86

VIOLENCE OF THE MOB.

CH. XV.

hardly shrink from taking a similar course because the delinquent was a great and powerful magistrate. They resolved, therefore, that the Lord Mayor and Alderman Oliver, who were members of the House, and attending in their places pursuant to order, should be committed to the Tower. An attempt, indeed, was made to deprecate the public indignation by adopting the milder proposition of committing the magistrates to the custody of the Serjeant-atArms; but the determined spirit of those gentlemen defeated the subterfuge. Oliver, in the temporary absence of the Lord Mayor on account of sickness, being first called upon for his defence, avowed and gloried in his guilt; adding expressions of such bitter scorn and defiance, as left the House no excuse for mitigating his sentence. With regard to Crosby, it was moved that, in consideration of his ill state of health, he should be committed to the Serjeant; but the Lord Mayor also spurned the proffered indulgence, and insisted on sharing the imprisonment of his brother-magistrate.

Violence of the mob.

These proceedings, though they did not give rise to the same degree of popular excitement as the Middlesex elections, were attended with much commotion. The Lord Mayor was accompanied every day to and from Westminster by a vast concourse of people. The advocates of privilege were insulted on their way to the House; and Lord North, with the two sons of Lord Holland, Stephen and Charles Fox, were torn from their carriages and rolled in the kennel, and, if it had not been for the timely interference of two members of the Opposition, North would on one occasion have been in peril of his life. When the Lord Mayor arrived at Temple Bar, on his way to the Tower, escorted by the Serjeant-at-Arms, the people shut the gates, and would not suffer the Serjeant to enter the City, until their chief magis

1771.

PRIVILEGE OF PARLIAMENT.

87

trate assured them that he came by invitation as his guest.

Popular dislike

tary privilege.

Privilege of Parliament had always been regarded with disfavour by the people; nor could they ever be brought to understand the of parliamenrefinement by which this arbitrary, anomalous power was represented, either as part and parcel of the law of the land, or as a privilege appertaining to themselves, and exercised only for their behoof. To call a privilege which was as often as not turned against the liberty of the subject, a privilege of the people, appeared to them indeed as great a mockery as the pretence of the Long Parliament, that they took up arms against the King in defence of the Crown. And so odious had this House of Commons become, that it would have been difficult for them to have advanced any pretension in the shape of privilege, however righteous or moderate, which would have commanded the respect or support of the nation. Yet there was no privilege better established than that of summary punishment for contempt; and it had always been held a high contempt and breach of the law and custom of Parliament to publish the debates and proceedings of the legislature. The Commons, therefore, were justified in summoning a printer who transgressed this law, whether by evading or openly violating it. They were justified in sending their officer to apprehend the printer when he contemned their summons. And, inasmuch as the law and custom of Parliament are part and parcel of the law of the land, they might perhaps have gone so far as to maintain that no statutory privilege or immunity could avail against their penal process. And this really was what they did.

The charge against the City magistrates was twofold: 1. That of releasing a prisoner in custody

88

VALIDITY OF THE SPEAKER'S WARRANT. CH. XV.

under the Speaker's warrant. 2. Holding to bail the officer of the House who had executed

Allowance of

counsel illusory. that warrant. The allowance of counsel, therefore, was illusory; since, under the limitation imposed, there could be no point of law for him to argue he could be heard only in mitigation of punishment. But this, with the difference of skilled advocacy, the accused members could do for themselves. Up to this point, therefore, though certainly the very highest to which privilege could be carried, the Commons might have been sustained by constitutional and legal arguments of great weight and plausibility. But if the first ground laid for the charge against the magistrates was tenable, the second could hardly be maintained. Privilege can be vindicated only on the plea of necessity. Indefinite claims like these, advanced as they are in derogation of the municipal law, should in every case be limited to the precise necessity. The release of their prisoner by an adverse jurisdiction was inconsistent with their privilege, and might be justly pronounced a contempt. But it was quite possible that their officer, in the discharge of his duty, might have committed some excess, which rendered him amenable to the ordinary tribunals; and for the House to interpose its arbitrary authority on such an occasion, was tantamount to saying, that they would uphold their officer in any insolence or oppression which he might commit in the execution of their orders. Nor could it be pretended that there were no other means of protecting the officer from any vexatious or vindictive proceedings. A court of justice could not fail to recognise the validity of a Speaker's warrant which was good on the face; the officer would be in the same position as any other minister of the law. The sufficiency of his warrant being admitted, the only question on a charge of assault would be, whether he had acted with undue violence in the execution of his duty.

1771.

COMMITTEE OF INQUIRY.

89

If he had been guilty of such excess, the House could have no interest in protecting him; for he had done that which he had not been authorised to do. It was too much to contend that the servant of the House was covered with absolute immunity, when privilege did not extend so far as to protect even a member of the House from being held to bail on a charge of breach of the peace. But if the committal of a magistrate for taking a recognisance from a servant of the House was a wanton aggression upon courts of justice, it was far exceeded in enormity by the falsification of the City records. For this act, at once violent and cowardly, no excuse or extenuation can avail.

Formation of a

While this unhappy business was pending, and after it had arrived at a stage at which they could not well withdraw from it, the Committee. House appointed a committee to draw up a history of the proceedings, and to search for precedents. This committee was named, not for the purpose of advising the House as to the course which they ought to take, but to justify the course which they had already determined to pursue. Accordingly, care was taken that it should be so constituted as to secure that object. Treasury circulars were issued urging the supporters of the Government to attend the ballot; and the result was the nomination of a committee, which, out of twenty-one members, contained only five or six gentlemen opposed to the Court, or of independent politics; and of the latter none appear to have attended.† A month after the committal of the magistrates, and when every man of sense was willing to let the matter pass into oblivion, the select committee made their report. This document, after recapitulating the principal facts of the case, and referring to a number of obsolete

* See the list of the Committee, 17 Parl. Hist. 164.

+ Calcraft to Chatham, April 7, 1771, iv.-Chat. Cor.

90

TERMINATION OF THE CONTEST BETWEEN CH. xv.

precedents, which had long since been consigned to the province of the political antiquary, ended with the recommendation that another attempt should be made to arrest Miller.

Their report derided.

The report was received by the House with a roar of laughter. Burke immediately rose and commented upon it in a strain of the bitterest ridicule. Another member followed with a mocking motion of thanks to the committee for their labours and their advice. This motion was about to be carried with derisive acclamation, when Lord North, unable to stem the torrent, and not unwilling to get rid of the matter, moved the adjournment of the House. To this motion no opposition was offered; and thus terminated the conflict between Parliament and the press. From that day forth, the debates and proceedings of both Houses were published, if not with so much regularity and accuracy as at the present day, at least with as much of freedom and impunity.

Lord North

the Court.

Lord North had been dragged reluctantly into this quarrel with the printers. The dispute prompted by had owed its origin to the ingenuity of Wilkes,* whose necessities urged him to the discovery of a new subject for political agitation. The folly and vanity of the Onslows were subservient to his purpose. The retreat of Miller into the City; his capture there by the messenger of the House; the release of the former, and the committal of the latter, were all contrived by the experienced demagogue. The Ministry and the House of Commons would willingly have declined the conflict; neither of them desired a fresh encounter with Wilkes. But the House found themselves involved in the quarrel before they could avoid it. The King could not allow his old antagonists, Wilkes and the City, to

* Rockingham Memoirs.