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
