The Constitutional History of England from 1760 to 1860

vement 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 Middlese

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 Grampo

r 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 exis

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, Wil

cial 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 cou

e 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 w

r 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,

ys 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 gr

ht 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 incur

casion 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 pla

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 enco

f 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,

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

e 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

uld 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 me

end to the agitation on the question, and it was renewed in the next session in

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 16

is 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 Hou

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

hing 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 magi

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 t

dent 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 othe

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 int

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 exist

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 wa

tled 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 Christi

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, b

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 par

te

" vol. iii., p. 380; ed. 3, 1832. The

ew Shoreham as early as 1771, and the franchise of the borough of

solved March 19. Lord Bute succ

ontinued to be Secretaries of State; Lord Henley (afterward Lord Northington) retained the Great Seal; Lord North and Sir Jo

ued April 19, and The North Briton

wn, 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

e 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 th

of the Lord Chance

nced in his life of Lord Northington, where he praised the House of Lords for "very properly rejecting the bill passed by the Commons

s'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

n Woman." Horace Walpole eventually learned, or believed that he had learned, that the author was a Mr. Thom

. But it does not appear what the three libels were. The "Essay on Woman" was one, th

f 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

phus, "History of

ifference 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 Parliame

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 Tor