The Constitutional History of England From 1760 to 1860

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