THE
CONSTITUTIONAL HISTORY
OF
ENGLAND
from 1760 to 1860
BY CHARLES DUKE YONGE, M.A.
REGIUS PROFESSOR OF MODERN HISTORY, QUEEN'S COLLEGE, BELFAST
AND AUTHOR OF "THE HISTORY OF THE BRITISH NAVY"
"THE LIFE OF MARIE ANTOINETTE" ETC.
1882
PREFACE.
Mr. Hallam's "Constitutional 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 surpassing 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 constitution 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 classes which had never
before been admitted to be entitled to it; and their enfranchisement
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 passing of which has often been
called a new Revolution, and the other reforms, municipal 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 constitutions 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
constitution, 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 Emancipation
brought after it Parliamentary Reform, and how that led to municipal 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.
CONTENTS.
CHAPTER I.
Mr. Hallam's View of the Development of the Constitution.--Symptoms of
approaching Constitutional 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 Middlesex by
the House of Commons.--Growth of Parliamentary Reporting.--Mr.
Grenville's Act for trying Election Petitions.--Disfranchisement of
Corrupt Voters at New Shoreham.
CHAPTER II.
The Regency Bill.--The Ministry of 1766 lay an Embargo on Corn.--An Act
of Indemnity is Passed.--The _Nullum Tempus_ Act concerning Crown
Property; it is sought to Extend it to Church Property, but the Attempt
fails.--The Royal Marriage Act.--The Lords amend a Bill imposing Export
Duties, etc., on Corn.
CHAPTER III.
Mr. Grenville imposes a Duty on Stamps in the North American
Colonies.--Examination of Dr. Franklin.--Lord Rockingham's Ministry
Repeals the Duty.--Lord Mansfield affirms a Virtual Representation in
the Colonies.--Mr. C. Townsend imposes Import Duties in America.--After
some Years, the Civil War breaks out.--Hanoverian Troops are sent to
Gibraltar.--The Employment of Hanoverian Regiments at Gibraltar and
Minorca.--End of the War.--Colonial Policy of the Present
Reign.--Complaints of the Undue Influence of the Crown.--Motions for
Parliamentary Reform.--Mr. Burke's Bill for Economical Reform.--Mr.
Dunning's Resolution on the Influence of the Crown.--Rights of the Lords
on Money-bills.--The Gordon Riots.
CHAPTER IV.
Changes of Administration.--The Coalition Ministry.--The Establishment
of the Prince of Wales.--Fox's India Bill.--The King Defeats it by the
Agency of Lord Temple.--The Ministry is Dismissed, and Succeeded by Mr.
Pitt's Administration.--Opposition to the New Ministry in the House of
Commons.--Merits of the Contest between the Old and the New
Ministry.--Power of Pitt.--Pitt's India Bill.--Bill for the Government
of Canada.--The Marriage of the Prince of Wales to Mrs.
Fitzherbert.--The King becomes Deranged.--Proposal of a
Regency.--Opinions of Various Writers on the Course adopted.--Spread of
Revolutionary Societies and Opinions.--Bills for the Repression of
Sedition and Treason.--The Alien Act.--The Traitorous Correspondence
Act.--Treason and Sedition Bills.--Failure of some Prosecutions under
them.
CHAPTER V.
The Affairs of Ireland.--Condition of the Irish Parliament.--The
Octennial Bill.--The Penal Laws.--Non-residence of the Lord-
lieutenant.--Influence of the American War on Ireland.--Enrolment of the
Volunteers.--Concession of all the Demands of Ireland.--Violence of the
Volunteers.--Their Convention.--Violence of the Opposition in
Parliament: Mr. Brownlow, Mr. Grattan, Mr. Flood.--Pitt's Propositions
Fail.--Fitzgibbon's Conspiracy Bill.--Regency Question.--Recovery of the
King.--Question of a Legislative Union.--Establishment of Maynooth
College.--Lord Edward Fitzgerald.--Arguments for and against the
Union.--It passes the Irish Parliament.--Details of the Measure.--
General Character of the Union.--Circumstances which Prevented
its Completeness.
CHAPTER VI.
A Census is Ordered.--Dissolution of Pitt's Administration.--Impeachment
of Lord Melville.--Introduction of Lord Ellenborough into the
Cabinet.--Abolition of the Slave-trade.--Mr. Windham's Compulsory
Training Bill.--Illness of the King, and Regency.--Recurrence to the
Precedent of 1788-'89.--Death of Mr. Perceval.--Lord Liverpool becomes
Prime-minister.--Question of Appointments in the Household.--Appointment
of a Prime-minister.
CHAPTER VII.
The Toleration Act.--Impropriety of making Catholic Emancipation (or any
other Important Matter) an Open Question.--Joint Responsibility of all
the Ministers.--Detention of Napoleon at St. Helena.--Question whether
the Regent could Give Evidence in a Court of Law in a Civil
Action.--Agitation for Reform.--Public Meetings.--The Manchester
Meeting.--The Seditious Meetings Prevention Bill.--Lord Sidmouth's Six
Acts.
CHAPTER VIII.
Survey of the Reign of George III.--The Cato Street Conspiracy.--The
Queen's Return to England, and the Proceedings against her.--The King
Visits Ireland and Scotland.--Reform of the Criminal Code.--Freedom of
Trade.--Death of Lord Liverpool.--The Duke of Wellington becomes
Prime-minister.--Repeal of the Test and Corporation Act.--O'Connell is
Elected for Clare.--Peel Resigns his Seat for Oxford.--Catholic
Emancipation.--Question of the Endowment of the Roman Catholic
Clergy.--Constitutional Character of the Emancipation.--The Propriety of
Mr. Peel's Resignation of his Seat for Oxford Questioned.
CHAPTER IX.
Demand for Parliamentary Reform.--Death of George IV., and Accession of
William IV.--French Revolution of 1830.--Growing Feeling in Favor of
Reform.--Duke of Wellington's Declaration against Reform.--His
Resignation: Lord Grey becomes Prime-minister.--Introduction of the
Reform Bill.--Its Details.--Riots at Bristol and Nottingham.--Proposed
Creation of Peers.--The King's Message to the Peers.--Character and
Consequences of the Reform Bill.--Appointment of a Regency.--
Re-arrangement of the Civil List.
CHAPTER X.
Abolition of Slavery.--Abridgment of the Apprenticeship.--The East India
Company's Trade is Thrown Open.--Commencement of Ecclesiastical
Reforms.--The New Poor-law.--State of Ireland.--Agitation against
Tithes.--Coercion Bill.--Beginning of Church Reform.--Sir Robert Peel
becomes Prime-minister.--Variety of Offices held Provisionally by the
Duke of Wellington.--Sir Robert Peel Retires, and Lord Melbourne Resumes
the Government.--Sir Robert Peel Proposes a Measure of Church
Reform.--Municipal Reform.--Measures of Ecclesiastical Reform.
CHAPTER XI.
Death of William IV., and Accession of Queen Victoria.--Rise of the
Chartists.--Resignation of Lord Melbourne in 1839, and his Resumption of
Office.--Marriage of the Queen, and Consequent Arrangements.--The
Precedence of the Prince, etc.--Post-office Reform.--War in
Afghanistan.--Discontent in Jamaica.--Insurrection in Canada.--New
Constitution for Canada and other Colonies.--Case of Stockdale and
Hansard.
CHAPTER XII.
Sir Robert Peel becomes Prime-minister.--Commercial
Reforms.--Free-trade.--Religious Toleration.--Maynooth.--The Queen's
University.--Post-office Regulations.--The Opening of Letters.--
Naturalization of Aliens.--Recall of Lord Ellenborough.--Reversal of the
Vote on the Sugar Duties.--Refusal of the Crown to Sanction a Bill.--The
Question of Increase in the Number of Spiritual Peers.--Repeal of the
Corn-laws.--Revolution in France, and Agitation on the Continent.--Death
of Sir Robert Peel.--Indifference of the Country to Reform.--Repeal of
the Navigation Laws.--Resolutions in Favor of Free-trade.--The Great
Exhibition of 1851.
CHAPTER XIII.
Dismissal of Lord Palmerston.--Theory of the Relation between the
Sovereign and the Cabinet.--Correspondence of the Sovereign with French
Princes.--Russian War.--Abolition of the Tax on Newspapers.--Life
Peerages.--Resignation of two Bishops.--Indian Mutiny.--Abolition of the
Sovereign Power of the Company.--Visit of the Prince of Wales to
India.--Conspiracy Bill.--Rise of the Volunteers.--National
Fortifications.--The Lords Reject the Measure for the Repeal of the
Paper-duties.--Lord Palmerston's Resolutions.--Character of the Changes
during the last Century.
INDEX.
CONSTITUTIONAL HISTORY OF ENGLAND.
CHAPTER I.
Mr. Hallam's View of the Development of the Constitution.--Symptoms of
approaching Constitutional 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 Middlesex by
the House of Commons.--Growth of Parliamentary Reporting.--Mr.
Grenville's Act for trying Election Petitions.--Disfranchisement of
Corrupt Voters at New Shoreham.
The learned and judicious writer to whom is due the first idea of a
"Constitutional 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
disfranchisement of Grampound would soon be carried farther, or that the
emancipation, 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 constitution 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 pass
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 circumstances connected with the treaty which re-established it gave
birth to a degree of political and constitutional 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 nobleman, 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 title, _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 multitude, 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 canvass 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 constitutional 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 constitution. 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 assailed
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 asserting 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 constitution. Undoubtedly that
theory is, that the minister chosen by the King is himself responsible
for every circumstance 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 assertion
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 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, 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 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."
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 passions. 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 anticipation 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 pass on to the subsequent debate, in which the
constitutional 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 constituency 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
constituency, and that the constituency had a constitutional 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 constitutional 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 passed 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 Middlesex 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 assured 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 _Middlesex 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 assault 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. Brass Crosby, the Lord Mayor, and
the two Aldermen, signed a warrant committing Whetham to prison for
assaulting 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 Middlesex, 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 Middlesex, 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 assertion 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 assertion 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
circumstances 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 constituents 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 constituents the fidelity with
which he has acted up to the principles his assertion 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 constitution 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 constitution
of Parliament together; and, indeed, one enactment of great importance,
which was passed in 1770, it is hardly unreasonable to connect in some
degree with the decision of the House which adjudged the seat for
Middlesex 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 petitions 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 petitions;" and it was a division on one
petition 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 petitions 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 constituencies and the House itself suffered equally--the
constituencies, 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 title 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 petitions 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 petitions by a select committee of fifteen members,
thirteen of whom should be chosen by ballot, one by the sitting member
whose seat was petitioned against, and one by the petitioner. 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
passing 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 asserted to be "an
essential alteration of the constitution 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 institution 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 would bestow a careful attention on the whole case,
there was "nothing in the journals of the House to show that their
decisions were not regarded as final, or as requiring no subsequent
confirmation from the whole House." Generally speaking, Lord North could
trust the steadiness of his majority; but, to his great surprise, on
this occasion he found himself deserted by the country gentlemen, who
voted in a body for the bill, although their spokesman, Sir W. Bagot,
had been in no slight degree offended by some remarks of Burke, who,
with a strange imprudence, had claimed a monopoly of the title of
"friends of the constitution" for himself and his party, and had sneered
at the country gentlemen, as "statesmen of a very different description,
though, by a late description given of them, a Tory was now the best
species of Whig." And the union of the two bodies proved irresistible;
the bill was carried by a majority of sixty-two, and the government did
not venture to carry on their resistance to it in the House of Lords,
any interference by which would, indeed, have been resented by the
Commons, as a violation of their privileges.
At first the duration of the bill was limited to seven years; but in
1774 it was made perpetual by a still larger majority, the experience of
its working having converted many who had at first opposed it, but who
now bore willing testimony to its efficacy. Unhappily, though the House
could make the bill perpetual, at least till formally repealed, it could
not invest its good effects with equal durability. After a time, the
same complaints were advanced against the decision of election
committees that had formerly been employed to discredit the judgments of
the whole House. The success or failure of a petition again became a
party question; and as in a committee of an odd number the
ministerialists or the Opposition must inevitably have a majority of at
least one member, before the end of the reign it had become as easy to
foretell the result of a petition from the composition of the committee
as it had been in the time of Walpole. And it was with the approval of
almost all parties--an approval extorted only by the absolute necessity
of the case--that, after one or two modifications of Mr. Grenville's act
had been tried, Mr. Disraeli induced the House to surrender altogether
its privilege of judging of elections, and to submit the investigations
of petitions on such subjects to the only tribunal sufficiently above
suspicion to command and retain the confidence of the nation, the judges
of the high courts of law.
We shall probably be doing the House of Commons of the day no injustice,
if we surmise that the degree in which public attention had recently
been directed to the representation, and the interest which the people
were beginning to show in the purity of elections, as the principle on
the maintenance of which the very liberties of all might depend, had
some share in leading the House to establish the wholly new, though most
necessary, precedent of punishing a constituency for habitual and
inveterate corruption. It may be called the first fruits of Mr.
Grenville's act. At the end of the same year in which that statute had
been passed, a select committee had sat to try the merits of a petition
which complained of an undue return for the borough of New Shoreham. And
its report brought to light an organized system of corruption, which
there was too much reason to fear was but a specimen of that which
prevailed in many other boroughs as yet undetected. It appeared from the
report, founded as it was on the evidence and confession of many of the
persons inculpated, that a society had long existed in New Shoreham,
entitled the Christian Club, which, under this specious name, was
instituted, as they frankly acknowledged, for the express purpose of
getting as much money as possible at every election from the candidates
they brought in. The members of the club were under an oath and bond of
£500 not to divulge the secrets of the club, and to be bound by the
majority. On every election, a committee of five persons was nominated
by the club to treat with the candidates for as much money as they could
get. And, in pursuance of this system, when, on the death of Sir Stephen
Cornish, one of the members for the borough, five candidates offered
themselves to supply the vacancy, this committee of five opened
negotiations with them all. The offers of the rival purchasers were
liberal enough. One (General Smith) proposed to buy the entire club in
the lump for £3000, adding a promise to build 600 tons of shipping in
the town. A second (a Mr. Rumbold) was willing to give every freeman
£35; and his offer was accepted by the committee, who, however,
cautioned him that no freeman was entitled to the money who was not a
member of the Christian Club. He willingly agreed to this limitation of
his expenditure, and both he and the club regarded the matter as
settled. He paid every freeman who belonged to the club his stipulated
bribe, and on the polling day they tendered eighty-seven votes in his
favor, the entire constituency being something under one hundred and
fifty. The general, finding his £3000 declined, did not go to the poll;
but a Mr. Purling and Mr. James did, the latter polling only four votes,
the former only thirty-seven. What bribe Mr. Purling had given was never
revealed; but by some means or other he had contrived to render himself
the most acceptable of all the candidates to Mr. Roberts, the returning
officer. Roberts had himself been a member of the Christian Club, but
had quarrelled with it, and on the day of the election, as Rumbold's
voters came up, he administered to each of them the oath against
bribery. They took it without scruple; but he took it on himself to
pronounce seventy-six of them disqualified, and to refuse their votes;
and, having thus reduced Mr. Rumbold's voters to eleven, he returned Mr.
Purling as duly elected.
Mr. Rumbold, not unnaturally, petitioned against such a return; when Mr.
Roberts admitted the facts alleged against him, but pleaded that he had
acted under the advice of counsel, who had assured him that it was
within his own discretion to admit or to refuse any votes that might be
tendered, and that he might lawfully refuse any "which in his own mind
he thought illegal." It is a striking proof of the laxity which
prevailed on every quarter in electioneering practices, that the House,
to a great extent, admitted his justification or excuse as valid. By a
strange stretch of lenity, they gave him credit for an honest intention,
and contented themselves with ordering him to be reprimanded by the
Speaker. But the case of the bribed freemen and of the borough generally
was too gross to be screened by any party. All agreed that the borough
must be regarded as incurably corrupt, and deserving of heavy
punishment. The Attorney-general was ordered to prosecute the five
members of the managing committee for "an illegal and corrupt
conspiracy;" and a bill was brought in to disfranchise and declare
forever incapable of voting at any election eighty-one freemen who had
been proved to have received bribes, and to punish the borough itself,
by extending the right of voting at future elections to all the
freeholders in the rape of Bramber, the district of Sussex in which New
Shoreham lies, an arrangement which reduced the borough itself to
comparative insignificance. Mr. Fox opposed the bill, on the ground that
the offence committed could be sufficiently punished by the ordinary
courts of law. But he stood alone in his resistance; the bill was
passed, and a salutary precedent was established; the penalty inflicted
on New Shoreham being for many years regarded as the most proper
punishment for all boroughs in which similar practices were proved to
prevail.
And it might have continued to be thought so, had corruption been
confined to the smaller boroughs; but there was no doubt that in many
large towns corruption was equally prevalent and inveterate, while there
were also many counties in which the cost of a contest was by far too
large to be accounted for by any legitimate causes of expenditure. And
consequently, as time wore on, severer measures were considered
necessary. Some boroughs were deprived of the right of election
altogether; in others, whose population or constituency was too numerous
to make their permanent disfranchisement advisable, the writ was
suspended for a time, that its suspension might serve both as a
punishment and as a warning, a practice which is still not unfrequently
adopted. But no plan could be devised for dealing with the evil in
counties, till what seemed hopeless to achieve by direct legislation
was, in a great degree, effected by the indirect operation of the Reform
Bill of 1832. The shortening of the duration of an election, which was
henceforth concluded in a single day, and the multiplication of polling
places, which rendered it impossible to ascertain the progress of the
different candidates till the close of the poll, were provisions having
an inevitable and most salutary effect in diminishing alike the
temptation to bribe on the part of the candidate, and the opportunity of
enhancing the value of his vote by the elector. The vast increase of
newspapers, by diffusing political education and stimulating political
discussion, has had, perhaps, a still greater influence in the same
direction. And, as bribery could only be brought to bear on electors too
ignorant to estimate the importance of the exercise of the franchise by
any higher test than the personal advantage it might bring to
themselves, it is to the general diffusion of education among the poorer
classes, and their gradually improved and improving intelligence that a
complete eradication of electoral corruption can alone be looked for.
Notes:
[Footnote 1: "Constitutional History," vol. iii., p. 380; ed. 3, 1832.
The first edition was published in 1827.]
[Footnote 2: Grampound. Corrupt voters had been disfranchised in New
Shoreham as early as 1771, and the franchise of the borough of Cricklade
had been transferred to the adjoining hundreds in 1782.]
[Footnote 3: Parliament was dissolved March 19. Lord Bute succeeded Lord
Holdernesse March 25.]
[Footnote 4: The greater part of Lord Bute's colleagues did, in fact,
retain their offices. Lord Egremont and Lord Halifax continued to be
Secretaries of State; Lord Henley (afterward Lord Northington) retained
the Great Seal; Lord North and Sir John Turner remained as Lords of the
Treasury; and Mr. Yorke and Sir Fletcher Norton were still Attorney and
Solicitor General.]
[Footnote 5: Parliament was prorogued April 19, and _The North Briton_
(No. 45) was published April 23.]
[Footnote 6: A letter of the Prince Consort examines the principle of
ministerial responsibility with so remarkable a clearness of perception
and distinctness of explanation, that we may be excused for quoting it
at length: "The notion that the responsibility of his advisers impairs
the monarch's dignity and importance is a complete mistake. Here we have
no law of ministerial responsibility, for the simple reason that we have
no written constitution; but this responsibility flows as a logical
necessity from the dignity of the crown and of the sovereign. 'The King
can do no wrong,' says the legal axiom, and hence it follows that
somebody must be responsible for his measures, if these be contrary to
law or injurious to the country's welfare. Ministers here are not
responsible _quâ_ ministers, that is, _quâ_ officials (as such they are
responsible to the crown), but they are responsible to Parliament and
the people, or the country, as 'advisers of the crown.' Any one of them
may advise the crown, and whoever does so is responsible to the country
for the advice he has given. The so-called accountability of ministers
to Parliament does not arise out of an abstract principle of
responsibility, but out of the practical necessity which they are under
of obtaining the consent of Parliament to legislation and the voting of
taxes, and, as an essential to this end, of securing its confidence. In
practice, ministers are liable to account for the way and manner in
which they have administered the laws which they, conjointly with the
Parliament, have made, and for the way they have expended the moneys
that have been voted for definite objects. They are bound to furnish
explanations, to justify their proceedings, to satisfy reasonable
scruples, and the answer, 'We have, as dutiful subjects, obeyed the
sovereign,' will not be accepted. 'Have you acted upon conviction, or
have you not?' is the question. 'If you have not, then you are civil
servants of the crown, who counsel and do what you consider wrong or
unjust, with a view to retain your snug places or to win the favor of
the sovereign.' And this being so, Parliament withdraws its confidence
from them. Herein, too, lies that ministerial power of which sovereigns
are so much afraid. They can say, 'We will not do this or that which the
sovereign wishes, because we cannot be responsible for it.' But why
should a sovereign see anything here to be afraid of? To him it is, in
truth, the best of safeguards. A really loyal servant should do nothing
for which he is not prepared to answer, even though his master desires
it. This practical responsibility is of the utmost advantage to the
sovereign. Make independence, not subservience, the essential of
service, and you compel the minister to keep his soul free toward the
sovereign, you ennoble his advice, you make him staunch and patriotic,
while time-servers, the submissive instruments of a monarch's extreme
wishes and commands, may lead, and often have led, him to destruction.
"But to revert to the law of responsibility. This ought not to be in
effect a safeguard for law itself. As such, it is superfluous in this
country, where law reigns, and where it would never occur to any one
that this could be otherwise. But upon the Continent it is of the
highest importance; as, where the government is an outgrowth of a
relation of supremacy and subordination between sovereign and subject,
and the servant, trained in ideas natural to this relation, does not
know which to obey, the law of the sovereign, the existence of such a
law would deprive him of the excuse which, should he offend the law, and
so be guilty of a crime, is ready to his hand in the phrase, 'The
sovereign ordered it so, I have merely obeyed,' while it would be a
protection to the sovereign that his servants, if guilty of a crime,
should not be able to saddle him with the blame of it."--_Life of the
Prince Consort_, v., 262.]
[Footnote 7: "Lives of the Lord Chancellors," c. cxliii.]
[Footnote 8: Indeed, the opinion which Lord Campbell thus expresses is
manifestly at variance with that which he had previously pronounced in
his life of Lord Northington, where he praised the House of Lords for
"very properly rejecting the bill passed by the Commons declaring
general warrants to be illegal, leaving this question to be decided (as
it was, satisfactorily) by the Courts of Common Law."]
[Footnote 9: From a speech of Mr. Grenville delivered at a later period
(February 3, 1769, "Parliamentary History," xvi., 548), it appears that
the Secretaries of State who signed this general warrant did so against
their own judgment. "They repeatedly proposed to have Wilkes's name
inserted in the warrant of apprehension, but were overruled by the
lawyers and clerks of the office, who insisted that they could not
depart from the long-established precedents and course of proceeding."
And in one of these debates, Mr. Pitt, while denouncing with great
severity Grenville's conduct in procuring the issue of this particular
warrant, was driven to a strange confession of his own inconsistency,
since he was forced to admit that, while Secretary of State, he had
issued more than one general warrant in exactly similar form.]
[Footnote 10: Strange to say, it does not seem absolutely certain that
Wilkes was the author of the "Essay on Woman." Horace Walpole eventually
learned, or believed that he had learned, that the author was a Mr.
Thomas Potter. (See Walpole's "George III.," i., 310; and Cunningham's
"Note on his Correspondence," iv., 126.)]
[Footnote 11: These are the words of the resolution.--_Parliamentary
History_, xvi., 537. But it does not appear what the three libels were.
The "Essay on Woman" was one, the paraphrase of "Veni Creator" was a
second; no third of that character is mentioned.]
[Footnote 12: The last resolution is approved by Mr. Hallam. "If a few
precedents were to determine all controversies of constitutional law, it
is plain enough from the journals that the House has assumed the power
of incapacitation. But as such authority is highly dangerous and
unnecessary for any good purpose, and as, according to all legal rules,
so extraordinary a power could not be supported except by a sort of
prescription that cannot be shown, the final resolution of the House of
Commons, which condemned the votes passed in times of great excitement,
appears far more consonant to first principles."--_Constitutional
History_, iii., 357.]
[Footnote 13: Adolphus, "History of England," i., 484.]
[Footnote 14: An idea of the license which the newspapers complained of
had permitted themselves at this time may be derived from the manner in
which one of them had introduced a speech of Mr. Jeremiah Dyson, M.P.
for Weymouth, and a Commissioner of the Treasury: "Jeremiah Weymouth,
the d----n of the kingdom, spoke as follows." And it may seem that the
Opposition (for the affair was made a party question) can hardly be
acquitted of a discreditable indifference to the dignity of the House in
supporting a resolution of Colonel Barré, that "Jeremiah Weymouth, the
d----n of this kingdom, is not a member of this House." On which the
previous question was moved by the ministers, and carried by 120 to
38.--_Parliamentary History_, xvii., 78. And an instance of rather the
opposite kind, of the guarded way in which the most respectable
publications were as yet accustomed to relate the transactions of
Parliament, may be gathered from the account of the proceedings in the
case of Wilkes, given in the "Annual Register" for 1770--drawn up,
probably, by Burke himself--in which Lord Camden is only mentioned as "a
great law lord;" Lord Chatham as "Lord C----m;" Lord Rockingham as "a
noble Marquis who lately presided at the head of public affairs;" the
King as "the K----;" Parliament as "P.;" and the House of Commons as the
"H. of C."--_Annual Register_, 1770, pp. 59-67.]
[Footnote 15: On more than one occasion there had been disturbances in
the City, and in the streets adjacent to the Houses of Parliament, which
were little short of riot. One day the mob paraded effigies of the
principal ministers, which, after hanging and beheading them, they
committed to the flames with great uproar. On another day Mr. Charles
Fox (as yet a vehement Tory) complained to the House that the mob in
Palace Yard had insulted him, breaking the glasses of his chariot, and
pelting him with oranges, stones, etc.--_Parliamentary History_, xvii.,
163.]