The Constitutional History of England From 1760 to 1860

by Charles Duke Yonge

  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 assent; 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 pronounced 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, asserted 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 assessment 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 entitled "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 surreptitious 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 constituted 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 pronouncing 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 Middlesex, 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, passers-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 assembled 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 massacre, the consummation of a hellish 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 passages 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 circumstances in the present case, such as the difference between the constituencies of Aylesbury and Middlesex, 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, asserting that he deserved the thanks of the people for bringing to light the true character of "that bloody 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 principal 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 circumstance 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 asserted 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 constitutional 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 assertion of Montesquieu, that "one of the excellences of the English constitution was, th
at 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 constitution 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 constituency which he represented, since, "in the present disposition of the county of Middlesex, 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 Middlesex 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 Middlesex 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."