CHAP. III.] THE QUESTION OF PRIVILEGE. 303 Lord Sidmouth had said, have come down into the pulpit from the chimney or from the pillory; he objected to any dictation from any quarter as to who was and who was not to utter truth, or what seemed to him to be such, in his own way; and he thought it better that a small number of unfit persons should enjoy the exemptions (such as from serving in the militia and on juries) granted to Dissenting Ministers, than that conflicts on the subject of religious liberty should be provoked, without any public solicitation from the Dissenters themselves. The further the opposition went, the more resolved was Lord Sidmouth to persevere, that he might not be misunderstood, but fairly put his measure on record. Some members of the Cabinet had an interview with him on the 21st, and remonstrated, and endeavored to persuade in vain. On that night, he moved the second reading; and the Bill was negatived without a division.1 In the following year, Lord Liverpool caused a relaxation of some of the statutes which affected the Dissenters, relieving Relief to them (among other burdens) from the necessity of tak- Dissenters. ing the oaths and making the declaration prescribed by the Toleration Act, only leaving their teachers and preachers liable to be called upon for such an observance by a justice of the peace, provided they were not required to go more than five miles from their own homes for the purpose. Throughout the whole affair, which was prodigiously noisy at the time, the embarrassment was the same that attends all efforts to legislate, more or less, in relation to matters of opinion. If there had been no Toleration Act, and no recognition by law of differences in religion, Lord Holland's opposition to Lord Sidmouth's Bill would have been supported on every hand. But if the law practically assumed any power of intervention about religious teaching and preaching, it seems reasonable that it should insist, as in other cases of permitted function, that the functionary should not be a minor, or a convict, or unfit to teach because he had everything to learn. And many years were yet to elapse before the Dissenters obtained that equality before the law which Lord Holland aided them to procure, and which could hardly have been postponed, or even discountenanced, by the passage of Lord Sidmouth's unfortunate Dissenters' Licenses Bill. Everything that passed in parliament, and perhaps out of it, in the spring of 1810, was of insignificant interest in Privilege comparison with the great struggle about parliamen- question. tary Privilege which was brought on at that time. The Bullion Committee, commercial disasters, the prospects of the harvest everything was made light of while men were watching the doings of Sir Francis Burdett, his partisans, and his enemies. There 1 Hansard, xx. p. 255. 304 THE CONSTITUTION AND COMPROMISES. [BOOK II. is no liability so marked, among the dangers of patriotic citizens in our country, as that of insensibility to the danger of pressing hard upon the compromises of a constitution like that under which we live. It is not a constitution framed by design, every part of which is open to decision by every sort of mind. It is not one which Sir Francis Burdett could teach, like a mathematical problem, to the son standing at his knee. It is a structure which has risen and spread by gradual accretion, and is made serviceable by a series of accommodations. Many a sincere patriot may have endangered the Constitution as much by straining a compromise as any Stuart could do by straining his prerogative. That prerogative includes a whole group of comp:omises; the connection of the throne and the Church is another; the respective powers of parliament and the Law Courts are a third; and there are many more. When any of our constitutional compromises are so presumed upon by any party as to endanger broadly the rights of any other party, it becomes the duty of citizens to call the compromise to account to bring it into discussion to cause it to be thoroughly reviewed, in order to have it settled whether the compromise shall continue or be replaced by definite enactments. But such a search should be a very rare event; and he who insists upon the move should be very certain that some rights are invaded, or sure to be so, before he presses hard on the obscure and tender parts of the constitution. Such a man as Burdett was not likely to be thus cautious, or in any way sensible of the importance of what he was doing when he raised the struggle on the Privilege question in 1810. It may convey some idea of the bearings of the matter to contrast him and his blustering confidence with the modest and conscientious doubts of the philosophic lawyer, Francis Horner. While Burdett, whose sincerity there seems no reason to doubt, was parading the streets as a popular champion, and publishing libels, and denouncing all men as fools and corrupt who did not view the matter as he did, Horner was writing thus to Lord Holland: "I am ashamed to say that I am in a sea of difficulties and doubts about privilege; and what keeps me so long in uncertainty is, the confidence with which I hear both the opposite opinions maintained. . In such an emergency, when my oracles give discordant responses, I mean to try if I can form an opinion for myself." The case of which it was so difficult to judge arose thus. On the 1st of February, when the inquiry about the Walcheren expedition was soon to come on in the House of Commons, Mr. Yorke gave notice that he should, on that occasion, move for the exclusion of strangers, in order that incomplete accounts of the 1 Memoirs, ii. p. 39. CHAP. III.] CASE OF JOHN GALE JONES. 305 evidence might not get abroad before the whole could be laid before the public. Mr. Sheridan, on the 6th, spoke in objection not to the use of the power of exclusion by any member on proper occasion, but to declare his opinion, and call upon other members to declare theirs, that the approaching occasion was not a proper one. The House, thinking that each member must judge of each occasion for himself,1 voted with Mr. Yorke, leaving Mr. Sheridan in a small minority. As for the point of the publication of the minutes of evidence, that was settled by their being published every third day, through the whole course of the inquiry. Among the debating societies which abounded at that time was one called the British Forum, which held its sittings in Bedford Street, Covent Garden, and was presided over by an apothecary, whose name was John Gale Jones. The matter of the exclusion of strangers during the Walcheren investigation was discussed at this club; and Mr. Jones published the result in placards which were posted in all directions on the walls. The announcement was that the exclusion of strangers was an attack on the liberty of the press, which ought to be censured; and that the members of the British Forum would discuss on a certain evening the point,2" Which was a greater outrage on the public feeling, Mr. Yorke's enforcement of the standing order to exclude strangers from the House of Commons, or Mr. Windham's recent attack on the liberty of the press." Mr. Yorke having complained in the House of this placard, the printer, John Dean, was brought to the bar. Having given up the name of Mr. Jones as the writer, Dean was committed to the custody of the Sergeant-at-arms, and Jones was ordered to attend the next day, February 21st.3 Jones declared that he had acted under the conviction that it was the right of every Englishman to comment on all public proceedings, and not from any disrespect towards the House of Commons; that, on looking over the placard again, he found he had erred; and that he threw himself on the mercy of the House. The House voted unanimously that he had been guilty of a gross breach of the privileges of parliament; and that he should be committed to Newgate. Dean was reprimanded and discharged, after sending in an humble petition for forgiveness; and the proceedings were entered in the Journals of the House. On the 12th of March, Sir Francis Burdett, who had been absent through illness, questioned the legality of the whole proceedings in regard to Jones. Mr. Sheridan moved for the release of Jones, on the ground of his contrition; but this could 1 Hansard, xv. p. 345. 4 2 Annual Register, 1810, p. 92. 4 Ibid. xvi. p. 14. 306 SIR FRANCIS BURDETT'S CASE. 66 [BOOK II. not be justified, as he had been committed after his expressions of contrition; and the vote was taken on the question of the legality of the proceedings. Thirteen members voted with Burdett, and 153 against him. Burdett's next act was to write a "Letter to his constituents, denying the right of the House of Commons to imprison the people of England;" and this letter was published in Cobbett's Register on the 24th of March. It was indisputably libellous throughout. In appealing to Magna Charta, he contrasted1 "the laws of our forefathers" with the declarations of “a part of our fellow-subjects, collected together by means which it is not necessary to describe." Mr. Lethbridge brought the letter under the notice of the House. Burdett declared that he had never contemplated any breach of privilege; and that he would stand the issue. He withdrew, and Mr. Lethbridge moved two Resolutions declaring the Letter a scandalous libel, and that Sir Francis Burdett, in authorizing its publication, had been guilty of a violation of the privileges of the House. After discussion and adjournments, the Resolutions were agreed to at half-past seven in the morning of Friday the 6th of April; and a vote was taken on the question whether Sir Francis Burdett should be reprimanded in his place, or committed to the Tower. His committal to the Tower was decided on by a majority of 38 in a House of 342 members.2 Parliamentary censure of Burdett. The Speaker signed the warrant at half-past eight, that spring morning, and ordered its execution before ten o'clock. The Sergeant-at-arms, however, was polite, and thought it desirable to give notice to the culprit; and it was five o'clock before he saw Sir Francis Burdett at his own residence. Sir Francis promised to be ready to receive him at eleven o'clock the next morning-Saturday. The Sergeant supposed this to mean that his prisoner would go quietly; and he left him. At eight o'clock, the Sergeant came again, and told his prisoner that he had received a severe reprimand from the Speaker for leaving the warrant unexecuted. Burdett replied that he had written to the Speaker to declare his disbelief of the legality of the warrant; and now he would not go, unless taken by force; and that he should make all possible resistance. Meantime, a mob had gathered in Piccadilly, in front of Burdett's house. During the night, and all Saturday and Saturday night, the concourse remained and increased; and the Sergeant obtained no answer to his repeated knocks at the door. At seven on Sunday morning, he tried again, and in vain; and by this time it was evident that the capture could not be made without the aid of a formidable force. The merits of the question were not so clear but that 1 Annual Register, 1810, p. 99. 2 Hansard, xvi. p. 547. CHAP. III.] ment. ARREST OF BURDETT. 307 Romilly had doubts. He stood almost alone, even among the Opposition,1 in his opinion that this was a case which should have been left to the ordinary tribunals, as the animadversions of Jones and Burdett were upon a matter already concluded, and therefore not censurable as impeding the proceedings of parliaThe dangerous power possessed by the House of making itself accuser, judge, and jury, however indispensable to meet cases where their proceedings were impeded from without, ought not, he thought, to be exercised in regard to comments on business concluded, while there were ordinary tribunals which could deal with libellers. And now, on the Sunday, the Speaker was so uncertain what powers he possessed of enforcing his warrant, that he sent his warrant to the Attorney-General, and acted from that time on his opinion. Meantime, the matter had become very serious. On the Friday night, Mr. Perceval's windows had been broken, and Mr. Lethbridge's, and many others; and the mob in Piccadilly compelled every man who passed to take off his hat, and cry “Burdett forever!" At noon on Saturday the Guards and a company of foot were sent to disperse the mob; and the Riot Act was read by a magistrate. The dispersion was brief; and in the evening, as the assemblage was larger than ever, the Ministers sent for troops from all parts of the country. Already, several persons were wounded in the streets. By Monday morning, the authorities had made up their minds what to do. They decided that Burdett's house must be broken open, and that he must be carried to the Tower by force. The Sergeant had gone to the Secretary of State's office on Sunday night, and formally requested the necessary assistance. About ten on Monday morning, he went to Burdett's house, with a strong body of police, a carriage, and an escort of cavalry and foot-soldiers. He entered, with the police, by the area and the kitchen-door, which they forced. Leaving the soldiers below, he went up-stairs with some police officers, to the room where Burdett was seated with his family and a few friends. Any dignity that might have been supposed to attend his resistance was dissolved at once by a piece of bad taste · of theatrical display as miserable as the Westminster procession when his footstool was a sprawling figure of Venality. He was found sitting, with his son at his knee, to whom he was teaching the provisions of Magna Charta.2 He again refused to yield to anything short of actual force; and the constables were advancing to execute his apparent desire, when his brother and a friend at his side took hold Commitment each of an arm, and led him down to the carriage. of th The party were driven rapidly, by the northern parts Tower. 1 Hansard, xvi. pp. 477-487. 2 Annual Register, 1810, p. 105. of Burdett 2 |