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In order to understand the Wilkes case it is necessary to briefly review the political situation at the time it arose, because Mr. Beck in his book leaves the plain inference that the electorate had, in the main, the same right that an electorate has to-day. A brief examination of English histories and particularly those devoted to English constitutional government will immediately dispel this impression. In 1760 Parliament was practically the pawn of the rich landlords; the owners of pocket boroughs and the rich and powerful dominated the house.
Gneist, in his English Parliament, page 304, says:
The practice of parliamentary government in the eighteenth century could not, for that very reason, harmonize in any degree with the ideas entertained by theorists on consititutional law.
Pollard, in his Evolution of Parliament, page 339, says:
The revolution had transferred power from the Crown to Parliament, but not from Parliament to the people
*; elections simply meant a change of masters. Only twice in the eighteenth century was a general election held to settle a public question. Once in 1701 when William III appealed to the country against a Tory House of Commons; and, secondly, in 1784 when the younger Pitt appealed to it against Whig domination. For the rest ministers were changed, policies adopted and discarded, war declared, and peace made without the least reference to the electors. A member did what he liked in Parliament, subject to the whim of the owner of the borough for which he sat.
George III interrupted this comfortable state of affairs and turned against parliamentary magnates their own political arts. Their lack of public support facilitated George's operations. He could never have bribed and cajoled a really representative House of Commons.
George I and George II were Hanoverians who could not speak the English language. When George III succeeded to the throne his mother said to him, “Now, George, be a King," and he immediately started out to regain the ancient prerogatives of the King by wholesale purchase and bribery of Parliament, maintaining regular paymasters for such purpose, and he succeeded so well that he became an autocrat in fact.
The great majority of parliamentary seats at that time were owned by rich and powerful landlords, who sold the seats in Parliament to aspiring statesmen for large sums of money, the occupants doing the bidding of their masters. The King seeing this situation, simply outbid the lords. It was but a contest between the King and the oligarchy of the nobility. In Cheyney's Readings in English History, page 644, appears
the following extract from the memoirs of Sir Samuel Romilly, which graphically reveals to us the situation as it existed:
I shall procure myself a seat in Parliament unless I find that it will cost so large a sum as, in the state of my family, would be very imprudent for me to devote to such an object, which I find is very likely to be the case. Tierney, who manages this business for the friends of the late administration, assures me that he can hear of no seats to be disposed of.
Tierney tells me he has offered £10,000 for the two seats of Westbury
*; £6,000 and £5,500 have been given for seats with no stipulation as to time, or against the event of a speedy dissolution by the King's death or by any change of administration.
The truth is that the new administration has bought up all the seats that were to be disposed of and at any prices. Amongst others, Sir C. H. the great dealer in boroughs, has sold all he had to the ministers. With what money all this is done I know not, but it is supposed that the King, who has greatly at heart to preserve this new administration, the favorite objects of his choice, has advanced a very large sum out of his privy purse. The buying of seats is detestable and yet it is almost the only way in which one in my situation,
who is resolved to be an independent man, can get into Parliament. To come in by a popular election in the present state of the representation is quite impossible.
He later purchased a seat from the Duke of Norfolk, whose right to the borough was contested by Lady Irwin.
Romilly then wrote Piggott as follows:
If I keep the seat either by decision upon petition or by a compromise, I am to pay £2,000; if upon a petition I lose the seat, I am not to be at any expense.
By the purchase of Parliament the King had become the master of the situation. And in order to maintain his prestige he started a newspaper called the Briton, which was edited by Lord Bute; and George immediately instituted a campaign against the press; he forbade the publishment of proceedings of Parliament; prohibited the admission of strangers during sessions of Parliament and put a padlock upon its proceedings; George's high-handed conduct aroused great antagonism. John Wilkes, who was a rather brilliant but dissolute fellow, started another newspaper called the North Briton in which he vigorously attacked the policies of the King.
During Bute's ministry the North Briton flourished, but upon Bute's resignation and the accession of George Grenville as Prime Minister, Wilkes published a supplementary number of the North Briton, No. 45, on the 23d of April
, 1763, which contained a criticism
8 of the King's speech to Parliament; thereupon Lord Halifax, the leading secretary of state, issued a general warrant "to search for authors, printers, and publishers,” and to bring them before him for an examination. Under this warrant Wilkes was arrested and thrown into the Tower. A week later he was released upon a writ of habeas corpus, having asserted his immunity from arrest by reason of his privilege as a member of Parliament. The warrants were afterwards declared illegal and Halifax was assessed with heavy damages. A little later Wilkes republished No. 45 and also 13 copies of an obscene Essay on Women, à parody on Pope's Essay on Man. Wilkes was afterwards served with a subpæna on information against him in the Court of King's Bench, to which on the ground of privilege he had not entered an appearance. “On the meeting of Parliament, however, in November, 1763, he lost no time in stating that if his privilege should be affirmed he was ready to waive it and to put himself upon a jury of his countrymen." “The only exceptions to the privilege of freedom from arrest which had ever been recognized by Parliament were 'treason, felony, and breach of the peace, or refusal to give surety of the peace' " (May's Constitutional History
. of England, Vol. I, p. 365). Notwithstanding that such was the law the House of Commons voted No. 45, “a false, scandalous, and malicious libel” and “ordered it burned by the hands of the common hangman,” and then, in defiance of their own previous resolutions,
, they resolved that “privilege of Parliament does not extend to the case of writing and publishing seditious libels nor ought not to be allowed to obstruct the ordinary course of law in the speedy and effective prosecution of so heinous and dangerous offense.
As to this resolution May says:
To the principle of the latter part of this resolution there can be little exception; but here it is applied ex post facto to a particular case, and used to justify a judicial decision contrary to law and usage.
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Pitt remonstrated against the abridgement of the privileges of Parliament. The House of Lords, however, agreed to the resolution, but 17 lords signed a protest against the surrender of the privileges of Parliament " to serve a particular purpose, ex post facto, et pendente lite, in the courts below."
It was strenuously argued that the seditious character of the alleged libel could only be determined by the courts and that the resolution was a prejudgment of such fact, and the burning of No. 45 was execution before conviction. These arguments made a great appeal to the people. When the papers were attempted to be burned a large part of them was rescued by a mob from the hangman and removed to Temple Bar outside of the jurisdiction of the city, where a boot and a petticoat were burned in effigy of Lord Bute and
a the Princess.
Wilkes was then ordered before the house, but before appearing he fought a duel, was injured, and, beset with spies, he fled to Paris and remained there for a number of years.
In contempt of the house the proceedings were no longer stayed and he was expelled the house for these libels. The House of Lords immediately found the Essay on Woman, which Wilkes had really published for private circulation, to be an impious libel because it mentioned a spiritual member of the House of Lords, which constituted a breach of privilege. The lords addressed the King to prosecute. Wilkes was ordered into custody, but he had escaped and was therefore held an outlaw.
At the dissolution of Parliament in 1768 Wilkes, who had remained in Paris-an exile and an outlaw-offered himself as a candidate for the city of London. He was defeated. He then ran from Middlesex and was elected. There was great exultation among a certain class in London and there was great revelry and all the doors were marked with the number “45," and a great cry of “Wilkes and liberty" went up.
On the first day of the ensuing session, having appeared before the King's Bench on his outlawry, Wilkes was committed on a capias utlagatus. He was rescued by a mob, but surrendered and the outlawry charge was reversed on a technical ground, but he was sentenced to 22 months in the Tower for the libels. During the first session Wilkes, being incarcerated in the Tower, was unable to take his seat, hence no proceedings were started. At the opening of the second session Wilkes, in a petition to the house, accused Lord Mansfield of having altered the record of the trial, and Mr. Webb, the solicitor, with having bribed a printer to testify falsely. "Thereupon his charges were found gro'iddless and he was brought before the house to prove his charges. He perplexed the house by submitting whether, being a member, he could stand at the bar, without having taken the oaths and delivered in his qualifications. But he soon received the obvious answer that being in custody at the bar, an action affecting a member sitting in the house did not apply to his case.” Wilkes was also charged with libeling Lord Weymouth by publishing certain articles which the house voted were “insolent, scandalous, and seditious libels.” The motion which was made for Wilkes's expulsion was founded upon several distinct grounds, to wit: First, the Weymouth letter; second, “No. 45 North Briton" of five years before, for which he was already serving sentence and for which he had been expelled was libelous; third, the Essay on Woman was an impious libel; and fourth, Wilkes was under sentence which disqualified him.
It was clearly demonstrated that these charges were cumulative and contrary to all English precedent-see Grenville's argument. Burke, Pitt, Dowdeswell, Beckford, Cornwall, and George Grenville argued powerfully against the cumulative nature of the charges; that the resolution of the house of five years before was ex post facto and illegal; that Wilkes had already been punished for grounds 2 and 3; and that punishment by expulsion was violative of the English constitution. However, the expulsion was voted by a large majorityit should be borne in mind that Wilkes had not presented his credentials nor had he been sworn in for that session. The histories discuss this case as one of expulsion, when as a matter of fact it is a case of rejection. He could not be expelled until he was sworn in and became a member.
Wilkes upon being rejected was immediately reelected without opposition (February 3, 1769). The following day Lord Strange moved:
Resolved, That Mr. Wilkes having been, in this session of Parliament, expelled the house, was and is incapable of being elected a member to serve in this present Parliament (February 17, 1769).
The motion carried, the election was declared void, and a new writ was issued.
On March 16, 1769, he was again reelected and again was rejected. A fourth election then followed—13th of April--when Colonel Luttrell, a member, vacated his seat and offered himself as a candidate against Wilkes. Upon the returns Wilkes received 1,143 votes and Luttrell 296; two days later the house declared that Wilkes being disqualified to sit, Luttrell had been duly elected. Wilkes was still in prison. Volume 28, Encyclopedia Britannica, eleventh edition, page 643, says:
His prison cell was thronged daily by the chiefs of the Whigs, and large sums of money were subscribed for his support. So great was the popular sympathy in his favor, that a keen judge of contemporary politics declared that had George III possessed a bad and Wilkes a good character, the King would have been an outcast from his dominions.
That this was a contest primarily between the King and a subject and not between the House of Commons and the electorate is plainly indicated by the above quotation. Moreover, Sir Thomas Erskin May, K. C. B., in his The Constitutional History of England Since the Accession of George III, Volume II, chapter 9, contends vigorously that the prosecution of Wilkes was really an attack by the King upon newspapers and the liberty of opinion rather than a contest between Parliament and the electorate. In Volume I of May's Constitutional History, page 47, he says:
(1867.) Parties had been broken up and prerogative triumphed. The leaders of parties had been reduced to insignificance, while the King had directed business affairs to his own will and upon principles dangerous to public liberty.
And at page 42 says: The King continued personally to direct the measures of the ministers, more particularly in the dispute with the American Colonies, which, in his opinion, involved the right and honor of the Crown. He was resolutely opposed to the repeal of the stamp act, which the ministers thought necessary for the conciliation of the Colonies.
Having been the personal instigator of the stamp act and having mistreated the Colonies in many ways, and having attempted to crush newspapers and prevent the freedom of expression of opinion upon public matters, and having resorted to illegal arrests and prosecutions of Wilkes and incurred the enmity of the Colonies, is there any wonder that South Carolina voted £1,500 to aid Wilkes in paying his debts?
The assertion that South Carolina voted this sum to aid the electorate of Middlesex in any contest with Parliament as such is not supported by history. South Carolina voted this sum as a contribution to help fight the King. The King had bought Parliament outright and usurped the power of the dukes and barons. Is it any wonder that many of them espoused the cause of Wilkes in order to fight the King? They did not espouse the cause of the electorate, which up to that time never possessed any right as such.
By the election of Luttrell, Wilkes was effectually excluded from Parliament, but the King's opponents many times thereafter used the case to continue the fight against the King. On January 9, 1770, Lord Chatham moved an amendment to the address denouncing the late proceedings in the House of Commons as refusing by resolution of one branch of the legislature to the subject his common right, and deprive the electors of Middlesex of their free choice of a representative.
In opposition to the motion, Lord Mansfield argued that, in matters of election the Commons had a complete jurisdiction, without appeal; that their decision could only be reversed by themselves or by an act of Parliament. (May, vol. 1, p. 376.)
Lord Chatham's motion was defeated, and thereby the House of Commons again asserted its right to pass upon the qualifications of a member.
On January 25, 1770, Mr. Dowdeswell offered the following resolution:
That the house in its judicature in matters of election is bound to judge according to the law of the land and the known and established law and custom of Parliament, which is part thereof.
Thereupon Lord North adroitly followed it out by a conclusion: That the judgment of the house was agreeable to the said law of the land and fully authorized by the law and custom of Parliament.
Dowdeswell's motion was defeated, and on the 31st of January he repeated his attack in another form, but with no better success. (May, vol. 1, p. 378.)
On February 2, 1770, Lord Rockingham offered in the House of Lords a resolution similar to that of Mr. Dowdeswell, which was defeated. Thus the House of Lords upheld the House of Commons. Shortly thereafter motion was made in the House of Commons for a "bill to regulate the consequences of the expulsion of members.” The opposition to this was so great the bill was withdrawn. On May i Lord Chatham presented a bill for reversing the several adjudicates of the House of Commons in the Wilkes case. Lord Mansfield deprecated any interference with the privileges of the Commons, and the bill was rejected by a large majority. On December 5, 1770, at the next session of Parliament, Lord Chatham moved another resolution, which was defeated. On April 30, 1771, the