Dr. Hay replied with much and able subtlety; owned that when he was for putting off the question last year he had meant to reject it; his party had said that it was not proper for that House to declare on law; he himself had said those warrants were illegal, unless great urgency in their favour.[52] He agreed that, by the common law of the land, those warrants were illegal: nay, he thought the question ought to be settled by Parliament, not by a resolution of one House only. Sir William had omitted the words seditious and treasonable, though adopted last year. The House might do what it pleased, but ought it to do so? Why not make the case general to all cases? Then this resolution, he heard, was to be followed by another on breach of privilege; but was every injury to a member a breach of privilege? Was the House to be an universal judicatory for offences? But the House had already declared that it has no privilege in the case of seditious and treasonable libels—a question of law is safe in courts of law; but Houses of Commons, not being permanent, may vary their resolutions. One House—both Houses cannot declare laws, though they, with the King, may enact laws. The question had either been adjudged, or was pending: both were true. The Court of Common Pleas had decided and given damages; then he named the Chief Justice Pratt, taking notice of the strong expression of an iron rod, used by that magistrate on the occasion. All juries say General Warrants are illegal; but at present the question had been hung up by the bill of exceptions, which bills are in the nature of appeals—an argument why the House should not, at that time, make a declaration. If there had been delay, why was not the offender called on? He had heard that the delay arose from the prosecutors. If anything was done wrong in the Courts below, the House alone could redress it. He then, as a correction to the proposed question, moved the following strange and scarce intelligible sentence (to load the motion ridiculously, and with intention to reject afterwards the question so amended), “That in the particular case of libels, it is proper and necessary to fix, by a vote of this House only, what ought to be deemed the law in respect of General Warrants; and for that purpose, at the time when the determination of the legality of such warrants, in the instance of a most seditious and treasonable libel, is actually depending before the courts of law; for this House do declare that a General Warrant for apprehending the authors, printers, or publishers of a libel, together with their papers, is not warranted by law, and is a high violation of the liberty of the subject.”
It was requisite for me to state the words of this proposition and account for them; for standing as they do on the printed votes without a comment, what could posterity, or persons ignorant of parliamentary craft and proceedings, think of them? Would they believe such a proposition was seriously debated?—yet, as the votes never joke, could they avoid believing so? The fact, as I have said, was, that the Ministry, to load Sir William Meredith’s question with absurdity, made use of their power, as the majority, thus to amend the question, and forced the opponents to debate it thus hampered, or withdraw it; and even the latter could not be done without leave of the House, that is of the majority, who probably would not have granted that permission, that they might give a negative to the question thus loaded, instead of rejecting Sir W. Meredith’s plain question, which it would have been more unpopular to do. By the strict rules of the House they could even have obliged the debate to be pursued on the question only as amended; but, content with the certainty of rejecting it in their own way, they suffered the Opposition to argue on the simple state of the case, and the debate accordingly proceeded so. Lord Middleton asked if the Petition of Rights had not come in by declaration? and, with regard to the charge of delay, he said the plaintiffs could not afford to go on with the bill of exceptions, and then were accused of protracting; and, to justify the renewal of the question, he observed that Lord Coke says, “Many a good proposition had succeeded at last by being pursued year after year.” Sir W. Meredith said, he had omitted the word seditious, that the question might carry no reference to Wilkes, being calculated for the general and indefinite good of all. No epithets ought to be mixed with prosecutions, nor should a man be liable to be prosecuted as a traitor for having written a libel. No privilege held against treason; but the House ought not to be deprived of its members on a false charge of treason. Conway asked if Hay had been serious in his motion? did he mean his amendment should go out into the world on so important a question? It would be a mockery of Parliament. Grenville called him to order; but Conway persisted and said it would be a shameful proceeding. Wedderburn and the Solicitor-General again interrupted him; but he was supported by Sir George Saville and Onslow; and the Speaker declared there was nothing disorderly in Conway’s words. Dowdeswell said, Dr. Hay had argued on the whole question, therefore he would; but Lord Frederick Campbell endeavouring to fix the debate on the question as amended, Charles Townshend tried to compose the heat that had arisen by recurring to the subject, and said he hoped no lawyer would assert that juries were not judges of law as well as of fact. De Grey, Solicitor-General, said the juries had given the prosecutors exemplary and vindictive damages, and had been animated by faction. The defendants had pressed the prosecutors not to delay. Charles Yorke spoke for three-quarters of an hour on the side of the Opposition; said he would retract if he had altered his opinion; but found reasons against the warrants growing all over the kingdom. The warrant had been so emphatically illegal, that it never could be debated in a court of law. It was expedient for Parliament and for the honour of the Crown, that Parliament should take the lead in questions of law. The House of Commons had often carried up resolutions to the other House. This question was connected with the privileges of the House. Precedents made in good times were felt in bad. The words of the warrant had been copied from an old blundering warrant of office, and could never be taken up again. The Crown should extinguish any jealousy of such a proceeding in future, by not making difficulties on plain questions. Beckford said, this country was obliged to Wilkes for the stand he had made. It had been the more necessary when a Whig Ministry acted on Tory principles, and he quoted the instance of Minutius, who pleaded that he had written nothing against the Emperor and his mother.
Dyson said, if the House of Commons had a right of declaring law, it had no occasion to make laws: they might declare to be law whatever they wished should be so. Lord George Sackville asked if the seizure of papers would come in question in the Courts below? and said, that, had they had a mind to impeach the Secretaries of State, they must previously have come to this declaration.
Norton entered into the defence of Lord Halifax, whose delays, he said, had not impeded the decision of the great cause. Lord Halifax had been guilty of a slip; and therefore, against such a prosecutor as Wilkes, was justifiable. Lord Halifax had availed himself of his privilege, till Wilkes was outlawed, (and so he did for years after); the journeymen printers had applied to be bought off. Dryden Leach’s attorney had come to him (Norton), and said he had heard it was wished to compromise Leach’s cause; but he (Norton) had refused, but had offered to bring it to an issue in a week; since then had never heard of him. Till that very day they had not been able to get the bill of exceptions sealed. Charles Yorke had said that question had never been argued; but he (Yorke) had argued it himself. (This Yorke denied.) It would be a quære whether Lord Halifax, as Secretary of State, was a Justice of Peace. Had not the most respectable characters, living and dead, been abused? That sort of libel deserved no quarter.
Colonel Barré said the Inquisition itself did not seize papers for evidence. Opposition keeps Ministers in order, though many oppose from faction. About twenty officers had opposed the Court last year on the question of General Warrants! It was now said, all but one had repented—if they had, were such officers fit to be employed? He commended Lord Nuneham[53] and Lord Charles Spencer, who had resisted the connections and importunities of their families: and then said ironically, “When the two present honest Secretaries of State[54] die, the Court may choose one of the most profligate abandoned dogs in the kingdom to replace him.”—This was levelled at Lord Sandwich, who was sitting under the gallery. Barré then advised the Ministers to adopt the question without amending it—why would they do things too well? Such a man as Sandwich would write a panegyric on Nero. If this question was suffered to pass, it would make the King beloved and the Ministers less hated. General Howard,[55] in answer to the attack above, said, he remained of the same opinion as last year, and had never paid court nor asked pardon.
Lord North defended his uncle Halifax, on whom he thought Barré had bestowed the epithet of little-minded. Barré said he had applied it to the Administration in general. He was glad to see Mr. Grenville with all his friends about him. It had been said in a foregoing debate that he had carried the whole Administration home in his chariot. He liked Lord North’s panegyric on one of the Secretaries—if anybody had a mind to make a panegyric on the other, he was welcome.
Conway again declared his surprise that they would load such a question with so many words. Why not pass it simply, or put a negative? Was there ever an instance of such a preface with new matter? On the Star Chamber and other grievances each resolution stood single. Lord Halifax might be in the right, but had caused delay. All that we have valuable stands on resolutions.
Grenville then spoke his usual hour; and immediately after him Sir George Saville rose to take notice of most obnoxious words that had fallen from Dr. Hay in the beginning of the debate. I hear, said Saville, that the Law of Government is superior to the Law of the Land: such words are impeachable. Dr. Hay replied that the Law of Government meant the Law of Necessity. This produced great warmth and calling to order, till at last Sir George Saville said he was glad the gentleman did not avow those words. Hay taxing Conway with want of temper, the latter replied, he believed those who had meant to hurt him, had hurt themselves more. Onslow offered to produce pamphlet for pamphlet written by the Administration: and then Hussey very ably and for fifty minutes discoursed against the arbitrary tenets set up by the Court and its lawyers; yet still with the candour and decency peculiar to him. The circumstances inserted in the amendment, he said, were not true. He doubted if ever the question could be determined in Westminster Hall. This was the first time that ever a probable cause was pleaded in behalf of General Warrants. New doctrines sprung up every day in Westminster Hall. A number of points must be determined before that cause could be decided; as whether a Secretary of State is a Justice of Peace; whether his messenger is a constable; whether the reason assigned for the commitment was a probable cause, &c. Great difficulties, too, there were in contending with the Crown, and against its influence and its money, &c. He did not believe that the warrants would come before the Courts below. The predecessors of these Ministers had always compounded such prosecutions. The Justices in Ireland having imposed illegal oaths, the House had declared them illegal, but went no farther; excusing the Justices on the circumstances of the times: it was in King William’s reign. Lord Palmerston,[56] a young man of sense, and who spoke then for the first time, declared himself convinced by Hussey’s arguments. Rigby pronounced Lord Halifax’s intrenching himself within privilege, justifiable; for who knew what damages might be given against him?—and so far was true; juries could impose fines to the vastest amount; and as such fine became the property of the prosecutor, the Crown itself could not remit it. But what latent defects, therefore, were discovered by agitating these questions? A Secretary of State could commit a grievous injustice, and yet could avoid punishment, if sheltered by the privilege of his peerage. On the other hand, for a slight imprisonment, a jury, naturally partial to their equals, especially when oppressed, and as naturally averse to their superiors, can give damages to the amount of the defendant’s whole estate, without his being able to obtain redress from any quarter.
At half an hour after four in the morning the Question, as amended, was rejected by 224 against 185, the Opposition being forced to divide for the question that had been imposed on them, or they could have obtained a division on none at all.
A remarkable circumstance in the foregoing debate, but which would have interrupted the thread of the narration, was that Norton told the younger Onslow that he should be diverted, for he would treat Yorke worse than ever he had been treated—and he kept his word, being willing to lower Yorke, who might be his competitor for the Seals. Yorke bore this insult with too little spirit, and thence and by his fluctuating behaviour, and by discovering far less parts than he was supposed to possess, daily sunk in the estimation of the House.