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Debates on the legality of General Warrants, and the conduct of Wilkes, continued.—Treatise entitled “Droit le Roi,” condemned by the Lords.—Wilkes found guilty of being the Author of “The North Briton” and the “Essay on Woman.”

Feb. 17th the House went into the debate on the subject, that a general warrant for seizing the author, printer, &c., of a seditious libel, is not legal. Dr. Hay said it was evident this had been the practice, nor had the Courts below condemned it. He should, therefore, propose an amendment, that the question might be stated clearly and precisely. If that correction was agreed to, he intended to offer others that should condemn the whole practice of the secretary’s office. He then moved to add the word treasonable after seditious; and then he would propose, he said, to subjoin the following sentence, though such warrant hath been according to the practice of office, and has not been condemned by any courts of justice in which such warrants have been produced. He was seconded by Wedderburne, who argued against taking up one particular warrant, half excusing that in question by saying, he would not affirm that practice makes law. Pitt ridiculed the Doctor and the Ministry for trying to perplex the question; but owning handsomely that he should like the question better if spread over the whole practice, and not confined to the single instance before them. If his own practice had been faulty, he was willing to bear his share of public blame. He called on the Ministers to show what was really the subject matter of the question: was it on seditious libels? then do not cut and shuffle with our liberties by an epithet. We had seen the day when an epithet would defeat Magna Charta. Any other epithet of four syllables would throw dust in the eyes of members, as well as treasonable. But now, said he, they parry and twist, and I like it the better. I am glad that all the learned doctor’s abilities could produce was an epithet. But keep separate things separate in their nature. Vote the general question on seditions first. We never desire to alter the practice in cases of high treason. The learned gentleman, he supposed, would allow that there might be seditious libels without treason in them. It was shallow, the artifice of attempting to draw in gentlemen to condemn seditious warrants by coupling the word treasonable to them, which aggravates the offence; but by not daring to let the question stand simply on its own merits, on the case of a general warrant issued against a seditious libel, not a treasonable one, they tacitly avowed that the libel not being treasonable, their own conduct had been illegal. But no general warrant to search universally without specification of name or place, was allowable, even in case of treason. General warrants are always wrong; yet if this amendment left the House at liberty to debate on the whole question, and not on that amendment solely, he would not be against the stating those words. Hay was hurt, and said he had nowhere been accustomed to the manœuvre of quibbles: he had only affirmed that general warrants had been produced in other courts: he had not said that those courts had decided on them. Conway pursued Pitt’s argument, and showed how totally the original question and the proposed alteration of it differed; that if anything could authorize a general warrant, it was treason. By inserting that word, the Ministers betrayed the badness of their own cause; he feared they were a little tender; that they could not bear the last division. He honoured the lights of the law, but feared the House had a little too much of them: yet could those learned men prove that treason and sedition were the same? Why was it necessary, too, to describe historically what had been the custom? The case was clear and simple, when a gentleman came and slipped in a word that totally varied the argument: it was white, he inserts the word black; and thus would vote that the Ministers had not done wrong by taking up a man for a crime of which he had not been guilty. If a general warrant is good against treason, and not against sedition, and yet you couple them, and make them one crime, are Ministers blameless for inflicting on sedition the punishment only due to treason? Separate the questions, and vote, if you can, that the warrant was legal.

Hussey436 said he liked the amendment, because he disliked all general warrants; for what was to follow, he did not understand it. Did it mean to imply that the silence of the King’s Bench was affirmation? He feared some such thing was meant; but it would be a libel on the Judges that sit there. He did not, however, he said, mean to extend his argument to high treason. He wished to have general warrants condemned, because to some there stood the names of men of virtue, which seemed to authorize so bad a practice. Wedderburne said sharply, that he had guarded himself by alleging that the practice of the King’s Bench could not make law: but they had been taunted with epithets; the time was come when men would no longer be led by epithets437 and flowery declamation. It was hurting our country to study popularity by vilifying the profession of the law. Was a definition nothing but epithets? The Opposition, he knew, would be glad, if they could, to stand clear of epithets. Charles Yorke was for adopting the amendments, and spoke for temper. Treasonable corresponded with the evidence given at the bar. The common warrants had that description in them. He was for stating what had been the common usage, and then for condemning it. None of those warrants had come before the Courts below for argument or consideration. Sir William Meredith said, he hoped this point would be decided by the spirit of liberty, not by law; and with some heat added, “I never passed my life with the vices of Wilkes.” This sentence, provoked by what had fallen from Wedderburne, and supposed to be aimed, as it justly might have been, at Dr. Hay, who, though so servile now, had been the intimate of Wilkes,438 was levelled at Lord Sandwich. But Wedderburne took it up, and said, if Sir William had meant anything unparliamentary, he might have taken another place. Dr. Hay, thinking it necessary to vindicate himself, did not conciliate more favour. He had long, he said, known the unhappy man, had received pleasure and instruction from him, but with many good qualities he had grown profligate; did not know who incited him; had advised him against his excesses; “Yet,” said he, “I am no hypocrite; I have told him he was grown the God of defamation from keeping seditious company; he had even attacked the Crown, and the parent of the Crown; for himself, he pitied the poor devil.” Some persons interposing to prevent a duel, Sir W. Meredith said, he had every day been aspersed as taking up this matter for the sake of Wilkes. This he could not bear. Wedderburne had taken it up on tip-toe, though neither pointed at him nor Dr. Hay. Himself would last year have stopped Wilkes’s behaviour.

Hussey then proposed to insert the words in the King’s Bench, where the warrants had never been condemned or approved, whereas they had been condemned in the Court of Common Pleas. To this Norton agreed, though he said he would show that they had been approved in the King’s Bench. Prisoners are brought thither by Habeas Corpus, and the court is counsel for the prisoner. They examine the legality of the commitment, and must remit him, or bail him, or remand him. Remanding him, or requiring bail, is approving the commitment. Pitt proposed to add, “in which court (the King’s Bench) it does not appear that the validity of general warrants has been brought in question.” Charles Yorke said he agreed with Pitt, but would have the sentence run thus, “although hath been frequently produced to, and never been questioned by, the King’s Bench.” Sir William said he could not agree to the amendment, for the House had only heard evidence ex-parte for exculpation of the accused Ministers. Pitt objecting strongly to the words never questioned, Charles Yorke offered these, “and the validity never debated.” Forester approved this, and asked if the point had never been litigated, why should those words be inserted? George Grenville protested that nothing should make him say that all those warrants were legal; but with Norton he desired to add, “though the parties have been remanded and bailed.” Pitt, offended that the opinion of some Judges had been quoted in defence of the warrant, said, he was no judge, but sat there to judge Judges. There had not been a violation of the Constitution but had been sanctified by the greatest Judges. Let Norton turn to evidence and prove such prisoners had been remanded. If discharged, let the House have that evidence also. Conway treated the whole amendment as trifling; and asked if they would take no notice of the decision of the Common Pleas against the legality of the warrant, and yet would take notice of a no decision? He wished to have the whole referred to a Committee. Charles Yorke affirmed that none had been remanded; but agreed with Norton that they had been bailed. Charles Townshend asked, since the lawyers allowed that bail might be given on an erroneous warrant, why they would mention it? Norton owned that he meant from thence to argue for the legality. The amendments were agreed to.

The Court having carried this point, Norton impudently confessed this was what he had aimed at; and as there were so many causes connected with this depending in the Courts below, he should move to put off the question for four months. The Ministers did not doubt but the legality of the warrants would be condemned in Westminster Hall; yet a previous censure in Parliament might not only ensure that decision, but produce arraignment of the Administration. They feared, from what had passed in the foregoing day, that they should never be able to carry an approbation of the warrants,—and if they could, into what confusion must the nation have fallen, if such warrants were upheld by Parliament, and anathematized in the other courts? Their plan, therefore, was to jockey: and the Opposition had fallen into the snare. It had been proposed that Lord Granby should move the adjournment; he refused, and yet spoke for it,—and was immediately rewarded with the Lieutenancy of Derbyshire, which the Duke of Devonshire had resigned, and wished, from the rivalship between their families in that county, to see in any other hands.

Norton, continuing to triumph in the arts of attorneyship, asked to what end the House should decide on the point which was to be determined elsewhere? Let, he said, a Committee be appointed to draw up a bill. The practice of a court does make law. For Secretaries of State he demanded more power than for a common justice of peace. The House sits to make laws, not to expound them. He then dropped this sentence, so decent, yet so worthy of the mouth it fell from, and so often flung in his teeth,—If I was a Judge, I should pay no more regard to this resolution than to that of a drunken porter;—a sentence that would have made old Onslow439 thunder forth indignation! Norton then moved to adjourn the debate for four months, as so many causes were depending on the illegality.

Charles Yorke made a very long speech against postponing a present decision, as against the dignity of the House: and he scrupled not to pronounce the warrant illegal, which he protested he had never seen till Wilkes was taken up; nor had any question been asked of the Attorney or Solicitor Generals by the Administration. Warrants dated from the Star Chamber. Himself had always been for taking this matter up in Parliament, notwithstanding its pendency below. Previous questions, to avoid debates, may be useful during foreign treaties, but never in cases of privilege. In questions of this sort the House ought to hold the balance between King and people. It was a question in point of law impossible to be denied. Were he a Judge, he should pay regard to the decision of the House of Commons. The question ought to be determined for the sake of the Secretaries of State. He must be for some law.

Notwithstanding Yorke disculpated himself of not having seen the warrant, yet the Ministers protested that after Wilkes was taken up, Yorke had given his opinion that No. 45 was a libel, and had advised the commitment of him to the Tower. This was advising a man to knock down another, and then pleading that he had not seen the bludgeon. Lord North said, if a law was necessary, a partial resolution was trifling. By deferring this, they meant to introduce something much better.

Lord George Sackville said, it would only alarm the nation, to fling over the question the thin parliamentary veil of adjournment. When could a question of liberty be so properly taken up as under such a King? It was the time to lop such an excrescence. Lord North had promised much, but would perform nothing. The House of Commons singly cannot make law; but can declare upon it. He thanked God that on this question the whole body of lawyers was not on the side of power: that battery would be too much to stand. How came the Secretaries of State by this practice, but from the Star Chamber and Licensing Act? It had never been abused till now, for it had been exercised only against traitors. A discretionary power must always be at the peril of the Secretary that uses it. But he would therefore declare it illegal for a warning to them, and to show the people that they had a watchful House of Commons.

Nugent said, “Liberty rings round the House, and we may all be unanimously in the wrong.” “We are not likely to be unanimously wrong,” replied Conway, “nor rash, for nothing was ever so fully debated. The Ministers had narrowed the question to Wilkes, and then called it too narrow. The previous question would in effect be a negative. Wood had called for immediate decision. There had been issued but one warrant as extensive as this down to the time of Lord Townshend, and that had been in the reign of Charles the Second. He that gives a power of tyranny gives tyranny.” Hussey added, that the Licensing Act had been dropped because the Peers would not consent to let their houses be searched.

Lord Frederick Campbell said that in a fortnight’s time general warrants would be determined to be illegal; and then, what Secretary of State would dare to sign one? Lord Granby, declaring he thought them illegal because Lord Chief Justice Pratt had thought so, said, no Secretary of State after that opinion would venture to issue them.

Charles Townshend made a most capital speech, replete with argument, history, and law, though severe on the lawyers: a speech, like most of his, easier to be described than detailed. How great, he said, must be the talents of Norton, if the House heard him with patience, though comparing them to a drunken porter. Whether in the House or out of the House, Norton, he feared, would be fatal to the cause. He then gave the history of the Licensing Act, and read the resolution of the year 1675, drawn by Mr. Locke, and the report of Lord Chief Justice Vaughan of usage not constituting law. Had Norton lived in the age of ship-money, how he would have argued for putting off the decision of its being illegal! But it was become more necessary to alter this, because of the many precedents in its favour. He then gave a description of the warrant against Wilkes, and how long they had been before they applied it to him. He abhorred Wilkes, he said; and drew a severe picture of him, and another panegyrical of the great Whig Lords at the time of the Revolution, and of those at the accession of the present Royal Family. “But it seems,” continued he, “we are not to have a resolution, but a bill. The first time was always the best time; the natural mode the best mode. One advantage had been derived from Wilkes, he had stopped a growing evil. Nobody could think what thirty years more in abler hands would have done. This warrant without description of person might take up any man under any description of a libel. If the House did not come to some resolution, what dissatisfaction it must create. Mankind would learn that the lawyers were divided in their sentiments on the legality, and would be clamorous to have settled a point so important to the security of their persons, houses, and papers. But do not be wheedled by promises; who gives promises gives deceit.” He praised Mr. Pitt, and concluded with saying that this warrant was like an experiment in anatomy, which might be tried on a poor man. Wilkes is odious, cry the Ministers; commit him. If Parliament suffers it, you may strike at higher objects.

After several other speeches, Pitt said “this was not a warrant, but a delegation of magistracy, which the Crown could not give, and should Secretaries of State give it? The debate had been carried on without heat—indeed with too much coldness. Lawyers termed this warrant erroneous;—was that term harsh enough? Hear the language of Ministers and their agents: Carteret Webbe said he had settled Wilkes comfortably in the Tower with his shaving things! Then, they say, you need not pronounce this illegal; Secretaries of State will be sufficiently frightened; the Judges may or may not declare it illegal; and you shall have a law. I should be against such a law; it would be augmenting the power of the Crown by law. What will our constituents say if we do not ascertain their liberties? How do you know the Lords will agree to the bill? Not doing is doing.”

He was answered by Grenville and Sir John Philipps; but Lord Howe,440 though a Lord of the Admiralty, spoke against the adjournment. Elliot said, if there must be a victim, they might have a hecatomb of Ministers who had signed such warrants. These warrants, it seemed, had stalked about unknown to Mr. Pitt, who had been Secretary of State, and to Mr. Yorke, Attorney-General.

Colonel Barré ridiculed Lord Barrington, Elliot, and Grenville, with much humour. “Lord Granby thinks,” added he, “that no Secretary of State will venture on these warrants after Pratt’s opinion; but Grenville says that opinion was undue, erroneous, and precipitate.” For himself, he esteemed the professors of the law, but detested the profession. Pratt he commended; and said, “shall France deride our languor when her Parliaments are making such strides towards liberty?”

At five in the morning the House divided, and the adjournment was carried by 232 against 218; a majority of only fourteen. The world expected that the Ministers would resign—at least endeavour to treat.441

The offensive behaviour of Norton in the preceding debate, brought out a story very characteristic of his unfeeling nature. When Dr. Hensey was condemned for treason in the last reign, Lord Mansfield asked Pratt, the Attorney-General, when he would have him executed? Pratt, struck with compassion, could not bring himself to fix the day. Lord Mansfield then asked Norton, who, turning to the prisoner, said, “Doctor, when will it be agreeable to you to be executed?”442

While mankind expected that the Opposition would vigorously pursue the advantage of so large an increase of their numbers, day after day, and week after week slipped away without their exerting one symptom of spirit or activity. No motions were made, no inquiries set on foot, no zeal expressed to keep up the passions and hopes of the party. Without doors all hearts were with them, and ready to second their attempts with clamour and applause. At first they seemed to expect that the Ministers would come and lay their places at their feet. The dream itself was over before an effort was made to realise it. Not a pamphlet was written, not a meeting was held, to concert farther measures. A supineness unparalleled! but to be accounted for from the composition of that minority. Pitt affected to be courted to discountenance party, and to be placed at the head of everything without seeming to desire it. He despised Newcastle, and resented the manner in which he had been treated by that Duke, by Devonshire, by Hardwicke, and the Yorkes. Charles Yorke was, besides, incompatible with Pitt’s friend, the Chief Justice Pratt, as the Chancellor’s seal was equally the object of both. Lord Temple, the soul of faction, was detested by the whole party, except by his own small connection. Charles Townshend was attached to nobody, and trusted by nobody. Legge was industrious, but not spirited: he could negotiate for himself, but not for a party. Conway had singly meant to arraign the warrants, and had no thought of dipping in faction. Some were too fair, and others too dirty, to take the general steps that might lead to the good of the whole party: and thus, where there was no concert, and in truth but few able men, there could be no consequences but inactivity and defeat. That defeat fell heavy on the most conscientious, who having offended the Court by their opposition, were thus exposed a sacrifice to its resentments.

Nor was this conduct, I doubt, solely founded on inability and outward disunion. Pitt might expect to be again sent for by Lord Bute, and was unwilling to be clogged with numerous dependents, odious to the Favourite, and distasteful to himself. He and Lord Temple had far more rancour against their brother, George Grenville, than against Lord Bute; and Pitt, at least, had never been personal against the Favourite, who, with all his resentment to Lord Temple, as the instigator of Wilkes, had received more recent stabs from George Grenville. Whether during this suspension of hostilities, any negotiation was renewed, I do not pretend to say; nor is it important, as it certainly had no effect, unless that material one of cooling the growing party.

The Ministers, on the other hand, wore a good countenance, and were as alert as their adversaries were supine and lifeless. To procure votes, to work underground, to write letters, dispatch messengers, and collect all possible forces, this was the fort and excellence of Sandwich’s genius. He and Rigby were desperate, and Grenville little less so. They soon perceived the want of discipline in the enemy’s troops, and the insufficiency of their commanders. With some address of their own, and with the defect of it in their opponents, they weathered the session, obtained full power, and showed that they dared to make use of it despotically.

On the very day of the last great debate in the House of Commons, Lord Lyttelton, seconded by the Duke of Grafton, acquainted the Lords that on the following Tuesday he should lay a complaint before them against a new book called Droit le Roi. This pestilent treatise was a collection from old statutes and obsolete customs of the darkest and most arbitrary ages of whatever tended, or had tended, to show and uphold the prerogative of the Crown. The fulsome flattery and servility of ancient lawyers in every reign were amassed together, and shoved upon the world as the standing law of England; no retrospect had to all the immunities obtained since by the Civil War, by the Revolution, and by various other struggles of Parliaments with the Crown. Such a code obtruded on the Crown, as a codicil to the stretch of General Warrants, spoke for itself. It was incense laid on an altar erected to power on which human sacrifices had already been offered. Without metaphor, such a compilation proved that prerogative must have been the object of the Court before such gross adulation could dare to step forth in the face of both Houses of Parliament. The author was one Brecknock, a retainer of the law, and a hackney writer. As no attempt was made to prove whether he wrote by instigation, it remained problematic. Certain it is, that he soon afterwards attached himself to the Earl of Northumberland.443

On the 21st, Lord Lyttelton made his complaint, and moved for a censure of the book as Jacobitical, and violating the Bill of Rights, and the Revolution. Ministers, he said, ought to have taken notice of it; but they who had fallen so severely on seditious pamphlets, had overlooked this tract, so subversive of all liberty. Lord Dartmouth treated the book with still more severity. Lord Halifax affected to go farther, but complained of Lord Lyttelton for not acquainting him with his intention. Lord Marchmont to the censure proposed to tack a compliment to the King on his love of liberty; for so servile are some men, that they cannot condemn flattery without making use of it.444 The book, thus attacked on one side and given up on the other, was sentenced to be burnt, and the author ordered to be taken into custody. The latter part of the sentence nobody took any pains to execute.

On the 24th, the Lords communicated their resolutions to the other House, who concurred in the same judgment.

On February the 21st, Sir John Philipps, as he had before acquainted the House he would, moved for leave to bring in a bill to ascertain the power of Secretaries of State in granting warrants—a line almost impossible to draw. Treason was to be kept in awe on one side; the Ministers themselves on the other. Nor could this boon to liberty but be suspicious when offered by a hand so rankly Jacobite! The Ministers had made their use of the idea, and desired no such bill: and the Opposition were not forward to let them draw such a bill. It was therefore dropped with scorn by both sides of the House; and yet the Court afterwards affected to talk of this bill as a tender made to liberty, and rejected by its advocates.

The same day was Wilkes found guilty in the King’s Bench, of being author of the North Briton, and of the Essay on Woman.

The City of London, to honour the steadiness and services of Mr. Pratt, the other Chief Justice, presented him with the freedom of the City, and thanked their own Representatives for their behaviour on the question of the warrants.

On the 6th of March, it was agreed to amend the Marriage bill by another bill, as Mr. Yorke had proposed: and the same day died his father, and the father of the Bill, Philip Earl of Hardwicke; a man who, during his power, had coloured over very confined parts, and very few virtues, with a gravity that was construed into both, as it served the purpose of himself or his dependents. Pride, revenge, and avarice were his true features; and whatever pictures shall be drawn of him where those lines do not predominate, will be unlike, false, and flattering. To conceal all knowledge of his vast wealth, his sons did not prove his will till the memory of him was faded away.445