The Constitutional History of England From 1760 to 1860 Page 3

  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 declared that Mr. Luttrell had been duly elected.

  But Lord North was correct in his anticipation that their vote would not put an end to the agitation on the question, and it was renewed in the next session in a manner which at one time threatened to produce a breach between the two Houses.

  The "Parliamentary History" closes its report of the debate on the resolution by which Mr. Luttrell was seated with a summary of the arguments used in it, taken from the "Annual Register," which, as is universally known, was at this time edited by Mr. Burke. It is a very fair and candid abstract, which, in fact, puts the whole question on one single issue, "that the House of Commons is the sole court of judicature in all cases of election, and that this authority is derived from the first principles of our government, viz., the necessary independence of the three branches of the Legislature." But, though that doctrine was fully admitted by the Opposition, they made "that very admission a ground for reviving the question in the next session, by moving for a resolution which should declare that, 'being a Court of Judicature, the House of Commons, in deciding matters of election, was bound to judge according to the law of the land, and the known and established law of Parliament, which was part thereof.'" It was understood that this resolution, if carried, was intended as a stepping-stone to others which should condemn the decision of the previous session; yet it seemed 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 1656, he placed guards at the door of the House, with orders to refuse admission to all those members whom, however lawfully elected, he did not expect to find sufficiently compliant for his purposes. Mr. De Grey's argument was of a different character, being based on what he foretold would be the practical result of a decision that expulsion did not involve an incapacity to be re-elected. If it did not involve such incapacity, and if, in consequence, Mr. Wilkes should be re-elected, he considered that the House would naturally feel it its duty to re-expel him as often as the constituency re-elected him. But one answer given to this argument was, that to expel a second time would be to punish twice for one offence, a proceeding at variance not only with English law but with every idea of justice. Another, and one which has obtained greater acceptance, was, that the legitimate doctrine was, that the issue of a new writ gave the expelled member an appeal from the House to the constituency, and that the constituency had a constitutional right to overrule the judgment of the House, and to determine whether it still regarded the candidate as its most suitable representative.

  The ministers, however, were, as before, strong enough in the House to carry their resolution. But the Opposition returned to the charge, taking up an entirely different though equally general position, "That, by the law of the land and the known law and usage of Parliament, no person eligible by common right can be incapacitated by vote or resolution of this 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 House of Lords, though it was supported by all the eloquence of Lord Chatham, he was beaten by a majority of more than two to one, and the ministers even carried a resolution declaring "that any interference of the House of Lords with any judgment of the House of Commons, in matters of election, would be a violation of the constitutional rights of the Commons."

  Even these decisive defeats of the Opposition did not finally terminate the struggle. The notoriety which Wilkes had gained had answered his purpose to no slight extent. The City had adopted his cause with continually increasing earnestness and effect. It had made him Sheriff, Alderman, Lord Mayor, and had enriched him with the lucrative office of City Chamberlain; and, as one of the City magistrates, he subsequently won the good opinion of many who had previously 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 of the resol
utions against him which had been passed in 1770. It was carried by a largo majority; and though this was as evidently a party division as those had been by which he had been defeated twelve years before, still, as the last resolution on the subject, it must be regarded as decisive of the law and practice of Parliament, and as having settled the doctrine that expulsion does not incapacitate a member who has been expelled from immediate re-election.[12]

  The establishment of this rule, and the abolition of general warrants, were, however, not the only nor the most important result of these proceedings. They led indirectly to an innovation which, it is hardly too much to say, has had a greater influence on the character and conduct of Parliament, and indeed on the whole subsequent legislation of the country, than can be attributed to any other single cause. Hitherto the bulk of the people had enjoyed but very scanty and occasional means of acquiring political education. At times of vehement political excitement, or any special party conflict, pamphlets and periodical essays had enlightened their readers-necessarily a select and small body-on particular topics. But standing orders of both Houses, often renewed, strictly forbade all publication of the debates which took place in either. To a certain extent, these orders had come to be disregarded and evaded. Almost ever since the accession of the House of Brunswick, a London publisher had given to the world an annual account of the Parliamentary proceedings and most interesting discussions of the year; and before the middle of the reign of George II, two monthly magazines had given sketches of speeches made by leading members of each party. The reporters, however, did not venture to give the names of the speakers at full length, but either disguised them under some general description, or at most gave their initials; and sometimes found that even this profession of deference to the standing orders did not insure them impunity. As late as the year 1747, Cave, the proprietor and editor of the Gentleman's Magazine, was brought to the bar of the House of Commons for publishing an account of a recent debate, and only obtained his release by expressions of humble submission and the payment of heavy fees. The awe, however, which his humiliation and peril had been intended to diffuse gradually wore off; the keen interest which was awakened by the ministerial changes at the beginning of the reign of George III., which have been already mentioned, naturally prompted a variety of efforts to gratify it by a revelation of the language concerning them which was held by statesmen of different parties; and these revelations were no longer confined to yearly or monthly publications. More than one newspaper had of late adopted the practice of publishing 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 magistrate at Guildhall, who, by a somewhat whimsical coincidence, happened to be Alderman Wilkes. Wilkes not only discharged him, on the ground that there was "no legal cause of complaint against him," but when Wheble, in retaliation, made a formal complaint of the assault committed on him by Carpenter in arresting him, bound Wheble over to prosecute, and Carpenter to answer the complaint, at the next quarter sessions, and then reported what he had done in an official Letter to the Secretary of State. Thomson, another printer, was in like manner arrested; and, when brought before Mr. Oliver, another alderman, was discharged by him. And when, a day or two afterward, a third (Mr. Miller) was apprehended by Whetham, a messenger of the House of Commons, Mr. Brass Crosby, the Lord Mayor, and the two Aldermen, signed a warrant committing Whetham to prison for assaulting Miller. Whetham was bailed by the Sergeant-at-arms, who reported what had occurred to the House; and the House, as the Lord Mayor and Alderman Oliver were members of it, as representatives for London and Honiton, ordered that they should attend the House in their places, to explain their conduct, and that Mr. Wilkes should attend at the bar of the House. Wilkes, declining to recognize the validity of the resolutions which had seated Colonel Luttrell for Middlesex, refused compliance with such an order, writing a letter to the Speaker, in which he "observed that no notice was taken of him as a member of the House; and that the Speaker's order did not require him to attend in his place." And he "demanded his seat in Parliament, and promised, when he had been admitted to his seat, to give the House a most exact detail of his conduct." But the Lord Mayor pleaded the charters of the City as a justification of his act in releasing a citizen of London who had been arrested on a warrant which had not been backed by a City magistrate, and demanded to be heard by counsel in support of his plea. His demand, however, was refused, and he and Alderman Oliver were committed to the Tower; but, as if the ministers were afraid of re-opening the question of Colonel Luttrell's election for Middlesex, they evaded taking notice of Wilkes's disobedience to their order by a singularly undignified expedient, issuing a fresh order for his appearance on the 8th of April, and adjourning till the 9th.

  The ministers now moved the appointment of a select committee to investigate the whole affair; and the committee, before the end of the month, made an elaborate report, which, however, abstained from all mention of the offence committed by the printers, and confined itself 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 the realm." And this assertion may be regarded as having been uphold by the refusal of the judges to release the Lord Mayor and Alderman when they sued out writs of habeas corpus; and they consequently remained prisoners in the Tower till they were released by the prorogation.

  But with this report of the committee the matter was suffered to drop. The transaction had caused almost unprecedented excitement, which was not confined to the City, for the grand-juries of many English counties and a committee of the Dublin merchants showed their sympathy with the Opposition by sending up addresses to the imprisoned City magistrates; and the ministers had a prudent 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 other periodicals have been in the constant habit of giving regular details of the proceedings of both Houses of Parliament. And one enterprising publisher, Mr. Hansard, has for many years published a complete record of the debates in both Houses, which is continually appealed to in the Houses themselves, by members of both parties, as a manual of political and parliamentary history.

  The practice, as it now prevails, is one of the many instances of the practical wisdom with which this nation often deals with difficult subjects. The standing order is retained as an instrument which, in certain cases, it may possibly be expedient to employ; as, in fact, it has been employed in one or two instances in the present reign, when matters have been under consideration which, however necessary to be discussed, were of such a nature that the publication of the details into which some speakers deemed it desirable to go was regarded by others as calculated to be offensive to the taste, if not injurious to the morals, of the community at large. But the very fact of such an occasional enforcement of the standing orders under very peculiar circumstances implies a recognition of the propriety of its more ordinary violation; of the principle that publication ought to be the general rule, and secrecy the unusual exception. And, indeed, 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 interest of the members themselves, whether leaders or followers of the different parties. Not to mention the stimulus that it affords to the cultivation of eloquence-an incentive to which even those least inclined or accustomed to put themselves forward are not entirely insensible-it enables the ministers to vindicate their measures to the nation at large, the leaders of the Opposition to explain their objections or resistance to those measures in their own persons, and not through the hired agency of pamphleteers, and each humbler member to prove to his constituents the fidelity with which he has acted up to the principles his assertion of which induced them to confide their interests and those of the kingdom to his judgment and integrity. Secrecy and mystery may serve, or be supposed to serve, the interests of arbitrary rulers; perfect openness is the only principle on which a free constitution can be maintained and a free people governed.