134 POPULARITY OF WILKES. CH. IV. however, without strong arguments against it, and a protest,* signed by seventeen peers. The House then proceeded to vote the Essay on Woman' a breach of privilege and a blasphemous libel; and to order that Wilkes should be prosecuted by the Attorney-General. The session was principally occupied by the proceedings against this worthless demagogue, whom the unworthy hostility of the Crown and both Houses of Parliament had ele Popular sympathy for Wilkes. * This document, which, according to Walpole, was drawn up by Chief Justice Pratt, is an able and elaborate exposition of constitutional and common law, as well as of common sense, upon this question. But the simple point is forcibly and shortly put in the following passage:-'Nor is this case of the libeller ever enumerated in any of their writings among the breaches of the peace; on the contrary, it is always described as an act "tending to excite, provoke, or produce breaches of the peace." And although a secretary of state may be pleased to add the inflaming epithets of "treasonable, traitorous, or seditious" to a particular paper, yet no words are strong enough to alter the nature of things. To say, then, that a libel possibly productive of such a consequence is the very consequence so produced, is, in other words, to declare that the cause and the effect are the same thing.' The protest thus concludes:- For these, and many other forcible reasons, we hold it highly unbecoming the dignity, gravity, and wisdom of the House of Peers, as well as their justice, thus judicially to explain away and diminish the privilege of their persons, founded in the wisdom of ages, declared with precision in our standing orders, so repeatedly confirmed, and hitherto preserved inviolable by the spirit of our ancestors, called to it only by the other House on a particular occasion, and to serve a particular purpose, ex post facto, ex parte, et pendente lite in the courts below.'-Lord's Journals. Lord Campbell, in his life of Lord Camden, expresses his approval of the resolutions, on the ground that privilege of Parliament should not interfere with the execution of the criminal law of the country. But whatever objection might be urged against a privilege so extensive, it is certain that, by the law of the land, the person of a member of Parliament was and is protected in every case, except that of treason, felony, or breach of the peace. It is equally certain that a seditious libel comes within neither of the excepted cases. It might be competent to either House of Parliament to circumscribe its privilege; but it can hardly be contended that they could have a right to give a retrospective operation to their vote for the purpose of depriving an individual member of the protection which had already attached to him under the existing law. 1763. WILKES EXPELLED THE HOUSE OF COMMONS. 135 vated into a person of the first importance. His name was coupled with that of Liberty; and when the executioner appeared to carry into effect the sentence of Parliament upon The North Briton,' he was driven away by the populace, who rescued the obnoxious paper from the flames, and evinced their hatred and contempt for the Court faction by burning in its stead the jack-boot and the petticoat, the vulgar emblems which they employed to designate John Earl of Bute and his supposed royal patroness. The Common Council of the City so far countenanced these riotous proceedings as to refuse a vote of thanks to the Sheriffs who had exerted themselves to quell the tumult, and who had already received the approbation of both Houses for endeavouring to enforce the execution of their orders. Wilkes him- Wilkes yields self, however, was forced to yield to the to the storm. storm. Beset by the spies of Government,* and harassed by its prosecutions, which he had not the means of resisting, he withdrew to Paris. Failing to attend in his place in the House of Commons on the first day after the Christmas recess, according to order, his excuse was eagerly declared invalid; a vote of expulsion immediately followed, and a new writ was ordered for Aylesbury. A month after he had thus ceased to be a member, the House entered upon the consideration of his complaint of privilege, which had been made on the first day of the session, and which in accordance with precedent, and high constitutional principle, should have been immediately entertained. Even then they avoided the real question, which was simply whether privilege extended to the protection of a member of Parliament from being held to bail on a charge of seditious. libel. But the Opposition, instead of confining the * Grenville Correspondence, p. 155.-Reports made to the Secretaries of State from the persons employed by them to watch the movements of Mr. Wilkes and his friends. 136 Sir W. Meredith's motion. BREACH OF PRIVILEGE. CH. IV. discussion to the complaint of privilege which Wilkes had submitted, and which exclusively concerned the House of Commons, must needs make the question of the legality of general warrants, which properly belonged to the courts of law, the prominent topic of debate. Sir William Meredith's motion, that a general warrant for apprehending and securing the authors, printers, and publishers of a seditious libel, together with their papers, is not warranted by law,' might well have been met by one of those ordinary amendments to which the House has recourse, when it is expedient to dispose of a question without putting it to the vote. To affirm or negative a mere question of law-and such was the proposition of Sir William Meredith-would have been equally improper; since a resolution of the House of Commons on such a matter must have been without authority, as without effect. But the Government preferred, and for their own immediate purpose, perhaps not unwisely, to deal with the question; and while they did not dispute the principle advanced by their opponents, they proposed to qualify it by an assertion as undeniable, namely, that such warrants were in accordance with the usage of office, and had never been condemned in a court of justice. After a debate of unprecedented duration, Grenville, who, from his knowledge of parliamentary and general law, must have been aware of the real bearing of the question, attempted to get rid of the complaint of privilege by limiting the question to the legality of a general warrant. He succeeded in carrying his amendment, but by so narrow a majority that had the Opposition been content to lay the stress of their argument upon the one point which concerned the House, namely, the violation of privilege in executing a warrant, whether in itself legal or illegal, upon the person of a member of Parliament, it is probable they would have prevailed. In the end, Grenville's amendment. 1764. ARBITRARY CONDUCT OF THE CROWN. 137 the real question was negatived without a division; the motion, with the amendment proposed by the minister, was carried, and this matter, which had been long and carefully considered by the Opposition before it was brought forward, resulted in a futile vote.* The King had taken a strong personal interest in interested. all the proceedings relative to Wilkes. The King is Grenville, by His Majesty's order, had personally written and despatched to the palace an account of each debate immediately on the rising of the House. Every member who voted against the Court was marked; the placemen were by this time habituated to the rigour of parliamentary discipline; but the arbitrary policy of the Court went further; and the act of cashiering military officers for their votes in Parliament, which had been so much and so justly reprobated when resorted to upon a particular occasion by Sir Robert Walpole, was now to be reduced to a practice. Lord Shelburne, Colonel Barré, and General Conway, were, among others, deprived of their commissions for their votes on the question of general warrants. These extremities were pursued with the like arbitrary and inflexible temper which had urged the sovereigns of the line of Stuart to their ruin. There is one other circumstance in the conduct of the Government relative to the business Wilkes's action of the general warrants which ought not against Halifax. to pass unnoticed. Wilkes had brought an action against Halifax, the Secretary of State, who had signed the warrant under which his house had been broken open and his papers seized. This action had been commenced in the spring of 1763; but the minister availed himself of every dilatory proceed-. ing which the practice of the Court permitted to delay its progress; and in November in the fol+ Grenville Correspondence, * The numbers were 207 to 197. p. 234. 138 CHICANERY OF LORD HALIFAX. CH. IV. lowing year, upon Wilkes being outlawed for not surrendering to final judgment in the criminal information upon which he had been prosecuted to conviction by the Attorney-General, Lord Halifax came in, appeared for the first time to Wilkes's action, and pleaded in bar the outlawry of the plaintiff. It is difficult to say whether such chicane was more disgraceful to the great officer who resorted to it, or to the law itself, which permitted an abuse of its process* so oppressive to the suitor. *This state of the law of procedure continued until 1852, when the scandal was partially remedied by 15 and 16 Vic. c. 76. |