The Court was strangely alarmed at this sudden rise of the Opposition, and set them roundly to oppose its progress, well knowing that when once the scale turns, it is difficult to secure even the venal, who hurry over to the side to which fortune seems inclining. Nor was much time given them to rally their forces, the great question coming on within four days.
CHAPTER XXVI.
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.
Hussey[436] 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 epithets[437] 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 Onslow[439] 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.