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A.D. 1760. ACCESSION OF GEORGE III. 365
case to attempt at eloquence where a prisoner stood upon trial for his life, much less shall I think of doing it before your Lordships: give me leave, therefore, to proceed to a narrative of the facts.” These he proceeds to state with great perspicuity and moderation, as they were afterwards fully proved by the witnesses. The labouring oar on this occasion, however, fell to the Solicitor-General Yorke, who so ably repelled the defence of insanity." The labours of the law officers of the Crown were very light at the close of the reign of George II., for all opposition in parliament was annihilated: from the universal popularity of a triumphant Government, seditious libels were unknown, and there were no Government prosecutions, except in the Court of Exchequer against unlucky Smugglers.
CONTINUATION OF THE LIFE OF LORD CAMDEN TILL HE RECEIVED THE GREAT SEAL.
ON the demise of the Crown, all things for some time went on very smoothly. Pratt prepared the proclamation of George III. His patent as Attorney-General was renewed by the young Sovereign, and no great alarm was excited by the circumstance of Lord Bute, who had been groom of the stole to the Prince, being sworn a Privy Councillor. But when this nobleman was made Secretary of State, and began with the air of a royal favourite to interfere actively with the patronage and with the measures of the Government, it was discovered that Whig rule was coming to an end. The Stuarts having fallen into utter contempt, so that the return of their persons was no longer to be dreaded, there was to be a restoration of their maxims of government. Being of “good Revolution principles,” which had been openly stated as a recommendation to office during the last two reigns, now made a man be looked upon at Court very coldly, and “ the divine indefeasible right of kings” became the favourite theme, in total forgetfulness of its incompatibility with the parliamentary title of the reigning monarch. A breaking up of the combination of the few great families who called themselves “ the Whig party,”—who had for many years monopolised the patronage of the Crown, and who had on various occasions exhibited the vices with which they had formerly been in the habit of reproaching the Tories, would have been a most laudable exploit; but unfortunately the Sovereign was determined to transfer power from one faction, kept in check by professing liberal principles, to another imbued with a love of absolutism,-although the leaders of it while in opposition had occasionally spoken the language of freedom— which they were now eager to disclaim. Pratt being resolved to maintain his own principles, happen A.D. 1760– what would,—as the proposal to make the Judges ir1761. removable at the commencement of a new reign was laudable by carrying into effect the intention of the Act of Settlement, and as he was not called upon to do any thing in parliament or in Westminster Hall inconsistent with his notions of duty, he continued in his office of Attorney-General even when his chief—strongly condemning the foreign policy now adopted—had resigned. If he had continued AttorneyGeneral till No. XLV. of “The North Briton’’ was published, he must then have thrown up his office, for he would sooner have thrust his hand into the fire than advised or defended general warrants to seize the printer and publisher, or countenanced any of the violent proceedings against Wilkes, which shortly rendered the Government so odious and contemptible, and introduced factious struggles almost unparalleled in our annals. But in the lull before the storm died Lord Chief Justice Willes, and the Attorney-General laid his head upon “ the cushion of the Common Pleas.” It was rather agreeable to the Sovereign and the ministers that he should be placed in a Court in which it was thought that no political cases could come, and he could do no mischief with his “wild notions of liberty.” Accordingly, his patent as Chief Justice was immediately made out; and having qualified himself by submitting to the degree of the coif," on the 23rd of January, the first day of Hilary Term, 1762, he took his seat in the Court of Common Pleas. Here, it so turned out, there were soon more political cases than during many years after came
t 19 St. Tr. 885.
A.D. 1762–63. IMPRISONMENT OF WILKES. 367
before the Court of King's Bench,-where he would by no means have been trusted. He himself anticipated nothing but repose in his new office; and he really thought that his political life was at an end. Thus he writes to his old friend Davies: “I remember you prophesied formerly that I should be a Chief Justice, or perhaps something higher. Half is come to pass: I am Thane of Cawdor, but the greater is behind; and if that fails me, you are still a false prophet. Joking aside—I am retired out of this bustling world to a place of sufficient profit, ease, and dignity; and I believe that I am a much happier man than the highest post in the law could have made me.” He then little expected that before long the prophet might have exclaimed to him, “Thou hast it now, King, Cawdor, Glamis—all!” Lest he should never have a better opportunity, in the Court of Common Pleas, of proclaiming his adherence A.D. 1762– to constitutional principles, a question of practice '7°. arising during his first term, viz., “whether the Judges could refuse a plea puis darrein continuance,” the Chief Justice said, “Such discretion is contrary to the genius of the common law of England, and would be more fit for an Eastern monarchy than for this land of liberty. Nulli megabimus justitiam.” “ But, ere long, he had to adjudicate upon a case that excited more interest in the public mind than any that had occurred in a court of law since the trial of the Seven Bishops. On the morning of Saturday, 30th of April, 1763, John Wilkes, the member for the borough of Buckingham, was arrested under Lord Halifax's general warrant to “seize the authors, printers, and publishers of the North Briton, No. XLV., together with their papers.” As soon as a copy of the warrant could be obtained, while he was still in his house in Great George Street, in custody of the messengers, Serjeant Glyn, in the Court of Common Pleas, moved for, and obtained for him, a writ of habeas corpus, returnable immediately, —the Chief Justice observing, “ that this was a most extraordinary warrant.” The Solicitor to the Treasury, who was present, having reported what had passed to the Secretary of State, Mr. Wilkes, before the writ could be served on the messengers, was committed a close prisoner to the Tower, and the officers of the Secretary of State returned that “he was not in their custody.” On the Monday a habeas corpus was obtained, directed to the Lieutenant of the Tower.
x 2 Wilson, 137. Paris v. Salkeld.
The metropolis was now in a state of almost unparalleled excitement. At the sitting of the Court, on the Tuesday morning, Mr. Wilkes was brought into Court by the Lieutenant of the Tower, who, without noticing in his Return the “general warrant” under which the arrest took place, merely set out the commitment to the Tower of Mr. Wilkes, as “the author and publisher of a most infamous and seditious libel, entitled the North Briton, No. XLV., tending to inflame the minds and to alienate the affections of the people from his Majesty, and to excite them to traitorous insurrections against the government.” Thus the question of the legality of general warrants was for the present evaded: but Serjeant Glyn moved, that Mr. Wilkes should be set at liberty, “first, on the ground that it did not appear that there had been any information on oath against him before his commitment; secondly, that no part of the libel was set forth to enable the Court to see whether any offence had been committed; and, thirdly, that he was privileged from arrest as a member of parliament.” After a learned argument by counsel, and a vapouring speech from Mr. Wilkes himself, the Court took time to consider; and, on the Friday following, the Lord Chief Justice Pratt delivered their unanimous opinion, overruling the first two objections, and thus dealing with the last:
“The third matter insisted upon for Mr. Wilkes is, that he is a member of parliament, (which is admitted by the King's Serjeants,) and so entitled to privilege to be free from arrests in all cases eaccept treason, felony, and actual breach of the peace; and we are all of opinion that he is entitled to that privilege, and that he must be set at liberty. The Seven Bishops were most unjustly ousted of their privilege, three of the Judges deciding that a seditious libel was an actual breach of the peace. 4 Inst. 25 says, “the privilege of parliament holds, unless it be in three cases, viz., treason, felony, and the peace. Privilege of parliament holds, in informations for the King, unless in the cases before excepted.’ The case of an information against Lord Tankerville for bribery (4 Anne) was within the privilege of parliament. We are all of opinion that a libel is not a breach of the peace : it tends to a breach of the peace, and that is the utmost. But that which only tends to a breach of the peace cannot be an actual breach of it. In the case of the Seven Bishops, Judge Powell, the only honest man of the four Judges, dissented, and I am bound to be of his opinion, and to say that case is not law — but
A.D. 1763. HIS IMMENSE POPULARITY. 369
it shows the miserable condition to which the state was then reduced. Let Mr. Wilkes be discharged from his imprisonment.”
A great part of the population of London being in Westminster Hall, Palace Yard, and the adjoining streets, a shout arose which was heard with dismay at St. James's."
As the authorities then stood, I think a court of law was bound to decide in favour of privilege in such a case; but although I must condemn the servile desire to please the King and his ministers, by which both Houses were actuated on the re-assembling of parliament, I cannot but approve the resolution to which they jointly came, and which, I presume, would now be considered conclusive evidence of the law, “that privilege of parliament does not extend to the case of writing or publishing seditious libels.” “ I do not think that privilege of parliament should in any respect interfere with the execution of the criminal law of the country. Little inconvenience arises from the immunity of members of parliament from arrest for debt, and this is necessary to protect them in the discharge of their public functions.
The immense popularity which Lord Chief Justice Pratt now acquired, I am afraid, led him into some intemperance of language, although his decisions might be sound. Many actions were brought in his Court, and tried before him, for arrests under general warrants; and, the juries giving enormous damages, applications were made to set aside the verdicts, and to grant new trials. It might be right to refuse to interfere, but not in terms such as these :—
“The personal injury done to the plaintiff was very small, so that if the jury had been confined by their oath to consider the mere personal injury only, perhaps twenty pounds would have been thought damages sufficient; but the jury saw before them a magistrate exercising arbitrary power over all the King's subjects — violating Magna Charta, and attempting to destroy the liberty of the kingdom by insisting on the legality of this general warrant; they heard the King's counsel, and saw the Solicitor to the Treasury endeavouring to support and maintain the legality of the warrant in a tyrannical and severe manner. These are the ideas which struck the jury on the trial, and I think they have done right in giving exemplary damages. To enter
Y 2 Wilson, 151–160; 19 St. Tr. 982— tence of imprisonment. The Earl of Abing1002. don, and other members of parliament, have * 15 Parl. Hist. 1365.-I am not aware since been sentenced to imprisonment for libel whether the privilege was claimed in cases of without question. libel after conviction, so as to prevent sen- WOL. W.I. 2 B