His election tion.1 dicted, Wilkes was immediately reëlected without opposiThe next day, on the motion of Lord declared void. Strange, the House resolved that Mr. Wilkes "having been, in this session of Parliament, expelled the House, was and is incapable of being elected a member, to serve in this present Parliament." The election was accordingly declared void, and a new writ issued. There were precedents for this course; for this was not the first time the Commons had exceeded their jurisdiction; but it could not be defended upon sound principles of law. If by a vote of the House, a disability, unknown to the law, could be created, any man who became obnoxious might, on some ground or other, be declared incapable. Incapacity would then be declared, not by the law of the land, but by the arbitrary will of the House of Commons. On the other hand, the House felt strongly that their power of expulsion was almost futile, if their judgment could be immediately set aside by the electors; or, as it was put by General Conway, "if a gentleman who returns himself for any particular borough, were to stand up and say that he would, in opposition to the powers of the House, insist upon being a a member of Parliament." 4 Again reelected, and election declared void. Again, with still increasing popularity, Wilkes was reelected without opposition; and again a new writ was issued. In order to prevent a repetition of these fruitless proceedings, an alternative, already pointed out by Mr. Grenville, was now adopted. Colonel Luttrell, a member, vacated his seat, and Colonel Lut- offered himself as a candidate. Wilkes was, of course, returned by a large majority. He received one thousand one hundred and forty-three votes; Colonel Luttrell only two hundred and ninety-six. There were also Opposed by trell. 1 So stated by a member who was present; Parl. Hist. xvi. 580. 2 Feb. 17th, 1769; Cavendish Deb. i. 345. 8 See May's Law of Parliament (4th Ed.), 59; Townsend's Mem. ii. 100. 4 Cavendish Deb. i. 352. - The onel Luttrell two other candidates, Mr. Sergeant Whitaker and Mr. Roache, the former of whom had five votes, and the latter none. Commons immediately pronounced the return of Again returnWilkes to be null and void; and, having called for ed; but colthe poll-books, proceeded to vote, though not seated. without a strenuous opposition, that Henry Lawes Luttrell ought to have been returned. To declare a candidate, supported by so small a number of votes, the legal represen tative of Middlesex, was a startling step in the progress of this painful contest; but the ultimate seating of another candidate, notwithstanding Wilkes's majorities, was the inevitable result of the decision which affirmed his incapacity. Leave was given to petition the House against Colonel Luttrell's election, within fourteen days. Of this permission the electors soon availed themselves; and, on the 8th May, they were heard by counsel, at the bar of the House. Their arguments were chiefly founded upon the original illegality of the vote, by which Wilkes's incapacity had been declared; and were ably supported in debate, particularly by Mr. Wedderburn, Mr. Burke, and Mr. George Grenville; 2 but the election of Colonel Luttrell was confirmed by a majority of sixty-nine. Popularity of Wilkes was now effectually excluded from Parliament; but his popularity had been increased, while the House, and all concerned in his oppression, were the objects of popular indignation. As some compensation for his exclusion from the House of Commons, Wilkes was elected an alderman of the city of London. A liberal subscription was also raised, for the payment of his debts. So dangerous a precedent was not suffered to rest unquestioned. Not only the partisans of Wilkes, but the Efforts to restatesmen and lawyers opposed to the government, continued to protest against it, until it was con- against him. demned. verse the proceedings 1 April 14th, 1769; Cavendish Deb. i. 360-386. Ayes 197, Noes 143Majority 54. 2 Cavendish Deb. i. 406. By Lord Chatham, Jan., 1770. On the 9th January, 1770, Lord Chatham, reappearing in the House of Lords after his long prostration, moved an amendment to the address, denouncing the late proceedings in the House of Commons, as "refusing, by a resolution of one branch of the legislature, to the subject his common right, and depriving the electors of Middlesex of their free choice of a representative." 1 Lord Camden, the Chancellor, now astonished the Lords by a statement "that for some time he had beheld with silent indignation, the arbitrary measures which were pursuing by the ministry;" and, " that as to the incapacitating vote, he considered it as a direct attack upon the first principles of the constitution." 2 Lord Mansfield, while he said that his opinion upon the legality of the proceedings of the House of Commons was "locked up in his own breast, and should die with him," (though for what reason it is not easy to explain,) argued that in matters of election the Commons had a complete jurisdiction, without appeal; that their decisions could only be reversed by themselves, or by Act of Parliament; and that except in discussing a bill, the Lords could not inquire into the question, without violating the privileges of the other House. Lord Chatham replied in his finest manner. Lord Mansfield's remarks on the invasion of the privileges of the other House, called forth this comment: "What is this mysterious power, undefined by law, unknown to the subject, which we must not approach without awe, nor speak of without reverence, which no man may question, and to which all men must submit? My Lords, I thought the slavish doctrine of passive obedience had long since been exploded; and when our kings were obliged to confess that their title to the crown, and the rule of their government, had no other foundation than the known laws of the land, I never expected to hear a divine right, or a divine infallibility at 1 Parl. Hist. xvi. 653. 2 This speech is not reported in the Parl. Hist., but is printed from the Gentleman's Mag. of Jan., 1770, in a note; Parl. Hist. xvi. 644, n. tributed to any other branch of the legislature." He then proceeded to affirm that the Commons "have betrayed their constituents, and violated the constitution. Under pretence of declaring the law, they have made a law, and united in the same persons, the office of legislator and of judge.”1 His amendment was negatived; but the stirring eloquence and constitutional reasoning of so eminent a statesman, added weight to Wilkes's cause. a rage, mons, 1770. In the Commons also, very strong opinions were expressed on the injustice of Wilkes's exclusion. Sir George Proceedings Savile especially distinguished himself by the in the Comwarmth of his language; and accused the House of having betrayed the rights of its constituents. Being threatened with the Tower, he twice repeated his opinion; and, — declining the friendly intervention of Colonel Conway and Lord North, who attributed his language to the heat of debate, he assured the House that if he was in "he had been so ever since the fatal vote was passed, and should be so till it is rescinded." 2 Mr. Sergeant Glynn thought "his declaration not only innocent, but laudable." A formidable opposition showed itself throughout the debate; and while in the Lords, the Chancellor had pronounced his opinion against the incapacitating vote, in the Commons, the Solicitor-General, Mr. Dunning, also spoke and voted against the government. The question had thus assumed a formidable aspect, and led to changes, which speedily ended in the breaking up of the Duke of Grafton's administration. tions On the 25th January, 1770, Mr. Dowdeswell moved a resolution in a committee of the whole House, Mr. Dowdes"That this House in its judicature in matters of well's resoluelection, is bound to judge according to the law of the land, and the known and established law and custom of Parliament, which is part thereof." This premise could neither be denied nor assented to by the government without 2 Ibid. 699. 1 Parl. Hist. xvi. 647. embarrassment; but Lord North adroitly followed it out by a conclusion "that the judgment of this House was agreeable to the said law of the land, and fully authorized by the law and custom of Parliament." 1 On the 31st January, Mr. Dowdeswell repeated his attack in another form, but with no better success.2 Lord Rock tion, 24 The matter was now again taken up in the House of Lords. On the 2d February, in committee on ingham's mo- the state of the nation, Lord Rockingham moved Feb., 1770. a resolution similar to that of Mr. Dowdeswell. Though unsuccessful, it called forth another powerful speech from Lord Chatham, and a protest signed by forty-two peers. The rejection of this motion was immediately followed,without notice, and after twelve o'clock at night, — by a motion of Lord Marchmont, that to impeach a judgment of the House of Commons would be a breach of the constitutional right of that House. Lord Camden, being accused by Lord Sandwich of duplicity, in having concealed his opinion as to the illegality of the incapacitating vote, while a member of the cabinet, asserted that he had frequently declared it to be both illegal and imprudent. On the other hand, the Duke of Grafton and Lord Weymouth complained that he had always withdrawn from the Council Board to avoid giving his opinion, a circumstance explained by Lord Camden on the ground that as his advice had been already rejected, and the cabinet had resolved upon its measures, he declined giving any further opinion. In either case, it seems, there could have been no doubt of his disapproval of the course adopted by ministers. The next effort made in Parliament, in reference to Wilkes's case, was a motion by Mr. Herbert for a bill to regulate the consequences of the expulsion of members. But as this bill did not reverse, or directly condemn the proceedings in the case of Wilkes, it was not very warmly 1 Parl. Hist. xvi. 797. 2 Ibid. 800. 8 Ibid. 814. 4 Ibid. 823. |