The John Wilkes Libel Case
From 'A History of the British Nation' by AD Innes, 1912
The general election [of 1768] provided a fresh excitement which absorbed much popular attention. John Wilkes, though still under sentence of outlawry, reappeared and stood for the City of London; being there rejected, he came forward as a candidate for the county of Middlesex, and was returned by a large majority. Unfortunately King George was vindictive, and he was irritated by Wilkes's popularity with the mob.
Wilkes was arrested upon the sentence of outlawry; there were riots, collisions between the mob and the soldiery, who fired upon the rioters and killed or wounded a few. Wilkes, in prison, procured a copy of the order item the Secretary of State, Lord Weymouth, under which the soldiery had acted. He published it with comments, accusing Weymouth of having planned the "massacre," The publication was followed by a motion for the expulsion of Wilkes from the House, based on the old charges.
In spite of the remonstrances of Grenville as well as of Burke the expulsion was carried by a large majority. A fortnight later Wilkes was re-elected. The House annulled the election, and declared him incapable of sitting in the present parliament; nevertheless he was again elected for the third time, for it was an entirely novel claim that the House should by its own authority, without colour of any law, declare any one incapable of election. The House again annulled the election.
A certain Colonel Luttrell was procured to stand for Middlesex against Wilkes, and when Wilkes was again returned with a big majority over Luttrell, the House nevertheless pronounced that Luttrell was the duly elected member. The House of Commons had asserted the right of overriding the will of the electorate by the mere re-solution of a party majority. Wilkes was elected into the position of the champion of popular liberties against the arbitrary privileges of the House of Commons, far more decisively than in the earlier encounter.
The Crown of old, by straining prerogative beyond limits for which there was clear precedent, had brought upon itself the curtailment of prerogative. The Commons now by an extravagant insistence on their own privileges, not as against the Crown but as against the general public, brought upon themselves a curtailment of privileges. Wilkes, the rejected of the House, was made an alderman of the City of London, which gave expression to the popular antagonism. A conflict on a question of jurisdiction between the House and the City was mixed up with the general question of the liberty of the press, and the result of the conflict was the victory of the press.
There were two questions involved; one concerned parliamentary privilege, the other the law of libel. Technically, until this time parliamentary debates had been private; their publication was forbidden as a breach of the privileges of the Houses, while anything in the nature of comment was liable to be construed as libel. Nevertheless reports under very flimsy disguises found their way into print, and the press of the day was frequently both caustic and scurrilous. The House of Commons sought to protect itself by a rigorous application of the law of libel, and it was laid down by Lord Mansfield that juries were concerned only with the fact of publication, while everything else lay in the province of the judge.
The general result was that juries refused to convict even in the face of unmistakable evidence; it became obvious that the publication of distorted reports and of comment thereon could not be prevented; and not less obvious that in the circumstances it would be very much safer to permit the open and avowed publication of reports, which would at least ensure approximate accuracy instead of deliberate distortion.
A later result was the definite transfer of the decision as to the character of publications from the judge to the jury; and thus in effect the quarrel between Wilkes and the Commons secured the liberty of the press at least within the limits approved by public opinion. And at the same time the exercise of the undisputed right of the House of Commons to decide questions concerning elections was first delegated to a non-partisan committee instead of to the decision of a party vote, and was ultimately transferred to the judges.
At the end of 1768 Shelburne, the minister most favourable to the colonists, was driven from office, and this was shortly followed by the formal resignation of Chatham, who was recovering from his illness only to find that he was completely opposed to his nominal colleagues in their policy with regard both to Wilkes and to the colonies. Grafton, the nominal head of the government, sought again to conciliate American opinion by repealing Townshend's duties; but matters were only made worse when his colleagues insisted on retaining that upon tea. The Americans did not in the least care about the specific articles which Townshend had taxed; from their point of view there was just as much reason for resisting the tax on one article as on half-a-dozen.
On the top of this the Bedford group proposed to act upon a statute of Henry VIII which had not been applied for a couple of centuries, and to transfer the trials of rioters in America to a part of the country where there was no disaffection - in other words, to England. Chatham, now back in the House of Lords, flung his thunderbolts at the government; Campden, followed by Grafton, resigned; and so in 1770 the king was able to form an administration entirely after his own heart with Lord North at the head of it.