such language was regarded as an aggravation of his offence, and the Attorney-general moved that his comment on the letter "was an insolent, scandalous, and seditious libel;" and, when that motion had been carried, Lord Barrington followed it up with another, to the effect that "John Wilkes, Esq., a member of this House, who hath at the bar of this House confessed himself to be the author and publisher of what the House has resolved to be an insolent, scandalous, and seditious libel, and who has been convicted in the Court of King"s Bench of having printed and published a seditious libel, and three[11]

obscene and impious libels, and by the judgment of the said Court has been sentenced to undergo twenty-two months" imprisonment, and is now in execution under the said judgment, be expelled this House." This motion encountered a vigorous opposition, not only from Mr. Burke and the princ.i.p.al members of the Rockingham party, which now formed the regular Opposition, but also from Mr. Grenville, the former Prime-minister, who on the former occasion, in 1764, had himself moved the expulsion of the same offender. His speech on this occasion is the only one which is fully reported; and it deserved the distinction from the exhaustive way in which it dealt with every part of the question. It displayed no inclination to extenuate Wilkes"s present offence, but it pointed out with great force the circ.u.mstance that the supporters of the motion were far from agreement as to the reasons by which they were guided; that some members of the greatest authority in the House, while they had avowed their intention of voting for the expulsion, had at the same time been careful to explain that the comment on Lord Weymouth"s letter was not the ground of their vote; that so great a lawyer as Mr. Blackstone had a.s.serted that that comment "had not been properly and regularly brought before the House," but had founded his intention to vote for the expulsion solely "upon that article of the charge which related to the three obscene and impious libels mentioned in it, disavowing in the most direct terms all the other articles." That, on the other hand, other members of deserved weight and influence, such as Lord Palmerston and Lord F. Campbell, had disdained the idea of regarding "the article of the three obscene and impious libels as affording any ground for their proceeding." So practised a debater as Mr. Grenville had but little difficulty, therefore, in arguing against the advocates of expulsion, when they were so divided that one portion of them did, in fact, reply to the other. But it would be superfluous here to enter into the arguments employed on either side to justify the expulsion, or to prove it to be unjustifiable, from a consideration of the character of either Wilkes or his publication. The strength and importance of Mr.

Grenville"s speech lay in the const.i.tutional points which it raised.

Some supporters of the ministers had dwelt upon the former expulsion, insisting that "a man who had been expelled by a former House of Commons could not possibly be deemed a proper person to sit in the present Parliament, unless he had some pardon to plead, or some merit to cancel his former offences." By a reference to the case of Sir R. Walpole, Mr.

Grenville proved that this had not been the opinion of former Parliaments; and he contended, with unanswerable logic, that it would be very mischievous to the nation if such a principle should be now acted on, and such a precedent established, since, though employed in the first instance against the odious and the guilty, it might, when once established, be easily applied to, and made use of against, the meritorious and the innocent; and so the most eminent and deserving members of the state, under the color of such an example, by one arbitrary and discretionary vote of one House of Parliament, the worst species of ostracism, might be excluded from the public councils, cut off and proscribed from the rights of every subject of the realm, not for a term of years alone, but forever. He quoted from "L"Esprit des Lois" an a.s.sertion of Montesquieu, that "one of the excellences of the English const.i.tution was, that the judicial power was separated from the legislative, and that there would be no liberty if they were blended together; the power over the life and liberty of the citizens would then be arbitrary, for the judge would be the legislator." And, having thus proved that it would be a violation of the recognized const.i.tution to found a second expulsion on the first, he proceeded to argue that to expel him for this new offence would be impolitic and inexpedient, as a step which would inevitably lead to a contest with the const.i.tuency which he represented, since, "in the present disposition of the county of Middles.e.x, no one could entertain a doubt that Wilkes would be re-elected. The House would then probably think itself under a necessity of again expelling him, and he would as certainly be again re-elected.

The House might, indeed, refuse to issue a new writ, which would be to deprive the freeholders of Middles.e.x of the right of choosing any other representative; but he could not believe that the House would think it fit to inflict such a punishment on the electors of a great county.

Should it not do so, the other alternative would be to bring into the House as representative and knight of the shire for Middles.e.x a man chosen by a few voters only, in contradiction to the declared sense of a great majority of the freeholders on the face of the poll, upon the supposition that all the votes of the latter were forfeited and thrown away on account of the expulsion of Mr. Wilkes." It seemed premature to discuss that point before it arose, and therefore the Speaker contented himself for the present with saying that "he believed there was no example of such a proceeding; and that, if it should appear to be new and unfounded as the law of the land, or even if any reasonable doubt could be entertained of its legality, the attempt to forfeit the freeholders" votes in such a manner would be highly alarming and dangerous."

Few prophecies have been more exactly fulfilled. The House did expel Mr.

Wilkes; he did offer himself for re-election, and was re-elected; and the minister, in consequence, moved and carried a resolution that "John Wilkes, Esq., having been, in this session of Parliament, expelled this House, was and is incapable of being elected a member to serve in this present Parliament." And, in pursuance of this vote, a writ was again issued. At the end of another month the proceeding required to be repeated. Wilkes had again offered himself for re-election. No other candidate had presented himself, and, in answer to an inquiry, the under-sheriff reported that "no other candidate had been proposed but John Wilkes, Esq., and that no elector had given or tendered his vote for any other person." Once more the House resolved that he was "incapable of being elected," and issued a new writ. But on this second occasion the ministry had provided a rival candidate in the person of the Honorable H.K. Luttrell. He was duly proposed and seconded; a poll was taken and kept open for several days, and, as it appeared at the close that 1143 votes had been given for Wilkes and 296 for Mr.

Luttrell, the sheriff again returned Wilkes as duly elected.

A debate of singularly angry excitement arose on the reception of this return. Even lawyers, such as Mr. De Grey, the Attorney-general, and Sir Fletcher Norton, who had been Attorney-general, were not ashamed to denounce the conduct of the sheriff in returning Mr. Wilkes as "highly improper and indecent," as "a flying in the face of a resolution of the House of Commons;" and Sir Fletcher even ventured to advance the proposition that, "as the Commons were acting in a judicial capacity, their resolutions were equal to law." Lord North, too, the Chancellor of the Exchequer, as we learn from the "Parliamentary History," "spoke long, but chiefly to the pa.s.sions. He described Mr. Wilkes and his actions in a lively manner; showed the variety of troubles which he had given the ministry; and that unless, by voting in Mr. Luttrell, an end were put to this debate, the whole kingdom would be in confusion; though he owned that he did not think that measure would put an end to the distractions. He spoke much more to the expediency than to the legality of the measure proposed."

On the other side, it was contended by several members, Burke and Mr.

Grenville being of the number, that "the House of Commons alone could not make a law binding any body but themselves. That, if they could disqualify one person, they could disqualify as many as they pleased, and thus get into their own hands the whole power of the government;"

and precedents were produced to prove that votes of the House of Lords, and also of the House of Commons, regarding their own members, had been disregarded by the judges of the Court of King"s Bench as being contrary to law. But the minister was secure of the steadiness of his adherents, and a majority of 221 to 152 declared that Mr. Luttrell had been duly elected.

But Lord North was correct in his antic.i.p.ation that their vote would not put an end to the agitation on the question, and it was renewed in the next session in a manner which at one time threatened to produce a breach between the two Houses.

The "Parliamentary History" closes its report of the debate on the resolution by which Mr. Luttrell was seated with a summary of the arguments used in it, taken from the "Annual Register," which, as is universally known, was at this time edited by Mr. Burke. It is a very fair and candid abstract, which, in fact, puts the whole question on one single issue, "that the House of Commons is the sole court of judicature in all cases of election, and that this authority is derived from the first principles of our government, viz., the necessary independence of the three branches of the Legislature." But, though that doctrine was fully admitted by the Opposition, they made "that very admission a ground for reviving the question in the next session, by moving for a resolution which should declare that, "being a Court of Judicature, the House of Commons, in deciding matters of election, was bound to judge according to the law of the land, and the known and established law of Parliament, which was part thereof."" It was understood that this resolution, if carried, was intended as a stepping-stone to others which should condemn the decision of the previous session; yet it seemed such a truism that even the ministers could not venture to deny it; but they proposed to defeat the object of its framers by adding to it a declaration that the late decision was "agreeable to the said law of the land." And we might pa.s.s on to the subsequent debate, in which the const.i.tutional correctness of that addition was distinctly challenged, did it not seem desirable to notice two arguments which were brought forward against the motion, one by an independent member, Mr. Ongley, the other by the Attorney-general. Mr. Ongley contended that "a power of preserving order and decency is essentially necessary to every aggregate body; and, with respect to this House, if it had not power over its particular members, they would be subject to no control at all." The answer to this argument is obvious: that a right on the part of the House to control the conduct of its members is a wholly different thing from a right to determine who are or ought to be members; and that for the House to claim this latter right, except on grounds of qualification or disqualification legally proved, would be to repeat one of the most monstrous of all Cromwell"s acts of tyranny, when, in 1656, he placed guards at the door of the House, with orders to refuse admission to all those members whom, however lawfully elected, he did not expect to find sufficiently compliant for his purposes. Mr. De Grey"s argument was of a different character, being based on what he foretold would be the practical result of a decision that expulsion did not involve an incapacity to be re-elected. If it did not involve such incapacity, and if, in consequence, Mr. Wilkes should be re-elected, he considered that the House would naturally feel it its duty to re-expel him as often as the const.i.tuency re-elected him. But one answer given to this argument was, that to expel a second time would be to punish twice for one offence, a proceeding at variance not only with English law but with every idea of justice. Another, and one which has obtained greater acceptance, was, that the legitimate doctrine was, that the issue of a new writ gave the expelled member an appeal from the House to the const.i.tuency, and that the const.i.tuency had a const.i.tutional right to overrule the judgment of the House, and to determine whether it still regarded the candidate as its most suitable representative.

The ministers, however, were, as before, strong enough in the House to carry their resolution. But the Opposition returned to the charge, taking up an entirely different though equally general position, "That, by the law of the land and the known law and usage of Parliament, no person eligible by common right can be incapacitated by vote or resolution of this House, but by act of Parliament only." It is remarkable that, in the debate which ensued, two members who successively rose to the dignity of Lord Chancellor, Mr. Thurlow and Mr.

Wedderburn, took different sides; but nothing could shake the ministerial majority. The resolution was rejected. And when Lord Rockingham proposed the same resolution in the House of Lords, though it was supported by all the eloquence of Lord Chatham, he was beaten by a majority of more than two to one, and the ministers even carried a resolution declaring "that any interference of the House of Lords with any judgment of the House of Commons, in matters of election, would be a violation of the const.i.tutional rights of the Commons."

Even these decisive defeats of the Opposition did not finally terminate the struggle. The notoriety which Wilkes had gained had answered his purpose to no slight extent. The City had adopted his cause with continually increasing earnestness and effect. It had made him Sheriff, Alderman, Lord Mayor, and had enriched him with the lucrative office of City Chamberlain; and, as one of the City magistrates, he subsequently won the good opinion of many who had previously condemned him, by his conduct during the Gordon Riots, in which he exerted his authority with great intrepidity to check and punish the violence of the rioters. And when, in 1782, Lord Rockingham became, for the second time, Prime-minister, he thought he might well avail himself of the favor he had thus acquired, and of the accession to office of those whom the line which they had formerly taken bound to countenance him, to bring forward a motion for the expunction of the resolutions against him which had been pa.s.sed in 1770. It was carried by a largo majority; and though this was as evidently a party division as those had been by which he had been defeated twelve years before, still, as the last resolution on the subject, it must be regarded as decisive of the law and practice of Parliament, and as having settled the doctrine that expulsion does not incapacitate a member who has been expelled from immediate re-election.[12]

The establishment of this rule, and the abolition of general warrants, were, however, not the only nor the most important result of these proceedings. They led indirectly to an innovation which, it is hardly too much to say, has had a greater influence on the character and conduct of Parliament, and indeed on the whole subsequent legislation of the country, than can be attributed to any other single cause. Hitherto the bulk of the people had enjoyed but very scanty and occasional means of acquiring political education. At times of vehement political excitement, or any special party conflict, pamphlets and periodical essays had enlightened their readers--necessarily a select and small body--on particular topics. But standing orders of both Houses, often renewed, strictly forbade all publication of the debates which took place in either. To a certain extent, these orders had come to be disregarded and evaded. Almost ever since the accession of the House of Brunswick, a London publisher had given to the world an annual account of the Parliamentary proceedings and most interesting discussions of the year; and before the middle of the reign of George II, two monthly magazines had given sketches of speeches made by leading members of each party. The reporters, however, did not venture to give the names of the speakers at full length, but either disguised them under some general description, or at most gave their initials; and sometimes found that even this profession of deference to the standing orders did not insure them impunity. As late as the year 1747, Cave, the proprietor and editor of the _Gentleman"s Magazine_, was brought to the bar of the House of Commons for publishing an account of a recent debate, and only obtained his release by expressions of humble submission and the payment of heavy fees. The awe, however, which his humiliation and peril had been intended to diffuse gradually wore off; the keen interest which was awakened by the ministerial changes at the beginning of the reign of George III., which have been already mentioned, naturally prompted a variety of efforts to gratify it by a revelation of the language concerning them which was held by statesmen of different parties; and these revelations were no longer confined to yearly or monthly publications. More than one newspaper had of late adopted the practice of publishing what it affirmed to be a correct report of the debates of the previous day, though, in fact, each journal garbled them to suit the views of the party to which it belonged, and, to quote the words of the historian of the period, "misrepresented the language and arguments of the speakers in a manner which could hardly be considered accidental."[13] The speakers on the ministerial side in the debates on the Middles.e.x election had been especial objects of these misrepresentations; and, at the beginning of 1771, one of that party, Colonel Onslow, M.P. for Guilford, brought the subject before the House, complaining that many speeches, and his own among them, had been misrepresented by two newspapers which he named, and that "the practice had got to an infamous height, so that it had become absolutely necessary either to punish the offenders or to revise the standing orders."[14] And he accordingly moved "that the publication of the newspapers of which he complained was a contempt of the orders and a breach of the privileges of the House, and that the printers be ordered to attend the House at its next sitting." The habitual unfairness of the reports was admitted by the Opposition; but the publishers complained of evidently felt a.s.sured of their sympathy (which, indeed, was sufficiently, and not very decorously, shown by its leaders inflicting on the House no fewer than twenty-three divisions in a single night), and, relying on their countenance, they paid no attention to the order of the House. A fresh order for their arrest having been issued, the Sergeant-at-arms reported that he had been unable to execute it, by reason of their absence from their homes; on which the House, not disposed to allow itself to be thus trifled with, now addressed his Majesty with a request that he would issue his royal proclamation for their apprehension. And Colonel Onslow made a fresh motion, with a similar complaint of the publishers of six more newspapers--"three brace," as he described them in language more sportsman like than parliamentary. Similar orders for their appearance and, when these were disregarded, for their apprehension, were issued. And at last one of those who had been mentioned in the royal proclamation, Mr. Wheble, printer of the _Middles.e.x Journal_, was apprehended by an officer named Carpenter, and carried before the sitting magistrate at Guildhall, who, by a somewhat whimsical coincidence, happened to be Alderman Wilkes.

Wilkes not only discharged him, on the ground that there was "no legal cause of complaint against him," but when Wheble, in retaliation, made a formal complaint of the a.s.sault committed on him by Carpenter in arresting him, bound Wheble over to prosecute, and Carpenter to answer the complaint, at the next quarter sessions, and then reported what he had done in an official Letter to the Secretary of State. Thomson, another printer, was in like manner arrested; and, when brought before Mr. Oliver, another alderman, was discharged by him. And when, a day or two afterward, a third (Mr. Miller) was apprehended by Whetham, a messenger of the House of Commons, Mr. Bra.s.s Crosby, the Lord Mayor, and the two Aldermen, signed a warrant committing Whetham to prison for a.s.saulting Miller. Whetham was bailed by the Sergeant-at-arms, who reported what had occurred to the House; and the House, as the Lord Mayor and Alderman Oliver were members of it, as representatives for London and Honiton, ordered that they should attend the House in their places, to explain their conduct, and that Mr. Wilkes should attend at the bar of the House. Wilkes, declining to recognize the validity of the resolutions which had seated Colonel Luttrell for Middles.e.x, refused compliance with such an order, writing a letter to the Speaker, in which he "observed that no notice was taken of him as a member of the House; and that the Speaker"s order did not require him to attend in his place." And he "demanded his seat in Parliament, and promised, when he had been admitted to his seat, to give the House a most exact detail of his conduct." But the Lord Mayor pleaded the charters of the City as a justification of his act in releasing a citizen of London who had been arrested on a warrant which had not been backed by a City magistrate, and demanded to be heard by counsel in support of his plea. His demand, however, was refused, and he and Alderman Oliver were committed to the Tower; but, as if the ministers were afraid of re-opening the question of Colonel Luttrell"s election for Middles.e.x, they evaded taking notice of Wilkes"s disobedience to their order by a singularly undignified expedient, issuing a fresh order for his appearance on the 8th of April, and adjourning till the 9th.

The ministers now moved the appointment of a select committee to investigate the whole affair; and the committee, before the end of the month, made an elaborate report, which, however, abstained from all mention of the offence committed by the printers, and confined itself to an a.s.sertion that "the power and authority of the House to compel the attendance of any commoner had ever extended as well to the City of London, without exception on account of charters from the crown or any pretence of separate jurisdiction, as to every other part of the realm."

And this a.s.sertion may be regarded as having been uphold by the refusal of the judges to release the Lord Mayor and Alderman when they sued out writs of _habeas corpus_; and they consequently remained prisoners in the Tower till they were released by the prorogation.

But with this report of the committee the matter was suffered to drop.

The transaction had caused almost unprecedented excitement, which was not confined to the City, for the grand-juries of many English counties and a committee of the Dublin merchants showed their sympathy with the Opposition by sending up addresses to the imprisoned City magistrates; and the ministers had a prudent fear of keeping alive an agitation which had not been always free from danger to the public tranquillity.[15] In effect, the victory remained with the Opposition. No farther attempt was made to punish any of the printers; and, though the standing orders which forbid such publication have never been formally repealed, ever since that time the publishers of newspapers and other periodicals have been in the constant habit of giving regular details of the proceedings of both Houses of Parliament. And one enterprising publisher, Mr.

Hansard, has for many years published a complete record of the debates in both Houses, which is continually appealed to in the Houses themselves, by members of both parties, as a manual of political and parliamentary history.

The practice, as it now prevails, is one of the many instances of the practical wisdom with which this nation often deals with difficult subjects. The standing order is retained as an instrument which, in certain cases, it may possibly be expedient to employ; as, in fact, it has been employed in one or two instances in the present reign, when matters have been under consideration which, however necessary to be discussed, were of such a nature that the publication of the details into which some speakers deemed it desirable to go was regarded by others as calculated to be offensive to the taste, if not injurious to the morals, of the community at large. But the very fact of such an occasional enforcement of the standing orders under very peculiar circ.u.mstances implies a recognition of the propriety of its more ordinary violation; of the principle that publication ought to be the general rule, and secrecy the unusual exception. And, indeed, it is, probably, no exaggeration to say that such publication is not only valuable, as the best and chief means of the political education of the people out-of-doors, but is indispensable to the working of our parliamentary system such as it has now become. The successive Reform Bills, which have placed the electoral power in the hands of so vast a body of const.i.tuents as was never imagined in the last century, have evidently regarded the possession by the electors of a perfect knowledge of the language held and the votes given by their representatives as indispensable to the proper exercise of the franchises which they have conferred. And, even if there had previously been no means provided for their acquisition of such information, it is certain that the electors would never have consented to be long kept in the dark on subjects of such interest. In another point of view, the publication of the debates is equally desirable, in the interest of the members themselves, whether leaders or followers of the different parties. Not to mention the stimulus that it affords to the cultivation of eloquence--an incentive to which even those least inclined or accustomed to put themselves forward are not entirely insensible--it enables the ministers to vindicate their measures to the nation at large, the leaders of the Opposition to explain their objections or resistance to those measures in their own persons, and not through the hired agency of pamphleteers, and each humbler member to prove to his const.i.tuents the fidelity with which he has acted up to the principles his a.s.sertion of which induced them to confide their interests and those of the kingdom to his judgment and integrity. Secrecy and mystery may serve, or be supposed to serve, the interests of arbitrary rulers; perfect openness is the only principle on which a free const.i.tution can be maintained and a free people governed.

It seems convenient to take all the measures which, in this first portion of the reign before us, affected the proceedings or const.i.tution of Parliament together; and, indeed, one enactment of great importance, which was pa.s.sed in 1770, it is hardly unreasonable to connect in some degree with the decision of the House which adjudged the seat for Middles.e.x to Colonel Luttrell. Ever since the year 1704 it had been regarded as a settled point that the House of Commons had the exclusive right of determining every question concerning the election of its members. But it was equally notorious that it had exercised that right in a manner which violated every principle of justice and even of decency. Election pet.i.tions were decided by the entire House, and were almost invariably treated as party questions, in which impartiality was not even professed. Thirty years before, the Prime-minister himself (Sir Robert Walpole) had given notice to his supporters that "no quarter was to be given in election pet.i.tions;" and it was a division on one pet.i.tion which eventually drove him from office. There was not even a pretence made of deciding according to evidence, for few of the members took the trouble to hear it. A few years after the time of which we are speaking, Lord George Germaine thus described the mode of proceeding which had previously prevailed: "The managers of pet.i.tions did not ask those on whose support they calculated to attend at the examination of witnesses, but only to let them know where they might be found when the question was going to be put, that they might be able to send them word in time for the division." The practice had become a public scandal, by which the const.i.tuencies and the House itself suffered equally--the const.i.tuencies, inasmuch as they were liable to be represented by one who was in fact only the representative of a minority; the House itself, since its t.i.tle to public confidence could have no solid or just foundation but such as was derived from its members being in every instance the choice of the majority. Yet, so long as pet.i.tions were judged by the whole House, there seemed no chance of the abuse being removed, the number of judges conferring the immunity of shamelessness on each individual. To remedy such a state of things, in the spring of 1770 Mr. G. Grenville brought in a bill which provided for the future trial of all such pet.i.tions by a select committee of fifteen members, thirteen of whom should be chosen by ballot, one by the sitting member whose seat was pet.i.tioned against, and one by the pet.i.tioner. The members of the committee were to take an oath to do justice similar to that taken by jurymen in the courts of law; and the committee was to have power to compel the attendance of witnesses, to examine them on oath, and to enforce the production of all necessary papers; it was also to commence its sittings within twenty-four hours of its appointment, and to sit from day to day till it should be prepared to present its report. It was not to the credit of the ministers that they made the pa.s.sing of such a bill a party question. The abuse which it was designed to remedy was notorious, and Mr. Grenville did not exaggerate its magnitude when he declared that, "if it were not checked, it must end in the ruin of public liberty." He was supported by Burke, and by two lawyers, Mr. Dunning and Mr. Wedderburn, both destined to rise to some of the highest offices in their profession; but he was opposed by the Attorney-general, by Lord North, as leader of the House, and by Mr.

Fox--not yet turned into a patriot by Lord North"s dismissal of him from office. The debates, both in the whole House and in committee, were long and earnest. Some of the ministerial underlings were not ashamed to deny the necessity of any alteration in the existing practice; but their more favorite argument was founded on the impropriety of the House "delegating its authority to a committee," which was a.s.serted to be "an essential alteration of the const.i.tution of the House of Commons." Lord North himself had too keen an instinct of propriety to deny the existence of a great evil, and contented himself with pleading for time for farther consideration; while the Attorney-general confined his objections to some details of the bill, which it would be easy to amend.

Others, with too accurate a foresight, doubted the efficacy of the measure, and prophesied that the additional sanction of the oath, by which its framer hoped to bind the committees to a just and honest decision, would, "like oaths of office and Custom-house oaths, soon fall into matters of form, and lose all sanction, and so make bad worse." On the other hand, besides the arguments founded on the admitted greatness of the evil to be remedied, it was shown that the inst.i.tution of committees, such as the bill proposed the appointment of, was sanctioned by numerous precedents; and though the committees--sometimes consisting of as many as two hundred members--were by far too large to make it probable that all wou

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