1763.

PROCEEDINGS AGAINST WILKES.

129

perversion of plain law, Wilkes was arrested, and brought before Lord Halifax for examination. The cool and wary demagogue, however, was more than a match for the Secretary of State; but his authorship of the alleged libel having been proved by the printer, he was committed close prisoner to the Tower. In a few days, having sued out Proceedings writs of habeas, he was brought up before against Wilkes. the Court of Common Pleas; and, perhaps, it is not too much to say, that on this occasion the salutary effect of that law-the earliest offspring of the Revolution-which provided for the independence of the judges, was signally manifest. At a time when political morality was at the lowest ebb, and when high prerogative principles were asserted and enforced, liberty might hardly have been safe in the hands of judges deliberating under the terror of dismissal. But the fear of royal displeasure being happily removed, the judges could pronounce the law with fairness and decision. The argument which would confound the commission of a crime with conduct which had no more than a tendency to provoke it, was at once rejected by an independent court of justice; and the result was the liberation of Wilkes from custody. But the vengeance Vengeance of of the Court was not turned aside by this disappointment. An ex-officio prosecution for libel was immediately instituted against the member for Aylesbury; he was deprived of his commission as colonel of the Buckinghamshire militia; his patron, Earl Temple, who provided the funds for his defence,* was at the same time dismissed from the lord-lieutenancy of the same county, and from the Privy Council.

the Court.

amount of 12001. for this purpose.-Grenville Corr. vol. ii.

130

Parliament

LIBERATION OF WILKES.

CH. IV.

When Parliament assembled in the autumn, the first business brought forward by the Government was this contemptible affair-a proceedappealed to. ing not merely foolish and undignified, but a flagrant violation of common justice and decency. Having elected to prosecute Wilkes for this alleged libel before the ordinary tribunals of the country, it is manifest that the Government should have left the law to take its course unprejudiced. But the House of Commons was now required to pronounce upon the very subject-matter of inquiry which had been referred to the decision of a court of law; and this degenerate assembly, at the bidding of the minister, readily condemned the indicted paper in terms of extravagant and fulsome censure,* and ordered that it should be burned by the hands of the common hangman. Lord North, on the part of the Government, then pressed for an immediate decision on the question of privilege; but Pitt, in his most solemn manner, insisting on an adjournment, the House yielded this point. On the following day, Wilkes, being dangerously wounded in a duel with Martin, one of the joint Secretaries to the Treasury, who had grossly insulted him in the House, for the purpose of provoking a quarrel, was disabled from attending in his place; but the House, nevertheless, refused to postpone the question of privilege beyond the 24th of

Decision of the

House of
Commons.

*The resolution was as follows: The paper intituled "The North Briton," No. 45, is a false, scandalous, and seditious libel, containing expressions of the most unexampled insolence and contumely towards His Majesty; the grossest aspersions upon both Houses of Parliament, and the most audacious defiance of the authority of the whole legislature; and most manifestly

tending to alienate the affections of the people from His Majesty, to withdraw them from their obedience to the laws of the realm, and to excite them to traitorous insurrection against His Majesty's government.' Pitt moved to omit the last member of the sentence as utterly exaggerated; but, upon a division, it was retained, by a majority of 273 against 111.

1763.

PROCEEDINGS IN THE HOUSE OF LORDS.

131

the month. On that day, they resolved that the privilege of Parliament does not extend to the case of writing and publishing seditious libels, nor ought to be allowed to obstruct the ordinary course of the laws in the speedy and effectual prosecution of so heinous and dangerous an offence.' Whatever may

be thought of the public spirit or prudence of a House of Commons which could thus officiously define its privilege, the vote was practically futile, since a court of justice had already decided in this very case, as a matter of strict law, that the person of a member of Parliament was protected from arrest on a charge of this description. The conduct of Pitt on this occasion was consistent with the loftiness of his character. Despising alike the servility of the Commons, and the profligacy of the demagogue whom they wished to offer up as a sacrifice to the vengeance of the Court, the illustrious orator reprobated the facility with which Parliament was prepared to relinquish its privileges; and, at the same time, denounced the whole series of North Britons' as 'illiberal, unmanly, and detestable,' not, indeed, retorting upon Wilkes the vague scurrility of the Commons' vote, but denouncing, in language of reprehension not too severe, the base and mischievous spirit of publications which fomented discord and hatred between the different races of the United Kingdom.

The conduct of the Lords was in harmony with that of the Lower House. While the Conduct of the latter had been eager to surrender their House of Lords. privileges and to invade the province of the courts of law, the Lords seemed desirous of showing the same spirit of complaisance to the Court. On the first day of the session, under the pretext of privilege, a new charge was brought forward against Wilkes. The way in which this charge had been got up was not merely dishonourable to the indivi

132

WILKES'S PRIVATE PRINTING PRESS. CH. IV.

duals concerned in it, but really dangerous to the liberty of the subject.

6

Further

proceedings of

Wilkes and the

The body of publishers, intimidated by the arbitrary proceedings of the Government, had refused to print Wilkes's productions; and he had consequently set up a private press at his own house, for the purpose of printing an edition of The North Briton, and some other compositions. Among the latter was one of an indecent and blasphemous character, called 'An Essay on Woman, with Notes by Bishop Warburton.' This performance was in the form of a parody on Government. Pope's poem, and intended to ridicule the distinguished prelate, who was the pretended editor. It was written by Mr. Potter, himself the son of a primate, and a gentleman well received in political and fashionable society, although notorious for his dissolute habits. A copy of the Essay on Woman' was found among the private papers belonging to Wilkes, which had been seized under the illegal warrant of the Secretary of State; and the Government sought to make use of this discovery for the purpose of assisting them in the ruin of their opponent. They could not, however, for very shame, make use of the copy which they had obtained in such a manner. They therefore employed one Kidgell, a parson, and chaplain to the Earl of March, to tamper with Wilkes's compositor. A copy being by these means obtained, Lord Sandwich, the new Secretary of State, who, up to the time of his accession to high office, had been the companion of Wilkes's looser hours, undertook, or was selected,† to bring this matter before Parliament, as a breach of public morals, as well as of privilege. It was

* Well known for his scandalous life, by this title, but still more celebrated in the same way as the Duke of Queensberry.

It properly belonged to the department of the other secretary, Lord Halifax.

1763.

WHAT CONSTITUTES A LIBEL.

133

Theory of libels.

proved, on examination of the man who had betrayed his employer, that the whole impression of this ribald production extended only to thirteen copies, and there was no evidence that any one of these had been circulated or seen by any person. The complaint was similar in this respect to that infamous charge which, a century before, had been the pretext for the judicial murder of Algernon Sidney. It was, indeed, a stronger case than that of Sidney; for a paper found in the possession of an accused person is unquestionably admissible to explain the character of his acts and intentions; but in the case of libel, the paper itself is a dead letter, until a criminal character is communicated to it by the act of publication; or, to borrow a fine illustration of this point, a man may keep poisons in his closet, but has no right publicly to vend them as cordials. It is publication, therefore, which constitutes the guilt; but a copy, surreptitiously obtained, cannot constitute publication.

Having entered upon the subject in this spirit, it was not to be expected that the Lords should be restrained from concurring in the votes of the other House of Parliament by any consideration of their particular character, as the Supreme Court of Appeal, and of the possibility that they might be called upon to pronounce judicially, after solemn argument at their bar, on the very questions which were now brought before them in their legislative capacity. So far, indeed, were they from any such misgiving, that they would have adopted the proceedings of the Commons with indecent alacrity: for, had not the Duke of Richmond reminded them that it was not usual to transact any business of importance without being specially summoned, their lordships were prepared to assent to the resolutions of the Commons on the same day that they were communicated. But on the following day the vote was passed, not,