Debates on the legality of General Warrants, and the conduct of
Wilkes, continued.--Treatise entitled “Droit le Roi,” condemned by
the Lords.--Wilkes found guilty of being the Author of “The North
Briton” and the “Essay on Woman.”
Feb. 17th the House went into the debate on the subject, _that a
general warrant for seizing the author, printer, &c., of a seditious
libel, is not legal_. Dr. Hay said it was evident this had been the
practice, nor had the Courts below condemned it. He should, therefore,
propose an amendment, that the question might be stated clearly and
precisely. If that correction was agreed to, he intended to offer
others that should condemn the whole practice of the secretary’s
office. He then moved to add the word _treasonable_ after _seditious_;
and then he would propose, he said, to subjoin the following sentence,
_though such warrant hath been according to the practice of office, and
has not been condemned by any courts of justice in which such warrants
have been produced_. He was seconded by Wedderburne, who argued against
taking up one particular warrant, half excusing that in question by
saying, he would not affirm that practice makes law. Pitt ridiculed the
Doctor and the Ministry for trying to perplex the question; but owning
handsomely that he should like the question better if spread over the
whole practice, and not confined to the single instance before them.
If his own practice had been faulty, he was willing to bear his share
of public blame. He called on the Ministers to show what was really
the subject matter of the question: was it on _seditious_ libels? then
do not cut and shuffle with our liberties by an epithet. We had seen
the day when an epithet would defeat Magna Charta. Any other epithet
of four syllables would throw dust in the eyes of members, as well as
_treasonable_. But now, said he, they parry and _twist_, and I like it
the better. I am glad that all the learned doctor’s abilities could
produce was an epithet. But keep separate things separate in their
nature. Vote the general question on _seditions_ first. We never desire
to alter the practice in cases of high treason. The learned gentleman,
he supposed, would allow that there might be seditious libels without
treason in them. It was shallow, the artifice of attempting to draw
in gentlemen to condemn seditious warrants by coupling the word
_treasonable_ to them, which aggravates the offence; but by not daring
to let the question stand simply on its own merits, on the case of a
general warrant issued against a seditious libel, not a treasonable
one, they tacitly avowed that the libel not being treasonable, their
own conduct had been illegal. But no general warrant to search
universally without specification of name or place, was allowable, even
in case of treason. _General warrants are always wrong_; yet if this
amendment left the House at liberty to debate on the whole question,
and not on that amendment solely, he would not be against the stating
those words. Hay was hurt, and said he had nowhere been accustomed to
the manœuvre of quibbles: he had only affirmed that general warrants
had been produced in other courts: he had not said that those courts
had decided on them. Conway pursued Pitt’s argument, and showed how
totally the original question and the proposed alteration of it
differed; that if anything could authorize a general warrant, it was
treason. By inserting that word, the Ministers betrayed the badness
of their own cause; he feared they were a little tender; that they
could not bear the last division. He honoured the lights of the law,
but feared the House had a little too much of them: yet could those
learned men prove that treason and sedition were the same? Why was it
necessary, too, to describe historically what had been the custom? The
case was clear and simple, when a gentleman came and slipped in a word
that totally varied the argument: it was _white_, he inserts the word
_black_; and thus would vote that the Ministers had not done wrong
by taking up a man for a crime of which he had not been guilty. If a
general warrant is good against treason, and not against sedition, and
yet you couple them, and make them one crime, are Ministers blameless
for inflicting on sedition the punishment only due to treason? Separate
the questions, and vote, if you can, that the warrant was legal.
Hussey[436] said he liked the amendment, because he disliked all
general warrants; for what was to follow, he did not understand it. Did
it mean to imply that the silence of the King’s Bench was affirmation?
He feared some such thing was meant; but it would be a libel on the
Judges that sit there. He did not, however, he said, mean to extend
his argument to high treason. He wished to have general warrants
condemned, because to some there stood the names of men of virtue,
which seemed to authorize so bad a practice. Wedderburne said sharply,
that he had guarded himself by alleging that the practice of the King’s
Bench could not make law: but they had been taunted with epithets; the
time was come when men would no longer be led by epithets[437] and
flowery declamation. It was hurting our country to study popularity
by vilifying the profession of the law. Was a definition nothing but
epithets? The Opposition, he knew, would be glad, if they could, to
stand clear of epithets. Charles Yorke was for adopting the amendments,
and spoke for temper. _Treasonable_ corresponded with the evidence
given at the bar. The common warrants had that description in them.
He was for stating what had been the common usage, and then for
condemning it. None of those warrants had come before the Courts below
for argument or consideration. Sir William Meredith said, he hoped
this point would be decided by the spirit of liberty, not by law;
and with some heat added, “I never passed my life with the vices of
Wilkes.” This sentence, provoked by what had fallen from Wedderburne,
and supposed to be aimed, as it justly might have been, at Dr. Hay,
who, though so servile now, had been the intimate of Wilkes,[438] was
levelled at Lord Sandwich. But Wedderburne took it up, and said, if
Sir William had meant anything unparliamentary, he might have taken
another place. Dr. Hay, thinking it necessary to vindicate himself, did
not conciliate more favour. He had long, he said, known the unhappy
man, had received pleasure and instruction from him, but with many good
qualities he had grown profligate; did not know who incited him; had
advised him against his excesses; “Yet,” said he, “I am no hypocrite;
I have told him he was grown the _God_ of defamation from keeping
seditious company; he had even attacked the Crown, and the _parent_
of the Crown; for himself, he pitied the poor _devil_.” Some persons
interposing to prevent a duel, Sir W. Meredith said, he had every day
been aspersed as taking up this matter for the sake of Wilkes. This he
could not bear. Wedderburne had taken it up on tip-toe, though neither
pointed at him nor Dr. Hay. Himself would last year have stopped
Wilkes’s behaviour.
Hussey then proposed to insert the words _in the King’s Bench, where
the warrants had never been condemned or approved, whereas they had
been condemned in the Court of Common Pleas_. To this Norton agreed,
though he said he would show that they had been approved in the King’s
Bench. Prisoners are brought thither by Habeas Corpus, and the court is
counsel for the prisoner. They examine the legality of the commitment,
and must remit him, or bail him, or remand him. Remanding him, or
requiring bail, is approving the commitment. Pitt proposed to add, “in
which court (the King’s Bench) it does not appear that the validity of
general warrants has been brought in question.” Charles Yorke said he
agreed with Pitt, but would have the sentence run thus, “although hath
been frequently produced to, and never been questioned by, the King’s
Bench.” Sir William said he could not agree to the amendment, for the
House had only heard evidence ex-parte for exculpation of the accused
Ministers. Pitt objecting strongly to the words _never questioned_,
Charles Yorke offered these, “and the validity never debated.” Forester
approved this, and asked if the point had never been litigated, why
should those words be inserted? George Grenville protested that nothing
should make him say that _all_ those warrants were legal; but with
Norton he desired to add, “though the parties have been remanded and
bailed.” Pitt, offended that the opinion of some Judges had been quoted
in defence of the warrant, said, he was no judge, but sat there to
judge Judges. There had not been a violation of the Constitution but
had been sanctified by the greatest Judges. Let Norton turn to evidence
and prove such prisoners had been remanded. If discharged, let the
House have that evidence also. Conway treated the whole amendment as
trifling; and asked if they would take no notice of the decision of
the Common Pleas against the legality of the warrant, and yet would
take notice of a _no_ decision? He wished to have the whole referred to
a Committee. Charles Yorke affirmed that none had been remanded; but
agreed with Norton that they had been bailed. Charles Townshend asked,
since the lawyers allowed that bail might be given on an erroneous
warrant, why they would _mention it_? Norton owned that he meant from
thence to argue for the legality. The amendments were agreed to.
The Court having carried this point, Norton impudently confessed this
was what he had aimed at; and as there were so many causes connected
with this depending in the Courts below, he should move to put off
the question for four months. The Ministers did not doubt but the
legality of the warrants would be condemned in Westminster Hall; yet
a previous censure in Parliament might not only ensure that decision,
but produce arraignment of the Administration. They feared, from what
had passed in the foregoing day, that they should never be able to
carry an approbation of the warrants,--and if they could, into what
confusion must the nation have fallen, if such warrants were upheld
by Parliament, and anathematized in the other courts? Their plan,
therefore, was to jockey: and the Opposition had fallen into the snare.
It had been proposed that Lord Granby should move the adjournment; he
refused, and yet spoke for it,--and was immediately rewarded with the
Lieutenancy of Derbyshire, which the Duke of Devonshire had resigned,
and wished, from the rivalship between their families in that county,
to see in any other hands.
Norton, continuing to triumph in the arts of attorneyship, asked
to what end the House should decide on the point which was to be
determined elsewhere? Let, he said, a Committee be appointed to draw up
a bill. The practice of a court does make law. For Secretaries of State
he demanded more power than for a common justice of peace. The House
sits to make laws, not to expound them. He then dropped this sentence,
so decent, yet so worthy of the mouth it fell from, and so often flung
in his teeth,--_If I was a Judge, I should pay no more regard to this
resolution than to that of a drunken porter_;--a sentence that would
have made old Onslow[439] thunder forth indignation! Norton then moved
to adjourn the debate for four months, as so many causes were depending
on the illegality.
Charles Yorke made a very long speech against postponing a present
decision, as against the dignity of the House: and he scrupled not
to pronounce the warrant illegal, which he protested he had never
seen till Wilkes was taken up; nor had any question been asked of
the Attorney or Solicitor Generals by the Administration. Warrants
dated from the Star Chamber. Himself had always been for taking this
matter up in Parliament, notwithstanding its pendency below. Previous
questions, to avoid debates, may be useful during foreign treaties,
but never in cases of privilege. In questions of this sort the House
ought to hold the balance between King and people. It was a question in
point of law impossible to be denied. Were he a Judge, he should pay
regard to the decision of the House of Commons. The question ought to
be determined for the sake of the Secretaries of State. He must be for
some law.
Notwithstanding Yorke disculpated himself of not having seen the
warrant, yet the Ministers protested that after Wilkes was taken up,
Yorke had given his opinion that No. 45 was a libel, and had advised
the commitment of him to the Tower. This was advising a man to knock
down another, and then pleading that he had not seen the bludgeon. Lord
North said, if a law was necessary, a partial resolution was trifling.
By deferring this, they meant to introduce something much better.
Lord George Sackville said, it would only alarm the nation, to fling
over the question the thin parliamentary veil of adjournment. When
could a question of liberty be so properly taken up as under such
a King? It was the time to lop such an excrescence. Lord North had
promised much, but would perform nothing. The House of Commons singly
cannot make law; but can declare upon it. He thanked God that on this
question the whole body of lawyers was not on the side of power: that
battery would be too much to stand. How came the Secretaries of State
by this practice, but from the Star Chamber and Licensing Act? It had
never been abused till now, for it had been exercised only against
traitors. A discretionary power must always be at the peril of the
Secretary that uses it. But he would therefore declare it illegal for
a warning to them, and to show the people that they had a watchful
House of Commons.
Nugent said, “Liberty rings round the House, and we may all be
unanimously in the wrong.” “We are not likely to be _unanimously_
wrong,” replied Conway, “nor rash, for nothing was ever so fully
debated. The Ministers had narrowed the question to Wilkes, and
then called it too narrow. The previous question would in effect be
a negative. Wood had called for immediate decision. There had been
issued but one warrant as extensive as this down to the time of Lord
Townshend, and that had been in the reign of Charles the Second. He
that gives a power of tyranny gives tyranny.” Hussey added, that the
Licensing Act had been dropped because the Peers would not consent to
let their houses be searched.
Lord Frederick Campbell said that in a fortnight’s time general
warrants would be determined to be illegal; and then, what Secretary
of State would dare to sign one? Lord Granby, declaring he thought
them illegal because Lord Chief Justice Pratt had thought so, said, no
Secretary of State after that opinion would venture to issue them.
Charles Townshend made a most capital speech, replete with argument,
history, and law, though severe on the lawyers: a speech, like most
of his, easier to be described than detailed. How great, he said,
must be the talents of Norton, if the House heard him with patience,
though comparing them to a _drunken porter_. Whether in the House or
out of the House, Norton, he feared, would be fatal to the cause. He
then gave the history of the Licensing Act, and read the resolution
of the year 1675, drawn by Mr. Locke, and the report of Lord Chief
Justice Vaughan of usage not constituting law. Had Norton lived in
the age of ship-money, how he would have argued for putting off the
decision of its being illegal! But it was become more necessary to
alter this, because of the many precedents in its favour. He then gave
a description of the warrant against Wilkes, and how long they had been
before they applied it to him. He abhorred Wilkes, he said; and drew a
severe picture of him, and another panegyrical of the great Whig Lords
at the time of the Revolution, and of those at the accession of the
present Royal Family. “But it seems,” continued he, “we are not to have
a resolution, but a bill. The first time was always the best time; the
natural mode the best mode. One advantage had been derived from Wilkes,
he had stopped a growing evil. Nobody could think what thirty years
more in abler hands would have done. This warrant without description
of person might take up any man under any description of a libel.
If the House did not come to some resolution, what dissatisfaction
it must create. Mankind would learn that the lawyers were divided
in their sentiments on the legality, and would be clamorous to have
settled a point so important to the security of their persons, houses,
and papers. But do not be wheedled by promises; who gives promises
gives deceit.” He praised Mr. Pitt, and concluded with saying that
this warrant was like an experiment in anatomy, which might be tried
on a poor man. Wilkes is odious, cry the Ministers; commit him. If
Parliament suffers it, you may strike at higher objects.
After several other speeches, Pitt said “this was not a warrant,
but a delegation of magistracy, which the Crown could not give, and
should Secretaries of State give it? The debate had been carried on
without heat--indeed with too much coldness. Lawyers termed this
warrant erroneous;--was that term harsh enough? Hear the language of
Ministers and their agents: Carteret Webbe said he had settled Wilkes
_comfortably_ in the Tower with his shaving things! Then, they say,
you need not pronounce this illegal; Secretaries of State will be
sufficiently frightened; the Judges may or may not declare it illegal;
and you shall have a law. I should be against such a law; it would be
augmenting the power of the Crown by law. What will our constituents
say if we do not ascertain their liberties? How do you know the Lords
will agree to the bill? Not doing is doing.”
He was answered by Grenville and Sir John Philipps; but Lord Howe,[440]
though a Lord of the Admiralty, spoke against the adjournment. Elliot
said, if there must be a victim, they might have a hecatomb of
Ministers who had signed such warrants. These warrants, it seemed, had
stalked about unknown to Mr. Pitt, who had been Secretary of State, and
to Mr. Yorke, Attorney-General.
Colonel Barré ridiculed Lord Barrington, Elliot, and Grenville,
with much humour. “Lord Granby thinks,” added he, “that no Secretary
of State will venture on these warrants after Pratt’s opinion; but
Grenville says that opinion was _undue_, erroneous, and precipitate.”
For himself, he esteemed the professors of the law, but detested the
profession. Pratt he commended; and said, “shall France deride our
languor when her Parliaments are making such strides towards liberty?”
At five in the morning the House divided, and the adjournment was
carried by 232 against 218; a majority of only fourteen. The world
expected that the Ministers would resign--at least endeavour to
treat.[441]
The offensive behaviour of Norton in the preceding debate, brought
out a story very characteristic of his unfeeling nature. When Dr.
Hensey was condemned for treason in the last reign, Lord Mansfield
asked Pratt, the Attorney-General, when he would have him executed?
Pratt, struck with compassion, could not bring himself to fix the day.
Lord Mansfield then asked Norton, who, turning to the prisoner, said,
“Doctor, when will it be agreeable to you to be executed?”[442]
While mankind expected that the Opposition would vigorously pursue the
advantage of so large an increase of their numbers, day after day,
and week after week slipped away without their exerting one symptom of
spirit or activity. No motions were made, no inquiries set on foot, no
zeal expressed to keep up the passions and hopes of the party. Without
doors all hearts were with them, and ready to second their attempts
with clamour and applause. At first they seemed to expect that the
Ministers would come and lay their places at their feet. The dream
itself was over before an effort was made to realise it. Not a pamphlet
was written, not a meeting was held, to concert farther measures. A
supineness unparalleled! but to be accounted for from the composition
of that minority. Pitt affected to be courted to discountenance party,
and to be placed at the head of everything without seeming to desire
it. He despised Newcastle, and resented the manner in which he had been
treated by that Duke, by Devonshire, by Hardwicke, and the Yorkes.
Charles Yorke was, besides, incompatible with Pitt’s friend, the Chief
Justice Pratt, as the Chancellor’s seal was equally the object of both.
Lord Temple, the soul of faction, was detested by the whole party,
except by his own small connection. Charles Townshend was attached to
nobody, and trusted by nobody. Legge was industrious, but not spirited:
he could negotiate for himself, but not for a party. Conway had
singly meant to arraign the warrants, and had no thought of dipping in
faction. Some were too fair, and others too dirty, to take the general
steps that might lead to the good of the whole party: and thus, where
there was no concert, and in truth but few able men, there could be no
consequences but inactivity and defeat. That defeat fell heavy on the
most conscientious, who having offended the Court by their opposition,
were thus exposed a sacrifice to its resentments.
Nor was this conduct, I doubt, solely founded on inability and
outward disunion. Pitt might expect to be again sent for by Lord
Bute, and was unwilling to be clogged with numerous dependents,
odious to the Favourite, and distasteful to himself. He and Lord
Temple had far more rancour against their brother, George Grenville,
than against Lord Bute; and Pitt, at least, had never been personal
against the Favourite, who, with all his resentment to Lord Temple,
as the instigator of Wilkes, had received more recent stabs from
George Grenville. Whether during this suspension of hostilities, any
negotiation was renewed, I do not pretend to say; nor is it important,
as it certainly had no effect, unless that material one of cooling the
growing party.
The Ministers, on the other hand, wore a good countenance, and were as
alert as their adversaries were supine and lifeless. To procure votes,
to work underground, to write letters, dispatch messengers, and collect
all possible forces, this was the fort and excellence of Sandwich’s
genius. He and Rigby were desperate, and Grenville little less so. They
soon perceived the want of discipline in the enemy’s troops, and the
insufficiency of their commanders. With some address of their own, and
with the defect of it in their opponents, they weathered the session,
obtained full power, and showed that they dared to make use of it
despotically.
On the very day of the last great debate in the House of Commons,
Lord Lyttelton, seconded by the Duke of Grafton, acquainted the Lords
that on the following Tuesday he should lay a complaint before them
against a new book called _Droit le Roi_. This pestilent treatise was
a collection from old statutes and obsolete customs of the darkest and
most arbitrary ages of whatever tended, or had tended, to show and
uphold the prerogative of the Crown. The fulsome flattery and servility
of ancient lawyers in every reign were amassed together, and shoved
upon the world as the standing law of England; no retrospect had to all
the immunities obtained since by the Civil War, by the Revolution, and
by various other struggles of Parliaments with the Crown. Such a code
obtruded on the Crown, as a codicil to the stretch of General Warrants,
spoke for itself. It was incense laid on an altar erected to power on
which human sacrifices had already been offered. Without metaphor,
such a compilation proved that prerogative must have been the object
of the Court before such gross adulation could dare to step forth in
the face of both Houses of Parliament. The author was one Brecknock,
a retainer of the law, and a hackney writer. As no attempt was made
to prove whether he wrote by instigation, it remained problematic.
Certain it is, that he soon afterwards attached himself to the Earl of
Northumberland.[443]
On the 21st, Lord Lyttelton made his complaint, and moved for a censure
of the book as Jacobitical, and violating the Bill of Rights, and the
Revolution. Ministers, he said, ought to have taken notice of it; but
they who had fallen so severely on seditious pamphlets, had overlooked
this tract, so subversive of all liberty. Lord Dartmouth treated the
book with still more severity. Lord Halifax affected to go farther,
but complained of Lord Lyttelton for not acquainting him with his
intention. Lord Marchmont to the censure proposed to tack a compliment
to the King on his love of liberty; for so servile are some men, that
they cannot condemn flattery without making use of it.[444] The book,
thus attacked on one side and given up on the other, was sentenced to
be burnt, and the author ordered to be taken into custody. The latter
part of the sentence nobody took any pains to execute.
On the 24th, the Lords communicated their resolutions to the other
House, who concurred in the same judgment.
On February the 21st, Sir John Philipps, as he had before acquainted
the House he would, moved for leave to bring in a bill to ascertain
the power of Secretaries of State in granting warrants--a line almost
impossible to draw. Treason was to be kept in awe on one side; the
Ministers themselves on the other. Nor could this boon to liberty
but be suspicious when offered by a hand so rankly Jacobite! The
Ministers had made their use of the idea, and desired no such bill:
and the Opposition were not forward to let them draw such a bill. It
was therefore dropped with scorn by both sides of the House; and yet
the Court afterwards affected to talk of this bill as a tender made to
liberty, and rejected by its advocates.
The same day was Wilkes found guilty in the King’s Bench, of being
author of the North Briton, and of the Essay on Woman.
The City of London, to honour the steadiness and services of Mr.
Pratt, the other Chief Justice, presented him with the freedom of the
City, and thanked their own Representatives for their behaviour on the
question of the warrants.
On the 6th of March, it was agreed to amend the Marriage bill by
another bill, as Mr. Yorke had proposed: and the same day died his
father, and the father of the Bill, Philip Earl of Hardwicke; a man
who, during his power, had coloured over very confined parts, and
very few virtues, with a gravity that was construed into both, as it
served the purpose of himself or his dependents. Pride, revenge, and
avarice were his true features; and whatever pictures shall be drawn
of him where those lines do not predominate, will be unlike, false, and
flattering. To conceal all knowledge of his vast wealth, his sons did
not prove his will till the memory of him was faded away.[445]