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THE
CONSTITUTIONAL HISTORY
OF
ENGLAND
from 1760 to 1860
BY CHARLES DUKE YONGE, M.A.
REGIUS PROFESSOR OF MODERN HISTORY, QUEEN'S COLLEGE, BELFAST
AND AUTHOR OF "THE HISTORY OF THE BRITISH NAVY"
"THE LIFE OF MARIE ANTOINETTE" ETC.
1882
PREFACE.
Mr. Hallam's "Constitutional History" closes, as is well known, with the
death of George II. The Reformation, the great Rebellion, and the
Revolution, all of which are embraced in the period of which it treats,
are events of such surpassing importance, and such all-pervading and
lasting influence, that no subsequent transactions can ever attract
entirely equal attention. Yet the century which has elapsed since the
accession of George III. has also witnessed occurrences not only full of
exciting interest at the moment, but calculated to affect the policy of
the kingdom and the condition of the people, for all future time, in a
degree only second to the Revolution itself. Indeed, the change in some
leading features and principles of the constitution wrought by the
Reform Bill of 1832, exceeds any that were enacted by the Bill of Rights
or the Act of Settlement. The only absolutely new principle introduced
in 1688 was that establishment of Protestant ascendency which was
contained in the clause which disabled any Roman Catholic from wearing
the crown. In other respects, those great statutes were not so much the
introduction of new principles, as a recognition of privileges of the
people which had been long established, but which, in too many
instances, had been disregarded and violated.
But the Reform Bill conferred political power on classes which had never
before been admitted to be entitled to it; and their enfranchisement
could not fail to give a wholly new and democratic tinge to the
government, which has been visible in its effect on the policy of all
subsequent administrations.
And, besides this great measure, the passing of which has often been
called a new Revolution, and the other reforms, municipal and
ecclesiastical, which were its immediate and almost inevitable fruits,
the century which followed the accession of George III. was also marked
by the Irish Union, the abolition of slavery, the establishment of the
principle of universal religious toleration; the loss of one great
collection of colonies, the plantation of and grant of constitutions to
others of not inferior magnitude, which had not even come into existence
at its commencement; the growth of our wondrous dominion in India, with
its eventual transfer of all authority in that country to the crown;
with a host of minor transactions and enactments, which must all be
regarded as, more or less, so many changes in or developments of the
constitution, as it was regarded and understood by the statesmen of the
seventeenth century.
It has seemed, therefore, to the compiler of this volume, that a
narrative of these transactions in their historical sequence, so as to
exhibit the connection which has frequently existed between them; to
show, for instance, how the repeal of Poynings' Act, and the Regency
Bill of 1788, necessitated the Irish Union; how Catholic Emancipation
brought after it Parliamentary Reform, and how that led to municipal and
ecclesiastical reforms, might not be without interest and use at the
present time. And the modern fulness of our parliamentary reports
(itself one not unimportant reform and novelty), since the accession of
George III., has enabled him to give the inducements or the objections
to the different enactments in the very words of the legislators who
proposed them or resisted them, as often as it seemed desirable to do
so.
CONTENTS.
CHAPTER I.
Mr. Hallam's View of the Development of the Constitution.--Symptoms of
approaching Constitutional Changes.--State of the Kingdom at the
Accession of George III.--Improvement of the Law affecting the
Commissions of the Judges.--Restoration of Peace.--Lord Bute becomes
Minister.--The Case of Wilkes.--Mr. Luttrell is Seated for Middlesex by
the House of Commons.--Growth of Parliamentary Reporting.--Mr.
Grenville's Act for trying Election Petitions.--Disfranchisement of
Corrupt Voters at New Shoreham.
CHAPTER II.
The Regency Bill.--The Ministry of 1766 lay an Embargo on Corn.--An Act
of Indemnity is Passed.--The _Nullum Tempus_ Act concerning Crown
Property; it is sought to Extend it to Church Property, but the Attempt
fails.--The Royal Marriage Act.--The Lords amend a Bill imposing Export
Duties, etc., on Corn.
CHAPTER III.
Mr. Grenville imposes a Duty on Stamps in the North American
Colonies.--Examination of Dr. Franklin.--Lord Rockingham's Ministry
Repeals the Duty.--Lord Mansfield affirms a Virtual Representation in
the Colonies.--Mr. C. Townsend imposes Import Duties in America.--After
some Years, the Civil War breaks out.--Hanoverian Troops are sent to
Gibraltar.--The Employment of Hanoverian Regiments at Gibraltar and
Minorca.--End of the War.--Colonial Policy of the Present
Reign.--Complaints of the Undue Influence of the Crown.--Motions for
Parliamentary Reform.--Mr. Burke's Bill for Economical Reform.--Mr.
Dunning's Resolution on the Influence of the Crown.--Rights of the Lords
on Money-bills.--The Gordon Riots.
CHAPTER IV.
Changes of Administration.--The Coalition Ministry.--The Establishment
of the Prince of Wales.--Fox's India Bill.--The King Defeats it by the
Agency of Lord Temple.--The Ministry is Dismissed, and Succeeded by Mr.
Pitt's Administration.--Opposition to the New Ministry in the House of
Commons.--Merits of the Contest between the Old and the New
Ministry.--Power of Pitt.--Pitt's India Bill.--Bill for the Government
of Canada.--The Marriage of the Prince of Wales to Mrs.
Fitzherbert.--The King becomes Deranged.--Proposal of a
Regency.--Opinions of Various Writers on the Course adopted.--Spread of
Revolutionary Societies and Opinions.--Bills for the Repression of
Sedition and Treason.--The Alien Act.--The Traitorous Correspondence
Act.--Treason and Sedition Bills.--Failure of some Prosecutions under
them.
CHAPTER V.
The Affairs of Ireland.--Condition of the Irish Parliament.--The
Octennial Bill.--The Penal Laws.--Non-residence of the Lord-
lieutenant.--Influence of the American War on Ireland.--Enrolment of the
Volunteers.--Concession of all the Demands of Ireland.--Violence of the
Volunteers.--Their Convention.--Violence of the Opposition in
Parliament: Mr. Brownlow, Mr. Grattan, Mr. Flood.--Pitt's Propositions
Fail.--Fitzgibbon's Conspiracy Bill.--Regency Question.--Recovery of the
King.--Question of a Legislative Union.--Establishment of Maynooth
College.--Lord Edward Fitzgerald.--Arguments for and against the
Union.--It passes the Irish Parliament.--Details of the Measure.--
General Character of the Union.--Circumstances which Prevented
its Completeness.
CHAPTER VI.
A Census is Ordered.--Dissolution of Pitt's Administration.--Impeachment
of Lord Melville.--Introduction of Lord Ellenborough into the
Cabinet.--Abolition of the Slave-trade.--Mr. Windham's Compulsory
Training Bill.--Illness of the King, and Regency.--Recurrence to the
Precedent of 1788-'89.--Death of Mr. Perceval.--Lord Liverpool becomes
Prime-minister.--Question of Appointments in the Household.--Appointment
of a Prime-minister.
CHAPTER VII.
The Toleration Act.--Impropriety of making Catholic Emancipation (or any
other Important Matter) an Open Question.--Joint Responsibility of all
the Ministers.--Detention of Napoleon at St. Helena.--Question whether
the Regent could Give Evidence in a Court of Law in a Civil
Action.--Agitation for Reform.--Public Meetings.--The Manchester
Meeting.--The Seditious Meetings Prevention Bill.--Lord Sidmouth's Six
Acts.
CHAPTER VIII.
Survey of the Reign of George III.--The Cato Street Conspiracy.--The
Queen's Return to England, and the Proceedings against her.--The King
Visits Ireland and Scotland.--Reform of the Criminal Code.--Freedom of
Trade.--Death of Lord Liverpool.--The Duke of Wellington becomes
Prime-minister.--Repeal of the Test and Corporation Act.--O'Connell is
Elected for Clare.--Peel Resigns his Seat for Oxford.--Catholic
Emancipation.--Question of the Endowment of the Roman Catholic
Clergy.--Constitutional Character of the Emancipation.--The Propriety of
Mr. Peel's Resignation of his Seat for Oxford Questioned.
CHAPTER IX.
Demand for Parliamentary Reform.--Death of George IV., and Accession of
William IV.--French Revolution of 1830.--Growing Feeling in Favor of
Reform.--Duke of Wellington's Declaration against Reform.--His
Resignation: Lord Grey becomes Prime-minister.--Introduction of the
Reform Bill.--Its Details.--Riots at Bristol and Nottingham.--Proposed
Creation of Peers.--The King's Message to the Peers.--Character and
Consequences of the Reform Bill.--Appointment of a Regency.--
Re-arrangement of the Civil List.
CHAPTER X.
Abolition of Slavery.--Abridgment of the Apprenticeship.--The East India
Company's Trade is Thrown Open.--Commencement of Ecclesiastical
Reforms.--The New Poor-law.--State of Ireland.--Agitation against
Tithes.--Coercion Bill.--Beginning of Church Reform.--Sir Robert Peel
becomes Prime-minister.--Variety of Offices held Provisionally by the
Duke of Wellington.--Sir Robert Peel Retires, and Lord Melbourne Resumes
the Government.--Sir Robert Peel Proposes a Measure of Church
Reform.--Municipal Reform.--Measures of Ecclesiastical Reform.
CHAPTER XI.
Death of William IV., and Accession of Queen Victoria.--Rise of the
Chartists.--Resignation of Lord Melbourne in 1839, and his Resumption of
Office.--Marriage of the Queen, and Consequent Arrangements.--The
Precedence of the Prince, etc.--Post-office Reform.--War in
Afghanistan.--Discontent in Jamaica.--Insurrection in Canada.--New
Constitution for Canada and other Colonies.--Case of Stockdale and
Hansard.
CHAPTER XII.
Sir Robert Peel becomes Prime-minister.--Commercial
Reforms.--Free-trade.--Religious Toleration.--Maynooth.--The Queen's
University.--Post-office Regulations.--The Opening of Letters.--
Naturalization of Aliens.--Recall of Lord Ellenborough.--Reversal of the
Vote on the Sugar Duties.--Refusal of the Crown to Sanction a Bill.--The
Question of Increase in the Number of Spiritual Peers.--Repeal of the
Corn-laws.--Revolution in France, and Agitation on the Continent.--Death
of Sir Robert Peel.--Indifference of the Country to Reform.--Repeal of
the Navigation Laws.--Resolutions in Favor of Free-trade.--The Great
Exhibition of 1851.
CHAPTER XIII.
Dismissal of Lord Palmerston.--Theory of the Relation between the
Sovereign and the Cabinet.--Correspondence of the Sovereign with French
Princes.--Russian War.--Abolition of the Tax on Newspapers.--Life
Peerages.--Resignation of two Bishops.--Indian Mutiny.--Abolition of the
Sovereign Power of the Company.--Visit of the Prince of Wales to
India.--Conspiracy Bill.--Rise of the Volunteers.--National
Fortifications.--The Lords Reject the Measure for the Repeal of the
Paper-duties.--Lord Palmerston's Resolutions.--Character of the Changes
during the last Century.
INDEX.
CONSTITUTIONAL HISTORY OF ENGLAND.
CHAPTER I.
Mr. Hallam's View of the Development of the Constitution.--Symptoms of
approaching Constitutional Changes.--State of the Kingdom at the
Accession of George III.--Improvement of the Law affecting the
Commissions of the Judges.--Restoration of Peace.--Lord Bute becomes
Minister.--The Case of Wilkes.--Mr. Luttrell is Seated for Middlesex by
the House of Commons.--Growth of Parliamentary Reporting.--Mr.
Grenville's Act for trying Election Petitions.--Disfranchisement of
Corrupt Voters at New Shoreham.
The learned and judicious writer to whom is due the first idea of a
"Constitutional History of England," and of whose admirable work I here
venture to offer a continuation, regards "the spirit of the government"
as having been "almost wholly monarchical till the Revolution of 1688,"
and in the four subsequent reigns, with the last of which his volumes
close, as "having turned chiefly to an aristocracy."[1] And it may be
considered as having generally preserved that character through the long
and eventful reign of George III. But, even while he was writing, a
change was already preparing, of which more than one recent occurrence
had given unmistakable warning. A borough had been disfranchised for
inveterate corruption in the first Parliament of George IV.[2] Before
its dissolution, the same House of Commons had sanctioned the principle
of a state endowment of the Roman Catholic clergy in Ireland, and had
given a third reading to a bill for the abolition of all civil
restrictions affecting members of that religion. It was impossible to
avoid foreseeing that the Parliamentary Reform inaugurated by the
disfranchisement of Grampound would soon be carried farther, or that the
emancipation, as it was termed, of all Christian sects was at least
equally certain not to be long delayed. And it will be denied by no one
that those measures, which had no very obscure or doubtful connection
with each other, have gradually imparted to the constitution a far more
democratic tinge than would have been willingly accepted by even the
most liberal statesman of the preceding century, or than, in the days of
the Tudors or of the Stuarts, would have been thought compatible with
the maintenance of the monarchy.
When George III. came to the throne, he found the nation engaged in a
war which was occupying its arms not only on the Continent of Europe,
but in India and America also, and was extending her glory and her
substantial power in both hemispheres. _Inter arma silent leges_. And,
while the contest lasted, neither legislators in Parliament nor the
people outside had much attention to spare for matters of domestic
policy. Yet the first year of the new reign was not suffered to pass
without the introduction of one measure limiting the royal prerogative
in a matter of paramount importance to the liberty of the people, the
independence of the judges. The rule of making the commissions of the
judges depend on their good conduct instead of on the pleasure of the
crown had, indeed, been established at the Revolution; but it was still
held that these commissions expired with the life of the sovereign who
had granted them; and, at the accession of Anne, as also at that of
George II., a renewal of their commissions had been withheld from some
members of the judicial bench. But now, even before the dissolution of
the existing Parliament, the new King recommended to it such a change in
the law as should "secure the judges in the enjoyment of their offices
during their good behavior, notwithstanding any demise of the crown;"
giving the proposal, which was understood to have been originally
suggested by himself, additional weight by the very unusual step of
making it the subject of a speech to the two Houses in the middle of the
session. A bill to give effect to it was at once brought in, and, though
the Houses sat only a fortnight longer, was carried before the
dissolution.
The close of the year 1762, however, saw the restoration of peace; and
the circumstances connected with the treaty which re-established it gave
birth to a degree of political and constitutional excitement such as had
not agitated the kingdom for more than half a century. That treaty had
not been concluded by the minister who had conducted the war. When
George III. came to the throne he found the Duke of Newcastle presiding
at the Treasury, but the seals of one Secretary of State in the hands of
Mr. Pitt, who was universally regarded as the guiding genius of the
ministry. The other Secretary of State was Lord Holdernesse. But, in the
spring of 1761, as soon as the Parliament was dissolved,[3] that
statesman retired from office, and was succeeded by the Earl of Bute, a
Scotch nobleman, who stood high in the favor of the King's mother, the
Princess Dowager of Wales, but who had not till very recently been
supposed to be actuated by political ambition, and who was still less
suspected of any statesman-like ability to qualify him for the office to
which he was thus promoted. It was presently seen, however, that he
aspired to even higher dignity. He at once set himself to oppose Pitt's
warlike policy; and, on the question of declaring war against Spain, he
was so successful in inducing the rest of the cabinet to reject Pitt's
proposals, that that statesman resigned his office in unconcealed
indignation. Having got rid of the real master of the ministry, Bute's
next step was to get rid of its nominal chief, and in the spring of 1762
he managed to drive the Duke of Newcastle from the Treasury, and was
himself placed by the King at the head of the administration. So rapid
an elevation of a man previously unknown as a politician could hardly
fail to create very widespread dissatisfaction, which was in some degree
augmented by the nationality of the new minister. Lord Bute was a
Scotchman, and Englishmen had not wholly forgiven or forgotten the
Scotch invasion of 1745. Since that time the Scotch had been regarded
with general disfavor; Scotch poverty and Scotch greediness for the good
things of England had furnished constant topics for raillery and
sarcasm; and more than one demagogue and political writer had sought
popularity by pandering to the prevailing taste for attacks on the whole
nation. Foremost among these was Mr. John Wilkes, member for Aylesbury,
a man of broken fortunes and still more damaged character, but of a wit
and hardihood that made his society acceptable to some of high rank and
lax morality, and caused his political alliance to be courted by some
who desired to be regarded as leaders of a party; many of the
transactions of the late reign having, unfortunately, not been favorable
to the maintenance of any high standard of either public or private
virtue. On Lord Bute's accession to office, Wilkes had set up a
periodical paper, whose object and character were sufficiently indicated
by its title, _The North Briton_, and in which the diligence of Lord
Bute in distributing places among his kinsmen and countrymen furnished
the staple of almost every number; while in many the Princess of Wales
herself was not spared, as the cause, for motives not obscurely hinted
at, of his sudden elevation. So pertinacious and virulent were the
attacks thus launched at him, coinciding as they did, at least in one
point, with the prejudices of the multitude, that they were commonly
believed to have had some share in driving Lord Bute from office, which,
in the spring of 1763, he suddenly resigned, hoping, as it might almost
seem, thus to throw on his successor the burden of defending his
measures. The most important of these measures had been the conclusion
of the Treaty of Versailles, which, when it was first announced to
Parliament, had been vehemently attacked in both Houses by Pitt and his
followers, but had been approved by large majorities. Wilkes, however,
not without reason, believed it to be still unpopular with the nation at
large, and, flushed with his supposed victory over Lord Bute, was
watching eagerly for some occasion of re-opening the question, when such
an opportunity was afforded him by the King's speech at the prorogation
of the Parliament, which took place a few days after Lord Bute's
resignation.
Lord Bute had been succeeded by Mr. George Grenville, who had for a time
been one of his colleagues as Secretary of State; and on him, therefore,
the duty devolved of framing the royal speech the opening sentences of
which referred to "the re-establishment of peace" in terms of warm
self-congratulation, as having been effected "upon conditions honorable
to the crown and beneficial to the people." Wilkes at once caught at
this panegyric, as affording him just such an opportunity as he had been
seeking of renewing his attacks on the government, which he regarded as
changed in nothing but the name of the Prime-minister.[4] And, four days
after the prorogation,[5] he accordingly issued a new number of _The
North Briton_ (No. 45), in which he heaped unmeasured sarcasm and
invective on the peace itself, on the royal speech, and on the minister
who had composed it. As if conscious that Mr. Grenville was less
inclined by temper than Lord Bute to suffer such attacks without
endeavoring to retaliate, he took especial pains to keep within the law
in his strictures, and, accordingly, carefully avoided saying a
disrespectful word of the King himself, whom he described as "a prince
of many great and amiable qualities," "ever renowned for truth, honor,
and unsullied virtue." But he claimed a right to canvass the speech
"with the utmost freedom," since "it had always been considered by the
Legislature and by the public at large as the speech of the minister."
And he kept this distinction carefully in view through the whole number.
The speech he denounced with bitter vehemence, as "an abandoned instance
of ministerial effrontery," as containing "the most unjustifiable public
declarations" and "infamous fallacies." The peace he affirmed to be
"such as had drawn down the contempt of mankind on our wretched
negotiators." And he described the present minister as a mere tool of
"the favorite," by whom "he still meditated to rule the kingdom with a
rod of iron." But in the whole number there was but one sentence which
could be represented as implying the very slightest censure on the King
himself, and even that was qualified by a personal eulogy. "The King of
England," it said, "is not only the first magistrate of the country, but
is invested by the law with the whole executive power. He is, however,
responsible to his people for the due execution of the royal functions
in the choice of ministers, etc., equally with the meanest of his
subjects in his particular duty. The personal character of our present
amiable sovereign makes us easy and happy that so great a power is
lodged in such hands; but the favorite has given too just cause for him
to escape the general odium. The prerogative of the crown is to exert
the constitutional power intrusted to it in such a way, not of blind
favor and partiality, but of wisdom and judgment. This is the spirit of
our constitution. The people, too, have their prerogative; and I hope
the fine words of Dryden will be engraven on our hearts, 'Freedom is the
English subject's prerogative.'"
These were the last sentences of No. 45. And in the present day it will
hardly be thought that, however severe or even violent some of the
epithets with which certain sentences of the royal speech were assailed
may have been, the language exceeds the bounds of allowable political
criticism. With respect to the King, indeed, however accompanied with
personal compliments to himself those strictures may have been, it may
be admitted that in asserting any responsibility whatever to the people
on the part of the sovereign, even for the choice of his ministers, as
being bound to exercise that choice "with wisdom and judgment," it goes
somewhat beyond the strict theory of the constitution. Undoubtedly that
theory is, that the minister chosen by the King is himself responsible
for every circumstance or act which led to his appointment. This
principle was established in the fullest manner in 1834, when, as will
be seen hereafter, Sir Robert Peel admitted his entire responsibility
for the dismissal of Lord Melbourne by King William IV., though it was
notorious that he was in Italy at the time, and had not been consulted
on the matter. But as yet such questions had not been as accurately
examined as subsequent events caused them to be; and Wilkes's assertion
of royal responsibility to this extent probably coincided with the
general feeling on the subject.[6] At all events, the error contained in
it, and the insinuation that due wisdom and judgment had not been
displayed in the appointment of Mr. G. Grenville to the Treasury, were
not so derogatory to the legitimate authority and dignity of the crown
as to make the writer a fit subject for a criminal prosecution. But Mr.
Grenville was of a bitter temper, never inclined to tolerate any
strictures on his own judgment or capacity, and fully imbued with the
conviction that the first duty of an English minister is to uphold the
supreme authority of the Parliament, and to chastise any one who dares
to call in question the wisdom of any one of its resolutions. But _The
North Briton_ had done this, and more. No. 45 had not only denounced the
treaty which both Houses had approved, but had insinuated in
unmistakable language that their approval had been purchased by gross
corruption (a fact which was, indeed, sufficiently notorious). And,
consequently, Mr. Grenville determined to treat the number which
contained the denunciation as a seditious libel, the publication of
which was a criminal offence; and, by his direction, Lord Halifax, as
Secretary of State, issued what was termed a general warrant--a warrant,
that is, which did not name the person or persons against whom it was
directed, but which commanded the apprehension of "the authors,
printers, and publishers" of the offending paper, leaving the officers
who were charged with its execution to decide who came under that
description, or, in other words, who were guilty of the act charged,
before they had been brought before any tribunal. The warrant was
executed. Wilkes and some printers were apprehended; Wilkes himself, as
if the minister's design had been to make the charge ridiculous by
exaggeration, being consigned to the great state-prison of the Tower,
such a use of which was generally limited to those impeached of
high-treason. And, indeed, the commitment did declare that No. 45 of
_The North Briton_ was "a libel tending to alienate the affections of
the people from his Majesty, and to excite them to traitorous
insurrections against the government." Wilkes instantly sued out a writ
of _habeas corpus_, and was without hesitation released by the Court of
Common Pleas, on the legal ground that, "as a member of the House of
Commons, he was protected from arrest in all cases except treason,
felony, or a breach of the peace;" a decision which, in the next session
of Parliament, the minister endeavored to overbear by inducing both
Houses to concur in a resolution that "privilege of Parliament did not
extend to the case of publishing seditious libels."
In his life of Lord Camden,[7] who was Chief-justice of the Common Pleas
at the time, Lord Campbell expresses a warm approval of this resolution,
as one "which would now be considered conclusive evidence of the law."
But, with all respect to the memory of a writer who was himself a
Chief-justice, we suspect that in this case he was advancing a position
as an author engaged in the discussion of what had become a party
question, which he would not have laid down from the Bench.[8] The
resolution certainly did not make it law, since it was not confirmed by
any royal assent; and to interpret the law is not within the province of
the House of Commons, nor, except when sitting as a Court of Appeal, of
the House of Lords. We may, however, fully agree with the principle
which Lord Campbell at the same time lays down, that "privilege of
Parliament should not be permitted to interfere with the execution of
the criminal law of the country." And this doctrine has been so fully
acquiesced in since, that members of both Houses have in more than one
instance been imprisoned on conviction for libel.
The legality of the species of warrant under which Wilkes had been
arrested was, however, a question of far greater importance; and on that
no formal decision was pronounced on this occasion, the Lieutenant of
the Tower, in his return to the writ of _habeas corpus_, and the counsel
employed on both sides, equally avoiding all mention of the character of
the warrant. But it was indirectly determined shortly afterward. The
leaders of the Opposition would fain have had the point settled by what,
in truth, would not have settled it--another resolution of the House of
Commons. But, though it was discussed in several warm debates, Grenville
always contrived to baffle his adversaries, though on one occasion his
majority dwindled to fourteen.[9] What, however, the House of Commons
abstained from affirming was distinctly, though somewhat
extra-judicially, asserted by Lord Camden, as Chief-justice of the
Common Pleas. Wilkes, with some of the printers and others who had been
arrested, had brought actions for false imprisonment, which came to be
tried in his court; and they obtained such heavy damages that the
officials who had been mulcted applied for new trials, on the plea of
their being excessive. But the Chief-justice refused the applications,
and upheld the verdict, on the ground that the juries, in their
assessment of damages, had been "influenced by a righteous indignation
at the conduct of those who sought to exercise arbitrary power over all
the King's subjects, to violate Magna Charta, and to destroy the liberty
of the kingdom, by insisting on the legality of this general warrant."
Such a justification would hardly be admitted now. But, in a subsequent
trial, a still higher authority, the Chief-justice of the King's Bench,
Lord Mansfield, held language so similar, that, once more to quote the
words of Lord Campbell, "without any formal judgment, general warrants
have ever since been considered illegal."
However, the release of Wilkes on the ground of his parliamentary
privilege gave him but a momentary triumph, or rather respite. The
prosecution was not abated by the decision that he could not be
imprisoned before trial; while one effect of his liberation was to
stimulate the minister to add another count to the indictment preferred
against him, on which he might be expected to find it less easy to
excite the sympathy of any party. Wilkes had not always confined his
literary efforts to political pamphlets. There was a club named the
Franciscans (in compliment to Sir Francis Dashwood, Lord Bute's
Chancellor of the Exchequer, who, as well as Lord Sandwich, the First
Lord of the Admiralty, was one of its members), which met at Medmenham
Abbey, on the banks of the Thames, and there held revels whose license
recalled the worst excesses of the preceding century. To this club
Wilkes also belonged; and, in indulgence of tastes in harmony with such
a brotherhood, he had composed a blasphemous and indecent parody on
Pope's "Essay on Man," which he entitled "An Essay on Woman," and to
which he appended a body of burlesque notes purporting to be the
composition of Pope's latest commentator, the celebrated Dr. Warburton,
Bishop of Gloucester. He had never published it (indeed, it may be
doubted whether, even in that not very delicate age, any publisher could
have been found to run the risk of issuing so scandalous a work), but he
had printed a few copies in his own house, of which he designed to make
presents to such friends as he expected to appreciate it. He had not,
however, so far as it appears, given away a single copy, when, on the
very first day of the next session of Parliament, Lord Sandwich himself
brought the parody under the notice of the House of Lords. If there was
a single member of the House whose delicacy was not likely to be
shocked, and whose morals could not be injured by such a composition, it
was certainly Lord Sandwich himself; but his zeal as a minister to
support his chief kindled in him a sudden enthusiasm for the support of
virtue and decency also; and, having obtained a copy by some
surreptitious means, he now made a formal complaint of it to the House,
contending that the use of the name of the Bishop of Gloucester as
author of the notes constituted a breach of the privileges of the House.
And he was seconded by the bishop himself, whose temper and judgment
were, unhappily, very inferior to his learning and piety. It is recorded
that he actually compared Wilkes to the devil, and then apologized to
Satan for the comparison. But the Lords were in a humor to regard no
violence against Wilkes as excessive; and, submitting to the guidance of
the minister and the prelate, resolved that the "Essay on Woman,"[10] as
also another poem by the same writer, a paraphrase of the "Veni
Creator," was "a most scandalous, obscene, and impious libel," and
presented an address to the King, requesting his Majesty "to give the
most effectual orders for the immediate prosecution of the author." And,
in the course of the next few weeks, the House of Commons outran the
peers themselves in violence and manifest unfairness. They concurred
with the Lords in ordering No. 45 of _The North Briton_ to be burnt by
the common hangman, an order which was not carried out without great
opposition on the part of the London populace, who made it the occasion
of a very formidable riot, in which the sheriffs themselves incurred no
little danger; and, by another resolution, they ordered Wilkes to attend
in his place to answer the charge of having published the two works. But
at the time when they made this order it was well known that he could
not obey it. A few days before he had been challenged by a Mr. Martin,
who till very recently had been one of the Secretaries of the Treasury,
and who was generally believed to have prepared himself for the conflict
by diligent practice with a pistol; and in the duel which ensued Wilkes
had been severely wounded. It was not only notorious that he had been
thus disabled, but he sent a physician and surgeon of admitted eminence
in their profession, and of unquestioned honor, to testify to the fact
at the bar of the House; and subsequently he forwarded written
certificates to the same purport from some French doctors who had
special knowledge of gunshot wounds. But the Commons declined to accept
this evidence as sufficient, and directed two other doctors to examine
him. Wilkes, however, refused to admit them: his refusal was treated as
a sufficient ground for pronouncing him "guilty of a contempt of the
authority of the House," and for deciding on his case in his absence;
and, on the 19th of January, before the case had come on for trial, a
resolution was carried that "Mr. Wilkes was guilty of writing and
publishing _The North Briton_ (No. 45), which this House had voted to be
a false, scandalous, and seditious libel, and that, for the said
offence, he be expelled the House." At a later period of the year, he
was tried on the two charges of publishing No. 45 and the "Essay on
Woman," was found guilty of both, and, as he did not appear to receive
judgment, in November, 1764, he was outlawed.
So far, it may be said to have been a drawn battle. If, on the one hand,
the minister had procured the expulsion of Wilkes, on the other hand
Wilkes had gained great notoriety and a certain amount of sympathy, and
had, moreover, enriched himself by considerable damages; and again, if
the nation at large was a gainer by the condemnation of general
warrants, even that advantage might be thought to be dearly gained by
the discredit into which the Parliament had fallen through its
intemperance. But the contest between Wilkes and the ministry was only
closed for a time; and when it was revived, a singular freak of fortune
caused the very minister who had led the proceedings against him on this
occasion to appear as his advocate. To avoid the consequences of his
outlawry, he had taken up his abode in Paris, waiting for a change of
ministry, which, as he hoped, might bring into power some to whom he
might look for greater favor. But when, though in the course of the next
two years two fresh administrations were formed, it was seen that
neither Lord Rockingham, the head of the first, nor the Duke of Grafton
and Mr. Pitt (promoted to the Earldom of Chatham), the heads of the
second, had any greater sympathy with him than Mr. Grenville, he became
desperate, and looked out for some opportunity of giving effect to his
discontent. He found it in the dissolution of Parliament, which took
place in the spring of 1768. In spite of his outlawry, he instantly
returned to England, and offered himself as a candidate for London.
There, indeed, he did not succeed, though the populace was uproarious in
his support, and drew his carriage through the streets as if in triumph.
But, before the end of the month, he was returned at the head of the
poll for Middlesex, when the mob celebrated his victory by great riot
and outrages, breaking the windows of Lord Bute, as his old enemy, and
of the Lord Mayor, as the representative of the City of London, which
had rejected him, and insulting, and even in some instances beating,
passers-by who refused to join in their cheers for "Wilkes and Liberty."
He had already pledged himself to take the necessary steps to procure
the reversal of his outlawry; and, in pursuance of his promise, he
surrendered in the Court of King's Bench. But his removal to prison
caused a renewal of the tumults with greater violence than before. The
mob even rescued him from the officers who had him in custody; and when,
having escaped from his deliverers, he, with a parade of obedience to
the law, again surrendered himself voluntarily at the gate of the King's
Bench Prison, they threatened to attack the jail itself, kindled a fire
under its walls, which was not extinguished without some danger, and day
after day assembled in such tumultuous and menacing crowds, that at last
Lord Weymouth, the Secretary of State, wrote a letter to the Surrey
magistrates, enjoining them to abstain from no measures which might seem
necessary for the preservation of peace, even if that could only be
effected by the employment of the soldiery. The riots grew more and more
formidable, till at last the magistrates had no resource but to call out
the troops, who, on one occasion, after they had been pelted with large
stones, and in many instances severely injured, fired, killing or
wounding several of the foremost rioters. So tragical an event seemed to
Wilkes to furnish him with exactly such an opportunity as he desired to
push himself into farther notoriety. He at once printed Lord Weymouth's
letter, and circulated it, with an inflammatory comment, in which he
described it as a composition having for its fruit "a horrid massacre,
the consummation of a hellish plot deliberately planned." Too angry to
be prudent, Lord Weymouth complained to the House of Lords of this
publication as a breach of privilege, and the Lords formally represented
it to the House of Commons as an insult deliberately offered to them by
one of its members. There could be no doubt that such language as Wilkes
had used was libellous. In its imputation of designs of deliberate
wickedness, it very far exceeded the bitterest passages of _The North
Briton_; and Lord Weymouth's colleagues, therefore, thought they might
safely follow the precedent set in 1764, of branding the publication as
a libel, and again procuring the expulsion of the libeller from the
House of Commons. There were circumstances in the present case, such as
the difference between the constituencies of Aylesbury and Middlesex,
and the enthusiastic fervor in the offender's cause which the populace
of the City had displayed, which made it very doubtful whether the
precedent of 1764 were quite a safe one to follow; but the ministers not
only disregarded every such consideration, but, as if they had wantonly
designed to give their measure a bad appearance, and to furnish its
opponents with the strongest additional argument against it, they mixed
up with their present complaint a reference to former misdeeds of Wilkes
with which it had no connection. On receiving the message of the Lords,
they had summoned him to appear at the bar of the House of Commons, that
he might be examined on the subject; but this proceeding was so far from
intimidating him, that he not only avowed the publication of his comment
on Lord Weymouth's letter, but gloried in it, asserting that he deserved
the thanks of the people for bringing to light the true character of
"that bloody scroll." Such language was regarded as an aggravation of
his offence, and the Attorney-general moved that his comment on the
letter "was an insolent, scandalous, and seditious libel;" and, when
that motion had been carried, Lord Barrington followed it up with
another, to the effect that "John Wilkes, Esq., a member of this House,
who hath at the bar of this House confessed himself to be the author and
publisher of what the House has resolved to be an insolent, scandalous,
and seditious libel, and who has been convicted in the Court of King's
Bench of having printed and published a seditious libel, and three[11]
obscene and impious libels, and by the judgment of the said Court has
been sentenced to undergo twenty-two months' imprisonment, and is now in
execution under the said judgment, be expelled this House." This motion
encountered a vigorous opposition, not only from Mr. Burke and the
principal members of the Rockingham party, which now formed the regular
Opposition, but also from Mr. Grenville, the former Prime-minister, who
on the former occasion, in 1764, had himself moved the expulsion of the
same offender. His speech on this occasion is the only one which is
fully reported; and it deserved the distinction from the exhaustive way
in which it dealt with every part of the question. It displayed no
inclination to extenuate Wilkes's present offence, but it pointed out
with great force the circumstance that the supporters of the motion were
far from agreement as to the reasons by which they were guided; that
some members of the greatest authority in the House, while they had
avowed their intention of voting for the expulsion, had at the same time
been careful to explain that the comment on Lord Weymouth's letter was
not the ground of their vote; that so great a lawyer as Mr. Blackstone
had asserted that that comment "had not been properly and regularly
brought before the House," but had founded his intention to vote for the
expulsion solely "upon that article of the charge which related to the
three obscene and impious libels mentioned in it, disavowing in the most
direct terms all the other articles." That, on the other hand, other
members of deserved weight and influence, such as Lord Palmerston and
Lord F. Campbell, had disdained the idea of regarding "the article of
the three obscene and impious libels as affording any ground for their
proceeding." So practised a debater as Mr. Grenville had but little
difficulty, therefore, in arguing against the advocates of expulsion,
when they were so divided that one portion of them did, in fact, reply
to the other. But it would be superfluous here to enter into the
arguments employed on either side to justify the expulsion, or to prove
it to be unjustifiable, from a consideration of the character of either
Wilkes or his publication. The strength and importance of Mr.
Grenville's speech lay in the constitutional points which it raised.
Some supporters of the ministers had dwelt upon the former expulsion,
insisting that "a man who had been expelled by a former House of Commons
could not possibly be deemed a proper person to sit in the present
Parliament, unless he had some pardon to plead, or some merit to cancel
his former offences." By a reference to the case of Sir R. Walpole, Mr.
Grenville proved that this had not been the opinion of former
Parliaments; and he contended, with unanswerable logic, that it would be
very mischievous to the nation if such a principle should be now acted
on, and such a precedent established, since, though employed in the
first instance against the odious and the guilty, it might, when once
established, be easily applied to, and made use of against, the
meritorious and the innocent; and so the most eminent and deserving
members of the state, under the color of such an example, by one
arbitrary and discretionary vote of one House of Parliament, the worst
species of ostracism, might be excluded from the public councils, cut
off and proscribed from the rights of every subject of the realm, not
for a term of years alone, but forever. He quoted from "L'Esprit des
Lois" an assertion of Montesquieu, that "one of the excellences of the
English constitution was, that the judicial power was separated from the
legislative, and that there would be no liberty if they were blended
together; the power over the life and liberty of the citizens would then
be arbitrary, for the judge would be the legislator." And, having thus
proved that it would be a violation of the recognized constitution to
found a second expulsion on the first, he proceeded to argue that to
expel him for this new offence would be impolitic and inexpedient, as a
step which would inevitably lead to a contest with the constituency
which he represented, since, "in the present disposition of the county
of Middlesex, no one could entertain a doubt that Wilkes would be
re-elected. The House would then probably think itself under a necessity
of again expelling him, and he would as certainly be again re-elected.
The House might, indeed, refuse to issue a new writ, which would be to
deprive the freeholders of Middlesex of the right of choosing any other
representative; but he could not believe that the House would think it
fit to inflict such a punishment on the electors of a great county.
Should it not do so, the other alternative would be to bring into the
House as representative and knight of the shire for Middlesex a man
chosen by a few voters only, in contradiction to the declared sense of a
great majority of the freeholders on the face of the poll, upon the
supposition that all the votes of the latter were forfeited and thrown
away on account of the expulsion of Mr. Wilkes." It seemed premature to
discuss that point before it arose, and therefore the Speaker contented
himself for the present with saying that "he believed there was no
example of such a proceeding; and that, if it should appear to be new
and unfounded as the law of the land, or even if any reasonable doubt
could be entertained of its legality, the attempt to forfeit the
freeholders' votes in such a manner would be highly alarming and
dangerous."
Few prophecies have been more exactly fulfilled. The House did expel Mr.
Wilkes; he did offer himself for re-election, and was re-elected; and
the minister, in consequence, moved and carried a resolution that "John
Wilkes, Esq., having been, in this session of Parliament, expelled this
House, was and is incapable of being elected a member to serve in this
present Parliament." And, in pursuance of this vote, a writ was again
issued. At the end of another month the proceeding required to be
repeated. Wilkes had again offered himself for re-election. No other
candidate had presented himself, and, in answer to an inquiry, the
under-sheriff reported that "no other candidate had been proposed but
John Wilkes, Esq., and that no elector had given or tendered his vote
for any other person." Once more the House resolved that he was
"incapable of being elected," and issued a new writ. But on this second
occasion the ministry had provided a rival candidate in the person of
the Honorable H.K. Luttrell. He was duly proposed and seconded; a poll
was taken and kept open for several days, and, as it appeared at the
close that 1143 votes had been given for Wilkes and 296 for Mr.
Luttrell, the sheriff again returned Wilkes as duly elected.
A debate of singularly angry excitement arose on the reception of this
return. Even lawyers, such as Mr. De Grey, the Attorney-general, and Sir
Fletcher Norton, who had been Attorney-general, were not ashamed to
denounce the conduct of the sheriff in returning Mr. Wilkes as "highly
improper and indecent," as "a flying in the face of a resolution of the
House of Commons;" and Sir Fletcher even ventured to advance the
proposition that, "as the Commons were acting in a judicial capacity,
their resolutions were equal to law." Lord North, too, the Chancellor of
the Exchequer, as we learn from the "Parliamentary History," "spoke
long, but chiefly to the passions. He described Mr. Wilkes and his
actions in a lively manner; showed the variety of troubles which he had
given the ministry; and that unless, by voting in Mr. Luttrell, an end
were put to this debate, the whole kingdom would be in confusion; though
he owned that he did not think that measure would put an end to the
distractions. He spoke much more to the expediency than to the legality
of the measure proposed."
On the other side, it was contended by several members, Burke and Mr.
Grenville being of the number, that "the House of Commons alone could
not make a law binding any body but themselves. That, if they could
disqualify one person, they could disqualify as many as they pleased,
and thus get into their own hands the whole power of the government;"
and precedents were produced to prove that votes of the House of Lords,
and also of the House of Commons, regarding their own members, had been
disregarded by the judges of the Court of King's Bench as being contrary
to law. But the minister was secure of the steadiness of his adherents,
and a majority of 221 to 152 declared that Mr. Luttrell had been duly
elected.
But Lord North was correct in his anticipation that their vote would not
put an end to the agitation on the question, and it was renewed in the
next session in a manner which at one time threatened to produce a
breach between the two Houses.
The "Parliamentary History" closes its report of the debate on the
resolution by which Mr. Luttrell was seated with a summary of the
arguments used in it, taken from the "Annual Register," which, as is
universally known, was at this time edited by Mr. Burke. It is a very
fair and candid abstract, which, in fact, puts the whole question on one
single issue, "that the House of Commons is the sole court of judicature
in all cases of election, and that this authority is derived from the
first principles of our government, viz., the necessary independence of
the three branches of the Legislature." But, though that doctrine was
fully admitted by the Opposition, they made "that very admission a
ground for reviving the question in the next session, by moving for a
resolution which should declare that, 'being a Court of Judicature, the
House of Commons, in deciding matters of election, was bound to judge
according to the law of the land, and the known and established law of
Parliament, which was part thereof.'" It was understood that this
resolution, if carried, was intended as a stepping-stone to others which
should condemn the decision of the previous session; yet it seemed such
a truism that even the ministers could not venture to deny it; but they
proposed to defeat the object of its framers by adding to it a
declaration that the late decision was "agreeable to the said law of the
land." And we might pass on to the subsequent debate, in which the
constitutional correctness of that addition was distinctly challenged,
did it not seem desirable to notice two arguments which were brought
forward against the motion, one by an independent member, Mr. Ongley,
the other by the Attorney-general. Mr. Ongley contended that "a power of
preserving order and decency is essentially necessary to every aggregate
body; and, with respect to this House, if it had not power over its
particular members, they would be subject to no control at all." The
answer to this argument is obvious: that a right on the part of the
House to control the conduct of its members is a wholly different thing
from a right to determine who are or ought to be members; and that for
the House to claim this latter right, except on grounds of qualification
or disqualification legally proved, would be to repeat one of the most
monstrous of all Cromwell's acts of tyranny, when, in 1656, he placed
guards at the door of the House, with orders to refuse admission to all
those members whom, however lawfully elected, he did not expect to find
sufficiently compliant for his purposes. Mr. De Grey's argument was of a
different character, being based on what he foretold would be the
practical result of a decision that expulsion did not involve an
incapacity to be re-elected. If it did not involve such incapacity, and
if, in consequence, Mr. Wilkes should be re-elected, he considered that
the House would naturally feel it its duty to re-expel him as often as
the constituency re-elected him. But one answer given to this argument
was, that to expel a second time would be to punish twice for one
offence, a proceeding at variance not only with English law but with
every idea of justice. Another, and one which has obtained greater
acceptance, was, that the legitimate doctrine was, that the issue of a
new writ gave the expelled member an appeal from the House to the
constituency, and that the constituency had a constitutional right to
overrule the judgment of the House, and to determine whether it still
regarded the candidate as its most suitable representative.
The ministers, however, were, as before, strong enough in the House to
carry their resolution. But the Opposition returned to the charge,
taking up an entirely different though equally general position, "That,
by the law of the land and the known law and usage of Parliament, no
person eligible by common right can be incapacitated by vote or
resolution of this House, but by act of Parliament only." It is
remarkable that, in the debate which ensued, two members who
successively rose to the dignity of Lord Chancellor, Mr. Thurlow and Mr.
Wedderburn, took different sides; but nothing could shake the
ministerial majority. The resolution was rejected. And when Lord
Rockingham proposed the same resolution in the House of Lords, though it
was supported by all the eloquence of Lord Chatham, he was beaten by a
majority of more than two to one, and the ministers even carried a
resolution declaring "that any interference of the House of Lords with
any judgment of the House of Commons, in matters of election, would be a
violation of the constitutional rights of the Commons."
Even these decisive defeats of the Opposition did not finally terminate
the struggle. The notoriety which Wilkes had gained had answered his
purpose to no slight extent. The City had adopted his cause with
continually increasing earnestness and effect. It had made him Sheriff,
Alderman, Lord Mayor, and had enriched him with the lucrative office of
City Chamberlain; and, as one of the City magistrates, he subsequently
won the good opinion of many who had previously condemned him, by his
conduct during the Gordon Riots, in which he exerted his authority with
great intrepidity to check and punish the violence of the rioters. And
when, in 1782, Lord Rockingham became, for the second time,
Prime-minister, he thought he might well avail himself of the favor he
had thus acquired, and of the accession to office of those whom the line
which they had formerly taken bound to countenance him, to bring forward
a motion for the expunction of the resolutions against him which had
been passed in 1770. It was carried by a largo majority; and though this
was as evidently a party division as those had been by which he had been
defeated twelve years before, still, as the last resolution on the
subject, it must be regarded as decisive of the law and practice of
Parliament, and as having settled the doctrine that expulsion does not
incapacitate a member who has been expelled from immediate
re-election.[12]
The establishment of this rule, and the abolition of general warrants,
were, however, not the only nor the most important result of these
proceedings. They led indirectly to an innovation which, it is hardly
too much to say, has had a greater influence on the character and
conduct of Parliament, and indeed on the whole subsequent legislation of
the country, than can be attributed to any other single cause. Hitherto
the bulk of the people had enjoyed but very scanty and occasional means
of acquiring political education. At times of vehement political
excitement, or any special party conflict, pamphlets and periodical
essays had enlightened their readers--necessarily a select and small
body--on particular topics. But standing orders of both Houses, often
renewed, strictly forbade all publication of the debates which took
place in either. To a certain extent, these orders had come to be
disregarded and evaded. Almost ever since the accession of the House of
Brunswick, a London publisher had given to the world an annual account
of the Parliamentary proceedings and most interesting discussions of the
year; and before the middle of the reign of George II, two monthly
magazines had given sketches of speeches made by leading members of each
party. The reporters, however, did not venture to give the names of the
speakers at full length, but either disguised them under some general
description, or at most gave their initials; and sometimes found that
even this profession of deference to the standing orders did not insure
them impunity. As late as the year 1747, Cave, the proprietor and editor
of the _Gentleman's Magazine_, was brought to the bar of the House of
Commons for publishing an account of a recent debate, and only obtained
his release by expressions of humble submission and the payment of heavy
fees. The awe, however, which his humiliation and peril had been
intended to diffuse gradually wore off; the keen interest which was
awakened by the ministerial changes at the beginning of the reign of
George III., which have been already mentioned, naturally prompted a
variety of efforts to gratify it by a revelation of the language
concerning them which was held by statesmen of different parties; and
these revelations were no longer confined to yearly or monthly
publications. More than one newspaper had of late adopted the practice
of publishing what it affirmed to be a correct report of the debates of
the previous day, though, in fact, each journal garbled them to suit the
views of the party to which it belonged, and, to quote the words of the
historian of the period, "misrepresented the language and arguments of
the speakers in a manner which could hardly be considered
accidental."[13] The speakers on the ministerial side in the debates on
the Middlesex election had been especial objects of these
misrepresentations; and, at the beginning of 1771, one of that party,
Colonel Onslow, M.P. for Guilford, brought the subject before the House,
complaining that many speeches, and his own among them, had been
misrepresented by two newspapers which he named, and that "the practice
had got to an infamous height, so that it had become absolutely
necessary either to punish the offenders or to revise the standing
orders."[14] And he accordingly moved "that the publication of the
newspapers of which he complained was a contempt of the orders and a
breach of the privileges of the House, and that the printers be ordered
to attend the House at its next sitting." The habitual unfairness of the
reports was admitted by the Opposition; but the publishers complained of
evidently felt assured of their sympathy (which, indeed, was
sufficiently, and not very decorously, shown by its leaders inflicting
on the House no fewer than twenty-three divisions in a single night),
and, relying on their countenance, they paid no attention to the order
of the House. A fresh order for their arrest having been issued, the
Sergeant-at-arms reported that he had been unable to execute it, by
reason of their absence from their homes; on which the House, not
disposed to allow itself to be thus trifled with, now addressed his
Majesty with a request that he would issue his royal proclamation for
their apprehension. And Colonel Onslow made a fresh motion, with a
similar complaint of the publishers of six more newspapers--"three
brace," as he described them in language more sportsman like than
parliamentary. Similar orders for their appearance and, when these were
disregarded, for their apprehension, were issued. And at last one of
those who had been mentioned in the royal proclamation, Mr. Wheble,
printer of the _Middlesex Journal_, was apprehended by an officer named
Carpenter, and carried before the sitting magistrate at Guildhall, who,
by a somewhat whimsical coincidence, happened to be Alderman Wilkes.
Wilkes not only discharged him, on the ground that there was "no legal
cause of complaint against him," but when Wheble, in retaliation, made a
formal complaint of the assault committed on him by Carpenter in
arresting him, bound Wheble over to prosecute, and Carpenter to answer
the complaint, at the next quarter sessions, and then reported what he
had done in an official Letter to the Secretary of State. Thomson,
another printer, was in like manner arrested; and, when brought before
Mr. Oliver, another alderman, was discharged by him. And when, a day or
two afterward, a third (Mr. Miller) was apprehended by Whetham, a
messenger of the House of Commons, Mr. Brass Crosby, the Lord Mayor, and
the two Aldermen, signed a warrant committing Whetham to prison for
assaulting Miller. Whetham was bailed by the Sergeant-at-arms, who
reported what had occurred to the House; and the House, as the Lord
Mayor and Alderman Oliver were members of it, as representatives for
London and Honiton, ordered that they should attend the House in their
places, to explain their conduct, and that Mr. Wilkes should attend at
the bar of the House. Wilkes, declining to recognize the validity of the
resolutions which had seated Colonel Luttrell for Middlesex, refused
compliance with such an order, writing a letter to the Speaker, in which
he "observed that no notice was taken of him as a member of the House;
and that the Speaker's order did not require him to attend in his
place." And he "demanded his seat in Parliament, and promised, when he
had been admitted to his seat, to give the House a most exact detail of
his conduct." But the Lord Mayor pleaded the charters of the City as a
justification of his act in releasing a citizen of London who had been
arrested on a warrant which had not been backed by a City magistrate,
and demanded to be heard by counsel in support of his plea. His demand,
however, was refused, and he and Alderman Oliver were committed to the
Tower; but, as if the ministers were afraid of re-opening the question
of Colonel Luttrell's election for Middlesex, they evaded taking notice
of Wilkes's disobedience to their order by a singularly undignified
expedient, issuing a fresh order for his appearance on the 8th of April,
and adjourning till the 9th.
The ministers now moved the appointment of a select committee to
investigate the whole affair; and the committee, before the end of the
month, made an elaborate report, which, however, abstained from all
mention of the offence committed by the printers, and confined itself to
an assertion that "the power and authority of the House to compel the
attendance of any commoner had ever extended as well to the City of
London, without exception on account of charters from the crown or any
pretence of separate jurisdiction, as to every other part of the realm."
And this assertion may be regarded as having been uphold by the refusal
of the judges to release the Lord Mayor and Alderman when they sued out
writs of _habeas corpus_; and they consequently remained prisoners in
the Tower till they were released by the prorogation.
But with this report of the committee the matter was suffered to drop.
The transaction had caused almost unprecedented excitement, which was
not confined to the City, for the grand-juries of many English counties
and a committee of the Dublin merchants showed their sympathy with the
Opposition by sending up addresses to the imprisoned City magistrates;
and the ministers had a prudent fear of keeping alive an agitation which
had not been always free from danger to the public tranquillity.[15] In
effect, the victory remained with the Opposition. No farther attempt was
made to punish any of the printers; and, though the standing orders
which forbid such publication have never been formally repealed, ever
since that time the publishers of newspapers and other periodicals have
been in the constant habit of giving regular details of the proceedings
of both Houses of Parliament. And one enterprising publisher, Mr.
Hansard, has for many years published a complete record of the debates
in both Houses, which is continually appealed to in the Houses
themselves, by members of both parties, as a manual of political and
parliamentary history.
The practice, as it now prevails, is one of the many instances of the
practical wisdom with which this nation often deals with difficult
subjects. The standing order is retained as an instrument which, in
certain cases, it may possibly be expedient to employ; as, in fact, it
has been employed in one or two instances in the present reign, when
matters have been under consideration which, however necessary to be
discussed, were of such a nature that the publication of the details
into which some speakers deemed it desirable to go was regarded by
others as calculated to be offensive to the taste, if not injurious to
the morals, of the community at large. But the very fact of such an
occasional enforcement of the standing orders under very peculiar
circumstances implies a recognition of the propriety of its more
ordinary violation; of the principle that publication ought to be the
general rule, and secrecy the unusual exception. And, indeed, it is,
probably, no exaggeration to say that such publication is not only
valuable, as the best and chief means of the political education of the
people out-of-doors, but is indispensable to the working of our
parliamentary system such as it has now become. The successive Reform
Bills, which have placed the electoral power in the hands of so vast a
body of constituents as was never imagined in the last century, have
evidently regarded the possession by the electors of a perfect knowledge
of the language held and the votes given by their representatives as
indispensable to the proper exercise of the franchises which they have
conferred. And, even if there had previously been no means provided for
their acquisition of such information, it is certain that the electors
would never have consented to be long kept in the dark on subjects of
such interest. In another point of view, the publication of the debates
is equally desirable, in the interest of the members themselves, whether
leaders or followers of the different parties. Not to mention the
stimulus that it affords to the cultivation of eloquence--an incentive
to which even those least inclined or accustomed to put themselves
forward are not entirely insensible--it enables the ministers to
vindicate their measures to the nation at large, the leaders of the
Opposition to explain their objections or resistance to those measures
in their own persons, and not through the hired agency of pamphleteers,
and each humbler member to prove to his constituents the fidelity with
which he has acted up to the principles his assertion of which induced
them to confide their interests and those of the kingdom to his judgment
and integrity. Secrecy and mystery may serve, or be supposed to serve,
the interests of arbitrary rulers; perfect openness is the only
principle on which a free constitution can be maintained and a free
people governed.
It seems convenient to take all the measures which, in this first
portion of the reign before us, affected the proceedings or constitution
of Parliament together; and, indeed, one enactment of great importance,
which was passed in 1770, it is hardly unreasonable to connect in some
degree with the decision of the House which adjudged the seat for
Middlesex to Colonel Luttrell. Ever since the year 1704 it had been
regarded as a settled point that the House of Commons had the exclusive
right of determining every question concerning the election of its
members. But it was equally notorious that it had exercised that right
in a manner which violated every principle of justice and even of
decency. Election petitions were decided by the entire House, and were
almost invariably treated as party questions, in which impartiality was
not even professed. Thirty years before, the Prime-minister himself (Sir
Robert Walpole) had given notice to his supporters that "no quarter was
to be given in election petitions;" and it was a division on one
petition which eventually drove him from office. There was not even a
pretence made of deciding according to evidence, for few of the members
took the trouble to hear it. A few years after the time of which we are
speaking, Lord George Germaine thus described the mode of proceeding
which had previously prevailed: "The managers of petitions did not ask
those on whose support they calculated to attend at the examination of
witnesses, but only to let them know where they might be found when the
question was going to be put, that they might be able to send them word
in time for the division." The practice had become a public scandal, by
which the constituencies and the House itself suffered equally--the
constituencies, inasmuch as they were liable to be represented by one
who was in fact only the representative of a minority; the House itself,
since its title to public confidence could have no solid or just
foundation but such as was derived from its members being in every
instance the choice of the majority. Yet, so long as petitions were
judged by the whole House, there seemed no chance of the abuse being
removed, the number of judges conferring the immunity of shamelessness
on each individual. To remedy such a state of things, in the spring of
1770 Mr. G. Grenville brought in a bill which provided for the future
trial of all such petitions by a select committee of fifteen members,
thirteen of whom should be chosen by ballot, one by the sitting member
whose seat was petitioned against, and one by the petitioner. The
members of the committee were to take an oath to do justice similar to
that taken by jurymen in the courts of law; and the committee was to
have power to compel the attendance of witnesses, to examine them on
oath, and to enforce the production of all necessary papers; it was also
to commence its sittings within twenty-four hours of its appointment,
and to sit from day to day till it should be prepared to present its
report. It was not to the credit of the ministers that they made the
passing of such a bill a party question. The abuse which it was designed
to remedy was notorious, and Mr. Grenville did not exaggerate its
magnitude when he declared that, "if it were not checked, it must end in
the ruin of public liberty." He was supported by Burke, and by two
lawyers, Mr. Dunning and Mr. Wedderburn, both destined to rise to some
of the highest offices in their profession; but he was opposed by the
Attorney-general, by Lord North, as leader of the House, and by Mr.
Fox--not yet turned into a patriot by Lord North's dismissal of him from
office. The debates, both in the whole House and in committee, were long
and earnest. Some of the ministerial underlings were not ashamed to deny
the necessity of any alteration in the existing practice; but their more
favorite argument was founded on the impropriety of the House
"delegating its authority to a committee," which was asserted to be "an
essential alteration of the constitution of the House of Commons." Lord
North himself had too keen an instinct of propriety to deny the
existence of a great evil, and contented himself with pleading for time
for farther consideration; while the Attorney-general confined his
objections to some details of the bill, which it would be easy to amend.
Others, with too accurate a foresight, doubted the efficacy of the
measure, and prophesied that the additional sanction of the oath, by
which its framer hoped to bind the committees to a just and honest
decision, would, "like oaths of office and Custom-house oaths, soon fall
into matters of form, and lose all sanction, and so make bad worse." On
the other hand, besides the arguments founded on the admitted greatness
of the evil to be remedied, it was shown that the institution of
committees, such as the bill proposed the appointment of, was sanctioned
by numerous precedents; and though the committees--sometimes consisting
of as many as two hundred members--were by far too large to make it
probable that all would bestow a careful attention on the whole case,
there was "nothing in the journals of the House to show that their
decisions were not regarded as final, or as requiring no subsequent
confirmation from the whole House." Generally speaking, Lord North could
trust the steadiness of his majority; but, to his great surprise, on
this occasion he found himself deserted by the country gentlemen, who
voted in a body for the bill, although their spokesman, Sir W. Bagot,
had been in no slight degree offended by some remarks of Burke, who,
with a strange imprudence, had claimed a monopoly of the title of
"friends of the constitution" for himself and his party, and had sneered
at the country gentlemen, as "statesmen of a very different description,
though, by a late description given of them, a Tory was now the best
species of Whig." And the union of the two bodies proved irresistible;
the bill was carried by a majority of sixty-two, and the government did
not venture to carry on their resistance to it in the House of Lords,
any interference by which would, indeed, have been resented by the
Commons, as a violation of their privileges.
At first the duration of the bill was limited to seven years; but in
1774 it was made perpetual by a still larger majority, the experience of
its working having converted many who had at first opposed it, but who
now bore willing testimony to its efficacy. Unhappily, though the House
could make the bill perpetual, at least till formally repealed, it could
not invest its good effects with equal durability. After a time, the
same complaints were advanced against the decision of election
committees that had formerly been employed to discredit the judgments of
the whole House. The success or failure of a petition again became a
party question; and as in a committee of an odd number the
ministerialists or the Opposition must inevitably have a majority of at
least one member, before the end of the reign it had become as easy to
foretell the result of a petition from the composition of the committee
as it had been in the time of Walpole. And it was with the approval of
almost all parties--an approval extorted only by the absolute necessity
of the case--that, after one or two modifications of Mr. Grenville's act
had been tried, Mr. Disraeli induced the House to surrender altogether
its privilege of judging of elections, and to submit the investigations
of petitions on such subjects to the only tribunal sufficiently above
suspicion to command and retain the confidence of the nation, the judges
of the high courts of law.
We shall probably be doing the House of Commons of the day no injustice,
if we surmise that the degree in which public attention had recently
been directed to the representation, and the interest which the people
were beginning to show in the purity of elections, as the principle on
the maintenance of which the very liberties of all might depend, had
some share in leading the House to establish the wholly new, though most
necessary, precedent of punishing a constituency for habitual and
inveterate corruption. It may be called the first fruits of Mr.
Grenville's act. At the end of the same year in which that statute had
been passed, a select committee had sat to try the merits of a petition
which complained of an undue return for the borough of New Shoreham. And
its report brought to light an organized system of corruption, which
there was too much reason to fear was but a specimen of that which
prevailed in many other boroughs as yet undetected. It appeared from the
report, founded as it was on the evidence and confession of many of the
persons inculpated, that a society had long existed in New Shoreham,
entitled the Christian Club, which, under this specious name, was
instituted, as they frankly acknowledged, for the express purpose of
getting as much money as possible at every election from the candidates
they brought in. The members of the club were under an oath and bond of
L500 not to divulge the secrets of the club, and to be bound by the
majority. On every election, a committee of five persons was nominated
by the club to treat with the candidates for as much money as they could
get. And, in pursuance of this system, when, on the death of Sir Stephen
Cornish, one of the members for the borough, five candidates offered
themselves to supply the vacancy, this committee of five opened
negotiations with them all. The offers of the rival purchasers were
liberal enough. One (General Smith) proposed to buy the entire club in
the lump for L3000, adding a promise to build 600 tons of shipping in
the town. A second (a Mr. Rumbold) was willing to give every freeman
L35; and his offer was accepted by the committee, who, however,
cautioned him that no freeman was entitled to the money who was not a
member of the Christian Club. He willingly agreed to this limitation of
his expenditure, and both he and the club regarded the matter as
settled. He paid every freeman who belonged to the club his stipulated
bribe, and on the polling day they tendered eighty-seven votes in his
favor, the entire constituency being something under one hundred and
fifty. The general, finding his L3000 declined, did not go to the poll;
but a Mr. Purling and Mr. James did, the latter polling only four votes,
the former only thirty-seven. What bribe Mr. Purling had given was never
revealed; but by some means or other he had contrived to render himself
the most acceptable of all the candidates to Mr. Roberts, the returning
officer. Roberts had himself been a member of the Christian Club, but
had quarrelled with it, and on the day of the election, as Rumbold's
voters came up, he administered to each of them the oath against
bribery. They took it without scruple; but he took it on himself to
pronounce seventy-six of them disqualified, and to refuse their votes;
and, having thus reduced Mr. Rumbold's voters to eleven, he returned Mr.
Purling as duly elected.
Mr. Rumbold, not unnaturally, petitioned against such a return; when Mr.
Roberts admitted the facts alleged against him, but pleaded that he had
acted under the advice of counsel, who had assured him that it was
within his own discretion to admit or to refuse any votes that might be
tendered, and that he might lawfully refuse any "which in his own mind
he thought illegal." It is a striking proof of the laxity which
prevailed on every quarter in electioneering practices, that the House,
to a great extent, admitted his justification or excuse as valid. By a
strange stretch of lenity, they gave him credit for an honest intention,
and contented themselves with ordering him to be reprimanded by the
Speaker. But the case of the bribed freemen and of the borough generally
was too gross to be screened by any party. All agreed that the borough
must be regarded as incurably corrupt, and deserving of heavy
punishment. The Attorney-general was ordered to prosecute the five
members of the managing committee for "an illegal and corrupt
conspiracy;" and a bill was brought in to disfranchise and declare
forever incapable of voting at any election eighty-one freemen who had
been proved to have received bribes, and to punish the borough itself,
by extending the right of voting at future elections to all the
freeholders in the rape of Bramber, the district of Sussex in which New
Shoreham lies, an arrangement which reduced the borough itself to
comparative insignificance. Mr. Fox opposed the bill, on the ground that
the offence committed could be sufficiently punished by the ordinary
courts of law. But he stood alone in his resistance; the bill was
passed, and a salutary precedent was established; the penalty inflicted
on New Shoreham being for many years regarded as the most proper
punishment for all boroughs in which similar practices were proved to
prevail.
And it might have continued to be thought so, had corruption been
confined to the smaller boroughs; but there was no doubt that in many
large towns corruption was equally prevalent and inveterate, while there
were also many counties in which the cost of a contest was by far too
large to be accounted for by any legitimate causes of expenditure. And
consequently, as time wore on, severer measures were considered
necessary. Some boroughs were deprived of the right of election
altogether; in others, whose population or constituency was too numerous
to make their permanent disfranchisement advisable, the writ was
suspended for a time, that its suspension might serve both as a
punishment and as a warning, a practice which is still not unfrequently
adopted. But no plan could be devised for dealing with the evil in
counties, till what seemed hopeless to achieve by direct legislation
was, in a great degree, effected by the indirect operation of the Reform
Bill of 1832. The shortening of the duration of an election, which was
henceforth concluded in a single day, and the multiplication of polling
places, which rendered it impossible to ascertain the progress of the
different candidates till the close of the poll, were provisions having
an inevitable and most salutary effect in diminishing alike the
temptation to bribe on the part of the candidate, and the opportunity of
enhancing the value of his vote by the elector. The vast increase of
newspapers, by diffusing political education and stimulating political
discussion, has had, perhaps, a still greater influence in the same
direction. And, as bribery could only be brought to bear on electors too
ignorant to estimate the importance of the exercise of the franchise by
any higher test than the personal advantage it might bring to
themselves, it is to the general diffusion of education among the poorer
classes, and their gradually improved and improving intelligence that a
complete eradication of electoral corruption can alone be looked for.
Notes:
[Footnote 1: "Constitutional History," vol. iii., p. 380; ed. 3, 1832.
The first edition was published in 1827.]
[Footnote 2: Grampound. Corrupt voters had been disfranchised in New
Shoreham as early as 1771, and the franchise of the borough of Cricklade
had been transferred to the adjoining hundreds in 1782.]
[Footnote 3: Parliament was dissolved March 19. Lord Bute succeeded Lord
Holdernesse March 25.]
[Footnote 4: The greater part of Lord Bute's colleagues did, in fact,
retain their offices. Lord Egremont and Lord Halifax continued to be
Secretaries of State; Lord Henley (afterward Lord Northington) retained
the Great Seal; Lord North and Sir John Turner remained as Lords of the
Treasury; and Mr. Yorke and Sir Fletcher Norton were still Attorney and
Solicitor General.]
[Footnote 5: Parliament was prorogued April 19, and _The North Briton_
(No. 45) was published April 23.]
[Footnote 6: A letter of the Prince Consort examines the principle of
ministerial responsibility with so remarkable a clearness of perception
and distinctness of explanation, that we may be excused for quoting it
at length: "The notion that the responsibility of his advisers impairs
the monarch's dignity and importance is a complete mistake. Here we have
no law of ministerial responsibility, for the simple reason that we have
no written constitution; but this responsibility flows as a logical
necessity from the dignity of the crown and of the sovereign. 'The King
can do no wrong,' says the legal axiom, and hence it follows that
somebody must be responsible for his measures, if these be contrary to
law or injurious to the country's welfare. Ministers here are not
responsible _qua_ ministers, that is, _qua_ officials (as such they are
responsible to the crown), but they are responsible to Parliament and
the people, or the country, as 'advisers of the crown.' Any one of them
may advise the crown, and whoever does so is responsible to the country
for the advice he has given. The so-called accountability of ministers
to Parliament does not arise out of an abstract principle of
responsibility, but out of the practical necessity which they are under
of obtaining the consent of Parliament to legislation and the voting of
taxes, and, as an essential to this end, of securing its confidence. In
practice, ministers are liable to account for the way and manner in
which they have administered the laws which they, conjointly with the
Parliament, have made, and for the way they have expended the moneys
that have been voted for definite objects. They are bound to furnish
explanations, to justify their proceedings, to satisfy reasonable
scruples, and the answer, 'We have, as dutiful subjects, obeyed the
sovereign,' will not be accepted. 'Have you acted upon conviction, or
have you not?' is the question. 'If you have not, then you are civil
servants of the crown, who counsel and do what you consider wrong or
unjust, with a view to retain your snug places or to win the favor of
the sovereign.' And this being so, Parliament withdraws its confidence
from them. Herein, too, lies that ministerial power of which sovereigns
are so much afraid. They can say, 'We will not do this or that which the
sovereign wishes, because we cannot be responsible for it.' But why
should a sovereign see anything here to be afraid of? To him it is, in
truth, the best of safeguards. A really loyal servant should do nothing
for which he is not prepared to answer, even though his master desires
it. This practical responsibility is of the utmost advantage to the
sovereign. Make independence, not subservience, the essential of
service, and you compel the minister to keep his soul free toward the
sovereign, you ennoble his advice, you make him staunch and patriotic,
while time-servers, the submissive instruments of a monarch's extreme
wishes and commands, may lead, and often have led, him to destruction.
"But to revert to the law of responsibility. This ought not to be in
effect a safeguard for law itself. As such, it is superfluous in this
country, where law reigns, and where it would never occur to any one
that this could be otherwise. But upon the Continent it is of the
highest importance; as, where the government is an outgrowth of a
relation of supremacy and subordination between sovereign and subject,
and the servant, trained in ideas natural to this relation, does not
know which to obey, the law of the sovereign, the existence of such a
law would deprive him of the excuse which, should he offend the law, and
so be guilty of a crime, is ready to his hand in the phrase, 'The
sovereign ordered it so, I have merely obeyed,' while it would be a
protection to the sovereign that his servants, if guilty of a crime,
should not be able to saddle him with the blame of it."--_Life of the
Prince Consort_, v., 262.]
[Footnote 7: "Lives of the Lord Chancellors," c. cxliii.]
[Footnote 8: Indeed, the opinion which Lord Campbell thus expresses is
manifestly at variance with that which he had previously pronounced in
his life of Lord Northington, where he praised the House of Lords for
"very properly rejecting the bill passed by the Commons declaring
general warrants to be illegal, leaving this question to be decided (as
it was, satisfactorily) by the Courts of Common Law."]
[Footnote 9: From a speech of Mr. Grenville delivered at a later period
(February 3, 1769, "Parliamentary History," xvi., 548), it appears that
the Secretaries of State who signed this general warrant did so against
their own judgment. "They repeatedly proposed to have Wilkes's name
inserted in the warrant of apprehension, but were overruled by the
lawyers and clerks of the office, who insisted that they could not
depart from the long-established precedents and course of proceeding."
And in one of these debates, Mr. Pitt, while denouncing with great
severity Grenville's conduct in procuring the issue of this particular
warrant, was driven to a strange confession of his own inconsistency,
since he was forced to admit that, while Secretary of State, he had
issued more than one general warrant in exactly similar form.]
[Footnote 10: Strange to say, it does not seem absolutely certain that
Wilkes was the author of the "Essay on Woman." Horace Walpole eventually
learned, or believed that he had learned, that the author was a Mr.
Thomas Potter. (See Walpole's "George III.," i., 310; and Cunningham's
"Note on his Correspondence," iv., 126.)]
[Footnote 11: These are the words of the resolution.--_Parliamentary
History_, xvi., 537. But it does not appear what the three libels were.
The "Essay on Woman" was one, the paraphrase of "Veni Creator" was a
second; no third of that character is mentioned.]
[Footnote 12: The last resolution is approved by Mr. Hallam. "If a few
precedents were to determine all controversies of constitutional law, it
is plain enough from the journals that the House has assumed the power
of incapacitation. But as such authority is highly dangerous and
unnecessary for any good purpose, and as, according to all legal rules,
so extraordinary a power could not be supported except by a sort of
prescription that cannot be shown, the final resolution of the House of
Commons, which condemned the votes passed in times of great excitement,
appears far more consonant to first principles."--_Constitutional
History_, iii., 357.]
[Footnote 13: Adolphus, "History of England," i., 484.]
[Footnote 14: An idea of the license which the newspapers complained of
had permitted themselves at this time may be derived from the manner in
which one of them had introduced a speech of Mr. Jeremiah Dyson, M.P.
for Weymouth, and a Commissioner of the Treasury: "Jeremiah Weymouth,
the d----n of the kingdom, spoke as follows." And it may seem that the
Opposition (for the affair was made a party question) can hardly be
acquitted of a discreditable indifference to the dignity of the House in
supporting a resolution of Colonel Barre, that "Jeremiah Weymouth, the
d----n of this kingdom, is not a member of this House." On which the
previous question was moved by the ministers, and carried by 120 to
38.--_Parliamentary History_, xvii., 78. And an instance of rather the
opposite kind, of the guarded way in which the most respectable
publications were as yet accustomed to relate the transactions of
Parliament, may be gathered from the account of the proceedings in the
case of Wilkes, given in the "Annual Register" for 1770--drawn up,
probably, by Burke himself--in which Lord Camden is only mentioned as "a
great law lord;" Lord Chatham as "Lord C----m;" Lord Rockingham as "a
noble Marquis who lately presided at the head of public affairs;" the
King as "the K----;" Parliament as "P.;" and the House of Commons as the
"H. of C."--_Annual Register_, 1770, pp. 59-67.]
[Footnote 15: On more than one occasion there had been disturbances in
the City, and in the streets adjacent to the Houses of Parliament, which
were little short of riot. One day the mob paraded effigies of the
principal ministers, which, after hanging and beheading them, they
committed to the flames with great uproar. On another day Mr. Charles
Fox (as yet a vehement Tory) complained to the House that the mob in
Palace Yard had insulted him, breaking the glasses of his chariot, and
pelting him with oranges, stones, etc.--_Parliamentary History_, xvii.,
163.]
CHAPTER II.
The Regency Bill.--The Ministry of 1766 lay an Embargo on Corn.--An Act
of Indemnity is Passed.--The _Nullum Tempus_ Act concerning Crown
Property; it is sought to Extend it to Church Property, but the Attempt
fails.--The Royal Marriage Act.--The Lords amend a Bill imposing Export
Duties, etc., on Corn.
The prosecution of Wilkes was not the only act of Mr. Grenville's
administration which excited both the Parliament and the people. In 1764
the King was attacked by a serious illness, and, as the Prince of Wales
was an infant scarcely two years old, it was manifestly necessary to
make arrangements for a Regency, in the event of the throne becoming
vacant while the heir was still a minor. A similar necessity had arisen
in the preceding reign on the death of the present King's father, and a
bill had accordingly been introduced by Mr. Pelham, the minister of the
day, which, in the event of the reigning sovereign dying during the
minority of the boy who had now become the immediate heir to the throne,
vested both the guardianship of his person and the Regency of the
kingdom in his mother, the Princess Dowager of Wales, who, however, in
the latter capacity, was only to act with the advice of a council,
composed of her brother-in-law, the Duke of Cumberland, and nine
principal officers of state. It was not concealed by either the King or
the Duke that they would have preferred a different arrangement, one
which would have conferred an uncontrolled Regency on the Duke himself;
but the bill was passed by great majorities in both Houses, and served
in some respects as a model for that which was now to be brought
forward, the difference being that the Regent was not to be expressly
named in it. To quote the words of the royal speech, the King "proposed
to the consideration of the two Houses whether, under the present
circumstances, it would not be expedient to vest in him the power of
appointing from time to time, by instrument in writing under his
sign-manual, either the Queen or any other member of the royal family
usually residing in Great Britain, to be the guardian of the person of
his successor, and the Regent of these kingdoms, until such successor
should attain the age of eighteen years, subject to such restrictions
and regulations as were specified and contained in an act passed on a
similar occasion in the fourteenth year of the late King; the Regent so
appointed to be assisted by a council, composed of the several persons
who, by reason of their dignities and offices, were constituted members
of the council established by that act, together with those whom the
Parliament might think proper to leave to his nomination."
It may be doubted whether such a power as his Majesty desired was quite
consistent with the principles of the constitution. Parliament had,
indeed, granted Henry VIII. the still greater power of nominating a
series of successors; but the appointment which he consequently made by
will was eventually superseded, when, on the failure of his immediate
descendants, the representative of his elder sister, whom he had passed
over, was seated on the throne, to the exclusion of the descendants of
his younger sister, to whom he had given the preference. In France, the
last two kings, Louis XIII. and XIV., had both, when on their
death-beds, assumed the right of making the arrangements for the Regency
which would become necessary, the heir to the throne being in each case
a minor; but in each instance the arrangements which they had made were
disregarded.
However, on the present occasion the minister (who must be taken to have
framed the King's speech) and the Parliament agreed in the propriety of
conferring the nomination of the Regent on the King himself;[16] and the
bill might have passed almost without notice, had it not been for a
strange display of the Prime-minister's ill-temper and mismanagement.
Mr. Grenville was at all times uncourtly and dictatorial in his manner,
even to the King himself; he was also of a suspicious disposition; and
though he was universally believed to have owed his promotion to his
present office to the recommendation of Lord Bute,[17] he was extremely
jealous of his predecessor. He professed to believe, and probably did
believe, that the King was still greatly under Lord Bute's influence
(though, in fact, they had never met since that minister had quitted the
Treasury), that Lord Bute was still as closely connected with the
Princess of Wales as scandal had formerly reported him to be, and that
George III., under the pressure of their combined influence, would be
induced to name his mother rather than his wife as the future Regent.
And he was so entirely swayed by this ridiculous and wholly groundless
fear, that, when the bill to give effect to the royal recommendation was
introduced into the House of Lords, he instigated one of his friends to
raise the question who were included in the general term "the royal
family," which Lord Halifax, as Secretary of State, answered by saying
that he regarded it as meaning "those only who were in order of
succession to the throne." Such a definition would have excluded the
Queen as effectually as the Princess Dowager; and when Mr. Grenville
found the peers reluctant to accept this view (which, indeed, his own
Lord Chancellor pronounced untenable), he then sent another of his
colleagues to represent to the King that his mother was so unpopular
that, even if the Lords should pass the bill in such a form as rendered
her eligible for nomination, the Commons would introduce a clause to
exclude her by name. With great unwillingness, and, it is said, not
without tears, George III. consented to the bill being so drawn as to
exclude her, and it passed the Lords in such a form. But when it reached
the Commons it was found that if the leaders of the Opposition hated
Bute much, they hated Grenville more. They moved the insertion of the
name of the Princess Dowager as one of the members of the royal family
whom the King might nominate Regent, if it should please him. Even
Grenville had not the boldness publicly to disparage his royal master's
royal mother; the Princess's name was inserted by a unanimous vote in
the list of those from whom the King was empowered to select the Regent,
and the amendment was gladly accepted by the House of Lords.[18]
In spite, however, of the unanimity of the two Houses on the question,
it will probably be thought that the authors of the amendment, by which
it was proposed to address the King with an entreaty to name in the bill
the person to whom he desired to intrust the Regency, acted more in the
spirit of the constitution than those who were contented that the name
should be omitted; indeed, that statesmen of the present century agree
in holding that an arrangement of such importance should be made by the
Houses of Parliament, in concurrence with the sovereign, and not by the
sovereign alone, is shown by the steps taken to provide for a Regency in
the event of the demise of the reigning sovereign while the heir was a
minor, in the last and in the present reign, the second bill (that of
1840) being in this respect of the greater authority, since Lord
Melbourne, the Prime-minister, did not propose it without previously
securing the approval of the Duke of Wellington, in his character of
leader of the Opposition.
We pass over for a moment the administration of Lord Rockingham, as we
have already passed over the taxation of our North American Colonies by
Mr. Grenville, because it will be more convenient to take all the
transactions relating to that subject together when we arrive at the
time when the troubles arising out of the policy of the different
administrations toward those Colonies were brought to a head by the
breaking out of civil war. Lord Rockingham's ministry, which succeeded
Mr. Grenville's, had, as is well known, but a brief existence, and was
replaced by the cabinet so whimsically composed by Mr. Pitt, who
reserved to himself the office of Privy Seal, with the Earldom of
Chatham; the Duke of Grafton being the nominal head of the Treasury, but
the direction of affairs being wholly in the hands of the new Earl, till
the failure of his health compelled his temporary retirement from public
life. Lord Chatham was brother-in-law to Mr. Grenville, to whom in the
occasional arrogance and arbitrariness of his disposition he bore some
resemblance; and one of the earliest acts of his administration, when
coupled with the language which he held on the subject in the House of
Lords, displayed that side of his character in a very conspicuous light.
The summer of 1766 had been unusually wet and cold, both at home and
abroad, and the harvest had, in consequence, been so deficient as to
cause a very general apprehension of scarcity, while rumors were spread
that the high prices which the shortness of the crops could not fail to
produce were artificially raised by the selfish covetousness of some of
the principal corn-dealers, who were buying up all the grain which came
into the market, and storing it, with the object of making an exorbitant
profit out of the necessities of the consumer, not only at home but
abroad. The poorer classes, seeing themselves, as they believed,
threatened with famine, rose in riotous crowds, in some places attacking
the barns in which the corn was stored, and threatening destruction to
both the storehouses and the owners. The ministry first tried to repress
the discontent by the issue of a proclamation against "forestallers and
regraters," framed in the language and spirit of the Middle Ages; and,
when that proved ineffectual to restore confidence, they issued an Order
in Council absolutely prohibiting the exportation of any kind of grain,
and authorizing the detention of any vessels lying in any British harbor
which might be loaded with such a cargo. Our annals furnished no
instance of such an embargo having been laid on any article of commerce
in time of peace; but the crisis was difficult, the danger to the
tranquillity of the kingdom was great and undeniable, the necessity for
instant action seemed urgent, and probably few would have been inclined
to cavil at Lord Chatham's assertion, that the embargo "was an act of
power which, during the recess of Parliament, was justifiable on the
ground of necessity," had the ministry at once called Parliament
together to sanction the measure by an act of indemnity. But Lord
Chatham was at all times inclined to carry matters with a high hand, and
willingly adopted the opinion advanced by the Chancellor (Lord
Northington), that "the measure was strictly legal, and that no
indemnity was necessary." Lord Northington's language on the subject
Lord Campbell describes as "exhibiting his characteristic rashness and
recklessness, which seemed to be aggravated by age and experience,"[19]
and the censure does not seem too severe, since he presently "went so
far as to maintain that the crown had a right to interfere, even against
a positive act of parliament, and that proof of the necessity amounted
to a legal justification." But, however ill-considered his language may
have been, Lord Chatham adopted it, and acted on it so far as to decline
calling the Parliament together before the appointed time, though, when
the Houses did meet, he allowed General Conway, as Secretary of State,
to introduce a bill of indemnity in the House of Commons. It was warmly
opposed in that House, partly on the ground that, if such a measure as
the embargo had been necessary, it would have been easy to have
assembled Parliament before the Order in Council was issued (for, in
fact, the proclamation against forestallers and regraters had been
issued on the 10th of September, when Parliament, if not farther
prorogued, would have met within a week). But on that same day
Parliament was farther prorogued from the 16th of September till the
11th of November,[20] and it was not till after that prorogation, on the
24th of September, that the Order in Council was issued.
In the House of Lords it seems to have been admitted that the embargo
was, under all the circumstances, not only desirable, but "indispensably
necessary."[21] But the Opposition in that House, being led by a great
lawyer (Chief-justice Lord Mansfield), took a wider view of the whole
case; and, after denouncing the long prorogation of Parliament as having
been so culpably advised that there was no way left of meeting the
emergency but by an interposition of the royal power, directed the
principal weight of their argument against the doctrine of the existence
of any dispensing power. It was urged that the late Order in Council
could only be justified by "the general proposition that of any, and, if
of any, of every, act of parliament the King, with the advice of the
Privy Council, may suspend the execution and effect whenever his
Majesty, so advised, judges it necessary for the immediate safety of the
people." And this proposition was denounced as utterly inconsistent with
the principles of the Revolution, which had been "nothing but a most
lawless and wicked invasion of the rights of the crown," if such a
dispensing power were really one of the lawful prerogatives of the
sovereign. Reference was made to the powers in more than one instance,
and especially in the case of ship-money claimed and exercised by
Charles I.; and it was affirmed that "the dispensing and suspending
power, and that of raising money without the consent of Parliament, were
precisely alike, and stood on the very same ground. They were born
twins; they lived together, and together were buried in the same grave
at the Revolution, past all power of resurrection." It was even argued
that the dispensing or suspending power was yet more dangerous than that
of raising money without a Parliamentary vote, since it was a power
which might do the most mischief, and with the greatest speed, so many
were the subjects which it included. It would be a return to the maxims
of the idolators of prerogative as understood in those earlier days,
that is, of absolute and arbitrary power, _a Deo Rex, a Rege Lex_. It
was farther argued that, unless it could be said that the moment
Parliament breaks up the King stands in its place, and that the
continuance of acts is consigned into his hands, he cannot of right
suspend any more than he can make laws, both acts requiring the same
power. The law is above the King, and the crown as well as the subject
is bound by it as much during the recess as in the session of
Parliament; and therefore the wisdom of the constitution has excluded
every discretion in the crown over a positive statute, and has
emancipated Parliament from the royal prerogative, leaving the power of
suspension, which is but another name for a temporary repeal, to reside
where the legislative power is lodged--that is, in King, Lords, and
Commons, who together constitute the only supreme authority of this
government. Precedents were cited to prove that in former times
different ministries had avoided thus taking the law into their own
hands, as when, in 1709 and again in 1756, there was a similar
apprehension of scarcity, even though both those years were years of
war. And the Bill of Rights was quoted as the statute in which every
sort of dispensing power was condemned, though, as exercised by James
II., it had only been exerted in dispensing with penal laws and
remitting penalties.
"Finally," said one speaker, who perhaps was Lord Mansfield himself, "he
is not a moderate minister who would rashly decide in favor of
prerogative in a question where the rights of Parliament are involved,
nor a prudent minister who, even in a doubtful case, commits the
prerogative, by a wanton experiment, to what degree the people will bear
the extent of it. The opposite course was that by which a minister would
consult the best interests of the crown, as well as of the people. The
safety of the crown, as well as the security of the subject, requires
the closing up of every avenue that can lead to tyranny."[22]
These arguments prevailed, and the indemnity bill was passed, to quote
the words of the "Annual Register"--at that time written by Burke--"very
much to the satisfaction of the public." And that it should have been so
accepted is creditable to the good-sense of both parties. The precedent
which was thus established does, indeed, seem to rest on a principle
indispensable to the proper working of a constitutional government. In
so extensive an empire as ours, it is scarcely possible that sudden
emergencies, requiring the instant application of some remedy, should
not at times arise; and, unless Parliament be sitting at the time, such
can only be adequately dealt with if the ministers of the crown have the
courage to take such steps as are necessary, whether by the suspension
of a law or by any other expedient, on their own responsibility,
trusting in their ability to satisfy the Parliament, instantly convoked
to receive their explanation, of the necessity or wisdom of their
proceedings; and in the candor of the Parliament to recognize, if not
the judiciousness of their action, at all events the good faith in which
it has been taken, and the honest, patriotic intention which has
dictated it. The establishment of the obligation instantly to submit the
question to the judgment of Parliament will hardly be denied to be a
sufficient safeguard against the ministerial abuse of such a power; and
the instances in which such a power has since been exercised, coupled
with the sanction of such exercise by Parliament, are a practical
approval and ratification by subsequent Parliaments of the course that
was now adopted.[23]
The next year a not very creditable job of the ministry led to the
enactment of a statute of great importance to all holders of property
which had ever belonged to the crown. In the twenty-first year of James
I. a bill had been passed giving a secure tenure of their estates to all
grantees of crown lands whose possession of them had lasted sixty years.
The Houses had desired to make the enactment extend to all future as
well as to all previous grants. But to this James had refused to
consent; and, telling the Houses that "beggars must not be choosers," he
had compelled them to content themselves with a retrospective statute.
Since his time, and especially in the reigns of Charles II. and William
III., the crown had been more lavish and unscrupulous than at any former
period in granting away its lands and estates to favorites. And no one
had been so largely enriched by its prodigality as the most grasping of
William's Dutch followers, Bentinck, the founder of the English house of
Portland. Among the estates which he had obtained from his royal
master's favor was one which went by the name of the Honor of Penrith.
Subsequent administrations had augmented the dignities and importance of
his family. Their Earldom had been exchanged for a Dukedom; but the
existing Duke was an opponent of the present ministry, who, to punish
him, suggested to Sir James Lowther, a baronet of ancient family, and of
large property in the North of England, the idea of applying to the
crown for a grant of the forest of Inglewood, and of the manor of
Carlisle, which hitherto had been held by Portland as belonging to the
Honor of Penrith, but which, not having been expressly mentioned in the
original grant by William III., it was now said had been regarded as
included in the honor only by mistake. It was not denied that Portland
had enjoyed the ownership of these lands for upward of seventy years
without dispute; and, had the statute of James been one of continual
operation, it would have been impossible to deprive him of them. But, as
matters stood, the Lords of the Treasury willingly listened to the
application of Sir James Lowther; they even refused permission to the
Duke to examine the original deed and the other documents in the office
of the surveyor, on which he professed to rely for the establishment of
his right; and they granted to Sir James the lands he prayed for at a
rent which could only be regarded as nominal. The injustice of the
proceeding was so flagrant, that in the beginning of 1768 Sir George
Savile brought in a bill to prevent any repetition of such an act by
making the statute of James I. perpetual, so that for the future a
possession for sixty years should confer an indisputable and
indefeasible title. The ministers opposed it with great vehemence, even
taking some credit to themselves for their moderation in not requiring
from the Duke a repayment of the proceeds of the lands in question for
the seventy years during which he had held them. But the case was so bad
that they could only defeat Sir George Savile by a side-wind and a
scanty majority, carrying an amendment to defer any decision of the
matter till the next session. Sir George, however, was not discouraged;
he renewed his motion in 1769, when it was carried by a large majority,
with an additional clause extending its operation to the Colonies in
North America; and thus, in respect of its territorial rights, the crown
was placed on the same footing as any private individual, and the same
length of tenure which enabled a possessor to hold a property against
another subject henceforth equally enabled him to hold it against the
crown. The policy not less than the justice of such an enactment might
have been thought to commend it to every thinking man as soon as the
heat engendered by a party debate had passed away. It had merely placed
the sovereign and the subject on the same footing in respect of the
security which prescription gave to possession. And it might, therefore,
have been thought that the vote of 1769 had settled the point in every
case; since what was the law between one private individual and another,
and between the sovereign and a subject, might well have been taken to
be of universal application. But the ministry were strangely unwilling
to recognize such a universal character in the late act, and found in
the peculiar character of ecclesiastical bodies and ecclesiastical
property a pretext for weakening the force of the late enactment, by
denying the applicability of the principle to the claims of
ecclesiastical chapters. In 1772 Mr. Henry Seymour, one of the members
for Huntingdon, moved for leave to bring in a bill, which he described
as one "for quieting the subjects of the realm against the dormant
claims of the Church;" or, in other words, for putting the Church on the
same footing with respect to property which had passed out of its
possession as the crown had been placed in by the act of 1769. He
contended that such a bill ought to be passed, not only on the general
principle that possessors who derived their property from one source
ought not to be less secure than they who derived it from another, but
also on the grounds that, as ecclesiastical bodies occasionally used
their power, "length of possession, which fortified and strengthened
legal right and just title in every other case, did in this alone render
them more weak and uncertain," from the difficulty which often occurred
in finding documentary proof of very ancient titles; and that this was
not an imaginary danger, since a member of the House then present had
recently lost L120,000 by a bishop reviving a claim to an estate after
the gentleman's family had been in undisturbed possession of it above a
hundred years. The defence of the Church, however, was taken up by Mr.
Skinner, Attorney-general for the Duchy of Lancaster, who argued that
though, in the case of the crown, the _nullum tempus_ which it had
formerly claimed, and which had been put an end to in 1769, was "an
engine in the hands of the strong to oppress the weak, the _nullum
tempus_ of the Church was a defence to the weak against the strong," as
its best if not its sole security "against the encroachment of the
laity." The "Parliamentary History" records that in the course of a long
debate Lord North opposed the bringing in of the bill, as did "the
Lord-advocate of Scotland, who gave as a reason in favor of the bill,
though he voted against it, that a law of similar nature had passed in
Scotland, and that the whole kingdom, clergy as well as laity, found the
very best effects from it."[24] Burke argued in favor of the bill with
great force, declaring that in so doing "he did not mean anything
against the Church, her dignities, her honor, her privileges, or her
possessions; he should wish even to enlarge them all; but this bill was
to take nothing from her but the power of making herself odious." But
the ministerial majority was too well disciplined to be broken, and Mr.
Seymour could not even obtain leave to bring in the bill.
The year 1772 was marked by the discussion of a measure which the King
seems to have regarded as one of private interest only, affecting his
personal rights over his own family. But it is impossible to regard
transactions which may affect the right of succession to the throne as
matters of only private interest. And indeed the bill was treated as one
involving a constitutional question by both sides of both Houses, and as
such was discussed with remarkable earnestness, and with vehemence
equalling that of any other debate which had as yet taken place since
the commencement of the reign. The bill had its origin in the personal
feelings of the King himself, who had been greatly annoyed at the
conduct of his brother, the Duke of Cumberland, in marrying a widow of
the name of Horton, daughter of Lord Irnham, and sister of the Colonel
Luttrell whom the vote of the House of Commons had seated as member for
Middlesex; and perhaps still more at the discovery that his other
brother, the Duke of Gloucester, to whom he was greatly attached, had
married another subject, the widowed Lady Waldegrave. His Majesty's
dissatisfaction was, perhaps, heightened by the recollection that he
himself, in early manhood, had also been strongly attracted by the
charms of another subject, and had sacrificed his own inclinations to
the combined considerations of pride of birth and the interests of his
kingdom. And, though there was a manifest difference between the
importance of the marriage of the sovereign himself and that of princes
who were never likely to become sovereigns, he thought it not
unreasonable that he should be empowered to exercise such a general
guardianship over the entire family, of which he was the head, as might
enable him to control its members in such arrangements, by making his
formal sanction indispensable to the validity of any matrimonial
alliances which they might desire to contract. A somewhat similar
question had been raised in 1717, when George I., having quarrelled with
the Prince of Wales (afterward George II.), asserted a claim to control
and direct the education of all the Prince's children, and, when they
should be of marriageable age, to arrange their marriages. The Prince,
on the other hand, insisted on his natural and inalienable right, as
their father, to have the entire government of his own offspring, a
right which, as he contended, no royal prerogative could be enabled or
permitted to override. That question was not, however, brought before
Parliament, to which, at that time, the King could, probably, not have
trusted for any leanings in his favor; but he referred it, in an
informal way, to the Lord Chancellor (Lord Cowper) and the Common-law
Judges. They investigated it with great minuteness. A number of
precedents were adduced for the marriage and education of the members of
the royal family being regulated by the sovereign, beginning with Henry
III., who gave his daughter Joan, without her own consent, in marriage
to the King of Scotland, and coming down to the preceding century, at
the commencement of which the Council of James I. committed the Lady
Arabella Stuart and Mr. Seymour to the Tower for contracting a secret
marriage without the King's permission, and at the end of which King
William exercised the right of selecting a tutor for the Duke of
Gloucester, the son of the Princess Anne, without any consultation with
the Princess herself; and finally the judges, with only two dissenting
voices, expressed their conviction that the King was entitled to the
prerogative which he claimed. The case does not, however, seem to have
been regularly argued before them; there is no trace of their having
been assisted in their deliberations by counsel on either side, and
their extra-judicial opinion was clearly destitute of any formal
authority;[25] so that it came before Parliament in some degree as a new
question.
But George III. was not of a disposition to allow such matters to remain
in doubt, and, in compliance with his desire, a bill was, in 1772,
introduced by Lord Rochfort, as Secretary of State, which proposed to
enact that no descendants of the late King, being children or
grandchildren, and presumptive heirs of the sovereign, male or female,
other than the issue of princesses who might be married into foreign
families, should be capable of contracting a valid marriage without the
previous consent of the reigning sovereign, signified under his
sign-manual, and that any marriage contracted without such consent
should be null and void. The King or the ministers apparently doubted
whether Parliament could be prevailed on to make such a prohibition
life-long, and therefore a clause was added which provided that if any
prince or princess above the age of twenty-five years should determine
to contract a marriage without such consent of the sovereign, he or she
might do so on giving twelve months' notice to the Privy Council; and
such marriage should be good and valid, unless, before the expiration of
the twelve months, both Houses of Parliament should declare their
disapproval of the marriage. The concluding clause of the bill made it
felony "to presume to solemnize, or to assist, or to be present, at the
celebration of any such marriage without such consent being first
obtained."
The bill was stoutly resisted in both Houses at every stage, both on the
ground of usage and of general principle. It was positively denied that
the "sovereign's right of approving of all marriages in the royal
family," which was asserted in the preamble of the bill, was either
founded in law, or established by precedent, or warranted by the opinion
of the judges. And it was contended that there never had been a time
when the possession of royal rank had been considered necessary to
qualify any one to become consort of an English prince or princess. It
had not even been regarded as a necessary qualification for a queen.
Three of the wives of Henry VIII. had been English subjects wholly
unconnected with the royal family; nor had the Parliament nor the people
in general complained of any one of those marriages; moreover, two of
his children, who had in their turn succeeded to the crown, had been the
offspring of two of those wives; and in the last century James II.,
while Duke of York, had married the daughter of an English gentleman;
and, though it had not been without notorious reluctance that his royal
brother had sanctioned that connection, it was well known that Charles
II. himself had proposed to marry the niece of Cardinal Mazarin. In the
House of Peers, Lord Camden especially objected to the clause annulling
a marriage between persons of full age; and in the Commons, Mr.
Dowdeswell, who had been Chancellor of the Exchequer in Lord
Rockingham's administration, dwelt with especial vigor on the
unreasonableness of the clause which fixed twenty-five as the age before
which no prince or princess could marry without the King's consent.
"Law, positive law," he argued, "and not the arbitrary will of an
individual, should be the only restraint. Men who are by law allowed at
twenty-one[26] to be fit for governing the realm may well be supposed
capable of choosing and governing a wife."[27] Lord Folkestone condemned
with great earnestness the expression in the preamble that the bill was
dictated "by the royal concern for the honor and dignity of the crown,"
as implying a doctrine that an alliance of a subject with a branch of
the royal family is dishonorable to the crown--a doctrine which he
denounced as "an oblique insult" to the whole people, and which, as
such, "the representatives of the people were bound to oppose." And he
also objected to the "vindicatory part," as he termed the clause which
declared those who might assist, or even be present, at a marriage
contracted without the royal permission guilty of felony.[28]
The ministry, however, had a decided majority in both Houses, and the
bill became and remains the law of the land, though fourteen peers,
including one bishop, entered a protest against it on nine different
grounds, one of which condemned it as "an extension of the royal
prerogative for which the great majority of the judges found no
authority;" while another, with something of prophetic sagacity, urged
that the bill "was pregnant with civil discord and confusion, and had a
natural tendency to produce a disputed title to the crown."
It may be doubted whether the circumstances which had induced George
III. to demand such a power as that with which the bill invested him
justified its enactment. He was already the father of a family so
numerous as to render it highly improbable that either of his brothers
or any of their children would ever come to the throne; while, as a
previously existing law barred any prince or princess who might marry a
Roman Catholic from the succession, the additional restraint imposed by
the new statute practically limited their choice to an inconveniently
small number of foreign royal houses, many of which, to say the least,
are not superior in importance or purity of blood to many of our own
nobles.
Nor can it be said to have been successful in accomplishing his
Majesty's object. It is notorious that two of his sons, and very
generally believed that one of his daughters, married subjects; the
Prince of Wales having chosen a wife who was not only inferior in rank
and social position to Lady Waldegrave or Mrs. Horton, but was moreover
a Roman Catholic; and that another of his sons petitioned more than once
for permission to marry an English heiress of ancient family. And our
present sovereign may be thought to have pronounced her opinion that the
act goes too far, when she gave one of her younger daughters in marriage
to a nobleman who, however high in rank, has no royal blood in his
veins. The political inconvenience which might arise from the
circumstance of the reigning sovereign being connected by near and
intimate relationship with a family of his British subjects will,
probably, always be thought to render it desirable that some restriction
should be placed on the marriage of the heir-apparent; but where the
sovereign is blessed with a numerous offspring, there seems no
sufficient reason for sending the younger branches of the royal house to
seek wives or husbands in foreign countries. And as the precedent set in
the case of the Princess Louise has been generally approved, it is
probable that in similar circumstances it may be followed, and that such
occasional relaxation of the act of 1772 will be regarded as justified
by and consistent with the requirements of public policy as well as by
the laws of nature.[29] Generally speaking, the two Houses agreed in
their support of the ministerial policy both at home and abroad; but, in
spite of this political harmony, a certain degree of bad feeling existed
between them, which on one occasion led to a somewhat singular scene in
the House of Commons. The Commons imputed its origin to the discourtesy
of the Lords, who, when members of the Commons were ordered by their
House to carry its bills up to the peers, sometimes kept them "waiting
three hours in the lobby among their lordships' footmen before they
admitted them." Burke affirmed that this had happened to himself, and
that he "spoke of it, not out of any personal pride, nor as an indignity
to himself, but as a flagrant disgrace to the House of Commons, which,
he apprehended, was not inferior in rank to any other branch of the
Legislature, but co-ordinate with them." And the irritation which such
treatment excited led the Commons, perhaps not very unnaturally, to seek
some opportunity to vindicate their dignity. They found it in an
amendment which the Lords made on a corn bill. In the middle of April,
1772, resolutions had been passed by the Commons, in a committee of the
whole House, imposing certain duties on the importation of wheat[30] and
other grain when they were at a certain price, which was fixed at 48s.,
and granting bounties on exportation when the price fell below 44s. The
Lords made several amendments on the bill, and, among others, one to
strike out the clause which granted bounties. But when the bill thus
amended came back to the Commons, even those who disliked the principle
of bounties resented this act of the Lords in meddling with that
question, which they regarded as a violation of their peculiar and most
cherished privilege, the exclusive right of dealing with questions of
taxation. Governor Pownall, who had charge of the bill, declared that
the Lords had forgotten their duty when they interfered in raising money
by the insertion of a clause that "no bounty should be paid upon
exported corn." And on this ground he moved the rejection of the
bill.[31] In the last chapter of this volume, a more fitting occasion
for examining the rights and usages of the House of Lords with respect
to money-bills will be furnished by a series of resolutions on the
subject, moved by the Prime-minister of the day. It is sufficient here
to say that the power of rejection is manifestly so different from that
of originating grants--which is admitted to belong exclusively to the
Commons--and that there were so many precedents for the Lords having
exerted this power of rejection in the course of the preceding century,
that they probably never conceived that in so doing now they were
committing any encroachment on the constitutional rights and privileges
of the Lower House. But on this occasion the ill-feeling previously
existing between the two Houses may be thought to have predisposed the
Commons to seek opportunity for a quarrel. And there never was a case in
which both parties in the House were more unanimous. Governor Pownall
called the rejection of the clause by the Lords "a flagrant encroachment
upon the privileges of the House," and affirmed that the Lords had
"forgotten their duty." Burke termed it "a proof that the Lords did not
understand the principles of the constitution, an invasion of a known
and avowed right inherent in the House as the representatives of the
people," and expressed a hope that "they were not yet so infamous and
abandoned as to relinquish this essential right," or to submit to "the
annihilation of all their authority." Others called it "an affront which
the House was bound to resent, and the more imperatively in consequence
of the absence of a good understanding between the two Houses." And the
Speaker, Sir John Cust, went beyond all his brother members in violence,
declaring that "he would do his part in the business, and toss the bill
over the table." The bill was rejected _nem. con._, and the Speaker
tossed it over the table, several of the members on both sides of the
question kicking it as they went out;[32] and to such a pitch of
exasperation had they worked themselves up, that "the Game Bill, in
which the Lords had made alterations, was served in a similar manner,"
though those alterations only referred to the penalties to be imposed
for violations of the Game-law, and could by no stretch of ingenuity be
connected with any question of taxation.
Notes:
[Footnote 16: A motion was, indeed, made (but the "Parliamentary
History," xvi., 55, omits to state by whom) that the House should
"humbly entreat his Majesty, out of his tender and paternal regard for
his people, that he would be graciously pleased to name the person or
persons whom, in his royal wisdom, he shall think fit to propose to the
consideration of Parliament for the execution of those high trusts, this
House apprehending it not warranted by precedent nor agreeable to the
principles of this free constitution to vest in any person or persons
not particularly named and approved of in Parliament the important
offices of Regent of these kingdoms and guardian of the royal offspring
heirs to the crown." But "it passed in the negative," probably, if we
may judge by other divisions on motions made by the same party, by an
overwhelming majority.]
[Footnote 17: No one doubted that this choice had been made under the
influence of Lord Bute, and was designed for the preservation of that
influence.--Lord Stanhope, _History of England_, v., 41.]
[Footnote 18: In his speech in the House of Lords on the Regency Bill of
1840, the Duke of Sussex stated that George III. had nominated the Queen
as Regent in the first instance, and, in the event of her death, the
Princess Dowager.]
[Footnote 19: "Lives of the Chancellors," c. cxli.]
[Footnote 20: It appears from these dates that it was not yet understood
that Parliament could not be prorogued for a longer period than forty
days.]
[Footnote 21: These words occur in a speech attributed to Lord
Mansfield. There is no detailed account of the debates on this subject
in either House. All that exists in the "Parliamentary History" is a
very brief abstract of the discussion in the Commons, and a document
occupying above sixty pages of the same work (pp. 251-314), entitled "A
Speech on behalf of the Constitution against the Suspending and
Dispensing Prerogative," etc., with a foot-note explaining that "this
speech was supposed to be penned by Lord Mansfield, but was, in fact,
written by Mr. Macintosh, assisted by Lord Temple and Lord Lyttleton."
It certainly seems to contain internal evidence that it was not written
by any lawyer, from the sneers at and denunciations of lawyers which it
contains, as a class of men who "have often appeared to be the worst
guardians of the constitution, and too frequently the wickedest enemies
to, and most treacherous betrayers of, the liberties of their country."
But, by whomsoever it was "penned" and published, the arguments which it
contains against the dispensing power were, probably, those which had
been urged by the great Chief-justice, and as such I have ventured to
cite them here.]
[Footnote 22: In his "Lives of the Chief-justices" (c. xxxvi., life of
Lord Mansfield), Lord Campbell says, with reference to this case: "The
Chief-justice's only considerable public exhibition during this period
was his attack on the unconstitutional assertion of Lord Chatham and
Lord Camden, that, in a case of great public emergency, the crown could
by law dispense with an act of parliament. The question arising from the
embargo on the exportation of corn, in consequence of apprehended
famine, he proved triumphantly that, although the measure was expedient
and proper, it was a violation of law, and required to be sanctioned by
an act of indemnity." And Lord Campbell adds, in a note: "This doctrine,
acted upon in 1827, during the administration of Mr. Canning, and on
several subsequent occasions, is now universally taken for
constitutional law" (ii., 468).]
[Footnote 23: To adduce a single instance, worthy of remark as affecting
the personal liberty of the subject, in 1818 a bill of indemnity was
passed to sanction the action of the ministry in arresting and detaining
in prison, without bringing them to trial, several persons accused of
being implicated in seditious proceedings (_vide infra_).]
[Footnote 24: Vol. xvii., 304.]
[Footnote 25: The case is mentioned by Lord Campbell in his "Lives of
the Chancellors," c. cxxi. (life of Lord Macclesfield) and c. cxxiv.
(life of Lord Chancellor King).]
[Footnote 26: In fact, however, the age at which a young prince was
considered competent to exercise the royal authority in person had been
fixed at eighteen; and it is so stated in the speech in which the King,
in 1765, recommended the appointment of a Regent to Parliament.--
_Parliamentary History_, xvi., 52.]
[Footnote 27: This idea was expanded into an epigram, which appeared in
most of the daily papers, and has been thought worthy of being preserved
in the "Parliamentary History," xvii., 401 (note):
"Quoth Dick to Tom, 'This act appears
Absurd, as I'm alive,
To take the crown at eighteen years,
A wife at twenty-five.
The mystery how shall we explain?
For sure, as Dowdeswell said,
Thus early if they're fit to _reign_,
They must be fit to _wed_.'
Quoth Tom to Dick, 'Thou art a fool,
And nothing know'st of life;
Alas! it's easier far to rule
A kingdom than a wife.'"]
[Footnote 28: It is remarkable that this clause on one occasion proved
an obstacle to the punishment of the abettors of such a marriage. In
1793 the Duke of Sussex married Lady Augusta Murray, first at Rome, and
afterward, by banns, at St. George's, Hanover Square. And when the
affair came to be investigated by the Privy Council, Lord Thurlow
denounced the conduct of the pair in violent terms, and angrily asked
the Attorney-general, Sir John Scott, why he had not prosecuted all the
parties concerned in this abominable marriage. Sir John's reply, as he
reported it himself, was sufficiently conclusive: "I answered that it
was a very difficult business to prosecute; that the act, it was
understood, had been drawn by Lord Mansfield, the Attorney-general
Thurlow, and the Solicitor-general Wedderburn, who, unluckily, had made
all persons present at the marriage guilty of felony. And as nobody
could prove the marriage except a person who had been present at it,
there could be no prosecution, because nobody present could be compelled
to be a witness."--THORP'S _Life of Eldon_, i., 235.]
[Footnote 29: A protest against the bill, entered by fourteen peers,
including one bishop (of Bangor), denounced it, among other objections,
as "contrary to the original inherent rights of human nature ...
exceeding the power permitted by Divine Providence to human legislation
... and shaking many of the foundations of law, religion, and public
security."--_Parliamentary History_, xvii., 391.]
[Footnote 30: The import duty on wheat was fixed at 6_d_. a quarter on
grain, and 2_d_. per cwt. on flour, when the price of wheat in the
kingdom should be at or above 48s.; when it was at or above 44s., the
exportation was to be altogether prohibited.--_Parliamentary History_,
xvii., 476.]
[Footnote 31: See Hallam, "Constitutional History," iii., 38-46, ed.
1833, where, as far as the imperfection of our early Parliamentary
records allows, he traces the origin of the assertion of this peculiar
privilege by the Commons, especially referring to a discussion of the
proper limits of this privilege in several conferences between the two
Houses; where, as on some other occasions, he sees, in the assertion of
their alleged rights by the Commons, "more disposition to make
encroachments than to guard against those of others." A few years before
(in 1763), the House of Lords showed that they had no doubt of their
right to reject a money-bill, since they divided on the Cider Bill,
which came under that description. As, however, the bill was passed,
that division was not brought under the notice of the House. But in
1783, in the time of the Coalition Ministry, the peers having made
amendments on the American Intercourse Bill, "the Speaker observed that,
as the bill empowered the crown to impose duties, it was, strictly
speaking, a money-bill, and therefore the House could not, consistently
with its own orders, suffer the Lords to make any amendments on it, and
he recommended that the consideration of their amendments should be
postponed for three months, and in the mean time a new bill framed
according to the Lords' amendments should be passed." The recommendation
was approved by Mr. Pitt, as leader of the Opposition, and approved and
acted on by Mr. Fox, as leader of the ministry in that House. But, at
the same time, Mr. Fox fully admitted the right of the Lords to discuss
such questions, "for it would be very absurd indeed to send a loan bill
to the Lords for their concurrence, and at the same time deprive them of
the right of deliberation. To lay down plans and schemes for loans
belonged solely to the Commons; and he was willing, therefore, that the
amended bill should be rejected, though he was of opinion that the order
of the House respecting money-bills was often too strictly construed."
And he immediately moved for leave to bring in a new bill, which was
verbatim the same with the amended bill sent down by the
Lords.--_Parliamentary History_, xxiii., 895. The question was revived
in the present reign, on the refusal of the Lords to concur in the
abolition of the duty on paper, when the whole subject was discussed
with such elaborate minuteness, and with so much more command of temper
than was shown on the present occasion, that it will be better to defer
the examination of the principle involved till we come to the history of
that transaction.]
[Footnote 32: "Parliamentary History," xvii., 515.]
CHAPTER III.
Mr. Grenville imposes a Duty on Stamps in the North American
Colonies.--Examination of Dr. Franklin.--Lord Rockingham's Ministry
Repeals the Duty.--Lord Mansfield affirms a Virtual Representation in
the Colonies.--Mr. C. Townsend imposes Import Duties in America.--After
some Years, the Civil War breaks out.--Hanoverian Troops are sent to
Gibraltar.--The Employment of Hanoverian Regiments at Gibraltar and
Minorca.--End of the War.--Colonial Policy of the Present
Reign.--Complaints of the Undue Influence of the Crown.--Motions for
Parliamentary Reform.--Mr. Burke's Bill for Economical Reform.--Mr.
Dunning's Resolution on the Influence of the Crown.--Rights of the Lords
on Money-bills.--The Gordon Riots.
But during these years another matter had been gradually forcing its way
to the front, which, though at first it attracted but comparatively
slight notice, when it came to a head, absorbed for several years the
whole attention, not only of these kingdoms, but of foreign countries
also. It was originally--in appearance, at least--merely a dispute
between Great Britain and her Colonies in North America on the mode of
obtaining a small revenue from them. But, in its progress, it eventually
involved us in a foreign war of great magnitude, and thus became the one
subject of supreme interest to every statesman in Europe. England had
not borne her share in the seven years' war without a considerable
augmentation of the national debt, and a corresponding increase in the
amount of yearly revenue which it had become necessary to raise;[33] and
Mr. Grenville, as Chancellor of the Exchequer, had to devise the means
of meeting the demand. A year before, he had supported with great warmth
the proposal of Sir Francis Dashwood, his predecessor at the Exchequer,
to lay a new tax upon cider. Now that he himself had succeeded to that
office, he cast his eyes across the Atlantic, and, on the plea that the
late war had to a certain extent been undertaken for the defence of the
Colonies in North America, he proposed to make them bear a share in the
burden caused by enterprises from which they had profited. Accordingly,
in March, 1764, he proposed a series of resolutions imposing a variety
of import duties on different articles of foreign produce imported into
"the British Colonies and plantations in America," and also export
duties on a few articles of American growth when "exported or conveyed
to any other place except to Great Britain." Another resolution affirmed
"that, toward defraying the said expense, it might be proper to charge
certain stamp-duties in the said Colonies and plantations."
The resolutions imposing import and export duties were passed by both
Houses almost without comment. That relating to a stamp-duty he did not
press at the moment, announcing that he postponed it for a year, in
order to ascertain in what light it would be regarded by the Colonists
themselves; and as most, if not all, of the Colonies had a resident
agent in London, he called them together, explained to them the object
and anticipated result of the new imposition (for such he admitted it to
be), and requested them to communicate his views to their constituents,
adding an offer that, if they should prefer any other tax likely to be
equally productive, he should be desirous to consult their wishes in the
matter.
He probably regarded such language on his part as a somewhat superfluous
exercise of courtesy or conciliation, so entire was his conviction of
the omnipotence of Parliament, and of the impossibility of any loyal man
or body of men calling its power in question. But he was greatly
deceived. His message was received in America with universal
dissatisfaction. Of the thirteen States which made up the body of
Colonies, there was scarcely one whose Assembly did not present a
petition against the proposed measure, and against any other which might
be considered as an alternative. Grenville, however, was not a man to be
moved by petitions or remonstrances. He was rather one whom opposition
of any kind hardened in his purpose; and, as no substitute had been
suggested, at the opening of the session of 1765 he proposed a series of
resolutions requisite to give effect to the vote of the previous year,
and imposing "certain stamp-duties and other duties" on the settlements
in America, perhaps thinking to render his disregard of the objections
which had been made less unpalatable by the insertion of words binding
the government to apply the sums to be thus raised to "the expenses of
defending, protecting, and securing" the Colonies themselves. The
resolutions were passed, as the "Parliamentary History" records, "almost
without debate," on the 6th of March.[34] But the intelligence was
received in every part of the Colonies with an indignant
dissatisfaction, which astonished even their own agents in England.[35]
Formidable riots broke out in several provinces. In Massachusetts the
man who had been appointed Distributor of Stamps was burnt in effigy;
the house of the Lieutenant-governor was attacked by a furious mob, who
avowed their determination to murder him if he fell into their hands;
and resolutions were passed by the Assemblies of the different States to
convene a General Congress at New York in the autumn, to organize a
resistance to the tax, and to take the general state of affairs into
consideration.
Before, however, that time came, a series of events having no connection
with these transactions had led to a change of ministry in England, and
the new cabinet was less inclined to carry matters with a high hand.
Indeed, even the boldest statesman could hardly have learned the state
of feeling which had been excited in America without apprehension, and
those who had the chief weight in the new administration were not men to
imperil the state by an insistance on abstract theories of right and
prerogative. Accordingly, when, after Lord Rockingham had become
Prime-minister, Parliament met in December, 1765, the royal speech
recommended the state of affairs in America to the consideration of
Parliament (a recommendation which manifestly implied a disposition on
the part of the King's advisers to induce the House of Commons to
retrace its steps), papers were laid before Parliament, and witnesses
from America were examined, and among them a man who had already won a
high reputation by his scientific acquirements, but who had not been
previously prominent as a politician, Dr. Benjamin Franklin. He had come
over to England as agent for Pennsylvania, and his examination, as
preserved in the "Parliamentary History," may be taken as a complete
statement of the matter in dispute from the American point of view, and
of the justification which the Colonists conceived themselves to have
for refusing to submit to pay such a tax as had now been imposed upon
them. At a later day he was one of the most zealous, as he was probably
one of the earliest, advocates of separation from England; but as yet
neither his language nor his actions afforded any trace of such a
feeling.
He affirmed[36] the general temper of the Colonists toward Great Britain
to have been, till this act was passed, the best in the world. They
considered themselves as a part of the British empire, and as having one
common interest with it. They did not consider themselves as foreigners.
They were jealous for the honor and prosperity of this nation, and
always were, and always would be, ready to support it as far as their
little power went. They considered the Parliament of Great Britain as
the great bulwark and security of their liberties and privileges, and
always spoke of it with the utmost respect and veneration. They had
given a practical proof of their goodwill by having raised, clothed, and
paid during the last war nearly 25,000 men, and spent many millions; nor
had any Assembly of any Colony ever refused duly to support the
government by proper allowances from time to time to public officers.
They had always been ready, and were ready now, to tax themselves. The
Colonies had Assemblies of their own, which were their Parliaments. They
were, in that respect, in the same situation as Ireland. Their
Assemblies had a right to levy money on the subject, then to grant to
the crown, and, indeed, had constantly done so; and he himself was
specially instructed by the Assembly of his own State to assure the
ministry that, as they always had done, so they should always think it
their duty to grant such aids to the crown as were suitable to their
circumstances and abilities, whenever called upon for the purpose in a
constitutional manner; and that instruction he had communicated to the
ministry. But the Colonies objected to Parliament laying on them such a
tax as that imposed by the Stamp Act. Some duties, they admitted, the
Parliament had a right to impose, but he drew a distinction between
"those duties which were meant to regulate commerce and internal taxes."
The authority of Parliament to regulate commerce had never been disputed
by the Colonists. The sea belonged to Britain. She maintained by her
fleets the safety of navigation on it; she kept it clear of pirates; she
might, therefore, have a natural and equitable right to some toll or
duty, on merchandise carried through that part of her dominions, toward
defraying the expenses she was at in ships to maintain the safety of
that carriage. But the case of imposition of internal taxes was wholly
different from this. The Colonists held that, by the charters which at
different times had been granted to the different States, they were
entitled to all the privileges and liberties of Englishmen. They found
in the Great Charters, and the Petition and Declarations of Right, that
one of the privileges of English subjects is that they are not to be
taxed but by their common consent; and these rights and privileges had
been confirmed by the charters which at different times had been granted
to the different States. In reply to a question put to him, he allowed
that in the Pennsylvania charter there was a clause by which the King
granted that he would levy no taxes on the inhabitants unless it were
with the consent of the Colonial Assembly, or by an act of Parliament;
words which certainly seemed to reserve a right of taxation to the
British Parliament; but he also demonstrated that, in point of fact, the
latter part of the clause had never been acted on, and the Colonists
had, therefore, relied on it, from the first settlement of the province,
that the Parliament never would nor could, by the color of that clause
in the charter, assume a right of taxing them till it had qualified
itself to exercise such right by admitting representatives from the
people to be taxed. And, in addition to objections on principle, he
urged some that he regarded as of great force as to the working of this
particular tax imposed by the Stamp Act. It was not an equal tax, as the
greater part of the revenue derived from it must arise from lawsuits for
the recovery of debts, and be paid by the lower sort of people; it was a
heavy tax on the poor, and a tax on them for being poor. In the back
settlements, where the population was very thin, the inhabitants would
often be unable to get stamps without taking a long journey for the
purpose. The scarcity of specie, too, in the country would cause the
pressure to be felt with great severity, as, in his opinion, there was
not gold and silver enough in the Colonies to pay the stamp-duty for a
single year. In reply to another question, whether the Colonists would
be satisfied with a repeal of the Stamp Act without a formal
renunciation of the abstract right of Parliament to impose it, he
replied that he believed they would be satisfied. He thought the
resolutions of right would give them very little concern, if they were
never attempted to be carried into practice. The Colonies would probably
consider themselves in the same situation in that respect as Ireland.
They knew that the English Parliament claimed the same right with regard
to Ireland, but that it never exercised it; and they might believe that
they would never exercise it in the Colonies any more than in Ireland.
Indeed, they would think that it never could exercise such a right till
representatives from the Colonies should be admitted into Parliament,
and that whenever an occasion arose to make Parliament regard the
taxation of the Colonies as indispensable, representatives would be
ordered.
This last question put to the witness, like several others in the course
of his examination, had been framed with the express purpose of
eliciting an answer to justify the determination on the subject to which
Lord Rockingham and his colleagues had come. It could not be denied that
the government was placed in a situation of extreme difficulty--
difficulty created, in part, by the conduct of the Colonists themselves.
That, as even their most uncompromising advocate, Mr. Pitt, admitted,
had been imprudent and intemperate, though it was the imprudence of men
who "had been driven to madness by injustice." On the one hand, to
repeal an act the opposition to which had been marked by fierce riots,
such as those of Boston, and even in the Assemblies of some of the
States by language scarcely short of treason,[37] seemed a concession to
intimidation scarcely compatible with the maintenance of the dignity of
the crown or the legitimate authority of Parliament. On the other hand,
to persist in the retention of a tax which the whole population affected
by it was evidently determined to resist to the uttermost, was to incur
the still greater danger of rebellion and civil war. In this dilemma,
the ministers resolved on a course calculated, as they conceived, to
avoid both evils, by combining a satisfaction of the complaints of the
Colonists with an assertion of the absolute supremacy of the British
crown and Parliament for every purpose. And on February 24, 1766, the
Secretary of State brought in a bill which, after declaring, in its
first clause, "that the King's Majesty, by and with the consent of the
Lords spiritual and temporal, and Commons of Great Britain, in
Parliament assembled, had, hath, and of right ought to have, full power
and authority to make laws and statutes of sufficient force and validity
to bind the Colonists and people of America, subjects of the crown of
Great Britain, in all cases whatsoever," proceeded to repeal the Stamp
Act, giving a strong proof of the sincerity of the desire to conciliate
the Colonists by the unusual step of fixing the second reading of the
bill for the next day.
But in its different clauses it encountered a twofold opposition, which
he had, probably, not anticipated. It is unnecessary to notice that
which rested solely on the inexpediency of repealing the Stamp Act, "the
compulsory enforcement of which was required by the honor and dignity of
the kingdom." But the first clause was even more strenuously resisted,
on grounds which its opponents affirmed to rest on the fundamental
principles of the constitution. It was urged in the House of Commons by
Mr. Pitt that, "as the Colonies were not represented in Parliament,
Great Britain had no legal right nor power to lay a tax upon them--that
taxation is no part of the governing or legislative power. Taxes," said
the great orator, "are the voluntary gift and grant of the Commons
alone. In legislation the three estates of the realm are alike
concerned; but the concurrence of the peers and the crown to a tax is
only necessary to clothe it with the form of a law; the gift and grant
is in the Commons alone.... The distinction between legislation and
taxation is essentially necessary to liberty."
Mr. Pitt had no claim to be considered as a great authority in the
principles of constitutional law. George II., slight as was his
political knowledge or wisdom, complained on one occasion of the
ignorance of a Secretary of State who had never read Vattel; and in this
very debate he even boasted of his ignorance of "law-cases and acts of
Parliament." But his coadjutor in the House of Lords (Lord Camden, at
this time Chief-justice of the Common Pleas) owed the chief part of the
respect in which he was held to his supposed excellence as a
constitutional lawyer, and he fully endorsed and expanded Pitt's
arguments when the bill came up to the House of Lords. He affirmed that
he spoke as "the defender of the law and the constitution; that, as the
affair was of the greatest consequence, and in its consequences might
involve the fate of kingdoms, he had taken the strictest review of his
arguments, he had examined and re-examined all his authorities; and that
his searches had more and more convinced him that the British Parliament
had no right to tax the Americans. The Stamp Act was absolutely illegal,
contrary to the fundamental laws of nature, contrary to the fundamental
laws of this constitution--a constitution governed on the eternal and
immutable laws of nature. The doctrine which he was asserting was not
new; it was as old as the constitution; it grew up with it; indeed, it
was its support. Taxation and representation are inseparably united. God
hath joined them; no British government can put them asunder. To
endeavor to do so is to stab our very vitals." And he objected to the
first clause (that which declared the power and right to tax), on the
ground that if the ministers "wantonly pressed this declaration,
although they were now repealing the Stamp Act, they might pass it again
in a month." He even argued that "they must have future taxation in
view, or they would hardly assert their right to enjoy the pleasure of
offering an insult." He was answered by Lord Northington (the
Chancellor) and by Lord Mansfield (the Chief-justice), both of whom
supported the motion to repeal the tax, but who also agreed in denying
the soundness of his doctrine that, as far as the power was concerned,
there was any distinction between a law to tax and a law for any other
purpose; and Lord Mansfield farther denied the validity of the argument
which it had been attempted to found on the circumstance that the
Colonies were not represented in Parliament, propounding, on the
contrary, what Lord Campbell calls "his doctrine of virtual
representation." "There can," said he, "be no doubt but that the
inhabitants of the Colonies are represented in Parliament, as the
greatest part of the people of England are represented, among nine
millions of whom there are eight who have no votes in electing members
of Parliament. Every objection, therefore, to the dependency of the
Colonies upon Parliament which arises upon the ground of representation
goes to the whole present constitution of Great Britain.... For what
purpose, then, are arguments drawn from a distinction in which there is
no real difference of a virtual and an actual representation? A member
of Parliament chosen for any borough represents not only the
constituents and inhabitants of that particular place, but he represents
the inhabitants of every other borough in Great Britain. He represents
the City of London and all the other Commons of the land, and the
inhabitants of all the colonies and dominions of Great Britain, and is
in duty and conscience bound to take care of their interests."
Lord Mansfield's doctrine of a virtual representation of the Colonies
must be admitted to be overstrained. The analogy between the case of
colonists in a country from no part of which representatives are sent to
Parliament, and that of a borough or county where some classes of the
population which may, in a sense, be regarded as spokesmen or agents of
the rest form a constituency and return members, must be allowed to
fail; yet the last sentences of this extract are worth preserving, as
laying down the important constitutional principle, subsequently
expanded and enforced with irresistible learning and power of argument
by Burke, that a member of the House of Commons is not a delegate,
bound, under all circumstances, to follow the opinions or submit to the
dictation of his constituents, but that from the moment of his election
he is a councillor of the whole kingdom, bound to exercise an
independent judgment for the interests of the whole people, rather than
to guide himself by the capricious or partial judgments of a small
section of it. But in its more immediate objects--that of establishing
the two principles, that the constitution knows of no limitation to the
authority of Parliament, and of no distinction between the power of
taxation and that of any other kind of legislation--Lord Mansfield's
speech is now universally admitted to have been unanswerable.[38]
The abstract right was unquestionably on the side of the minister and
the Parliament who had imposed the tax. But he is not worthy of the name
of statesman who conceives absolute rights and metaphysical distinctions
to be the proper foundation for measures of government, and pays no
regard to custom, to precedent, to the habits and feelings of the people
to be governed; who, disregarding the old and most true adage, _summum
jus summa injuria_, omits to take into his calculations the expediency
of his actions when legislating for a nation which he is in the daily
habit of weighing in his private affairs. The art or science of
government are phrases in common use; but they would be void of meaning
if all that is requisite be to ascertain the strict right or power, and
then unswervingly to act upon it in all its rigor. And, therefore, while
it must be admitted that the character of the power vested in King,
Lords, and Commons assembled in Parliament is unlimited and illimitable,
and that the legal competency to enact a statute depends in no degree
whatever on the wisdom or folly, the justice or wickedness, of the
statute, the advice given to a constitutional sovereign by his advisers
must be guided by other considerations. To quote by anticipation the
language addressed to the Commons on this subject by Burke eight years
afterward, the proper policy was "to leave the Americans as they
anciently stood ... To be content to bind America by laws of trade.
Parliament had always done it. And this should be the reason for binding
their trade. Not to burden them by taxes; Parliament was not used to do
so from the beginning; and this should be the reason for not taxing.
These are the arguments of states and kingdoms."[39]
The ministry were strong enough to carry their resolutions through both
Houses. Their measure was divided into two acts, one known as the
Declaratory Act, asserting the absolute and universal authority of
Parliament; the other repealing the Stamp Act of the preceding year. And
both were passed without alteration, though the Lords divided against
them on both the second and third readings of the bill for repeal
founded on them,[40] some of them entering long protests in the journals
of the House. The right to tax was asserted, but the tax itself was
repealed. And Franklin's estimate of the feelings on the subject
entertained by his countrymen was fully verified by the reception which
the intelligence met with in the Colonies. To quote the description of
Lord Stanhope: "In America the repeal of the Stamp Act was received with
universal joy and acclamation. Fireworks and festivals celebrated the
good news, while addresses and thanks to the King were voted by all the
Assemblies.... The words of the Declaratory Act, indeed, gave the
Americans slight concern. They fully believed that no practical
grievance could arise from it. They looked upon it merely as a salve to
the wounded pride of England; as only that 'bridge of gold' which,
according to the old French saying, should always be allowed to a
retreating assailant."[41]
A recent writer, however, has condemned the addition of the declaration
of the abstract right to tax with great vehemence. "Nothing," says Lord
Campbell,[42] "could exceed the folly of accompanying the repeal of the
Stamp Act with the statutable declaration of the abstract right to tax."
But it does not seem difficult to justify the conduct of the ministry in
this particular. For, besides the great weight deservedly attached to
Franklin's assurance that the declaration would not be objected to by
the Colonists, and besides the consideration that, on a general view, it
was desirable, if not indispensable, to impress on all classes of
subjects, whether at home or abroad, the constitutional doctrine of the
omnipotence of Parliament, the line of argument adopted by Mr. Pitt and
Lord Camden, in denying that omnipotence, left the ministers no
alternative but that of asserting it, unless they were prepared to
betray their trust as guardians of the constitution. Forbearance to
insist on the Declaratory Act could not fail to have been regarded as an
acquiescence on their part in a doctrine which Lord Campbell in the same
breath admits to be false. It may be added, as a consideration of no
small practical weight, that, without such a Declaratory Act, the King
would have been very reluctant to consent to the other and more
important Repealing Act. And, on the whole, the conduct of the ministry
may, we think, be regarded as the wisest settlement both of the law and
of the practice. It asserted the law in a manner which offended no one;
and it made a precedent for placing the spirit of statesmanship above
the letter of the law, and for forbearing to put forth in its full
strength the prerogatives whose character was not fully understood by
those who might be affected by them, and also could plead that
Parliament itself had contributed to lead them to misunderstand it by
its own conduct in never before exerting it.
For the moment, then, contentment and tranquillity were restored in the
Colonies. Unhappily, they were not lasting. The same year which saw the
triumph of the Rockingham administration in the repeal of the Stamp Act,
witnessed also its fall before a discreditable intrigue. And the
ministry which succeeded it had not been a year in office before the new
Chancellor of the Exchequer, Charles Townsend, revived the discontents
in America which Lord Rockingham had appeased. It cannot be said,
however, that the blame should all belong to him; or that the Rockingham
party in the House of Commons were entirely free from a share in it.
They were--not unnaturally, perhaps--greatly irritated at the intrigue
by which Lord Chatham had superseded them, and were not disinclined to
throw difficulties in the way of their successors, for which the events
of the next year afforded more than one opportunity. Lord Chatham, as
has been mentioned, was universally recognized as the chief of the new
ministry, though he abstained from taking the usual office of First Lord
of the Treasury, and contented himself with the Privy Seal; but he had
constructed it of such discordant elements[43] that no influence but his
own could preserve consistency in its acts or harmony among its members,
as nothing but his name could give it consideration either in Parliament
or in the country. In the first months of the next year, 1767, he was
attacked with an illness which for a time disabled him from attending
the cabinet, being, apparently, the forerunner of that more serious
malady which, before the end of the summer, compelled his long
retirement from public life; and the Opposition took advantage of the
state of disorganization and weakness which his illness caused among his
colleagues, to defeat them on the Budget in the House of Commons, by an
amendment to reduce the land-tax, which caused a deficiency in the
supplies of half a million. This deficiency it, of course, became
necessary to meet by some fresh tax; and Townsend--who, though endowed
with great richness of eloquence, was of an imprudent, not to say rash,
temper, and was possessed of too thorough a confidence in his own
ingenuity and fertility of resource ever to be inclined to take into
consideration any objections to which his schemes might be
liable--proposed to raise a portion of the money which was needed by
taxes on glass, paper, tea, and one or two other articles, to be paid as
import duties in the American Colonies. His colleagues, and especially
the Duke of Grafton himself, the First Lord of the Treasury, and as such
the nominal Prime-minister, having been also, as Secretary of State, a
member of Lord Rockingham's ministry, which had repealed the former
taxes, did not consent to the measure without great and avowed
reluctance; but yielded their own judgment to the strong feeling in its
favor which notoriously existed in the House of Commons.[44] Indeed,
that House passed the clauses imposing these import duties without
hesitation, being, probably, influenced in no small degree by the
evidence given in the preceding year by Dr. Franklin, who, as has been
already seen, had explained that the Colonists drew a distinction
between what he called "internal taxes" and import duties "intended to
regulate commerce," and that to the latter class they were not inclined
to object. And a second consideration was, that these new duties were
accompanied and counterbalanced by a reduction of some other taxes; so
that the ministry contended that the effect of these financial measures,
taken altogether, would be to lower to the Colonists the price of the
articles affected by them rather than to raise it. But one of the
resolutions adopted provided that the whole of the money to be raised
from these taxes should not be spent in America, but that, after making
provision for certain Colonial objects specified, "the residue of such
duties should be paid into the receipt of his Majesty's Exchequer, and
there reserved, to be from time to time disposed of by Parliament toward
defraying the necessary expenses of defending, protecting, and securing
the said Colonies and plantations." And this clause seems to have been
understood as designed to provide means for augmenting the number of
regular troops to be maintained in the Colonies, whose employment in the
recent disturbances had made them more unpopular than formerly.[45]
At all events, the intelligence of these new taxes, though only import
duties, found the Colonists in a humor to resist any addition of any
kind to their financial burdens. The events of the last two years had
taught them their strength. It was undeniable that the repeal of the
Stamp Act had been extorted by the riots in Boston and other places, and
the success of this system of intimidation could not fail to encourage
its repetition. Accordingly, the news of this fresh attempt at taxation
was met by a unanimous determination to resist it. Newspaper writers and
pamphleteers denounced not only the duties but the ministry which
imposed them. Petitions from almost every State were sent over to
England, addressed to the King and to the Parliament; but the violent
temper of the leaders of the populace was not content to wait for
answers to them. Associations were at once formed in Boston and one or
two other cities, where resolutions were adopted in the spirit of
retaliation (as their framers avowed), to desist from the importation of
any articles of British commerce, and to rely for the future on American
manufactures. The principal Custom-house officers at Boston were badly
beaten, and others were compelled to seek refuge in a man-of-war which
happened to be in the harbor.
It would be painful, and at the present day useless, to trace the steps
by which these local disturbances gradually grew into one general
insurrection. The spirit of resistance was undoubtedly fanned by a party
which from the first contemplated a total separation from England as its
ultimate result,[46] if, indeed, they had not conceived the design even
before Grenville had given the first provocation to discontent. But the
Colonists were not without advocates in England, even among the members
of the government. The Duke of Grafton, while he remained
Prime-minister, was eager to withdraw all the duties of which they
complained; but he was overruled by the majority of his colleagues. He
prevailed, however, so far that Lord Hillsborough, the Secretary of
State, was authorized to write a circular-letter to the governors of the
different provinces, in which he disowned, in the most distinct language
possible, "a design to propose to Parliament to lay any farther taxes
upon America for the purpose of raising a revenue," and promised for the
next session a repeal of all the taxes except that on tea; and when the
Duke retired from the Treasury, and was succeeded by Lord North, that
statesman himself brought forward the promised repeal in an elaborate
speech,[47] in which he explained that the duty on tea, which he alone
proposed to retain, had been originally a boon to the Americans rather
than an injury, as being accompanied by the removal of a far heavier
tax. But he admitted that even that consideration was not the one which
influenced him in his opinion that that duty should be maintained, so
greatly was the perception that the real object of those who complained
of it was, not the redress of a grievance, but the extinction of a right
which was an essential part of "the controlling supremacy of England."
The fact that the right to tax had been denied made it a positive duty
on the part of the English minister to exert that right. "To temporize
would be to yield, and the authority of the mother country, if now
unsupported, would be relinquished forever." And he avowed his idea of
the policy proper to be pursued to be "to retain the right of taxing
America, but to give it every relief that might be consistent with the
welfare of the mother country." He carried his resolution, though the
minority--which on this occasion was led by Mr. Pownall, who had himself
been Governor of Massachusetts, and who moved an amendment to include
tea in the list of taxes proposed to be repealed--was stronger than
usual.[48] But the concession failed to conciliate a single Colonist; it
had become, as Burke said four years afterward, a matter of feeling,[49]
and the irritation fed on itself, till, in 1773, a fresh act, empowering
the East India Company to export tea to the Colonies direct from their
own warehouses without its being subject to any duty in England--which
Lord North undoubtedly intended as a boon to the Colonists--only
increased the exasperation. The ships which brought the tea to Boston
were boarded and seized by a formidable body of rioters disguised as
native savages, and the tea was thrown into the sea. The intelligence
was received in England with very different feelings by the different
parties in the state. The ministers conceived themselves forced to
assert the dignity of the crown, and proposed bills to inflict severe
punishment on both the City of Boston and the whole Province of
Massachusetts. The Opposition insisted on removing the cause of these
disturbances by a total repeal of the tea-duty. The minister prevailed
by a far larger majority than before, but his success only increased the
exasperation in the Colonies; and it was an evil omen for peace that the
leaders of the resistance began to search the records of the English
Long Parliament "for the revolutionary precedents and forms of the
Puritans of that day."[50] The next year saw fresh attempts to procure
the repeal of the obnoxious tax rejected by the House of Commons; but,
before the news of this division reached America, blood had already been
shed.[51] Civil war began. The next year the Colonies, now united in one
solid body, asserted their Independence, taking the title of the United
States; and, though the government at home made more than one effort to
recall the Colonists to their allegiance, and sent out commissioners of
high rank, with large powers of concession; and though in one remarkable
instance the mission of Mr. Penn, in the summer of 1775, with the
petition to the King known as "the Olive Branch," seemed to show a
desire for a maintenance of the union on the part of the Colonial
Congress,[52] from the moment that the sword was drawn all hope of
preserving the connection of the Colonies must have been seen by all
reasonable men to be at an end.
It is beside our present purpose to recapitulate the military operations
of the war, though they verified another of Burke's warnings, that,
supposing all moral difficulties to be got over, the ocean
remained--that could not be dried up; and, as long as it continued in
its present bed, so long all the causes which weakened authority by
distance must continue. In fact, distance from England was one of the
main circumstances which decided the contest. The slowness of
communication--almost inconceivable to the present generation--rendered
impossible that regularity in the transport of re-enforcements and
supplies which was indispensable to success; and, added to the strange
absence of military skill shown by every one of the British generals,
soon placed the eventual issue of the war beyond a doubt. But one
measure by which Lord North's government endeavored to provide for the
strengthening of the army employed in America was so warmly challenged
on constitutional grounds, that, though the fortunate separation of
Hanover from Great Britain has prevented the possibility of any
recurrence of such a proceeding, it would be improper to pass it over.
In his speech at the opening of the autumnal session of 1775, the King
announced to the Houses that, in order to leave a larger portion of the
established forces of the kingdom available for service in North
America, he "had sent a part of his Electoral troops to the garrisons of
Gibraltar and Port Mahon." And the announcement aroused a vehement
spirit of opposition, which found vent in the debates of both Houses on
the address, and in two substantive motions condemning the measure as a
violation of the constitution as established by the Bill of Rights and
the Act of Settlement. It was strenuously maintained that both these
statutes forbade the raising or keeping on foot a standing army in the
kingdom in time of peace, and also the introduction of foreign troops
into this kingdom, without the previous consent of Parliament, on any
pretence whatever; and that "the fact that Gibraltar and Minorca were
detached from these islands did not exclude them from the character of
forming a part of the British dominion." And on these grounds Lord
Shelburne, who supported Lord Rockingham on an amendment to the address,
did not hesitate to denounce this employment of the Hanoverian
regiments, as "fundamentally infringing the first principles of our
government," and to declare it "high-treason against the constitution."
He asked, "if there were a settled plan to subdue the liberties of this
country, what surer means could be adopted than those of arming Roman
Catholics and introducing foreign troops?"[53] and compared the measure
under discussion to the case of the Dutch regiments of William III.,
"which the Parliament wisely refused to allow him to retain." In the
House of Commons, the Opposition was led by Sir James Lowther and
Governor Johnstone, the latter of whom "appealed to the clause in the
Act of Settlement which enacted that no person born of other than
English parents should enjoy any office or place of trust, civil or
military, within the kingdom;" and argued that to employ foreign
officers in the protection of a British fortress was to place them in an
"office of great military trust."
The discussion brought to light strange divisions and weakness in the
ministry. The ministerial lawyers differed on the grounds on which they
relied, the Attorney-general, Thurlow, denying that the expression "this
kingdom" in the Bill of Rights included the foreign dependencies of the
crown[54] (a narrowing of its force which the Chancellor, Lord Bathurst,
wholly repudiated), while the argument on which he himself insisted most
strongly, that the existence of rebellion in America put end to all
conditions which supposed the kingdom to be at peace, could not obtain
the support of any one of his colleagues. But a plea urged by an
independent member, Lord Denbigh, was regarded by some of the speakers
with greater favor; his contention being that neither the Bill of Rights
nor the Act of Settlement had been violated, since both those great
statutes must be interpreted with reference to the time at which they
were framed, and to the recent acts of James II. and William III., the
recurrence of which they had been designed to prevent, acts to which the
present proceeding bore no resemblance.
A stronger justification, however, might have been found in very recent
precedents. In 1745 the ministers had brought over six thousand Dutch
troops to re-enforce the army of the Duke of Cumberland, and their act
had been subsequently approved by Parliament. And in 1756, at the
commencement of the seven years' war, when the loss of Minorca had led
to such a distrust of our fleets that a French invasion was very
generally apprehended, both Houses presented addresses to George II.,
begging him to bring over some Hanoverian regiments; and, in the course
of the next year, other addresses to thank him for compliance with their
entreaty.
Looking at the strict law of the question, few lawyers doubt that the
expression "this kingdom" in the Bill of Rights includes the entire
dominions of the crown, or that that great statute was undoubtedly
intended to protect the privileges of all their inhabitants, whether
within the four seas or in foreign settlements. But it also seems that
the clause against raising and keeping on foot a standing army without
the consent of Parliament was not more violated by keeping a mixed
garrison in Gibraltar and Port Mahon than garrisons consisting of native
soldiers only; and undoubtedly the keeping of an armed force in both
these fortresses had been sanctioned by Parliament. Nor could the
colonel of a foreign regiment in garrison under the command of a British
governor be fairly said to be in an office of great military trust. So
far, therefore, the charge against the ministry may be thought to have
failed. But the accusation of having transgressed the clause which
prohibits "the introduction of foreign troops into this kingdom without
the previous consent of Parliament on any pretence whatever," must, on
the other hand, be regarded as proved. And, indeed, Lord North himself
may be taken to have shown some consciousness that it was so, since he
justified his conduct in omitting to procure that previous consent by
the necessity of the case, by the plea that, as Parliament was in
vacation, the time which would have been consumed in waiting for its
sanction would have neutralized the advantage desired from the
employment of the Hanoverians, since the regiments which they were to
replace at Gibraltar and Port Mahon could not, after such delay, have
reached America in time to be of service; and since he also consented
eventually to ask Parliament for an Act of Indemnity, the preamble of
which affirmed the existence of doubts as to the legality of the step
which had been taken. And the fate of this act afforded a still more
striking proof of the divisions in the ministry, since, after Lord North
himself had proposed it in the House of Commons, and it had been passed
there by a large majority, it was rejected in the House of Lords, where
his own colleagues, Lord Gower, Lord Suffolk, and Lord Weymouth, spoke
and voted against it as needless, because, in their judgment, no doubt
of the state of the law on the subject could exist.
From a statesman-like point of view, the employment of the Hanoverians
seems abundantly defensible, if force were still to be employed to bring
back the Colonists to their obedience. The circumstance of their being
subjects of our sovereign in his other character of Elector of Hanover,
clearly distinguished it from the hiring of the Hessian and Brunswick
mercenaries, which has been deservedly condemned. And, as the entire
number fell short of two thousand,[55] Lord Shelburne's expression of
fear for the liberties and religion of Englishmen was an absurd
exaggeration. Moreover, the warm approval which, less than twenty years
before, Parliament had given to the introduction of a far larger body of
the same troops into England itself, justified the anticipation that a
similar sanction would now be cheerfully given. That sanction--which,
indeed, might have been thought to be invited by the announcement of the
measure in the King's speech--was undoubtedly requisite. And, if it was,
a Bill of Indemnity for having acted without it was equally necessary.
But, as has been seen in the last chapter, for an administration, on
urgent occasions, to take action on its own responsibility, and then to
apply for indemnity, is a course in strict harmony with the practice of
the constitution; and if in this instance the ministers are in any
respect blamable, their error would seem to have been limited to their
abstaining from instantly calling Parliament together to sanction their
act, and being contented to wait for the ordinary time of the Houses
meeting.
The war, therefore, went on. The assertion of their independence by the
Colonies divided, and, so far, weakened, the advocates of their cause in
Parliament, one section of whom, led by Lord Chatham, regarded any
diminution of our dominion as not only treasonable, but ruinous; on the
other hand, it procured them the alliance of France and Spain. But it
cannot be said that either of these incidents produced any practical
effect on the result of the war. Lord Chatham's refusal to contemplate
their independence could not retard its establishment; and the alliance
of France and Spain, which brought nothing but disaster to those
countries, could not accelerate it by a single moment. For nearly six
years the war continued with alternations of success, the victories
gained by the British arms being the more numerous, the triumphs of the
Americans being incomparably the more important, involving as they did
the surrender of two entire armies, the latter of which, that of Lord
Cornwallis, in 1781, did, in fact, terminate the war, and with the war
the existence of the ministry which had conducted it. A singularly rapid
succession of new administrations ensued--so rapid that the negotiations
for peace which the first, that of Lord Rockingham, opened, were not
formally completed till the third,[56] known as the Coalition Ministry,
was on the point of dismissal. It would be beside our purpose to enter
into the details of the treaty which constituted the United States, as
they were now called, a nation by our formal recognition of their
independence. Even in that recognition, which was the most important
article of the treaty, no constitutional principle was involved, though
it affords the only instance in our history which can seem to throw a
doubt on our inheritance of that capacity for government which the Roman
poet claimed as, in ancient times, the peculiar attribute of his own
countrymen. It presents the only instance of a loss of territory peopled
by men who came of our blood, and who still spoke our language. It was a
stern and severe lesson; and yet, fraught with discredit and disaster as
it was, it nevertheless bore fruit in a later age which we may be
excused for regarding as an example of the generally predominating
influence of sober practical sense in our countrymen, when not led away
by the temporary excitement of passion, as shown in our capacity to take
home to ourselves and profit by the teachings of experience. The loss of
the American Colonies was caused by the submission of the Parliament and
nation to men of theory rather than of practice; ideologists, as
Napoleon called them; doctrinaires, to use the modern expression; men
who, because Parliament had an abstract right of universal legislation,
regarded it as a full justification for insisting on its exercise,
without giving a thought to the feelings, or prejudices, or habits of
those who might be affected by their measures. Abstractedly considered,
Lord Chatham and Lord Camden were undoubtedly wrong in denying the power
of Parliament to tax the Colonies; but there was better judgment in
their counsels, though founded on false premises, than in those of
Grenville and Townsend, though theirs was the more correct view of the
constitutional power of legislation. The two peers were wrong in their
principle; the two Chancellors of the Exchequer were unwise in their
application of their principle; and the practical error was the more
disastrous one.
It is now generally admitted that the true statesman-like course toward
the Colonies was that adopted by Lord Rockingham and his colleagues in
1765--to avoid weakening the supreme power of Parliament by any
disavowal of the right to tax but to avoid imperilling the sovereign
authority of the King by a novel exertion of it. As much of our common
English law is made up of precedent, so, in a still greater degree, are
our feelings and ideas of our rights and privileges regulated by
precedent. And we lost America because in 1764 and 1767 neither minister
nor Parliament took men's feelings and prejudices into account. The loss
of the United States, therefore, was a lesson not undeserved; and by our
statesmen since that day it has been taken in the right spirit of
profiting by its teaching as a guide to their own conduct. Since that
day the enterprise of our people has planted our flag in regions far
more distant, and has extended the dominion of our sovereign over
provinces far more extensive than those which we then lost. And on some
of the administrations of the present reign the duty has fallen of
framing schemes of government for those new acquisitions, as also for
some of those previously possessed. In how different a spirit from that
which actuated the early ministers of George III.[57] those to whom the
task was committed by Queen Victoria applied themselves to their task
may be seen in a maxim laid down by the present Lord Grey, when he
presided at the Colonial Office (1846-1852), that "the success of free
institutions in any country depends far less upon the particular form of
those institutions than upon the character of the people on whom they
are conferred." But how he and others in the same office carried out
that principle must be reserved for a later chapter.
Besides the numerous motions which were brought forward by the
Opposition respecting the continuance and conduct of the war, there were
several also which were indirectly prompted by it. The Opposition
claimed to be on this subject not only the champions of the real
interests of the nation, but also its spokesmen, who expressed the
opinions and feelings of all the thinking and independent portion of the
people. That their efforts were overborne they attributed to the
subservience of the Parliament to the ministers, and of the ministers to
the crown.[58] And consequently several motions were made by members of
that party, the object of which was, in one way or another, to diminish
what they regarded as the undue influence of the crown. In one instance,
and that the most successful, a direct denunciation of that influence
was employed, but the earlier and more frequent proposals were directed
to the purification of the House of Commons, and to the strengthening of
its independence. It is remarkable that of these the two which related
to a subject of which the Commons are usually most especially and most
rightly jealous, the interference of peers in elections, had the worst
fortune. In 1780 complaints were made and substantiated that the Duke of
Bolton and the Duke of Chandos (who was also Lord-lieutenant of the
county) had exerted themselves actively in the last election for
Hampshire. And, in support of motions that these peers "had been guilty
of a breach of the privileges of the House, and an infringement of the
liberties and privileges of the Commons of Great Britain," a case was
adduced in which Queen Anne had dismissed the Bishop of Worcester from
the office of Almoner for similar interference. Nor did Lord Nugent, a
relative of the Duke of Chandos, deny the facts alleged; on the
contrary, he avowed them, and adopted a line of defence which many must
have thought an aggravation of the charge, since it asserted that to
prevent such interference was impossible, and therefore the House would
but waste its time in trying. However, on this occasion the House took
the view which he thus suggested to it, postponing all farther
consideration of the matter for four months; and the charge the Duke of
Bolton was shelved in a somewhat similar manner.
Even had these peers and such practices been censured with the very
greatest severity, the censures could have had but a very limited
effect. But it was on measures of a wider scope, embracing what began to
be called a Reform of Parliament, that the more zealous members of the
Opposition placed their chief reliance. As far as our records of the
debates can be trusted, Lord Chatham, ten years before, had given the
first hint of the desirableness of some alteration of the existing
system. On one occasion he denounced the small boroughs as "the rotten
part of the constitution," thus originating the epithet by which they in
time came to be generally described; but more usually he disavowed all
idea of disfranchising them, propounding rather a scheme for diminishing
their importance by a large addition to the county members. However, he
never took any steps to carry out his views, thinking, perhaps, that it
was not in the Upper House that such a subject should be first broached.
But he had not been long in the grave, when a formal motion for a reform
of a different kind was brought forward by one of the members for the
City of London, Alderman Sawbridge,[59] who, in May, 1780, applied for
leave to bring in "a bill for shortening the duration of Parliaments."
His own preference he avowed to be for annual Parliaments; but his
suspicion that the House would think such a measure too sweeping had
induced him to resolve to content himself with aiming at triennial
Parliaments. As leave was refused, the bill proposed to be introduced
may, perhaps, be thought disentitled to mention here, were it not that
the circumstance that proposals for shortening the duration of
Parliaments are still occasionally brought forward seems to warrant an
account of a few of the arguments by which those who took the leading
parts in the debate which ensued resisted it. The minister, Lord North,
declared that the Alderman had misunderstood the views of our ancestors
on the subject; as their desire had been, not that Parliament should be
elected annually, but that it should sit every year, an end which had
now been attained. Fox, on the other hand, while avowing that hitherto
he had always opposed similar motions, declared his wish now to see not
only triennial but annual Parliaments, as the sole means of lessening
the influence of the crown. "If any of his constituents were to ask him
to what our present misfortunes were ascribable, he should say the first
cause was the influence of the crown; the second, the influence of the
crown; and the third, the influence of the crown." But it was replied by
Burke, who usually exhausted every question he took in hand, that such a
bill would rather tend to augment that influence, since "the crown, by
its constant stated power, influence, and revenue, would be able to wear
out all opposition at elections; that it would not abate the interest or
inclination of ministers to apply that interest to the electors; on the
contrary, it would render it more necessary to them, if they desired to
have a majority in Parliament, to increase the means of that influence,
to redouble their diligence, and to sharpen dexterity in the
application. The whole effect of the bill would, therefore, be to remove
the application of some part of that influence from the elected to the
electors, and farther to strengthen and extend a court interest already
great and powerful in boroughs. It must greatly increase the cost of a
seat in Parliament; and, if contests were frequent, to many they would
become a matter of expense totally ruinous, which no fortunes could
bear. The expense of the last general election was estimated at
L1,500,000; and he remembered well that several agents for boroughs said
to candidates, 'Sir, your election will cost you L3000 if you are
independent; but, if the ministry supports you, it may be done for
L2000, and even less.'" And he adduced the case of Ireland, where
formerly, when "a Parliament sat for the King's life, the ordinary
charge for a seat was L1500; but now, when it sat for eight years, four
sessions, the charge was L2500 and upward." Such a change as was
proposed would cause "triennial corruption, triennial drunkenness,
triennial idleness, etc., and invigorate personal hatreds that would
never be allowed to soften. It would even make the member himself more
corrupt, by increasing his dependence on those who could best support
him at elections. It would wreck the fortunes of those who stood on
their own private means. It would make the electors more venal, and
injure the whole body of the people who, whether they have votes or not,
are concerned in elections." Finally, it would greatly impair the proper
authority of the House itself. "It would deprive it of all power and
dignity; and a House of Commons without power and without dignity,
either in itself or its members, is no House of Commons for this
constitution."
The applicability of some of his arguments--those founded on the
disorders at times of election--has been greatly diminished, if not
destroyed, at the present day, by the limitation of the polling to a
single day. The disfranchisement of the smaller boroughs has neutralized
others; but the expense of a general election is not believed to have
diminished, and that alone seems a strong objection to a system which
would render them more frequent than they are at present. Mr. Sawbridge
could not obtain the support of a third of his hearers.[60] But his
notions had partisans in the other House who were not discouraged by
such a division; and three weeks later the Duke of Richmond brought
forward a Reform Bill on so large a scale that, as the "Parliamentary
History" records, "it took him an hour and a half to read it," and which
contained provisions for annual Parliaments and universal suffrage. But
he met with even less favor than the Alderman, and his bill was rejected
without a division.
Still the subject was not allowed to rest. Even after Lord North had
been replaced by Lord Rockingham, the demand for Parliamentary Reform
was continued; the young Mr. Pitt making himself the mouth-piece of the
Reformers, and founding a motion which he made in May, 1782, on "the
corrupt influence of the crown; an influence which has been pointed at
in every period as the fertile source of all our miseries; an influence
which has been substituted in the room of wisdom, of activity, of
exertion, and of success; an influence which has grown up with our
growth and strengthened with our strength, but which, unhappily, has not
diminished with our diminution, nor decayed with our decay." He brought
forward no specific plan, but denounced the close boroughs, and asked
emphatically whether it were "representation" for "some decayed
villages, almost destitute of population, to send members to Parliament
under the control of the Treasury, or at the bidding of some great lord
or commoner." He, however, was defeated, though by the small majority of
twenty. And it is remarkable that when, the next year, he revived the
subject, developing a more precise scheme--akin to that which his father
had suggested, of increasing the number of county members, and including
provisions for the disfranchisement of boroughs which had been convicted
of systematic corruption--he was beaten by a far larger majority,[61]
the distinctness of his plan only serving to increase the numbers of his
adversaries. A kinsman of Pitt's, Lord Mahon, made an equally futile
attempt to diminish the expenses of elections, partly by inflicting very
heavy penalties on parties guilty of either giving or receiving
bribes,[62] and partly by prohibiting candidates from providing
conveyances for electors; and more than one bill for disfranchising
revenue-officers, as being specially liable to pressure from the
government, and to prevent contractors from sitting in Parliament, was
brought forward, but was lost, the smallness of the divisions in their
favor being not the least remarkable circumstance in the early history
of Reform. It was made still more evident that as yet the zeal for
Reform was confined to a few, when, two years afterward, Pitt, though
now invested with all the power of a Prime-minister, was as unable as
when in opposition to carry a Reform Bill, which in more than one point
foreshadowed the measure of 1832; proposing, as it did, the
disfranchisement of thirty-six small boroughs, which were to be
purchased of their proprietors nearly on the principle adopted in the
Irish Union Act, and on the other hand the enfranchisement of
copyholders; but it differed from Lord Grey's act in that it distributed
all the seats thus to be obtained among the counties, with the exception
of a small addition to the representatives of London and Westminster.
However, his supporters very little exceeded the number who had divided
with him in 1783, and Lord North, who led the Opposition in a speech
denouncing any change, had a majority of seventy-four. After this second
defeat, Pitt abandoned the question, at all events for the time; being
convinced, to quote Earl Stanhope's description of his opinion on the
subject, "that nothing but the pressure of the strongest popular
feeling, such as did not then exist, could induce many members to vote
against their own tenure of Parliament, or in fact against
themselves."[63] What, perhaps, weighed with him more, on deciding to
acquiesce in this vote as final, was the perception that as yet the
question excited no strong interest out-of-doors; and when, a few years
later, some who sought to become leaders of the people endeavored to
raise an agitation on the subject, their teachings were too deeply
infected with the contagion of the French Revolution to allow a wise
ruler to think it consistent with his duty to meet them with anything
but the most resolute discouragement.
But, concurrently with the first of these motions for Parliamentary
Reform, two more direct attacks on the royal influence, and on what was
alleged to be the undue exertion of it, were made in the session of
1780. The first was made by Burke, who brought forward a measure of
economical reform, demonstrating, in a speech of extraordinary power, a
vast mass of abuses, arising from corrupt waste in almost every
department of the state, and in every department of the royal household,
without exception, and proposing a most extensive plan of reform, which
dealt with royal dignities, such as the Duchy of Lancaster and the other
principalities annexed to the crown; with the crown-lands, a great
portion of which he proposed to sell; with the offices of the royal
household, a sufficient specimen of the abuses on which was furnished by
the statement, that the turnspit in the King's kitchen was a member of
Parliament; and with many departments of state, such as the Board of
Works and the Pay-office, etc. He was studiously cautious in his
language, urging, indeed, that his scheme of reform would "extinguish
secret corruption almost to the possibility of its existence, and would
destroy direct and visible influence equal to the offices of at least
fifty members of Parliament," but carefully guarding against any
expressions imputing this secret corruption, this influence which it was
so desirable to destroy, to the crown. But his supporters were less
moderate; and Mr. Thomas Townsend declared that facts which he mentioned
"contained the most unquestionable presumptive evidence of the influence
of the crown; he meant the diverting of its revenues to purposes which
dared not be avowed, in corrupting and influencing the members of both
Houses of Parliament;" and he asserted that "the principle and objects
of the bill were the reduction of the influence of the crown." The bill
was not opposed by the ministers on its principle; but Lord North, even
while consenting to its introduction, "did not pledge himself not to
oppose it in some or other of its subsequent stages;" and, in fact, his
supporters resisted it in almost every detail, some of them utterly
denying the right of the House to interfere at all with the expenditure
of the civil list; others contesting the propriety of alienating the
crown-lands; and a still greater number objecting to the abolition of
some of the offices which it was proposed to sweep away, such as that of
the "third Secretary of State, or Secretary for the Colonies," that of
"Treasurer of the Chamber," and others of a similar character. And, as
the minister succeeded in defeating him on several, though by no means
all, of these points, Burke at last gave up the bill, Fox warning the
House at the same time that it should be renewed session after session,
and boasting that even the scanty success which it had met with had been
worth the struggle.
The other direct attack was made by Mr. Dunning, who, perhaps, did not
then foresee that he himself was destined soon to fill one of the
offices which had come under the lash of Burke's sarcasm, and who a few
days afterward, in moving that it was necessary to declare "that the
influence of the crown had increased, was increasing, and ought to be
diminished" rested no small portion of his argument on the treatment
that Burke's bill had received. He affirmed that, though Lord North had
declared that "the influence of the crown was not too great," the
divisions on that bill, and on many other measures which had been under
discussion, were irrefragable proofs of the contrary. He quoted Hume and
Judge Blackstone as testifying to the existence and steady increase of
that influence, and "could affirm of his own knowledge, and pledge his
honor to the truth of the assertion, that he knew upward of fifty
members in that House who always voted in the train of the noble lord in
the blue ribbon,[64] but who reprobated and condemned, out of the House,
the measures they had supported and voted for in it." Mr. T. Pitt even
instanced "the present possession of office by Lord North as an
indubitable proof of the enormous influence of the crown."
It was not strange that Lord North opposed a resolution supported by
such arguments with all the power of the government, basing his own
opposition chiefly on the wisdom "of maintaining the rule long since
established by Parliament, never to vote abstract propositions." But he
presently saw that he was in a minority, and was forced to be content
with adopting and carrying an amendment of Mr. Dundas, one of the
members for Edinburgh, who flattered himself that by the insertion of
_now_ he converted a general assertion into a temporary declaration,
which might at a future time be disavowed as no longer applicable. A
majority of eighteen[65] affirmed the resolution; and when the mover
followed it up by a second, declaring that "it is competent to this
House to examine into and to correct abuses in the expenditure of the
civil list revenues, as well as in every other branch of the public
revenue, whenever it shall seem expedient to the wisdom of this House to
do so," though the minister, with what was almost an appeal _ad
misericordiam_, "implored the House not to proceed," he did not venture
to take a division, and that resolution also, with one or two others
designed to give instant effect to them, were adopted and reported by
the committee to the House in a single evening.[66] The first resolution
did, in fact, embody a complaint, or at least an assertion, which the
Rockingham party had constantly made ever since the close of the
Marquis's first administration. In a speech which he had made only a few
weeks before,[67] Lord Rockingham himself had declared that "it was
early in the present reign promulgated as a court axiom that the power
and influence of the crown alone was sufficient to support any set of
men his Majesty might think proper to call to his councils." And Burke,
in his "short account" of his administration of 1765, had not only
imputed both its formation and its dismissal to the "express request"
and "express command of their royal master," but in the sentence, "they
discountenanced and, it is to be hoped, forever abolished, the dangerous
and unconstitutional practice of removing military officers for their
votes in Parliament," condemned with unmistakable plainness some acts of
the preceding ministry which were universally understood to have been
forced upon it by the King himself. General Conway had been deprived of
the colonelcy of his regiment; Lord Rockingham himself, with several
other peers, had been dismissed from Lord-lieutenancies, as a punishment
for voting against the ministry; such dismissals being a flagrant
attempt to put down all freedom of debate in Parliament, which of all
its privileges is the one most essential to its usefulness, if not to
its very existence. But, as Burke said, the practice had been abandoned,
and the first resolution, therefore, as Lord North said, involved no
practical result. It is the second resolution that confers a
constitutional character and importance on this debate. And it is not
too much to say that no vote of greater value had been come to for many
years. It might have been considered almost as the assertion of a truism
included in the power of granting supplies, to declare that the
Parliament has the right and authority to examine into and correct
abuses in the expenditure, if it had not been denied by more than one
speaker on the ministerial side, though not by the Prime-minister
himself. But that denial made the assertion of the right an imperative
duty; for certainly the exclusive right of authorizing a levy of money
would lose half its value, if unaccompanied by the other right of
preventing the waste of the revenue thus raised.
It may likewise be said that another principle of the parliamentary
constitution is, by implication, contained in Mr. Dunning's second
resolution, and that the words, "it is competent to this House to
examine into and to correct abuses in the expenditure," were meant to
imply a denial of the competency of the other House to institute, or
even to share in, such an examination. Even if that were the object of
its framer, it only coincided with the view of the peers themselves, a
very considerable majority[68] of whom had, a few weeks before, rejected
a motion made by Lord Shelburne for the appointment of "a committee of
members of both Houses to examine without delay into the public
expenditure," principally on the ground urged by the Secretary of State,
Lord Stormont, and by several other peers, that "to inquire into,
reform, and control the public expenditure" would be an improper
interference with the privileges of the Commons; the Chief-justice, Lord
Mansfield, even going the length of warning his brother peers that such
interference might probably lead the Commons "to dispute in their turn
the power of judicature in the last resort exercised by the peers." Lord
Camden, on the contrary, affirmed, as a proposition which "no noble lord
present would deny, that that House had a right to inquire so far as the
disposal of public moneys came under their cognizance as a deliberative
body." And in the Lower House itself, Burke, in his speech in favor of
his Bill for Economical Reform, went even farther than Lord Camden, and
blamed the House of Lords for rejecting Lord Shelburne's motion on such
a ground. "They had gone," he said, "farther in self-denial than the
utmost jealousy of the Commons could have required. A power of examining
accounts, of censuring, correcting, and punishing the Commons had never,
that he knew of, thought of denying to the Lords. It was something more
than a century ago that the Commons had voted the Lords a useless body.
They had now voted themselves so." And it would seem that the Lords
themselves, to a certain extent, retracted this, their self-denying
vote, when, before the end of the same session, they discussed Burke's
Bill for Economical Reform, and passed it, though it was a money-bill,
"containing extraneous enactments," and as such contravened one of their
own standing orders which had been passed in the beginning of Queen
Anne's reign, when the system of "tacking," as it was called, had
excited great discontent, which was not confined to themselves. The
propriety of rejecting the bill on that ground was vigorously urged by
the only two lawyers who took part in the debate, the Chancellor, Lord
Thurlow, and Lord Loughborough, whose object was avowedly thus to give a
practical proof that the Lords "had not voted themselves useless." But
even those who disregarded their advice fully asserted the right of the
peers "to exercise their discretion as legislators." We have noticed
this matter on a previous occasion. The privilege claimed by the
Commons, both as to its origin and its principle, has been carefully
examined by Hallam, who has pointed out that in its full exclusiveness
it is not older than Charles II., since the Convention Parliament of
1660 "made several alterations in undoubted money-bills, to which the
Commons did not object."[69] And, though his attachment to Whig
principles might have inclined him to take their part in any dispute on
the subject, he nevertheless thinks that they have strained both
"precedent and constitutional analogy" in their assertion of this
privilege, which is "an anomaly that can hardly rest on any other ground
of defence than such a series of precedents as establish a
constitutional usage." The usage which for two centuries was established
in this case by the good-sense of both parties clearly was, that the
Lords could never originate a money-bill, nor insert any clause in one
increasing or even altering the burden laid by one on the people, but
that they were within their right in absolutely rejecting one. But such
a right has a tendency to lapse through defect of exercise; and we shall
hereafter see that "the disposition to make encroachments," which in
this matter Hallam imputes to the Commons, has led them in the present
reign to carry their pretensions to a height which at a former period
had been practically ignored by the one House, and formally disclaimed
by the other.
It may be remarked that Mr. Dunning's success in carrying his first
resolution did in itself, to a certain extent, disprove the truth of
that resolution, since, if the influence of the crown had been such as
he represented it, it must have been sufficient to insure its rejection.
But that resolution, and a new statute, of which in a previous session
he had been one of the principal promoters, are reckoned by Lord
Stanhope as among the chief causes of the disgraceful riots of 1780. In
the summer of 1778 he had seconded and supported with great eloquence
the repeal of some of the penal statutes against the Roman Catholics
which had been passed in the reign of William III. It was the first blow
at that system of religious intolerance which for nearly a century had
been one of the leading principles, as it had been also the chief
disgrace, of the constitution; and it was passed with scarcely any
opposition by both Houses. As, however, the statute which it repealed
had been enacted before the Scotch Union, the repeal did not extend to
Scotland, and it was necessary, therefore, to bring in a separate
measure for that kingdom. But the intelligence that such a proceeding
was in contemplation excited great wrath among the Scotch Presbyterians,
who, in the hope of defeating it, established a Protestant Association
for the defence of what they called the Protestant interest, and elected
as its president Lord George Gordon, a young nobleman whose acts on more
than one occasion gave reason to doubt the soundness of his intellect.
Against any relaxation whatever of the restrictions on the Roman
Catholics the Association sent up petitions to the House and to the
King, couched in language the wildness of which was hardly consistent
with the respect due to Parliament or to the sovereign. Apparently in
the hope of mitigating its opposition, the Houses the next year passed
an act, similar in principle, to relax some of the restrictions still
imposed on Protestant dissenting ministers by some of the subscriptions
which were required of them. But, as in the reign of Charles II., the
Presbyterian hatred of the Roman Catholics was too uncompromising to be
appeased in such a manner. And when Lord George found the House of
Commons itself acknowledging the danger with which the constitution was
threatened by the influence of the crown, he saw in their vote a
justification for all his alarms, since he had adopted as one of his
most settled opinions the belief that George III. was himself a Papist
at heart; and, under the influence of this strange idea, he drew up a
petition to Parliament which he invited all the members of the
Association to accompany him to present. His summons was received with
enthusiasm by his followers. The number who, in obedience to it,
mustered in St. George's Fields, which he had appointed as the place of
rendezvous, was not reckoned by any one at less than fifty thousand, and
some calculations even doubled that estimate. Whatever the number may
originally have been, it was speedily swelled by the junction of large
bands of the worst characters in the metropolis, who soon began to
display their strength by every kind of outrage. They commenced by
attacking some of the Roman Catholic chapels, which they burnt; and,
their audacity increasing at the sight of their exploits, they proceeded
to assault the houses of different members of Parliament who had voted
for the measures which had offended them. Because the Chief-justice,
Lord Mansfield, had lately presided at a trial where a Roman Catholic
had been acquitted, they sacked and burnt his house, and tried to murder
himself. The magistrates, afraid of exposing themselves to the fury of
such a mob, kept for the most part out of the way; and though the troops
had been put under arms, and several regiments from the rural districts
had been brought up to London in haste, the military officers were
afraid to act without orders. Left to work their pleasure almost without
resistance, the rioters attacked the different prisons, burnt Newgate
and released all the prisoners, and made more than one attack on the
Bank of England, where, however, fortunately the guard was strong enough
to repel them. But still no active measures were taken to crush the
riot. The belief was general that the soldiers might not act at all, or,
at all events, not fire on rioters, till an hour after the Riot Act had
been read and the mob had been warned to disperse; and no magistrate
could be found to brave its fury by reading it. There seemed no obstacle
to prevent the rioters from making themselves masters of the whole
capital, had it not been for the firmness of the King himself, who, when
all the proper authorities failed, showed himself in fact as well as in
name the Chief Magistrate of the kingdom.[70] He summoned a Privy
Council, and urged the members to adopt instant measures of repression;
and, when some of the ministers seemed to waver, he put the question
himself to the Attorney-general whether the interpretation put on the
Riot Act, which seemed to him inconsistent with common-sense, were
justified by the law. Wedderburn unhesitatingly replied that it was not;
that "if a mob were committing a felony, as by burning dwelling-houses,
and could not be prevented by other means, the military, according to
the law of England, might and ought to be immediately ordered to fire
upon them, the reading of the Riot Act being wholly unnecessary under
such circumstances."[71] The King insisted on this opinion being
instantly acted on; a proclamation was issued, and orders were sent from
the Adjutant-general's office that the soldiers were to act at once
without waiting for directions from the civil magistrates. A few hours
now sufficed to restore tranquillity. The Chief-justice, in his place in
the House of Lords, subsequently declared Wedderburn's opinion, and the
orders given in reliance upon it, to be in strict conformity with the
common law, laying down, as the principle on which such an
interpretation of the law rested, the doctrine that in such a case the
military were acting, "not as soldiers, but as citizens; no matter
whether their coats were red or brown, they were legally employed in
preserving the laws and the constitution;"[72] and Wedderburn, who
before the end of the year became Chief-justice of the Common Pleas,
repeated the doctrine more elaborately in a charge from the Bench. It
was a lesson of value to the whole community. It was quite true that the
constitution placed the army in a state of dependence on the civil
power. But, when that doctrine was so misunderstood as to be supposed to
give temporary immunity to outrage, it was most important that such a
misconstruction should be corrected, and that it should be universally
known that military discipline does not require the soldier to abstain
from the performance of the duty incumbent on every citizen, the
prevention of crime.
Notes:
[Footnote 33: It is worth while to preserve the amount, if for no other
reason, for the contrast that the expenditure and resources of the
kingdom a hundred years ago present to those of the present day. The
supply required in 1764 was in round numbers L7,712,000; in 1755, before
the war broke out, L4,073,000, and even that included a million for the
augmentation of the army and navy. In 1761, when the war was at its
height, the sum voted was L19,616,000.]
[Footnote 34: The report in the "Parliamentary History," xvi., 37, says:
"This act (the Stamp Act) passed the Commons almost without debate; two
or three members spoke against it, but without force or apparent
interest, except a vehement harangue from Colonel Barre (date, March 6,
1765)."]
[Footnote 35: Lord Stanhope ("History of England," v., 131) quotes a
letter of Dr. Franklin to one of his friends in America, in which, after
deploring the impossibility of preventing the act from being passed, he
expresses a hope that "frugality and industry will go a great way toward
indemnifying us." And he complied with Mr. Grenville's request to select
a person to act as Distributor of Stamps in Pennsylvania whom he thought
likely to be generally acceptable.]
[Footnote 36: These statements and arguments of Franklin are taken from
different parts of his examination before the House of Commons, as
preserved in the "Parliamentary History," xvi., 137-160.]
[Footnote 37: In the Assembly of Virginia, one of the members--Patrick
Henry--after declaiming with bitterness against the supposed arbitrary
measures of the present reign, exclaimed, "Caesar had his Brutus,
Charles I. his Oliver Cromwell, and George III.--" A cry of "Treason!"
was uttered. The Speaker called Mr. Henry to order, and declared he
would quit the chair unless he were supported by the House in
restraining such intemperate speeches.--Adolphus, _History of England_,
i., 188.]
[Footnote 38: On this point the law has been affirmed by a judge of high
reputation to be still what Lord Rockingham and his colleagues asserted.
In 1868, on the trial of Governor Eyre for an indictment arising out of
disturbances in Jamaica, Judge Blackburne laid it down "that, although
the general rule is that the Legislative Assembly has the sole right of
imposing taxes in the colony, yet, when the Imperial Legislature chooses
to impose taxes, according to the rule of English law they have a
_right_ to do it."]
[Footnote 39: See his speech on American taxation in April, 1774.]
[Footnote 40: The chief divisions were: in the Commons, 275 to 167; in
the Lords, 105 to 71.]
[Footnote 41: "History of England," vol. v., c. xlv., p. 218, ed. 1862.]
[Footnote 42: "Lives of the Chancellors," c. cxliii., life of Lord
Camden.]
[Footnote 43: Every political student will recollect Burke's description
of it as "a cabinet so variously inlaid, such a piece of diversified
mosaic, such a tessellated pavement without cement--here a bit of black
stone, there a bit of white--patriots and courtiers, King's friends and
republicans, Whigs and Tories, treacherous friends and open enemies,"
etc.--_Speech on American Taxation_.]
[Footnote 44: In a debate in the year 1776, on some measures adopted for
the conduct of the war, the Duke of Grafton said: "In that year (1767),
when the extraordinary expenses incurred on account of America were laid
before the House of Commons, the House rose as one man and insisted that
that country should contribute to the burdens brought on by the military
establishment there, and a motion was made for bringing in a bill for
that purpose. I strenuously opposed the measure, as big with the
consequences it has since, unfortunately, produced. I spoke to my
friends upon the occasion, but they all united in the opinion that the
tide was too strong to expect either to stem or turn it, so as to
prevent whatever might be offered in that shape from passing into a law.
Finding that all my efforts would be vain, I was compelled to submit,
but was resolved, as far as lay in my power, to prevent the effect; and,
while I gave way, to do it in such a manner as would cause the least
harm. I accordingly proposed the tea-duty as the most palatable;
because, though it answered the main purpose of those with whom taxation
was a favorite measure, it was doing America an immediate benefit, for I
procured the shilling a pound duty to be taken off, and threepence to be
laid on in lieu thereof; so that, in fact, it was ninepence a pound
saved to America. However, the attempt was received in America as I
expected it would be--it immediately caused disturbances and universal
dissatisfaction."--_Parliamentary History_, xviii., 134.]
[Footnote 45: This unpopularity had been aggravated by another measure
which was among the last acts of Mr. Grenville's ministry. The Mutiny
Act in the Colonies was renewed for two years at a time, and, at its
renewal in the spring of 1765, a clause was added which required the
Colonists to furnish the troops with "fire, candles, vinegar, salt,
bedding, utensils for cooking, and liquors, such as beer, cider, and
rum." The Assemblies of several States passed resolutions strongly
condemning this new imposition; but, as the dissatisfaction did not lead
to any overt acts of disturbance, it seems to have been unnoticed in
England at the time, or the clause would probably have been repealed by
Lord Rockingham; and eventually the Assembly of New York seems to have
withdrawn its objections to it, presenting an address to Sir H. Moore,
the Governor, in which "they declared their intention of making the
required provision for the troops."--Lord E. Fitzmaurice, _Life of Lord
Shelburne_, ii., 61.]
[Footnote 46: The "Memoirs of Judge Livingstone" record his expression
of opinion as early as 1773, that "it was intolerable that a continent
like America should be governed by a little island three thousand miles
distant." "America," said he, "must and will be independent." And in the
"Memoirs of General Lee" we find him speaking to Mr. Patrick Henry, who
in 1766 had been one of the most violent of all the denouncers of the
English policy (see _ante_, p. 63), of "independence" as "a golden
castle in the air which he had long dreamed of."]
[Footnote 47: See the whole speech, "Parliamentary History," xvi., 853.
Many of the taxes he denounced as so injurious to the British
manufacturers, "that it must astonish any reasonable man to think how so
preposterous a law could originally obtain existence from a British
Legislature."]
[Footnote 48: The division was: for the amendment, 142; against it,
204.]
[Footnote 49: The words of the "preamble," on which Burke dwelt in 1774,
were: "Whereas it is expedient that a revenue should be raised in your
Majesty's dominions in America for making a more certain and adequate
provision for defraying the charge of the administration of justice and
support of civil government in such provinces where it shall be found
necessary, and toward farther defraying the expenses of defending,
protecting, and securing: the said dominions, be it enacted," etc.]
[Footnote 50: "Memoirs and Correspondence of Jefferson." Quoted by Lord
Stanhope, "History of England," vi., 14.]
[Footnote 51: At Lexington, April 19, 1775.]
[Footnote 52: Lord Stanhope, however, has reason on his side when he
calls the words of this petition "vague and general," though "kindly and
respectful;" and when he points to the language of extreme bitterness
against England indulged in by Franklin at the very time that this
petition was voted. He, however, expresses a belief that even then "the
progress of civil war might have been arrested," which seems doubtful.
But it is impossible not to agree with his lordship in condemning the
refusal by the ministry to take any notice of the petition, on the
ground that the Congress was a self-constituted body, with no claim to
authority or recognition, and one which had already sanctioned the
taking up arms against the King.--_History of England_, vi., 93, 95,
105.]
[Footnote 53: It is probable, however, that the greater part of the
Hanoverian soldiers were Protestants.]
[Footnote 54: Lord Campbell, who, in his "Life of Lord Bathurst,"
asserts that the legality of the measure turns upon the just
construction of the Act of Settlement, adduces Thurlow's language on
this subject as "a proof that he considered that he had the privilege
which has been practised by other Attorney-generals and Chancellors too,
in debate, of laying down for law what best suited his purpose at the
moment." It does not seem quite certain that the noble and learned
biographer has not more than once in these biographies allowed himself a
similar license in the description of questions of party politics.]
[Footnote 55: In the debates on the subject it was stated that the
number of Hanoverians quartered in the two fortresses was nineteen
hundred, and the number of British troops left in them was two thousand.
Moreover, as has been already remarked, though Lord Shelburne spoke of
arming Roman Catholics, it is probable that the Hanoverians were mostly
Protestants.]
[Footnote 56: The Preliminary or Provisional Articles, as they were
called, of which the Definitive Treaty was but a copy, were signed at
Paris, November 30, 1782, during Lord Shelburne's administration. But
the Definitive Treaty was not signed till the 3d of September of the
following year, under the Coalition Ministry, which was turned out a few
weeks afterward.]
[Footnote 57: We shall see in a subsequent chapter that even in this
reign of George III. Pitt laid down the true principles of our
legislation for the colonies in his bill for the better government of
Canada.]
[Footnote 58: An admirably reasoned passage on the influence of the
crown, especially in the reigns of the two first Hanoverian Kings, will
be found in Hallam, "Constitutional History," c. xvi., vol. iii., p.
392, ed. 1832.]
[Footnote 59: The "Parliamentary History" shows that he had brought
forward the same motion before 1780; since Lord Nugent, who replied to
him, said "the same motion had been made for some years past, and had
been silently decided on." From which it seems that it was never
discussed at any length till May 8, 1780.]
[Footnote 60: On the division the numbers were: for the motion, 90;
against it, 182.]
[Footnote 61: The division in 1782 was: 161 to 141; in 1783, 293 to
149.]
[Footnote 62: How systematic and open bribery was at this time is shown
by an account of Sheridan's expenses at Stafford in 1784, of which the
first item is--248 burgesses, paid L5 5s. each, L1302.--Moore's _Life of
Sheridan_, i., 405.]
[Footnote 63: "Life of Pitt," i., 359.]
[Footnote 64: Lord North was a Knight of the Garter, the only commoner,
except Sir R. Walpole, who received that distinction in the last
century, and the latest, with the exception of Lord Castlereagh. on whom
it has been conferred.]
[Footnote 65: 233 to 315.]
[Footnote 66: It is perhaps worth pointing out, as a specimen of the
practical manner in which parliamentary business was transacted at that
time, that this great debate--in which (the House being in committee)
Mr. Dunning himself spoke three times, and Lord North, Mr. T. Pitt, Mr.
Fox, the Speaker (Sir F. Norton), the Attorney-general, General Conway,
Governor Pownall, the Lord-advocate, and several other members took
part--was concluded by twelve o'clock.]
[Footnote 67: February 8, 1780, on Lord Shelburne's motion for an
inquiry into the public expenditure.--_Parliamentary History_, xx.,
1346.]
[Footnote 68: 101 to 55.]
[Footnote 69: "Constitutional History," iii., 43.]
[Footnote 70: His language is said to have been that "there was at all
events one Magistrate in the kingdom who would do his duty."--Lord
Stanhope, _History of England_, vii., 48.]
[Footnote 71: "Lives of the Lord Chancellors," c. clxvii.]
[Footnote 72: Lord Stanhope's "History of England," vii, 56.]
CHAPTER IV.
Changes of Administration.--The Coalition Ministry.--The Establishment
of the Prince of Wales.--Fox's India Bill.--The King Defeats it by the
Agency of Lord Temple.--The Ministry is Dismissed, and Succeeded by Mr.
Pitt's Administration.--Opposition to the New Ministry in the House of
Commons.--Merits of the Contest between the Old and the New
Ministry.--Power of Pitt.--Pitt's India Bill.--Bill for the Government
of Canada.--The Marriage of the Prince of Wales to Mrs.
Fitzherbert.--The King becomes Deranged.--Proposal of a
Regency.--Opinions of Various Writers on the Course adopted.--Spread of
Revolutionary Societies and Opinions.--Bills for the Repression of
Sedition and Treason.--The Alien Act.--The Traitorous Correspondence
Act.--Treason and Sedition Bills.--Failure of some Prosecutions under
them.
The occurrences of the next year brought the question of the influence
of the crown into greater prominence. Lord Rockingham's administration,
unfortunately, came to a premature termination by his death at the
beginning of July. With a strange arrogance, Fox claimed the right of
dictating the choice of his successor to the King, making his
pretensions the more unwarrantable by the character of the person whom
he desired to nominate, the Duke of Portland, who, though a man of vast
property and considerable borough influence, was destitute of ability of
any kind, and had not even any of that official experience which in some
situations may at times compensate or conceal the want of talent.[73]
The King preferred Lord Shelburne, a statesman whose capacity was
confessedly of a very high order, who had more than once been Secretary
of State,[74] and who had been recognized as the leader of what was
sometimes called the Chatham section of the Whigs, ever since the death
of the great Earl. Indeed, if George III. had been guided by his own
wishes and judgment alone, he would have placed him at the Treasury, in
preference to Lord Rockingham, three months before. But, during the last
three months, jealousies had arisen between him and Fox, his colleague
in office, who charged him with concealing from him the knowledge of
various circumstances, the communication of which he had a right to
require. It was more certain that on one or two points connected with
the negotiations with the United States there had been divisions between
them, and that the majority of the cabinet had agreed with Lord
Shelburne. Lord Shelburne, therefore, became Prime-minister,[75] and
Fox, with some of his friends, resigned; Fox indemnifying himself by a
violent philippic against "those men who were now to direct the counsels
of the country," and whom he proceeded to describe as "men whom neither
promises could bind nor principles of honor could secure; who would
abandon fifty principles for the sake of power, and forget fifty
promises when they were no longer necessary to their ends; who, he had
no doubt, to secure themselves in the power which they had by the labor
of others obtained, would strive to strengthen it by any means which
corruption could procure."[76]
Fox at once went into what even those most disposed to cherish his
memory admit to have been a factious opposition. He caballed with the
very men to whom he had hitherto been most vehemently opposed for the
sole object of expelling Lord Shelburne from office. And when, at the
beginning of the session of 1783, the merits of the preliminary articles
of peace which had been provisionally concluded with the United States
came under discussion, though the peers approved of them, in the House
of Commons he defeated the ministers in two separate divisions,[77] and
thus rendered their retention of office impossible. He had gained this
victory by uniting with Lord North and a portion of the Tory party whom,
ever since his dismissal from office in 1774, he had been unwearied in
denouncing, threatening Lord North himself with impeachment. And he now
used it to compel the King to intrust the chief office in the government
to the very man whom his Majesty had refused to employ in such an office
six months before.
The transactions of the next twelve months exhibit in a striking light
more than one part of the practical working of our monarchical and
parliamentary constitution, not only in its correspondence with, but,
what is more important to notice, in its occasional partial deviations
from, strict theory. The theory has sometimes been expressed in the
formula, "The King reigns, but does not govern." But, like many another
terse apophthegm, it conveys an idea which requires some modification
before it can be regarded as an entirely correct representation of the
fact; and the King himself, especially if endowed with fair capacity and
force of character, imbued with earnest convictions, and animated by a
genuine zeal for the honor and welfare of his kingdom, will be likely to
dwell more on the possible modifications than on the rigid theory. Even
those who insist most on the letter of the theory will not deny that, if
the King has not actual power, he has at least great influence; and the
line between authority and influence is hard to draw. One of George the
Third's earliest ministers had explained to his Majesty that the
principle of the constitution was, "that the crown had an undoubted
right to choose its ministers, and that it was the duty of subjects to
support them, unless there were some very strong and urgent reasons to
the contrary."[78] And such a doctrine was too much in harmony with the
feelings of George III. himself not to be cordially accepted. For George
III. was by no means inclined to be a _Roi faineant_. No sovereign was
ever penetrated with a more conscientious desire to do his duty to his
people. Conscious, perhaps, that his capacity was rather solid than
brilliant, he gave unremitting attention to the affairs of the nation in
every department of the government; and, perhaps not very unnaturally,
conceived that his doing so justified him, as far as he might be able,
in putting a constraint on his ministers to carry out his views. Thus,
he had notoriously induced Lord North to persevere in the late civil war
in America long after that minister had seen the hopelessness of the
contest; and it was, probably, only the knowledge of the strength of his
feelings on that subject, and of his warm attachment to that minister,
that caused the Parliament so long to withstand all the eloquence of the
advocates of peace, and the still stronger arguments of circumstances.
He might fairly think that he had now greater reason to adhere to his
own judgment; for Fox's recommendation of the Duke of Portland in
preference to Lord Shelburne was an act not only of unwarrantable
presumption, but of inconceivable folly, since there was no comparison
between the qualifications of the two men; and the coalition by which,
six months afterward, he had, as it were, revenged himself for the
rebuff, and had driven Lord Shelburne from office, was, as the King well
knew, and as even Fox's own friends did not conceal from themselves,
almost universally condemned out-of-doors.[79] To this combination,
therefore, his Majesty tried every expedient to escape from yielding.
And when Pitt's well-considered and judicious refusal of the government
left him no alternative but that of submission to Fox's dictation, it
would hardly have been very unnatural if his disposition and attitude
toward a ministry which had thus forced itself upon him had been those
attributed to him by Lord John Russell, of "an enemy constantly on the
watch against it."[80] But for some time that was not the impression of
the ministers themselves. In July, when they had been in office more
than three months, Fox admitted that he had never behaved toward them as
if he were displeased with them, and that he had no project of
substituting any other administration for the present one.[81] And his
temperate treatment of them was the more remarkable, because a flagrant
blunder of Burke (who filled the post of Paymaster), in reinstating some
clerks who had been dismissed by his predecessor for dishonesty, had
manifestly weakened the ministry in the House of Commons;[82] while in
another case, in which the King had clearly in no slight degree a
personal right to have his opinion consulted and his wishes accepted by
them as the guide for their conduct, the establishment to be arranged
for the Prince of Wales, whose twenty-first birthday was approaching,
Fox persuaded the Parliament to settle on the young Prince an allowance
of so large an amount that some even of his own colleagues disliked it
as extravagant;[83] while the King himself reasonably disapproved both
of the amount and of the mode of giving it, the amount being large
beyond all precedent, and the fact of its being given by Parliament
rendering the Prince entirely independent of his parental control, of
which his conduct had given abundant proof that he stood greatly in
need.
That he presently changed his line of behavior toward them was caused by
their introduction of a bill which he regarded as aimed in no small
degree at his own prerogative and independence--the celebrated India
Bill, by which, in the November session, Fox proposed to abrogate all
the charters which different sovereigns had granted to the East India
Company, to abolish all vested rights of either the Company or
individuals, and to confer on a board of seven persons, to be named by
Parliament, the entire administration of all the territories in any way
occupied by the Company. It was at once objected to by the Opposition in
the House of Commons, now led by Mr. Pitt, as a measure thoroughly
unconstitutional, on the twofold ground that such an abrogation of
formally granted charters, and such an extinction of vested rights, was
absolutely without precedent; and also that one real, if concealed,
object of the bill was to confer on the ministers who had framed and
introduced it so vast an amount of patronage as would render them
absolute masters of the House of Commons, and indirectly, therefore, of
the King himself, who would be practically disabled from ever dismissing
them. That such a revocation of ancient charters, and such an immovable
establishment of an administration, were inconsistent with the
principles of the constitution, was not a position taken up by Pitt in
the heat of debate, but was his deliberate opinion, as may be fairly
inferred from his assertion of it in a private letter[84] to his friend
the Duke of Rutland. It may, however, be doubted whether the epithet
"unconstitutional" could be properly applied to the bill on either
ground. There is, indeed, a certain vagueness in the meaning, or at all
events in the frequent use of this adjective. Sometimes it is used to
imply a violation of the provisions of the Great Charter, or of its
later development, the Bill of Rights; sometimes to impute some imagined
departure from the principles which guided the framers of those
enactments. But in neither sense does it seem applicable to this bill.
To designate the infringement or revocation of a charter by such a
description would be to affirm the existence of a right in the sovereign
to invest a charter, from whatever motive it may originally have been
granted, with such a character of inviolability or perpetuity that no
Parliament should, on ever such strong grounds of public good, have the
power of interfering with it. And to attribute such a power to the crown
appears less consistent with the limitations affixed to the royal
prerogative by the constitution, than to regard all trusts created by
the crown as subject to parliamentary revision in the interests of the
entire nation. On the second ground the description seems even less
applicable. An arrangement of patronage is a mere matter of detail, not
of principle. For the minister to propose such an arrangement as should
secure for himself and his party a perpetual monopoly of power and
office might be grasping and arrogant; for Parliament (and Parliament
consists of the sovereign and the peers, as well as of the House of
Commons) to assent to such an arrangement might be short-sighted and
impolitic; but it is not clear that either the minister in proposing
such an enactment, or the Parliament in adopting it, would be violating
either the letter or the spirit of the constitution. Every member of the
Governing Board was to be appointed by the Parliament itself; and,
though unquestionably Fox would have the nomination, and though he could
reckon on the support of the majority in the House of Commons for those
whom he might select, still it was a strictly constitutional machinery
that he was putting in motion.
A measure, however, may be very objectionable without being
unconstitutional, and such a view of the India Bill the progress of the
debates in the House of Commons disposed the King to take of it. In the
House of Peers Lord Thurlow described the bill as one to take the crown
off his head and place it on that of Mr. Fox; and, even without adopting
that description to its full extent, the King might easily regard the
bill as a very unscrupulous attempt to curtail his legitimate authority
and influence. He became most anxious to prevent the bill from being
presented to him for his royal assent. And it was presently represented
to him that the knowledge of his desire would probably induce the Lords
to reject it. Among the peers who had attacked the bill on its first
introduction into their House was Earl Temple, whose father had taken so
prominent a part in the negotiations for the formation of a new ministry
in 1765, and who had himself been Lord-lieutenant of Ireland under Lord
Shelburne's administration. But he had not thought it prudent to divide
the House against its first reading, and felt great doubts as to his
success in a division on the second, unless he could fortify his
opposition by some arguments as yet untried. He had no difficulty in
finding a willing and effective coadjutor. Since the retirement of Lord
Bute from court, no peer had made himself so personally acceptable to
the King as Lord Thurlow, who had been Lord Chancellor during the last
four years of Lord North's administration, and, in consequence, as it
was generally understood, of the earnest request of George III., had
been allowed to retain the seals by Lord Rockingham, and afterward by
Lord Shelburne. What special attraction drew the King toward him, unless
it were some idea of his honesty and attachment to the King himself--on
both of which points subsequent events proved his Majesty to be wholly
mistaken--it is not very easy to divine; but his interest with the King
at this time was notorious, and equally notorious was the deep
resentment which he cherished against Fox and Lord North, of whom, as he
alleged, the former had proscribed and the latter had betrayed him. To
him, therefore, Lord Temple now applied for advice as to the best mode
of working on the King's mind, and, with his assistance, drew up a
memorial on the character of the India Bill, on its inevitable fruits if
it should pass (which it described as an extinction of "more than half
of the royal power, and a consequent disabling of his Majesty for the
rest of his reign"), and on the most effectual plan for defeating it;
for which end it was suggested that his Majesty should authorize some
one to make some of the Lords "acquainted with his wishes" that the bill
should be rejected.[85]
George III. eagerly adopted the suggestion, and drew up a brief note,
which he intrusted to Lord Temple himself, and which stated that "his
Majesty allowed Earl Temple to say that whoever voted for the India Bill
was not only not his friend, but would be considered by him as his
enemy. And, if these words were not strong enough, Earl Temple might
whatever words he might deem stronger and more to the purpose."[86]
Lord Temple lost no time in availing himself of the permission thus
granted him; and, as it was by no means his object to keep the
transaction secret, his conduct was made the subject of severe comment
by the Prime-minister himself the next time that the bill was mentioned
in the Upper House. The Duke of Portland, indeed, professed to have
learned it only from common report, and to hope that the report was
unfounded, since, were it true, "he should be wanting in the duty he
owed to the public as a minister if he did not take the opportunity of
proposing a measure upon it to their lordships that would prove that
they felt the same jealousy, the same detestation, the same desire to
mark and stigmatize every attempt to violate the constitution as he
did." Lord Temple, in reply, abstained from introducing any mention of
the King's opinions or wishes, but avowed plainly that he had used his
privilege as a peer to solicit an interview with his Majesty, and that
at that interview "he had given his advice. What that advice had been he
would not then say; it was lodged in the breast of his Majesty, nor
would he declare the purport of it without the royal consent, or till he
saw a proper occasion. But, though he would not declare affirmatively
what his advice to his sovereign was, he would tell their lordships
negatively what it was not. It was not friendly to the principle and
objects of the bill."[87] The debate lasted till near midnight. Of the
speakers, a great majority declared against the bill; and, on the
division, it was rejected by a majority of nineteen.[88] This took place
on the 15th of December. On the 18th, as the ministers had not
resigned--not regarding a single defeat in the Upper House as a
necessary cause for such a step--the King sent messengers to them to
demand their resignation, and the next day it was publicly announced in
the House of Commons that Pitt had accepted the office of
Prime-minister.
But Fox, who had anticipated the dismissal of himself and his
colleagues, was by no means inclined to acquiesce in it, or to yield
without a struggle; and on the 17th one of his partisans in the House of
Commons, Mr. Baker, one of the members for Hertfordshire, brought
forward some resolutions on the subject of the late division in the
House of Lords. He professed to rest them solely on rumors, but he urged
that "it was the duty of that House to express its abhorrence even of
that rumor," since by such an action as was alleged "that responsibility
of ministers which was the life of the constitution would be taken away,
and with it the principal check that the public had upon the crown." And
he urged "the members of that House, as the guardians of the
constitution, to stand forward and preserve it from ruin, to maintain
that equilibrium between the three branches of the Legislature, and that
independence without which the constitution could no longer exist," and
with this view to resolve "that to report any opinion, or pretended
opinion, of his Majesty upon any bill or other proceeding depending in
either House of Parliament, with a view to influence the votes of the
members, is a high crime and misdemeanor, derogatory to the honor of the
crown, a breach of the fundamental privileges of Parliament, and
subversive of the constitution of the country." It was opposed by Pitt,
chiefly on the ground that Mr. Baker only based the necessity for such a
resolution on common report, which he, fairly enough, denied to be a
sufficient justification of it; and partly on the undoubted and
"inalienable right of peers, either individually or collectively, to
advise his Majesty, whenever they thought the situation of public
affairs made such a step an essential part of their duty." But it was
supported by Lord North as "necessary on constitutional principles,"
since the acts so generally reported and believed "affected the freedom
of debate;" and by Fox, who declared that the action which was reported,
if true, "struck at the great bulwark of our liberties, and went to the
absolute annihilation, not of our chartered rights only, but of those
radical and fundamental ones which are paramount to all charters, which
were consigned to our care by the sovereign disposition of Nature, which
we cannot relinquish without violating the most sacred of all
obligations, to which we are entitled, not as members of society, but as
individuals and as men; the right of adhering steadily and uniformly to
the great and supreme laws of conscience and duty; of preferring, at all
hazards and without equivocation, those general and substantial
interests which members have sworn to prefer; of acquitting themselves
honorably to their constituents, to their friends, to their own minds,
and to that public whose trustees they were, and for whom they acted."
He avowed his conviction that rumor in this instance spoke truth, and,
affirming that "the responsibility of ministers is the only pledge and
security the people of England possesses against the infinite abuses so
natural to the exercise of royal powers," argued that, if "this great
bulwark of the constitution were once removed, the people would become
in every respect the slaves and property of despotism. This must be the
necessary consequence of secret influence." He argued that the sole
distinction between an absolute and a limited monarchy was that the
sovereign in one is a despot, and may do as he pleases, but that in the
other he is himself subjected to the laws, and consequently is not at
liberty to advise with any one in public affairs who is not responsible
for that advice, and that the constitution has clearly directed his
negative to operate under the same wise restrictions. Mr. Baker's
resolution was carried by a large majority; but, as we have seen, did
not deter the King from dismissing the ministry.
The conduct of George III. in this transaction has been discussed by
writers of both parties with such candor that the Tory historian, Lord
Stanhope, while evidently desirous to defend it by implication, passes a
slight censure on it in the phrase that "the course pursued by the King
was most unusual, and most extreme, and most undesirable to establish as
a precedent;"[89] while, on the other hand, so rigid a Whig as Lord
Campbell urges in his favor "that if it be ever excusable in a King of
England to cabal against his ministers, George III. may well be defended
for the course he now took, for they had been forced upon him by a
factious intrigue, and public opinion was decidedly in his favor."[90]
But to those who regard not the excuse which previous provocation may be
conceived in some degree to furnish to human infirmity, but only the
strict theory and principle of the constitution on which the doctrine of
the responsibility of the ministers and the consequent irresponsibility
of the sovereign rests, Lord Campbell's conditional justification for
the communication made through Lord Temple will hardly appear
admissible. We cannot be sure how far Mr. Grenville's "Diary" is to be
trusted for transactions in which he was not personally concerned, or
for conversations at which he was not present; but in giving an
account[91] of some of the occurrences of the spring of 1766, while Lord
Rockingham was Prime-minister, we find him relating a conversation
between the King and Lord Mansfield on the ministerial measure for
conciliating the American Colonies by the repeal of the Stamp Act,
combined, however, with an assertion of the _right_ to tax. "He (Lord
Mansfield) took notice of the King's name having been bandied about in a
very improper manner; to which the King assented, saying he had been
very much displeased at it, as thinking it unconstitutional to have his
name mentioned as a means to sway any man's opinion in any business
which was before Parliament; and that all those who approached him knew
that to be his sentiment. Lord Mansfield said he differed from his
Majesty in that opinion, for that, though it would be unconstitutional
to endeavor by his Majesty's name to carry questions in Parliament, yet
where the lawful rights of the King and Parliament were to be asserted
and maintained, he thought the making his Majesty's opinion in support
of those rights to be known was very fit and becoming." The line here
alleged to have been drawn by the great Chief-justice, between
proclaiming the King's opinion in support of rights, but withholding it
in the case of measures, is, perhaps, too fine to be perceptible by
ordinary intellects. But however the King may have understood the judge,
it is clear that the doctrine thus asserted does not justify, but
condemns, such an act as the communication of the King's opinion and
wishes in the case under consideration. If it "would be unconstitutional
to endeavor by his Majesty's name to carry questions in Parliament," it
must be at least equally so to use his name to defeat them. And the case
is infinitely stronger, if the measure to be defeated be one which has
been introduced by his ministers. For there can be no doubt whatever
that, so long as they are his ministers, they are entitled to his full
and complete support on every question; alike in their general policy
and on each separate measure. When he can no longer give them that
support, which the very act of conferring their offices on them promised
them, his only legitimate and becoming course is to dismiss them from
their offices, and to abide the judgment of Parliament and the nation on
that act. Thus William IV. acted in the autumn of 1834; and thus George
III. himself acted at the end of the month of which we are speaking. But
to retain them in their offices, and to employ an unofficial declaration
of his dissent from them to defeat their policy, is neither consistent
with the straightforward conduct due from one gentleman to another, nor
with the principle on which the system of administration, such as
prevails in this country, is founded.
As has been already mentioned, the King at once dismissed the Coalition
Ministry. Mr. Pitt accepted the conduct of affairs, and by so doing
accepted the responsibility for all the acts of the King which had
conduced to his appointment. Lord John Russell, who in his "Memorials
and Correspondence of Fox" has related and examined the whole
transaction at considerable though not superfluous length, while blaming
the prudence, and in some points the propriety, of Fox's conduct, at the
same time severely censures Pitt as "committing a great fault in
accepting office as the price of an unworthy intrigue," and affirms that
"he and his colleagues who accepted office upon the success of this
intrigue placed themselves in an unconstitutional position."[92] This
seems to be a charge which can hardly be borne out. In dismissing his
former ministry, the King was clearly acting within his right; and, if
so, Pitt was equally within his in undertaking the government. The truer
doctrine would seem to be, that, in so undertaking it, he assumed the
entire responsibility for the dismissal of his predecessors,[93] and
left it to the people at large, by the votes of their representatives,
to decide whether that dismissal were justified, and whether, as its
inevitable consequence, his acceptance of office were also justified or
not. The entire series of transactions, from the meeting of Parliament
in November, 1783, to its dissolution in the following March, may be
constitutionally regarded as an appeal by the King from the existing
House of Commons to the entire nation, as represented by the
constituencies; and their verdict, as is well known, ratified in the
most emphatic manner all that had been done. And we may assert this
without implying that, if the single act of empowering Lord Temple to
influence the peers by the declaration of the King's private feeling had
been submitted by itself to the electors, they would have justified
that. The stirring excitement of the three months' contest between the
great rivals led them to pronounce upon the transaction as a whole, and
to leave unnoticed what seemed for the moment to be the minor
issues--the moves, if we may borrow a metaphor from the chess-table,
which opened the game; and it may be observed that, though, on the 17th
of December, Pitt resisted Mr. Baker's resolution with his utmost
energy, in the numerous debates which ensued he carefully avoided all
allusion to Lord Temple's conduct, or to the measure which had led to
the dismissal of his predecessors, farther than was necessary for the
explanation of the principles of his own India Bill. It may even be
surmised that, if he had been inclined to recognize Lord Temple's
interference as warrantable, the breach between that peer and himself,
which occurred before the end of the week, would not have taken place,
since it seems nearly certain that the cause of that breach was a
refusal on the part of Pitt to recommend his cousin for promotion in the
peerage, a step which, at such a moment, would have had the appearance
of an approval of his most recent deed,[94] but which he could hardly
have refused, if it had been done with his privity. The battle, as need
hardly be told, was first fought among the representatives of the people
in the House of Commons; for there was only one occasion on which the
opinion of the Lords was invited, when they declared in favor of Pitt by
a decisive majority.[95] But in the Lower House the contest was carried
on for more than two months with extraordinary activity and ability, by
a series of resolutions and motions brought forward by the partisans of
the coalition, and contested by the youthful minister. In one respect
the war was waged on very unequal terms, Pitt, who had been but three
years in Parliament, and whose official experience could as yet only be
counted by months, having to contend almost single-handed against the
combined experience and eloquence of Lord North, Fox, and Burke.
Fortunately, however, for him, their own mismanagement soon turned the
advantage to his side. They were too angry and too confident to be
skilful, or even ordinarily cautious. The leaders on both sides made
professions in one respect similar; they both alike denied that a desire
of office influenced either their conduct or their language (a denial
for which Pitt's refusal of the Treasury, a year before, gained him more
credit than could be expected by Fox after his coalition with Lord
North), and both alike professed to be struggling for the constitution
alone, for some fundamental principle which each charged his antagonist
with violating; Fox on one occasion even going so far as, in some
degree, to involve the King himself in his censures, declaring not only
that "the struggle was, in fact, one between Pitt himself and the
constitution," but that it was also one "between liberty and the
influence of the crown," and "between prerogative and the constitution;"
and that "Pitt had been brought into power by means absolutely
subversive of the constitution."[96] But no act of which he thus accused
the minister or the King showed such a disregard of the fundamental
principle of the constitution of Parliament as was exhibited by Fox
himself when, in the very first debate after the Christmas recess, he
called in question that most undoubted prerogative of the crown to
dissolve the Parliament, and, drawing a distinction which had certainly
never been heard of before, declared that, though the King had an
incontestable right to dissolve the Parliament after the close of a
session, "many great lawyers" doubted whether he had such a right in the
middle of a session, a dissolution at such a period being "a penal" one.
Professing to believe that an immediate dissolution was intended, he
even threatened to propose to the House of Commons "measures to guard
against a step so inimical to the true interests of the country," and
made a more direct attack than ever on the King himself, by the
assertion of a probability that, even if Pitt did not contemplate a
dissolution, his royal master might employ "secret influence" to
overrule him, and might dissolve in spite of him,[97] an imputation
which Lord North, with a strange departure from his customary
good-humor, condescended to endorse.[98] There could be no doubt that
both the doubt and the menace were of themselves distinct attacks on the
constitution; and they were, moreover, singularly impolitic and
inconsistent with others of the speaker's arguments, since, if the
nation at large approved of his views and conduct, a dissolution--which
would have placed the decision in its hands--would have been the very
thing he should most have desired. On another evening, though he
admitted as a principle that the sovereign had the prerogative of
choosing his ministers, he not only sought to narrow the effect of that
admission by the assertion that "to exercise that prerogative in
opposition to the House of Commons would be a measure as unsafe as
unjustifiable,"[99] but to confine the right of deciding the title of
the ministers to confidence to the existing House of Commons. He accused
Pitt of "courting the affection of the people, and on this foundation
wishing to support himself in opposition to the repeated resolutions of
the House passed in the last three weeks." Had he confined himself to
urging the necessity of the ministers and the House of Commons being in
harmony, even though such a mention of the House of Commons by itself
were to a certain extent an ignoring of the weight of the other branches
of the Legislature, he would have only been advancing a doctrine which
is practically established at the present day, since there has been
certainly more than one instance in which a ministry has retired which
enjoyed the confidence of both the sovereign and the House of Lords,
because it was not supported by a majority in the House of Commons. But
when he proceeded to make it a charge against the minister that he
trusted to the good-will of the people to enable him to disregard the
verdict of the House of Commons, he forgot that it was only as
representing the people that the House had any right to pronounce a
verdict; and that, if it were true that the judgment of the people was
more favorable to the minister than that of the House of Commons, the
difference which thus existed was a condemnation of the existing House,
and an irresistible reason for calling on the constituencies to elect
another.
Pitt, therefore, had no slight advantage in defending himself against so
rash an assailant. "He did not shrink," he said, "from avowing himself
the friend of the King's just prerogative," and in doing so he
maintained that he had a title to be regarded as the champion of the
people not less than of the crown. "Prerogative had been justly called a
part of the rights of the people, and he was sure it was a part of their
rights which they were never more inclined to defend, of which they were
never more jealous, than at that hour."[100] And he contended that Fox's
objections to a dissolution betrayed a consciousness that he had not the
confidence of the nation. At last, when the contest had lasted nearly
two months, Fox took the matter into his own hands, and, no longer
putting his partisans in the front of the battle, on the 1st of March he
himself moved for an address to the King, the most essential clause of
which "submitted to his Majesty's royal consideration that the
continuance of an administration which did not possess the confidence of
the representatives of the people must be injurious to the public
service." ... And, therefore, that "his Majesty's faithful Commons did
find themselves obliged again to beseech his Majesty that he would be
graciously pleased to lay the foundation of a strong and stable
government by the previous removal of his present ministers." In the
speech with which he introduced this address he put himself forward as
especially the champion of the House of Commons. He charged the
Prime-minister with an express design "to reduce the House to
insignificance, to render it a mere appendage to the court, an
appurtenance to the administration." He asserted the existence of a
systematic "design to degrade the House, after which there was not
another step necessary to complete the catastrophe of the constitution."
And on this occasion he distinguished the feelings of the King from
those which influenced the minister, affirming his confidence "that the
King's heart had no share in the present business."[101]
Pitt, on the other hand, in reply, affirmed that he was called on by
duty "to defend the rights of the other branches of the Legislature; the
just and constitutional prerogative of the sovereign," upon which the
Opposition was seeking to encroach, without even having shown a single
reason to justify such invasion. He freely admitted that, if the House
of Commons or either of the other branches of the Legislature
"disapproved of an administration on proper grounds, it would not be
well for that administration to retain office." But in the present
instance he contended that "no ground for disapprobation had been
shown." The existing administration "had, in fact, by an unaccountable
obstinacy and untowardness of circumstances, been deprived of all
opportunity" of showing its capacity or its intentions. "If any
accusations should be made and proved against it, if any charges should
be substantiated, it would, indeed be proper for the ministers to
resign; and if, in such a case he were afterward to continue in office,
he would suffer himself to be stigmatized as the champion of
prerogative, and the unconstitutional supporter of the usurpation of the
crown. But till this period arrived, he should reckon it his duty to
adhere to the principles of the constitution, as delivered to us by our
ancestors; to defend them against innovation and encroachment, and to
maintain them with firmness." "The constitution of this country," he
presently added, "is its glory; but in what a nice adjustment does its
excellence consist! Equally free from the distractions of democracy and
the tyranny of monarchy, its happiness is to be found in its mixture of
parts. It was this mixed government which the prudence of our ancestors
devised, and which it will be our wisdom to support. They experienced
all the vicissitudes and distractions of a republic; they felt all the
vassalage and despotism of a simple monarchy. They abandoned both; and,
by blending each together, extracted a system which has been the envy
and admiration of the world. This system it is the object of the present
address to defeat and destroy. It is the intention of this address to
arrogate a power which does not belong to the House of Commons; to place
a negative on the exercise of the prerogative, and to destroy the
balance of power in the government as it was settled at the Revolution."
Fox had urged that our history afforded no example of a ministry
retaining office after the House of Commons had passed a resolution
condemning it. Pitt, in reply, urged that our history equally failed to
furnish any instance of a ministry having been called on to retire
without any misconduct being alleged against them. And the result of the
division showed that his arguments and his firmness were producing an
impression on the House, for, though he was again defeated, the majority
against him (only twelve) was far smaller than on any previous
division.[102] A week later, this feeling in his favor was shown still
more decidedly, when Fox, on moving for a fresh address, or, as he
termed it, a representation to the King that the House had received his
Majesty's reply to their address "with surprise and affliction," he
could only carry it by a single vote.[103] And this division closed the
struggle. Fox made no farther effort. Before the end of the month the
Parliament was dissolved, and the general election which ensued sent to
the House a majority to support the ministers which Pitt was fairly
warranted in claiming as the full justification of the course which he
had pursued.
On a review of the whole of this extraordinary transaction, or series of
transactions, it is impossible to avoid regarding the issue of the
struggle as an all-important element in the case, and a test almost
decisive of the correctness of conduct of the rival leaders. We may
leave out of the question the action of the King in his communication to
Lord Temple, which, although sanctioned by the great legal authority of
Lord Thurlow, we are, for reasons already given, compelled to regard as
unconstitutional, but for which Mr. Pitt was only technically
responsible; having, indeed, made himself so by his subsequent
acceptance of office, but having had no previous suspicion of the royal
intentions. Similarly, we may dismiss from our consideration the merits
or demerits of Fox's India Bill, the designs which were imputed to its
framers, or the consequences which, whether intended or not by them,
were predicted as certain to flow from it. And we may confine ourselves
to the question whether, in the great Parliamentary struggle which
ensued, and which lasted for more than three months,[104] the doctrines
advanced by Mr. Fox, and the conduct pursued by him, were more or less
in accordance with the admitted rules and principles of the
constitution.
These doctrines may be reduced to two: the first a declaration that no
minister is justified in retaining office any longer than he is
sustained in it by the favorable judgment of the representatives of the
people. Taken by itself, this, but for one consideration, might be
pronounced the superfluous assertion of a truism; superfluous, because
it is obvious that a House of Commons hostile to a minister can compel
his resignation by obstructing all his measures. And Pitt himself
recognized this as fully as Fox, though we may hardly agree with him
that the Opposition was bound to allow him time to develop his policy,
and to bring forward his various measures, before it pronounced an
opinion adverse to them. In 1835, when Sir R. Peel first met Parliament
after his acceptance of office, consequent on the King's dismissal of
Lord Melbourne's ministry, the Opposition encountered and defeated him
twice in the first week of the session--on the choice of a Speaker, and
on the address, though the latter had been framed with the most skilful
care to avoid any necessity for objection; but no attempt was made by
him to call in question the perfect right of Lord J. Russell and his
followers in the House to choose their own time and field of battle. But
there is one farther consideration, that the authority belonging to the
judgment of the House of Commons depends on that judgment being not
solely its own, but the judgment also of the constituencies which have
returned it, and whose mouth-piece it is; and also that the House is not
immortal, but is liable to be sent back to those constituencies, to see
whether they will ratify the judgment which their representatives have
expressed; whether, in other words, their judgment be the judgment of
the nation also. This farther consideration was, in fact, Pitt's plea
for resisting the majorities which, through January and February, so
repeatedly pronounced against him. And in determining to appeal to the
constituencies, as the court of ultimate resort, he was clearly within
the lines of the constitution.
It follows that Fox, in protesting against a dissolution, in threatening
even to take steps to prevent it, was acting in self-evident violation
of all constitutional principle and precedent. He was denying one of the
most universally acknowledged of the royal prerogatives. The distinction
which he endeavored to draw between a dissolution at the close of a
session and one in the middle of it, had manifestly no validity in law
or in common-sense. The minister had a clear right to appeal from the
House of Commons to the people, and one equally clear to choose his own
time for making that appeal. The appeal was made, the judgment of the
nation was pronounced, and its pronouncement may be, and indeed must be,
accepted as a sufficient justification, in a constitutional point of
view, of Pitt's conduct both in accepting and retaining office. If he
retained it for three months, in opposition to the voice of the existing
House of Commons, he could certainly allege that he was retaining it in
accordance with the deliberate judgment of the nation.
And this is the verdict of a modern statesman, a very careful student of
the theory of our Parliamentary constitution, and one whom party
connection would notoriously have inclined to defend the line taken by
Mr. Fox, had it been possible to do so. Indeed, he may be said to show
his bias in that statesman's favor when he affirms that he would have
been right in moving a resolution of censure on Pitt for "his acceptance
of office," which he presently calls the result of "the success of a
court intrigue,"[105] and, without a particle of evidence to justify the
imputation, affirms to "have been prepared beforehand with much art and
combination." But _amicus Fox, sed magis arnica veritas_; and though he
thus passes censure on Pitt, where the facts on which he bases it are at
least unproved, on those points as to which the facts are clear and
certain he condemns Fox altogether, affirming that his "attempt to show
that the crown had not the prerogative of dissolving Parliament in the
middle of a session had neither law nor precedent in its support."[106]
And he proceeds to lay down, with great clearness and accuracy, "the
practice as well as the theory of our mixed government," which is, that
"when two of the powers of the state cannot" agree, and the business of
the state is stopped, the only appeal is to the people at large. Thus,
when in the reign of Queen Anne the House of Lords and the House of
Commons fulminated resolutions at each other, a dissolution cleared the
air and restored serenity. If no case had occurred since the Revolution
of a quarrel between the crown and the House of Commons, the cause is to
be sought in the prudence with which every sovereign who had reigned
since that event had wielded his constitutional authority. If George
III. had been wanting in that prudence, it did not follow that he was
debarred from the right of appealing to the people. Any other doctrine
would invest the House of Commons, elected for the ordinary business of
the state, with a supreme power over every branch of it. This supreme
power must rest somewhere; according to our constitution it rests in the
common assent of the realm, signified by the persons duly qualified to
elect the members of the House of Commons; and Lord Russell, in thus
expounding his ideas on this subject, was undoubtedly expressing the
view that ever since the transactions of which we have been speaking has
been taken of the point chiefly in dispute. Since that day there has
been more than one instance of Parliament being dissolved in the middle
of a session; but, though the prudence of the different ministers who
advised such dissolutions may, perhaps, have been questioned--nay,
though in one memorable instance it was undoubtedly a penal dissolution
in the fullest sense of the word[107]--no one has ever accused the
sovereign's advisers of seducing him into an unconstitutional exercise
of his prerogative.
Pitt was now Prime-minister, with a degree of power in Parliament and of
popularity out-of-doors that no former minister, not even his own
father, had ever enjoyed. As such, by the confession of one who was
certainly no friendly critic,[108] "he became the greatest master of
Parliamentary government that has ever existed." His administration may
be regarded as a fresh starting-point in the history of the country, as
the inauguration of the principle of steady amendment, improvement, and
progress, in place of the maxims which had guided all his predecessors
since the Revolution, of regarding every thing as permanently settled by
the arrangements made at that time, and their own duty, consequently, as
binding them to keep everything in its existing condition. But, of all
the ministers recorded in our annals, there is not one so greatly in
advance of his time as Pitt; and from the very outset of his ministerial
career he applied himself, not only to the removal or correction of
admitted abuses or defects, but, in cases where the fault, being in our
general system of policy, had been less conspicuous, to the
establishment of new principles of action which have been the rules of
all succeeding statesmen. He was not, indeed, the first raiser of the
question of Parliamentary Reform, but he was the first to produce an
elaborate scheme with that object, parts of which, such as the
suppression of the smaller boroughs and the enfranchisement of places
which had gradually become more important, have been leading features of
every subsequent bill on the subject. He was the first to propose the
removal of those political disabilities under which the Roman Catholics
labored, which no one before him had regarded as consistent with the
safety of the state, and to which he sacrificed office. He was the first
to conceive the idea of developing our national industries and resources
by commercial treaties with other nations, even choosing for his
essay-piece a treaty with a country with which our relations for nearly
five hundred years had been almost uninterruptedly hostile, and which
Fox, in the heat of his opposition, objected even to consider in any
other light than that of an enemy. He laid the foundation for all
subsequent legislation connected with our colonies in his Bill for the
Government of Canada; and he established a system for the government of
our Indian dependencies on so statesman-like a principle, that all
subsequent administrations concurred in upholding it, till subsequent
events compelled the abolition of all the share in the government of the
country previously possessed by the Company.
A great writer of the past generation,[109] who in some respects has
done full justice to his genius and political virtue, has, however
(partly, it can hardly be doubted, from regarding himself as a follower
of his great rival, Fox), contrasted his capacity as a War-minister with
that of his father, drawing a comparison on this point very
disadvantageous to the son. We need not stop to examine how far the
praises which he bestows on Lord Chatham's talents as a planner of
military operations are deserved; but it may very fairly be contended
that the disparaging views of Pitt's military policy which he has
advanced are founded solely on what is in this as well as in many other
instances a most delusive criterion, success. It is true,
unquestionably, that in the campaigns of 1793-4-5 against the French
revolutionists, while he took upon this country the entire burden of the
naval war, on land he contented himself with playing a secondary part,
and employing a comparatively small force (which, however, doubled that
which his father had sent to Minden),[110] for the success of the
military operations trusting chiefly to the far stronger Austrian and
Prussian divisions, under the command of Prince Coburg and the Duke of
Brunswick, to which the British regiments were but auxiliaries. It is
true, also, that the result of their operations was unfortunate, and
that the German generals proved wholly unable to contend with the fiery
and more skilful impetuosity of Jourdan and Pichegru. But the question
is not whether Pitt's confidence in the prowess of his allies was
misplaced, but whether he had not abundant reason to justify him in
entertaining it. And, to judge fairly on this point, we must recollect
the reputation which for the last forty years the Austrian and Prussian
armies had enjoyed. The result of the seven years' war had established
the renown of the Prussians, and the Duke of Brunswick was understood to
be a favorite pupil of the Great Frederic. The same war had shown that
the Austrians were not very unequal to the Prussians; while the
reputation of the French troops had fallen to the lowest ebb, the most
memorable event in their annals during the same war being the rout of
Rosbach, when 60,000 of them fled before Frederic and 22,000. At the
breaking out of the Revolution, it might be said that De Bouille was the
only French general of the slightest reputation, and since the sad
journey to Varennes he had been an exile from his country. And, though
again in 1803 Pitt once more trusted for success on land to Continental
alliances, not only does he deserve admiration for the diplomatic talent
with which he united Austria, Prussia, and Russia against France, but it
can hardly be doubted that confederacy would have been triumphant, had
not the incompetent vanity of Alexander ruined all its prospects by his
rash disregard at Austerlitz of the experienced warnings of his own
staff.[111]
The new form of government which he established for India, and to which
allusion has been made, has lost the greater part of its importance in
the eyes of the present generation, from the more-recent abolition of
the political authority of the East India Company, though of some of the
principles which he avowed he had taken for his guides it is worth while
to preserve the record; with such clearness, as well as statesman-like
wisdom, do they affirm the objects which every one should keep in view
who applies himself to legislation for distant dependencies where the
privileges and interests of foreign fellow-subjects are to be regarded
with as jealous a solicitude as those of our own countrymen. These
objects may be briefly described as being the reconciling the vested and
chartered interests of the Company with the legitimate authority of the
King's government; for, though Pitt admitted that "state necessity"
might occasionally be allowed as a valid reason for the abrogation of a
charter, he affirmed that nothing short of such absolute necessity could
excuse such a measure, and he relied on the previous history of the
Company to prove the fallacy of an observation that had sometimes been
made, that commercial companies could not govern empires. There were
three interests to be considered: that of the native Indians, that of
the Company, and that of this country; and the problem to be solved was,
"how to do the most good to India and to the East India Company with the
least injury to our constitution." Some of his remarks contained
unavoidable allusions to Fox's bill of the previous year, since some of
the provisions of his bill were entirely opposite to those which Fox had
framed, the most material point of difference being the character of the
Board of Control which he proposed to establish. Fox, as has been seen,
had proposed to make the commissioners to be appointed under his bill
irremovable for several years, whatever changes might take place in the
home government; an arrangement which the opposers of the bill suspected
of being designed to prevent any change in the home government from
taking place. Pitt, on the other hand, laid down as one of his leading
principles that "the board could not be permanent, that it must be
subordinate to the administration of the day, and that permanency would
be in itself a deviation from the principles of the constitution, and
would involve the board in contradictions to the executive government
that could not fail to be attended with great public inconvenience. An
institution to control the government of India must be either totally
independent of the government of this country or subordinate to it."
"The board was to consist of none but privy councillors," and instead of
the vast amount of patronage which was to have been created by the bill
of 1783, this board was "to create no increase of officers nor to impose
any new burdens." ... "The first and leading ideas would be, to limit
the subsisting patronage;" ... and so little was Pitt covetous to
engross that which did and must continue to subsist, that he left even
"the officers of the government of Bengal to the nomination of the Court
of Directors, subject only to the negative of the crown; and the Court
of Directors was also to have the nomination of the officers of all the
subordinate governments, except only of the commander-in-chief, who, for
various reasons, must remain to be appointed by the crown." Another very
important part of the arrangement was, that "gradation and succession
were to be the general rule of promotion," a regulation which of itself
would be "a forcible check upon patronage, and tend greatly to its
reduction." The governor of Bengal was to be the governor-general of the
whole country, the governors of Madras and Bombay being subordinate to
him; and each governor was to be assisted by a council of three members,
of whom the commander of the forces was to be one.
The spirit in which a law or a government is administered is commonly of
greater practical importance than the words in which the regulation or
the system is framed or defined; and Pitt, therefore, concluded his
speech by laying down a few "clear and simple principles as those from
which alone a good government could arise. The first and principal
object would be to take care to prevent the government from being
ambitious and bent on conquest. Commerce was our object, and, with a
view to its extension, a pacific system should prevail, and a system of
defence and conciliation. The government there ought, therefore, in an
especial manner, to avoid wars, or entering into alliances likely to
create wars." It was not to forget "to pay a due regard to self-defence,
or to guard against sudden hostilities from neighboring powers, and,
whenever there was reason to apprehend attack, to be in a state of
preparation. This was indispensably necessary; but whenever such
circumstances occurred, the executive government in India was not to
content itself with acting there as the circumstances of the case might
require; it was also to send immediate advice home of what had happened,
of what measures had been taken in consequence, and what farther
measures were intended to be pursued; and a tribunal was to be
established to take cognizance of such matters." The system of taking
presents from the natives was to be absolutely prohibited, a regulation
which he hoped would "tend effectually to check private corruption;"
and, lastly, it was proposed to establish a court of criminal judicature
for the trial in England of certain classes of delinquents after their
return from India. The Judges of the court were to be men of the highest
character; they were to be chosen by ballot, some being taken from the
bench of judges, some from each House of Parliament. And they were "not
to be tied down to strict rules of evidence, but to be upon their oaths
to give their judgments conscientiously, and to pronounce such judgment
as the common law would warrant." Such a tribunal he admitted to be an
innovation; but, "unless some new process were instituted, offences
shocking to humanity, opposite to justice, and contrary to every
principle of religion and morality, must continue to prevail, unchecked,
uncontrolled, and unrestrained, and the necessity of the case outweighed
the risk and the hazard of the innovation."
These were the general outlines of the constitution which in 1784 the
Parliament established for India, and the skill with which it was
adapted to the very peculiar character of the settlements to be governed
is sufficiently proved by the fact that it was maintained with very
little alteration equally by Whig and Tory administrations for
three-quarters of a century, till the great convulsion of the Mutiny
compelled an entire alteration in the system, and the abolition of the
governing powers of the Company, as we shall have occasion to relate in
a subsequent chapter. The principles which Pitt had laid down as the
guiding maxims for the governors; the avoidance of ambitious views of
conquest, the preservation of peace, and the limitation of the aims of
the government to the encouragement and extension of commerce, were not
equally adhered to. Undoubtedly, in some instances, the wars in which,
even during Pitt's too short lifetime, the Indian government was
engaged, came under his description of wars which were justifiable on
the ground of self-defence--wars undertaken for the preservation of what
had been previously won or purchased, rather than for the acquisition of
new territories at the expense of chiefs who had given us no
provocation. But for others, though professedly undertaken with a view
only of anticipating hostile intentions, the development of which might
possibly be reserved for a distant future, it is not easy to find a
similar justification; and it may be feared that in more than one case
governors-general, conscious of great abilities, have been too much
inclined to adopt the pernicious maxim of Louis XIV., that the
aggrandizement and extension of his dominions is the noblest object
which a ruler of nations can have in view. Yet, though unable on
strictly moral grounds to justify all the warlike enterprises which make
up so large a part of our subsequent Indian history, it is impossible,
probably, for even the most rigid moralist to avoid some feelings of
national pride in the genius of our countrymen, who in the short space
of a single century have built up an empire of a magnitude unequalled
even by the Caesars, and have governed and still are governing it in so
wise and beneficent a spirit, and with such a display of administrative
capacity, that our rule is recognized as a blessing by the great
majority of the nations themselves, as a protection from ceaseless
intestine war, from rapine, and that worst of tyrannies, anarchy, which
was their normal condition before Clive established our supremacy at
Plassy, and into which they would surely and speedily fall back, if our
controlling authority were to be withdrawn.
India was not the only British settlement for which the growth of our
empire compelled Pitt to devise a constitution. The year which saw his
birth had also seen the conquest of Canada from the French; and in 1774
a system of government for the new province had been established which
it is sufficient here to describe as one, which differed but little from
a pure despotism, the administration being vested in a governor and
Legislative Council, every member of which was to be nominated by the
crown. But the working of this act had from the first proved very
unsatisfactory, and had become more so as the population increased by
the influx of fresh settlers from Great Britain, and also from the
United States, here many of those who in the recent civil war had
adhered the connection with the mother country had been exposed to
constant malice and ill-treatment, and had preferred crossing the border
and obtaining lands in Canada to returning to England. Pitt recognized
the evil, and undertook to remedy it and in 1791 he introduced a bill to
establish a constitution for Canada, which a recent historian describes
as "remarkable, as recognizing for the first time the wise and generous
principle of independent colonial institutions, which has since been
fully developed in every dependency of the British crown capable of
local self-government."[112] One peculiar difficulty in framing such a
constitution arose from the circumstance of the old French colonists,
who greatly outnumbered the settlers of British blood, being attached to
the Roman Catholic religion; while the British settlers were nearly, or
perhaps all, Protestant, though of different denominations. The
difficulty was, indeed, lessened by the circumstance that the French
dwelt in Quebec and the district between that city and the mouth of the
St. Lawrence, and that the English had for the most part betaken
themselves to the more inland region. And this local separation of the
two races the minister now took for his guide in the arrangement which
he devised. The most important feature in it was the division of the
province into two parts, as Upper and Lower Canada, and the
establishment of a distinct local Legislature for each division, a House
of Assembly being created in each, and a Council, so as, in Pitt's
words, "to give both divisions the full advantages of the British
constitution." The Assemblies were to have the power of taxation (so
that there was no room left for such perverse legislation by a British
Parliament as had lately cost its sovereign the United States). The act
of _habeas corpus_ was extended to the province (a privilege which no
one of French blood had ever enjoyed before); the tenure of land was to
be the socage[113] tenure so long and happily established in England.
Complete religious toleration was established, and a certain proportion
of land was allotted in Upper Canada, as a provision for a Protestant
clergy, and the foundation of an ecclesiastical establishment. So great
was Pitt's desire to complete the resemblance between the colony and
Great Britain, that he even contemplated the creation of an aristocracy,
by the introduction of a provision enabling the King to grant hereditary
colonial titles, the possession of which should include hereditary seats
in the provincial Council. The two latter clauses were opposed by Fox,
and the latter of them, though sanctioned by Parliament, was never
carried out in practice. But Fox, bitter as he was at this time in his
general opposition to the government, agreed cordially in the general
principles of the bill, avowing his conviction that "the only method of
retaining distant colonies with advantage is to enable them to govern
themselves," so that each party in the British Parliament is entitled to
a share of the credit for this pattern of all subsequent colonial
constitutions--Pitt for the original genius for organization which his
contrivance of all the complicated details of the measure displayed, and
Fox for his frank adoption of the general principle inculcated by his
rival, even while differing as to some of the minor details of the
measure. During these years the country was increasing in prosperity,
and the minister was daily rising in credit; more powerful and more
popular than the most successful or the most brilliant of his
predecessors. But during these same years two great constitutional
difficulties had arisen, one of which, indeed, the deep sense which both
parties felt of the danger of investigating it shelved almost as soon as
it was seen; but the other of which, besides the importance which it
derived from the degree in which it involved the principle of the
supreme authority of Parliament, and brought under discussion even that
which regulates the succession to the crown, imperilled the existence of
the ministry, and threatened a total change in both the domestic and
foreign policy of the nation.
The Prince of Wales, who had come of age in the summer of 1783, had at
once begun to make himself notorious for the violence of his opposition
to his father's ministers, carrying the openness of his hostility so far
as, during the Westminster election to drive about the streets with a
carriage and all his servants profusely decorated with Fox's colors;
and, still more discreditably, by most unmeasured profligacy of all
kinds. The consequence was that he soon became deeply involved in debt,
so deeply that, in 1787, a member of Fox's party gave notice of his
intention to move that the Parliament should pay his debts and increase
his income. Pitt, without specifying his reasons, avowed that he should
feel it his duty to oppose any grant of such a character; but another
member of Parliament, Mr. Rolle, one of the members for Devonshire,
being trammelled by no such feeling of responsibility, expressed a
similar resolution in language which contained an allusion perfectly
understood on both sides of the House. He said that "the question thus
proposed to be brought forward went immediately to affect our
constitution in Church and State." And every one knew that he was
referring to a report which had recently become general, that the Prince
was married to a Roman Catholic lady of the name of Fitzherbert. No
direct notice was taken of this allusion at the moment, Fox himself, who
had the chief share of the Prince's confidence, being accidentally
absent; but a day or two afterward he referred to Rolle's speech with
great indignation, declaring that it referred to a "low, malicious
calumny" which had no foundation whatever, and "was only fit to impose
on the lowest order of persons." Being pressed as to the precise force
of his assertion, and being asked whether it meant more than that under
the existing laws, such as the Royal Marriage Act, there had been no
marriage, because there could have been no _legal_ marriage, he declared
that he meant no such evasion, but that no marriage ceremony, legal or
illegal, had ever taken place; and farther, that in saying this he was
speaking on the direct authority of the Prince himself. No more
degrading act stains the annals of British royalty. For the fact was
true--the very next evening Fox learned the deceit which the Prince had
practised on him from a gentleman who had been one of the witnesses to
the marriage, which had been solemnized by a Protestant clergyman
fifteen months before.[114] And his indignation was such that for some
time afterward he abstained from all interference in the Prince's
affairs; while the language held by the Prince's other confidant, Mr.
Sheridan, was so evasive as to betray a consciousness that whatever had
occurred would not bear the light of day; so that there were very few to
whom the truth or falsehood of the report was a subject of interest who
felt any uncertainty on the subject.
It may, probably, be regarded as fortunate for the peace of the kingdom
that the Prince, who eventually became King George IV., left behind him
no issue from his marriage with the Princess, the failure of heirs of
his body thus removing any temptation to raise the question whether he
had not himself forfeited all right to succeed to the throne by his
previous marriage to a Roman Catholic. A clause of the Bill of Rights
provides that any member of the royal family who should marry a Roman
Catholic (with the exception of the issue of princesses who may be the
wives of foreign princes) shall by that marriage be rendered incapable
of inheriting the crown of England. And though the Royal Marriage Act
(which, as we have seen, had been recently passed) had enacted that no
marriage of any member of the royal family contracted without the
consent of the reigning sovereign should be valid, it by no means
follows that an invalidity so created would exempt the contractor of a
marriage with a Roman Catholic, which as an honorable man he must be
supposed to have intended to make valid, from the penalties enacted by
the Bill of Rights. It is a point on which the most eminent lawyers of
the present day are by no means agreed. The spirit of the clause in that
bill undoubtedly was, that no apparent or presumptive heirs to the crown
should form a matrimonial connection with any one who should own
allegiance to a foreign power, and that spirit was manifestly
disregarded if a prince married a Roman Catholic lady, even though a
subsequent law had enacted a conditional invalidity of such a marriage.
We may find an analogy to such a case in instances where a man has
abducted a minor, and induced her to contract a marriage with himself.
The lady may not have been reluctant; but the marriage has been
annulled, and the husband has been criminally prosecuted, the nullity of
the marriage not availing to save him from conviction and punishment. A
bigamous marriage is invalid, but the bigamist is punished. And, apart
from any purely legal consideration, it may be thought that public
policy forbids such a construction of law as would make the illegality
or invalidity of an act (and all illegal acts must be more or less
invalid) such a protection to the wrong-doer as would screen him from
punishment.
Whatever may be the judgment formed on the legal aspect and merits of
the case, the conduct of the Prince could not fail to give the great
body of the people, justly jealous at all times of their national
adherence to truthfulness and honesty, a most unfavorable impression of
his character. As has been already mentioned, Fox was so indignant at
having been made the instrument to assure the Parliament and the nation
of a falsehood, that he for a time broke off all communication with
him.[115] Yet a singular caprice of fortune, or, it would be more proper
to say, a melancholy visitation of Providence, before the end of the
following year led Fox to carry his championship of the same Prince who
had so abused his confidence to the length of pronouncing the most
extravagant eulogies on his principles, and on his right to the
confidence and respect of the nation at large. In the autumn of 1788 the
King fell into a state of bad health, which in no long time affected his
mind, and, by the middle of November, had so deranged his faculties as
to render him incapable of attending to his royal duties, or, in fact,
transacting any business whatever. Parliament was not sitting, but its
re-assembling had been fixed for the 4th of December, and before that
day arrived the King's illness had assumed so alarming a character, and
it appeared so unsafe to calculate on his immediate recovery, that the
minister summoned a Privy Council, the summons being addressed to the
members of the Opposition as well as to his own followers, to receive
the opinions of the physicians in attendance on his Majesty, as a
necessary foundation for the measures which he conceived it to be his
duty to propose to Parliament. Those opinions were, that it was almost
certain that the disease would not be permanent, though no one could
undertake to fix its duration with the least appearance of probability.
And, as the royal authority could not be left in abeyance, as it were,
for an uncertain period, it was indispensable to appoint a Regent to
conduct the affairs of the kingdom till the King should, happily, be
once more in a condition to resume his functions.
In considering the line of conduct adopted in this emergency by Pitt and
his great rival Fox, Pitt has one manifest advantage on his side, that
it is impossible to attribute the course which he took to any personal
motive, or any desire for the retention of official power; while it is
equally impossible to doubt that Fox was in no slight degree,[116] and
that Lord Loughborough, the prince's chief adviser on points of law, was
wholly influenced by the hope of supplanting the ministry. Pitt had
never the least doubt that on the establishment of the Regency he should
be dismissed, and was prepared to return to the Bar. But his knowledge
of the preference which the Prince entertained for his rival did not
lead him to hesitate for a single moment as to the propriety of placing
him in a situation to exercise that preference. On the reassembling of
Parliament, he at once took what he conceived to be the proper
parliamentary course of proceeding; at his suggestion committees in both
Houses were appointed to take a formal examination of the royal
physicians; and, when those committees had reported that the King was
for the present incapable of discharging his royal functions, though
likely at some future period to be able to resume them, he moved the
House of Commons to appoint another committee, to search for "precedents
of such proceedings as might have been taken in the case of the personal
exercise of the royal authority being prevented or interrupted by
infancy, sickness, or infirmity, with a view to provide for the same."
Such a search for precedents was no novelty, and may be thought to have
been especially proper in such a case as this, since history recorded
the appointment of several regencies, one under circumstances strikingly
resembling those now existing, when, in 1454, Henry VI. had fallen into
a state of imbecility, and the Parliament appointed the Duke of York
Protector[117] of the kingdom.
But Fox instantly opposed it with extreme vehemence, declaring that the
appointment of such a committee would be a pure waste of time. It was
notorious, he affirmed, that no precedent existed which could have any
bearing on the present case, since there was in existence a person such
as had never been found on any previous occasion, an heir-apparent of
full age and capacity to exercise the royal authority; and he declared
it to be his deliberate opinion that the Prince of Wales had "as clear
and express a right to assume the reins of government, and to exercise
all the powers of sovereignty, during the illness and incapacity of the
sovereign, as if that sovereign were actually deceased." Such an
assertion of indefeasible right was so totally at variance with the Whig
doctrines which Pitt, equally with Fox, regarded as the true principles
of the constitution, that Pitt at once perceived the advantage which it
gave him, by enabling him to stand forward as the supporter of the
supreme authority of Parliament, which Fox had by implication denied. He
instantly replied that to assert an inherent indefeasible right in the
Prince of Wales, or any one else, independently of the decision of the
two Houses, fell little short of treason to the constitution; but, at
the same time, to prevent any one pretending to misconceive his
intentions, he allowed it to be seen with sufficient plainness that,
when once the right of Parliament to appoint the Regent had been
established, he should agree in the propriety of conferring that office
on the Prince of Wales. The committee was appointed; but, even before it
could report the result of its investigations, the doctrine advanced by
Fox had been the subject of discussion in the House of Lords, where Lord
Camden, who had presided over the meeting of the Privy Council a few
days before, on moving for the appointment of a similar committee of
peers, had taken occasion to declare that, if Fox had made such an
assertion as rumor imputed to him, it was one which had no foundation in
"the common law of the kingdom." He had never read nor heard of such a
doctrine. Its assertors might raise expectations not easily laid, and
might involve the country in confusion. And he contended, as Pitt had
done in the Commons, that its assertion was a strong argument in favor
of the appointment of a committee, that it might be at once seen whether
it were warranted by any precedent whatever. The reports of the two
committees bore out Fox's statement, that no precedent entirely
applicable to the case before them had ever occurred. But by this time
Fox had learned that the argument which he had founded on it was in the
highest degree unpalatable both to Parliament and to the nation; and for
a moment he sought to modify it by an explanation that, though he had
claimed for the Prince "the naked right, he had not by that expression
intended to maintain that that right could be reduced into possession
without the consent of Parliament;" an explanation not very reconcilable
to common sense, since, if a right were inherent and indefeasible,
Parliament could not, without absolute tyranny, refuse to sanction its
exercise; and, in fact, his coadjutor, Sheridan, on the very same
evening, re-asserted his original doctrine in, if possible, still more
explicit terms, warning the minister "of the danger of provoking the
Prince to assert his right," while a still greater man (Burke) declared
that "the minister had taken up an attitude on the question tantamount
to that of setting himself up as a competitor to the Prince." Such
inconsiderate violence gave a great advantage to Pitt, one of whose most
useful characteristics as a debater was a readiness and presence of mind
that nothing could discompose. He repelled such menaces and imputations
with an equally lofty scorn, and, after a few necessary preliminaries,
brought forward a series of resolutions, one of which declared the fact
of the sovereign's illness, and consequent incapacity; a second affirmed
it to be the right and duty of the two Houses of Parliament to provide
the means for supplying the defect in the royal authority; and a third
imposed on the Houses the task of deciding on the mode in which the
royal assent necessary to give their resolutions the authority of law
should be signified. It was impossible to object to the first; but the
second was stubbornly contested by the Opposition, the chiefs of the
Coalition Ministry once more fighting side by side; though Lord North
contented himself with arguing that the affirmation of the right and
duty of Parliament was a needless raising of a disputable point, and
moving, therefore, that the committee should report progress, as the
recognized mode of shelving it. Fox, however, carried away by the heat
of debate, returned to the assertion of the doctrine of absolute right,
overlooking his subsequent modification of it, and again gave Pitt the
advantage, by condescending to impugn his motives for proposing the
resolution, as being inspired, not by a zeal for the constitution, but
by a consciousness that he did not deserve the confidence of the Prince,
and, therefore, anticipated his instant dismissal by the Regent. The
re-affirmation of the Prince's inherent right was, indeed, necessary to
Fox as the foundation for the objections which he took to other parts of
Pitt's scheme. For the minister, while admitting to its full extent the
irresistible claim which the Prince of Wales possessed to the preference
of Parliament for the Regency, proposed at the same time to impose
certain limitations on his exercise of the authority, so long as there
was a reasonable hope of his royal father's recovery. He was not to have
the power to create peerages, nor to alienate the property of the crown,
nor to grant offices in reversion; and, as the Queen was to have the
care of his Majesty's person, she also was to have the appointment of
all the offices in the royal household. Fox, on the other hand, objected
with extreme earnestness to the impropriety of imposing any limitations
whatever on the power of the Regent; and then the question whether the
Prince was to derive his right to the Regency from the authority of
Parliament, or from his natural position and inalienable preceding right
as his father's heir, became one of practical importance. If the
Parliament had the right to confer authority, it had clearly the right
to limit the authority it conferred. If the Prince had an indefeasible
right to the Regency, independently of the will of Parliament, then
Parliament could have no pretence to limit or restrain the exercise of
an authority which in no degree flowed from itself. Fox, indeed, took
another objection to the imposing of limitations to the authority to be
intrusted to the Regent, contending that this would be to create a power
unknown to the constitution--a person in the situation of King without
regal power. But, not to mention precedents drawn from the reigns of
Edward III., Richard II., and Henry VI., in the twenty-fourth year of
the very last reign, George II., on the death of his son, the father of
the present King, had enjoined the Parliament to provide for the
government, in the case of his own death, while the heir was still a
minor, recommending to them the appointment of the Princess Dowager of
Wales as Regent, "with such powers and limitations as might appear
expedient." And, in conformity with his desire, the Parliament had
appointed the Princess Regent, with a Council of Regency to assist her;
and had enacted that "several portions of the regal power" should be
withheld from the Regent, if she could not obtain the consent of the
Council thus appointed.[118]
This part of the case was so plain, that when, after the different
resolutions proposed by Pitt had been adopted in both Houses, Fox
insisted that, instead of proceeding by a bill to create a Regency, and
to appoint the Prince of Wales Regent, the only course which could be
adopted with propriety would be to present an address to the Prince, to
entreat him to assume the government, he failed to induce the House to
agree with him; and finally, as if he were determined to find a
battle-field in every clause, he made a vigorous resistance to the
expedient by which Pitt proposed that the formal royal assent which was
necessary to make the bill law should be given. Fox, on one occasion,
had gone the length of denying that the two Houses had any right to be
regarded as a Parliament while the King, an essential part of
Parliament, was incapacitated. But such an objection could have had no
force, even in the mind of him who raised it, since the proceedings of
the two Convention Parliaments of 1660 and 1689 labored under a similar
defect; and yet their acts had been recognized as valid, and ratified by
subsequent Parliaments. And now, in reference to the expedient proposed
by the minister, that the two Houses should empower and authorize the
Lord Chancellor to affix the Great Seal to the bill, Burke, with great,
but for him not unusual, violence, denounced both the proposal and the
Chancellor, declaring that such a step would be the setting up of a
phantom of sovereignty, a puppet, an idol, an idiot, to which he
disclaimed all allegiance. A more perilous amendment was one proposed to
another clause by Mr. Rolle, enacting that if the Regent should marry a
Roman Catholic his authority should cease. Since the Bill of Rights, as
we have seen, forbade a sovereign to marry a Roman Catholic without
incurring the forfeiture of his crown, it was evidently reasonable that
the same restriction should be imposed on every Regent; but it was hard
at the moment altogether to dissociate such a clause from the
discussions of the preceding year; and Mr. Rolle endeavored to give the
clause a more pointed meaning by an amendment to enact that the
forfeiture should be incurred by the mere celebration of any marriage
ceremony, whether the marriage thus performed were legal and valid or
not. His amendment, however, was unanimously rejected. The bill was
passed without alteration by the House of Commons; the Prince, while
protesting in an elaborate and most able letter, drawn up for him by
Burke, against the restrictions imposed by the bill, nevertheless
consented to sacrifice his own judgment to the general good of the
kingdom, and to accept the authority, limited as it was. And by the
middle of February the bill was sent up to the House of Lords. There
Lord Camden had charge of it, and his position as a former Chancellor
gave irresistible weight to his opinion that the mode proposed to give
the final sanction to the bill was strictly in accordance with the
spirit and practice of the constitution. The point with which he dealt
was the previous one, how Parliament, which was to pass the bill, was to
be opened, for, "circumstanced as it was, Parliament could not at
present take a single step." The law, as he put it, declared that the
King must be present, either in person or by a representative. When he
could not attend personally, the legal and constitutional process was to
issue letters-patent under the Great Seal. In the present dilemma,
therefore, he recommended that the two Houses should direct
letters-patent to be issued under the Great Seal, authorizing
commissioners to open Parliament in the name of his Majesty. He "must
use the liberty to say that those who treated this proposal with
ridicule were ignorant of the laws of their country. A fiction it might
be termed, but it was a fiction admirably calculated to preserve the
constitution, and, by adopting its forms, to preserve its substance."
The authority of the Great Seal he explained to be such that, "even if
the Lord Chancellor, by caprice, put it to any commission, it could not
afterward be questioned;" and he adduced a precedent of a very similar
character to the course now proposed, which occurred "at the
commencement of the reign of Henry VI., when, the sovereign being an
infant of nine months old, the Great Seal was placed in his hand, and it
was supposed to be given to him by the Master of the Rolls, whereupon
many commissions were sealed by it, and the government was carried on
under its authority." That precedent, he reminded the peers, had been
followed as recently as the year 1754, when, during an illness of George
II., Lord Chancellor Hardwicke affixed the Great Seal to a commission
for opening a session of Parliament. And, finally, he concluded by
moving, "That it is expedient and necessary that letters-patent for
opening the Parliament should pass under the Great Seal."[119] The
motion was carried, and Parliament was opened in accordance with it;
and, if it had been necessary, the same expedient would have sufficed to
give the requisite assent to the Regency Bill, a necessity which was
escaped by the fortunate recovery of the royal patient, which was
announced by his medical advisers a day or two before that fixed for the
third reading of the bill in the House of Lords.
Though the question was thus left undetermined for the moment, it was
revived twenty-two years afterward, when the same sovereign was attacked
by a recurrence of the same disease, and the existing ministry, then
presided over by Mr. Perceval, brought forward a Regency Bill almost
identical with that which on this occasion had been framed by Mr. Pitt;
and the Opposition, led by Lord Grey and Sir Samuel Romilly, raised as
nearly as possible the same objections to it which were now urged by Fox
and his adherents. The ministerial measure was, however, again supported
by considerable majorities; so that the course proposed by Mr. Pitt on
this occasion may be said to have received the sanction of two
Parliaments assembled and sitting under widely different circumstances;
and may, therefore, be taken as having established the rule which will
be adopted if such an emergency should, unfortunately, arise hereafter.
And indeed, though the propriety of Pitt's proposals has, as was
natural, been discussed by every historical and political writer who has
dealt with the history of that time, there has been a general
concurrence of opinion in favor of that statesman's measure. Lord John
Russell, while giving a document, entitled "Materials for a Pamphlet,"
in which he recognizes the handwriting of Lord Loughborough, and which
"contains the grounds of the opinion advanced by him, and adopted by Mr.
Fox, that, from the moment the two Houses of Parliament declared the
King unable to exercise his royal authority, a right to exercise that
authority attached to the Prince of Wales," does not suppress his own
opinion of the "erroneousness of this or any other doctrine that
attributes to any individual or any constituted authority existing in
the state a strict or legal right to claim or to dispose of the royal
authority while the King is alive, but incapable of exercising it."[120]
The only writer, as far as I am aware, who advocates the opposite view
is Lord Campbell, who, after quoting the speech of Lord Camden, from
which extracts have been made, comments on it, and on the whole
transaction, in the following terms: "From the course then adopted and
carried through, I presume it is now to be considered part of our
constitution that if ever, during the natural life of the sovereign, he
is unable by mental disease personally to exercise the royal functions,
the deficiency is to be supplied by the two Houses of Parliament, who,
in their _discretion_, will probably elect the heir-apparent Regent,
under such restrictions as they may please to propose, but who may
prefer the head of the ruling faction, and at once vest in him all the
prerogatives of the crown. On the two occasions referred to in the reign
of George III., the next heir being at enmity with the King and his
ministers, this was considered the loyal and courtly doctrine; and, from
its apparent advancement of the rights of Parliament, there was no
difficulty in casting odium on those who opposed it. But I must avow
that my deliberate opinion coincides with that of Burke, Fox, and
Erskine, who pronounced it to be unsupported by any precedent, and to be
in accordance with the principles of the Polish, not the English,
monarchy. The two Houses of Parliament would be the proper tribunal to
pronounce that the sovereign is unable to act; but then, as if he were
naturally as well as civilly dead, the next heir ought of right to
assume the government as Regent, ever ready to lay it down on the
sovereign's restoration to reason, in the same way as our Lady Victoria
would have returned to a private station if, after her accession, there
had appeared posthumous issue of William IV. by his queen. It is easy to
point out possible abuses by the next heir as Regent, to the prejudice
of the living sovereign; but there may be greater abuses of the power of
election imputed to the two Houses, whereby a change of dynasty might be
effected. I conceive, therefore, that the Irish Parliament[121] in 1789
acted more constitutionally in acknowledging the _right_ of the next
heir, in scouting the fiction of a commission or royal assent from the
insane sovereign, and in addressing the Prince of Wales to take on
himself the government as Regent."
Though the sneers at the possibility of Parliament preferring "the head
of the ruling faction" to the heir-apparent be hardly consistent with
the impartial candor which is one of the most imperative duties of an
historical critic, and though the allusion to the principles of the
Polish monarchy be not very intelligible, yet no one will refuse to
attach due weight to the deliberate opinion of one who won for himself
so high a professional reputation as Lord Campbell. But, with all
respect to his legal rank, we may venture to doubt whether he has not
laid down as law, speaking as a literary man and an historian, a
doctrine which he would not have entertained as a judge. For, if we
consider the common law of the kingdom, it is certain that, in the case
of subjects, if a man becomes deranged, his next heir does not at once
enter on his property "as if he were naturally as well as civilly dead."
And if, as in such cases is notoriously the practice, the Court of
Chancery appoints a guardian of the lunatic's property, analogy would
seem to require that the Houses of Parliament, as the only body which
can possibly claim authority in such a matter, should exercise a similar
power in providing for the proper management of the government to that
which the law court would exercise in providing for the proper
management of an estate; and that, therefore, the principles of
constitutional[122] statesmanship, which is deeply interested in
upholding the predominant authority of Parliament, must justify the
assertion of the ministers that the two Houses had the entire and sole
right to make regulations for the government of the kingdom during the
incapacity of the sovereign; and that the next heir, even when a son of
full age, can have no more right to succeed to his father's royal
authority in his lifetime than, if that father were a subject, he would
have to succeed to his estate.
The opposite doctrine would seem to impugn the legality of the whole
series of transactions which placed William and Mary on the throne. The
admission of an indefeasible right of the heir-apparent would have borne
a perilous resemblance to a recognition of that divine right, every
pretension to which the Revolution of 1688 had extinguished. If, again,
as Fox and his followers at one time endeavored to argue, the Houses in
1789 had no right to the name or power of a Parliament, because the King
had no part in their meetings, the convention that sat a century before
(as, indeed, was admitted) was certainly far less entitled to that name
or power, for it had not only never been called into existence by a
King, but was assembled in direct defiance of the King. Similarly, it is
admitted that the body which invited Charles II. to return and resume
his authority was equally destitute of the validity which could only be
given by a royal summons. Yet both these bodies had performed actions of
greater importance than that which was looked for from this Parliament.
The one had abolished the existing and usurping government, and restored
to his kingdom a King who had been long an exile. The other had, as it
were, passed sentence on the existing sovereign, on grounds which
confessedly will not bear a strict examination, and had conferred the
crown on a prince who had no hereditary claim to the title. The
justification of both acts was necessity. _Salus regni suprema Lex_. And
the necessity was clearly more urgent in the present case than in either
of the preceding instances. For, unless the Parliament interfered to
create an authority, there was absolutely none in existence which was
capable of acting. It should also be remembered that this Parliament of
1789, though not opened for the session by the King, had been originally
elected in obedience to his order, and had been prorogued by his
proclamation to the day of meeting;[123] and, though the opening of a
session by a speech from the throne is the usual form for the
commencement of its proceedings, it may be doubted whether it be so
indispensable a part of them that none of their acts are valid without
it.
The breaking out of the French Revolution, and the degree in which, in
spite of all its atrocities and horrors, the revolutionary spirit for a
time infected a large party in England, prevented Pitt from reviving the
plan of Reform which he had framed with such care and genius for
organization, and in which, though defeated in Parliament, both before
and after he became minister, he had hitherto continued to cherish the
hope of eventually succeeding. But when clubs and societies, where the
most revolutionary and seditious doctrines were openly broached, were
springing up in London and other large towns, and unscrupulous
demagogues by speeches and pamphlets were busily disseminating theories
which tended to the subversion of all legitimate authority, he not
unnaturally thought it no longer seasonable to invite a discussion of
schemes which would be supported in many quarters only, to quote his own
words, "as a stepping-stone to ulterior objects, which they dared not
avow till their power of carrying them into effect should be by this
first acquisition secured." But the alarm which the spread of
revolutionary ideas excited in his mind was displayed, not only
passively in this abstention from the advocacy of measures the
expediency of which must at all times in some degree depend on the tone
of their introduction, but also in active measures of repression, some
of which were not, indeed, unwarranted by precedent, but others of which
can hardly be denied to have been serious inroads on the constitution,
infringements of the freedom of opinion and discussion to which all
Englishmen are entitled, and one of which was, to say the least, a very
perilous extension of a law already sufficiently severe, the statute of
treason. If the French had been content with the overthrow of their own
government and institutions, much as we should have lamented the
indiscriminate rashness and abhorred the atrocities with which their
design was carried out, we should still have adhered to the
unquestionable maxim, that no nation is justified in interfering in the
internal affairs of another. But the Jacobin and Girondin demagogues,
who had now the undisputed sway in Paris, did not limit their views to
their own country, but openly declared themselves the enemies of all
established governments in every country; and the Convention passed a
formal resolution in which they proffered "fraternity and assistance" to
every people which might be inclined to rise against their governments.
Their resolutions were officially communicated to the sympathizing
societies in England, and emissaries were secretly encouraged to cross
the Channel in the hope of gaining converts. Nor were their exertions
barren. Two men were convicted in Scotland of a plot to seize Edinburgh
Castle, to massacre the garrison, to imprison the judges, and to rise in
arms to compel the government to a change of policy. In London the King
was fired at on his way to open Parliament, and on his return his
carriage was attacked by a furious mob, and was only protected from
serious injury by a troop of the Life Guards. Such outrages proved the
existence of a new danger, against which no previous government had ever
been called on to provide, and such as, in the opinion of the cabinet,
could only be met by novel measures of precaution.
The first was directed against the foreign propagators of revolution.
The resolutions of the Convention had been promulgated in November,
1792; and at the meeting of Parliament in December, Lord Grenville, as
Foreign Secretary of State, introduced in the House of Lords an alien
bill, to enable the government to deal in a summary manner with any
foreign visitors whose conduct or character might seem to call for its
interference. It provided that all foreigners who had arrived in the
kingdom since the preceding January should give in a statement of their
names and residences; that any one who should arrive in future should
furnish an account of his name, his station in life, and his object in
visiting England; that the King, by proclamation, order in Council, or
sign-manual, might direct all foreigners to reside in such districts as
might be thought suitable; that no one might quit the residence in which
he first settled without a passport; and that the Secretary of State
might order any suspected foreigner to quit the kingdom instantly.
The act was to be in operation for twelve months, and Lord Grenville, in
introducing it, though he admitted it to be a measure of "rather a novel
nature," explained at the same time that it was so far from being new in
the powers which it gave, that Magna Charta distinctly recognized "the
power and right of the crown to prevent foreigners from entering or
residing within the realm." All that was really new was the defining of
the manner in which that power should be exercised, since it had been so
rarely needed that doubts might exist as to the proper mode of putting
it in action. The bill, which was adopted in both Houses by large
majorities, is remarkable, among other circumstances, from the fact that
its discussion furnished the first instance of a public display of the
difference between the two sections of the Opposition, subsequently
described by Burke in one of his most celebrated pamphlets as the Old
and New Whigs; those whom he called the Old Whigs (the Duke of Portland,
Sir Gilbert Elliott, Mr. Windham, not to mention Burke himself)
earnestly supporting it, while Lord Lansdowne, Mr. Fox, Mr. Sheridan,
and Mr. Grey resisted it with equal zeal. Lord Lansdowne took the ground
that it was a suspension of the _Habeas Corpus_ Act; while Fox and Grey
denounced it, in more general terms, as a measure "utterly
irreconcilable with the principles of the constitution," Mr. Grey
apparently referring chiefly to the power given by the bill to the
Secretary of State to send any foreigners from the country, which he
described as "making the bill a measure of oppression, giving power for
the exercise of which no man was responsible." Sir Gilbert Elliott's
answer was singularly ingenious. He did not deny that the bill conferred
additional power on the crown, though not more than was justified by
existing circumstances; but he maintained that the right of giving
extraordinary powers to the crown on occasions was so far from being
inconsistent with the principles of the constitution, that to grant
extraordinary powers in extraordinary emergencies was a part of it
essential to the character of a free government. If such powers were at
all times possessed by the crown, its authority would be too great for a
free government to co-exist with it; but if such could not be at times
conferred on the crown, its authority would be too small for its own
safety or that of the people.
The arguments of the ministers were, no doubt, greatly recommended, both
to the Parliament and the people in general, by the notoriety of the
fact that foreign agents were in many of our large towns busily, and not
unsuccessfully, engaged in propagating what were known as Jacobin
doctrines. But, even without that aid, it was clear that every
government must, for the common good of all, be at times of
extraordinary emergency invested with the power of suspending laws made
for ordinary circumstances. And what would be an intolerable evil, if
the supreme magistrate took upon himself to exercise it, ceases to be
one when the right to exercise it is conferred by the nation itself in
Parliament. If the bill did, as was argued, suspend the _Habeas Corpus_
Act, that statute had been enacted by Parliament, and therefore for
Parliament, in a case of necessity, to suspend its operation was clearly
within the spirit of the constitution.
The bills affecting our own fellow-subjects were still more warmly
contested. One was known as the Traitorous Correspondence Bill, which,
according to Lord Campbell, was suggested by Lord Loughborough, who had
lately become Lord Chancellor. The old law of high-treason, enacted in
the reign of Edward III., had been in effect greatly mitigated by later
statutes, which had made acts to which that character was imputed more
difficult of proof, by a stricter definition of what was admissible
evidence, and other safeguards; and the practice of the courts had by
degrees practically reduced the list of treasons enumerated in the old
law, indictments for many of the offences contained in it forbearing to
assert that the persons accused had incurred the penalty of
high-treason. But this new bill greatly enlarged the catalogue. It made
it high-treason to hold any correspondence with the French, or to enter
into any agreement to supply them with commodities of any kind, even
such as were not munitions of war, but articles of ordinary merchandise,
or to invest any money in the French Funds; and it enacted farther that
any person who, by "any writing, preaching, or malicious and advised
speaking," should encourage such designs as the old statute of Edward
made treasonable, should be liable to the penalties of high-treason.
Another bill was designed to check the growing custom of holding public
meetings, by providing that no meeting, the object of which was to
consider any petition to the King or Parliament, or to deliberate on any
alleged grievance, should be held without those who convened it, and who
must be householders, giving previous notice of it by public
advertisement; and empowering any two justices of the peace, at their
own discretion, to declare any such meeting an unlawful assembly, and to
disperse it by force, if, from the subjects discussed, the language
held, or any special circumstances, they should regard it as dangerous.
Fox, and those who still adhered to him, resisted almost every clause of
these different bills. They maintained that one of the most fundamental
maxims of law "in every country calling itself free was, that property
was in the highest degree entitled to the protection of the law; and, if
so, that the right of disposing of it or investing it in any manner must
be considered under the same protection;" that any interference "with
ordinary commercial transactions was equally repugnant to the spirit of
the constitution;" and, taking a practical view of the question, they
warned the minister that such rigorous enactments imposing such extreme
penalties would defeat their own end; for "it was a general and true
maxim, that excess of punishment for a crime brings impunity along with
it; and that no jury would ever find a verdict which would doom a
fellow-creature to death for selling a yard of cloth and sending it to
France." They protested, too, against inflicting on words, whether
written or spoken, penalties which had hitherto been confined to overt
acts. And the clauses conferring power on magistrates to prevent or
disperse public meetings encountered still more vehement opposition; Fox
insisting, with great eloquence, that "public meetings for the
discussion of public subjects were not only lawful, but agreeable to the
very essence of the constitution; that, indeed, to them, under that
constitution, most of the liberties which Englishmen now enjoyed were
particularly owing." The people, he maintained, had a right to discuss
their grievances. "They had an inalienable right to complain by
petition, and to remonstrate to either House of Parliament, or to the
King; and to make two magistrates, who might be strong partisans,
irresponsible judges whether anything said or done at a meeting had a
tendency to encourage sedition, was to say that a free constitution was
no longer suitable to us." Pitt justified these measures, partly on the
ground of the special and unprecedented danger of the times, as proved
by the late attempt on the King's life, and partly by the open avowal of
republican doctrines made at the meetings of different societies;
partly, also, on the temporary character of the measures, since in each
bill a period was fixed after which its operation should expire. And he
argued, farther, that, as many of the actions specified in these bills
as seditious or treasonable were by many lawyers considered capable of
being reached by statutes already existing, though not universally
understood, it was "humane, not cruel, to remove doubts, and to prevent
men from being ensnared by the ambiguity of old laws."
And in May, 1794, he brought in another bill, founded on the report of a
secret committee which, in compliance with a royal message, the House of
Commons had appointed to investigate the proceedings and objects of
certain societies which were known to exist in different parts of the
kingdom. In obedience to a Secretary of State's warrant, founded on
sworn informations, their books and papers had been seized, and, having
been sealed up, were now laid before the House, with the report of the
committee that they proved that several of the societies which they
named had, ever since the end of the year 1791, been uniformly pursuing
a settled design for the subversion of the constitution; one society, in
particular, having approved a plan for assembling a Convention, in
imitation of the French Assembly sitting under that title, in order to
overturn the established government, and to wrest from the Parliament
the power which the constitution placed in its hands.
To prevent the dissemination of such principles, and to defeat such
schemes, Pitt now asked leave to bring in a bill to empower his
Majesty--acting, of course, through the Secretary of State--to secure
and detain such persons as he should suspect of conspiring against the
King's person and government. He admitted that the power which he thus
proposed to confer amounted to a suspension of the _Habeas Corpus_ Act
in every part of the United Kingdom; nor did he deny that it was an
unusually strong measure, but he contended that it was one justified by
absolute necessity, by the manifest danger of such a conspiracy as the
committee had affirmed to exist to the tranquillity of the nation and
the safety of the government.
Fox, it may almost be said as a matter of course, opposed the
introduction of any such measure; but his opposition was hardly marked
by his usual force of argument. He was hampered by the impossibility of
denying either the existence of the societies which the committee and
the minister had mentioned, or the dangerous character of some of their
designs; but he objected to the measures of repression which were
proposed, partly on the absence of all attempts at concealment on the
part of the promoters of these societies, partly on the contemptible
character of the Convention which it was designed to summon, and the
impossibility that such an assembly should have the slightest influence.
He even made their avowed hostility to the constitution a plea for a
panegyric on that constitution, and on the loyal attachment to it
evinced by the vast majority of the people; and from that he proceeded
to found a fresh argument against the proposed measure, contending that
it made a fatal inroad on that very constitution which was so highly
valued by the whole nation. He described it as a measure "of infinitely
greater mischief than that which it proposed to remedy, since it would
give the executive authority absolute power over the personal liberty of
every individual in the kingdom." He did not deny that a similar measure
had been enacted under William III., again in 1715, and again in 1745;
but he contended that "the present peril bore no resemblance to the
dangers of those times. This measure went to overturn the very
corner-stone of the constitution, and if it passed, there was an end of
the constitution of England." The bill was passed in both Houses by very
large majorities.[124] It was originally enacted for six months only,
but was from time to time renewed till the end of the century.
If we take a general survey of all these measures together, as parts of
one great defensive scheme for the preservation of the public
tranquillity and the general safety of the empire, it may, probably, be
thought that, though undoubtedly suspensions of the constitution, they
are not open to the charge of being unconstitutional, since they were
enacted, not only for the welfare of the people, but with their consent
and concurrence, legitimately signified by their representatives in
Parliament. It is scarcely consistent with sound reason to contend that
the _habeas corpus_, which had been enacted by Parliament, could not be
suspended by the authority which had enacted it; that the constitution,
which exists for the benefit of the people, could not be suspended by
the people; or to deny, if it was in appearance transgressed by these
enactments, that it was yet transgressed by strictly constitutional
acts, by the decision of the Parliament, to whose power the constitution
prescribes no limits.
But it is not sufficient that in this point of view these measures may
have been defensible. In judging of their statesmanship, it is almost
equally to be considered whether they were expedient and politic,
whether the emergency or necessity were such as to justify such rigorous
methods of repression. It was fairly open to doubt whether some of them,
and especially the Traitorous Correspondence and the Seditious Meetings
Bills, did not treat as treasonable acts which did not go beyond
sedition, and whether so to treat them were not to invest them with an
importance which did not belong to them. And on this part of the
question the general judgment has, we think, been unfavorable to the
government; and it has been commonly allowed that the Chancellor, whose
advice on legal subjects the Prime-minister naturally took for his
guide, gave him impolitic counsel. In fact, it is well known that these
two acts, to a great extent, failed in their object through their
excessive severity, several juries having refused to convict persons who
were prosecuted for treason, who would certainly not have escaped had
they only been indicted for sedition; and it is deserving of remark that
these two bills were not regarded with favor by the King himself, if the
anecdote--which seems to rest on undeniable authority--be true, that he
expressed satisfaction at the acquittal of some prisoners, on the ground
that almost any evil would be more tolerable than that of putting men to
death "for constructive treason." It must therefore, probably, be
affirmed that these two acts, the Treason Act and the Seditious Meetings
Act, went beyond the necessity of the case; that they were not only
violations of the constitution--which, when the measures are temporary,
as these were, are not always indefensible--but that they were
superfluous, unjust, and impolitic; superfluous, when they proposed to
deal with acts already visitable with punishment by the ancient laws of
the kingdom; unjust, when they created new classes of offences; and
impolitic, as exciting that kind of disapproval of the acts of
government which in many minds has a tendency to excite a spirit of
discontent with and resistance to legitimate authority. And, indeed, it
must be inferred that such was the light in which these measures were
regarded by a statesman who in his general policy was proud to
acknowledge himself Mr. Pitt's pupil, as he was also the most skilful
and successful of his more immediate successors. Twenty-five years
afterward the distress caused by the reaction inevitably consequent on
the termination of twenty years of war produced a political excitement
scarcely inferior to that with which Pitt had now to deal, and seditious
societies and meetings scarcely less formidable; but, as we shall see,
Lord Liverpool, taking warning, perhaps, from the mistake into which Mr.
Pitt was led on this occasion, though compelled to bring forward new and
stern measures of repression, and even to suspend the _Habeas Corpus_
Act for a time, kept strictly within the lines of constitutional
precedent, and was careful to avoid confounding sedition with treason.
Notes:
[Footnote 73: He had been Lord-chamberlain in Lord Rockingham's
administration of 1765. He was now Lord-lieutenant of Ireland.]
[Footnote 74: In Lord Chatham's or the Duke of Grafton's ministry of
1766, and in the later administration of Lord Rockingham.]
[Footnote 75: It may be convenient to take this opportunity of pointing
out that, in this administration, Lord Shelburne altered the old, most
unreasonable, and inconvenient arrangement by which the departments of
the two Secretaries of State were distinguished by the latitude, and
called Northern and Southern. By a new division, one took charge of the
home affairs, the other of the foreign affairs. And in 1794 a third
Secretary was added for War, who, by a very singular arrangement, which
continued till very recently, had charge also of the colonies. But, in
the year 1855, the Colonial-office was intrusted to a separate minister;
and in 1858 a fifth Secretary of State, that for India, was added, on
the transfer of the government of that country from the East India
Company to the Crown. When there were only two Secretaries of State, the
rule was that one should sit in each House. At present it is not
_necessary_ that more than one should be a peer, though it is more usual
for two to be members of the Upper House. And it is usual also for the
Under-secretaries to be members of the House to which the
Chief-secretaries do not belong, though this rule is not invariably
observed.]
[Footnote 76: "Parliamentary History," xxiii., 163.]
[Footnote 77: The divisions were: 224 to 208, and 207 to 190.]
[Footnote 78: Lord Stanhope, quoting from an unpublished "Life of Lord
Barrington," compiled by the Bishop of Durham (meaning, I suppose,
Bishop Shute Barrington).--_History of England_, v., 174.]
[Footnote 79: Even with the first flush of triumph, the night after the
second defeat of Lord Shelburne in the House of Commons, Fox's great
friend, Mr. Fitzpatrick, writes to his brother, Lord Ossory: "To the
administration it is _cila mors_, but not _victoria loeta_ to us. The
apparent juncture with Lord North is universally cried out
against."--Lord J. Russell's _Memorials and Correspondence of C.J. Fox_,
ii., 18.]
[Footnote 80: Lord J. Russell's "Memorials and Correspondence of C.J.
Fox," ii., 90.]
[Footnote 81: _Ibid_., p. 118.]
[Footnote 82: In one division (161 to 137) they had only a majority of
twenty-four.]
[Footnote 83: In a letter to Lord Northington (Lord-lieutenant of
Ireland), dated July 17, Fox himself mentions that not one of his
colleagues, except the Duke of Portland and Lord Keppel (First Lord of
the Admiralty), approved of it.--_Memoirs of Fox_, ii., 116.]
[Footnote 84: November 22 he writes to the Duke of Rutland: "The bill
... is, I really think, the boldest and most unconstitutional measure
ever attempted, transferring at one stroke, in spite of all charters and
compacts, the immense patronage and influence of the East to Charles
Fox, in or out of office."--Stanhope's _Life of Pitt_, i., 140.]
[Footnote 85: The whole paper is given by the Duke of Buckingham,
"Courts and Cabinets of George III," i., 288, and quoted by Lord Russell
in his "Memorials and Correspondence of C. J. Fox," ii., 251. It is
endorsed, "Delivered by Lord Thurlow, December 1, 1783. Nugent Temple."]
[Footnote 86: "Life of Pitt," i., 148. Lord Stanhope does not pledge
himself to these being "the exact words of this commission, but as to
its purport and meaning there is no doubt." They are, however, the exact
words quoted by Fox in his speech in support of Mr. Baker's resolutions
on the 17th.--_Parliamentary History_, xxiv., 207.]
[Footnote 87: "Parliamentary History," xxiv., 151-154.]
[Footnote 88: 95 to 76. "Strange to say, one of the cabinet ministers,
Lord Stormont, president of the council, formed part of the final
majority against the bill."--_Life of Pitt_, ii., 154.]
[Footnote 89: "Life of Pitt," i., 155.]
[Footnote 90: "Lives of the Chancellors," c. clix. Lord Thurlow.]
[Footnote 91: "The Grenville Papers," iii., 374. It may, however, be
remarked, as tending to throw some doubt on Mr. Grenville's statement,
that Lord Campbell asserts that "Lord Mansfield, without entering into
systematic opposition, had been much alienated from the court during
Lord Rockingham's first administration."--_Lives of the Chief-justices_,
ii., 468.]
[Footnote 92: Vol. ii., pp. 229-232.]
[Footnote 93: It will be seen hereafter that this doctrine was admitted
in the fullest degree by Sir Robert Peel in the winter of 1884, when he
admitted that his acceptance of office made him alone responsible for
the dismissal of Lord Melbourne, though, in fact, he was taken entirely
by surprise by the King's act, being in Italy at the time.]
[Footnote 94: Lord John Russell, in his "Memorials of Fox" (ii., 253),
affirms that "Lord Temple's act was probably known to Pitt;" but Lord
Macaulay, in his "Essay on Pitt" (p. 326), fully acquits Pitt of such
knowledge, saying that "he could declare, with perfect truth, that, if
unconstitutional machinations had been employed, he was no party to
them."]
[Footnote 95: On Lord Effingham's motion, in condemnation of some of the
proceedings of the Commons, which was carried February 4, 1784, by 100
to 53.]
[Footnote 96: "Parliamentary History," xxiv., 383-385--debate of January
20, 1784.]
[Footnote 97: _Ibid_, p. 283--January 12.]
[Footnote 98: _Ibid_., pp. 251-257.]
[Footnote 99: "Parliamentary History," xxiv., 478--February 2.]
[Footnote 100: _Ibid_., p. 663.]
[Footnote 101: "Parliamentary History," xxiv., 687, 695, 699.]
[Footnote 102: The numbers were 201 to 189. The week before, on Mr.
Powys's motion for a united and efficient administration, the majority
had been 20--197 to 177. On a motion made by Mr. Coke, February 3, the
majority had been 24--211 to 187. At the beginning of the struggle the
majorities had been far larger--232 to 143 on Fox's motion for a
committee on the state of the nation, January 12.]
[Footnote 103: 191 to 190.]
[Footnote 104: From December 19, when Pitt accepted office, to March 24,
when the Parliament was dissolved.]
[Footnote 105: "Memorials and Correspondence of C.J. Fox," by Earl
Russell, ii., 229, 248.]
[Footnote 106: _Ibid_., p. 280.]
[Footnote 107: That of April, 1831, after the defeat of the Government
on General Gascoyne's amendment]
[Footnote 108: Lord Macaulay, "Miscellaneous Essays," ii., 330.]
[Footnote 109: Lord Macaulay, essay on William Pitt.]
[Footnote 110: Alison ("History of Europe," xiii., 971) states the
English force in the Netherlands in 1794 at 85,000 men. Lord Stanhope
calls the English at Minden 10,000 or 12,000.]
[Footnote 111: An eminent living writer (Mr. Leeky, "History of
England," ii., 474) quotes with apparent approval another comparison
between the father and son, made by Grattan, in the following words:
"The father was not, perhaps, so good a debater as his son, but was a
much better orator, a greater scholar, and a far greater man." The first
two phrases in this eulogy may, perhaps, balance one another; though,
when Mr. Lecky admits that "Lord Chatham's taste was far from pure, and
that there was much in his speeches that was florid and meretricious,
and not a little that would have appeared absurd bombast but for the
amazing power of his delivery," he makes a serious deduction from his
claim to the best style of eloquence which no one ever made from the
speeches of his son. But Grattan's assertion that the man who, as his
sister said of him, knew but two books, the "AEneid" and the "Faerie
Queene," was superior in scholarship to one who, with the exception of
his rival, Fox, had probably no equal for knowledge of the great authors
of antiquity in either House of Parliament, is little short of a
palpable absurdity. We may, however, suspect that Grattan's estimate of
the two men was in some degree colored by his personal feelings. With
Lord Chatham he had never been in antagonism. On one great subject, the
dispute with America, he had been his follower and ally, advocating in
the Irish House of Commons the same course which Chatham upheld in the
English House of Peers. But to Pitt he had been almost constantly
opposed. By Pitt he and his party, whether in the English, or, so long
as it lasted, in the Irish Parliament, had been repeatedly defeated. The
Union, of which he had been the indefatigable opponent, and to which he
was never entirely reconciled, had been carried in his despite; and it
was hardly unnatural that the recollection of his long and unsuccessful
warfare should in some degree bias his judgment, and prompt him to an
undeserved disparagement of the minister by whose wisdom and firmness he
had been so often overborne.]
[Footnote 112: Massey's "History of England," iii., 447; _confer_ also
Green's "History of the English People," vol. iv.]
[Footnote 113: Hallam ("Middle Ages," ii., 386, 481), extolling the
condition of "the free socage tenants, or English yeomanry, as the class
whose independence has stamped with peculiar features both our
constitution and our national character," gives two derivations for the
name; one "the Saxon _soe_, which signifies a franchise, especially one
of jurisdiction;" and the other, that adopted by Bracton, and which he
himself prefers, "the French word _soc_, a ploughshare."]
[Footnote 114: Lord Colchester's "Diary," i., 68, mentions that the
officiating clergyman was Mr. Burt, of Twickenham, who received L500 for
his services. Lord John Russell ("Memorials and Correspondence of Fox,"
ii., 284-389) agrees in stating that the marriage was performed in the
manner prescribed by the Common Prayer-book. Mr. Jesse, in his "Life of
George III.," ii., 506, gathering, as the present writer can say from
personal knowledge, his information from some papers left behind him by
the late J.W. Croker, says: "The ceremony was performed by a Protestant
clergyman, though in part, apparently, according to the rites of the
Roman Catholic Church." Lord John Russell avoids discussing the question
whether the marriage involved the forfeiture of the inheritance of the
crown, an avoidance which many will interpret as a proof that in his
opinion it did. Mr. Massey's language ("History of England," iii., 327)
clearly intimates that he holds the same opinion.]
[Footnote 115: Russell's "Life of Fox," ii., 187.]
[Footnote 116: Fox's private correspondence is full of anticipations
that the Regent's first act will be to dismiss Pitt, and to make him
minister. In a letter of December 15 he even fixes a fortnight as the
time by which he expects to be installed; while Lord Loughborough, who
was eager to possess himself of the Great Seal--an expectation in which,
though well-founded, he would, as it proved, have found himself
disappointed--was led by his hopes to give the Prince counsel of so
extraordinary a nature that it is said that the ministers, to whose
knowledge it had come, were prepared, if any attempt had been made to
act upon it, or even openly to avow it, to send the learned lord to the
Tower. ("Diary of Lord Colchester," i., 28.) In an elaborate paper which
he drew up and read to the Prince at Windsor, he assured his Royal
Highness, speaking as a lawyer, that "the administration of government
devolved to him of right. He was bound by every duty to assume it, and
his character would be lessened in the public estimation, if he took it
on any other ground but right, or on any sort of compromise. The
authority of Parliament, as the great council of the nation, would be
interposed, not to confer but to declare the right. The mode of
proceeding should be that in a short time his Royal Highness should
signify his intention to act by directing a meeting of the Privy
Council, when he should declare his intention to take upon himself the
care of the state, and should at the same time signify his desire to
have the advice of Parliament, and order it by proclamation to meet
early for the despatch of business.... It is of vast importance in the
outset that he should appear to act entirely of himself, and, in the
conferences he must necessarily have, not to consult, but to listen and
direct." The entire paper is given by Lord Campbell ("Lives of the
Chancellors," c. clxx.).]
[Footnote 117: Hume's account of this transaction is, that the Duke
"desired that it might be recorded in Parliament that this authority was
conferred on him from their own free motion, without any application on
his part; ... and he required that all the powers of his office should
be specified and defined by Parliament."]
[Footnote 118: "Parliamentary History," xxvii., 803--speech of Mr.
Hardinge, one of the Welsh judges, and M.P. for Old Sarum.]
[Footnote 119: I take this report, or abstract, of Lord Camden's speech
from the "Lives of the Chancellors," c. cxlvii.]
[Footnote 120: "Memorials of Fox," ii., 292.]
[Footnote 121: The proceedings of the Irish Parliament on this occasion
will be mentioned in the next chapter.]
[Footnote 122: Mr. Hallam (iii., 144, ed. 1832) gives a definition of
the term "unconstitutional" which seems rather singular: "By
unconstitutional, as distinguished from 'illegal,' I mean a novelty of
much importance, tending to endanger the established laws." May not the
term rather be regarded as referring to a distinct class of acts--to
those at variance with the recognized _spirit_ of the constitution or
principles of government, with the preservation of the liberties of the
people, as expressed or implied in the various charters, etc., but not
forbidden by the express terms of any statute?]
[Footnote 123: The entry in the "Parliamentary History," November 20,
1788, is: "Both Houses met pursuant to the last prorogation. Later
meetings were in consequence of successive adjournments."]
[Footnote 124: In the Commons by 183 to 33; in the Lords by 119 to 11.]
CHAPTER V.
The Affairs of Ireland.--Condition of the Irish Parliament.--The
Octennial Bill.--The Penal Laws.--Non-residence of the Lord-
lieutenant.--Influence of the American War on Ireland.--Enrolment of the
Volunteers.--Concession of all the Demands of Ireland.--Violence of the
Volunteers.--Their Convention.--Violence of the Opposition in
Parliament: Mr. Brownlow, Mr. Grattan, Mr. Flood.--Pitt's Propositions
Fail.--Fitzgibbon's Conspiracy Bill.--Regency Question.--Recovery of the
King.--Question of a Legislative Union.--Establishment of Maynooth
College.--Lord Edward Fitzgerald.--Arguments for and against the
Union.--It passes the Irish Parliament.--Details of the Measure.--
General Character of the Union.--Circumstances which Prevented
its Completeness.
In describing the condition of Ireland and the feelings of its people,
in the latter years of the reign of George II., Mr. Hallam has fixed on
the year 1753 as that in which the Irish Parliament first began to give
vent to aspirations for equality with the English Parliament in audible
complaints; and the Irish House of Commons, finding the kingdom in the
almost unprecedented condition of having "a surplus revenue after the
payment of all charges," took steps to vindicate that equality by a sort
of appropriation bill.
There were, however, three fundamental differences between the
Parliaments of the two countries, which, above all others, stood in the
way of such equality as the Irish patriots desired: the first, that by a
law as old as the time of Henry VII., and called sometimes the Statute
of Drogheda, from the name of the town in which it was first
promulgated, and sometimes Poynings' Act, from the name of Sir Henry
Poynings, the Lord-deputy at the time, no bill could be introduced into
the Irish Parliament till it had received the sanction of the King and
Privy Council in England; the second, that the Parliament lasted for the
entire life of the King who had summoned it--a regulation which caused a
seat in the House of Commons to be regarded almost as a possession for
life, and consequently enormously increased the influence of the patrons
of boroughs, some of whom could return a number of members such as the
mightiest borough monger in England could never aspire to equal.[125]
The third difference, of scarcely inferior importance, was, that the
Parliament only sat in alternate years. But, though these arrangements
suited the patrons and the members of the House of Commons, it was not
strange that the constituencies, whose power over their representatives
was almost extinguished by them, regarded them with less complacency,
and, at the general election which was the consequence of the accession
of George III., pledges were very generally exacted from the candidates
that, if elected, they would endeavor to procure the passing of a
septennial act like that which had been the law in England ever since
the early years of George I. A bill with that object was introduced in
1761, and reported on not unfavorably as to its principle by the English
law advisers to whom the Privy Council referred it. But, as if it had
been designed to exemplify in the strongest possible manner the national
propensity for making blunders, it contained one clause which rendered
it not only impracticable but ridiculous. The clause provided that no
member should take his seat or vote till his qualification had been
proved before the Speaker in a full house. But the Speaker could not be
chosen till the members had established their right of voting, so that
the whole was brought to a dead-lock, and the bill, if passed, could
never have been carried out.
In the ministry of 1767, however--that of the Duke of Grafton and Lord
Chatham--Lord Halifax was replaced at Dublin Castle by Lord Townsend,
who, among his other good qualities, deserves specially honorable
mention as the first Lord-lieutenant who made residence in Dublin his
rule on principle; for till very lately non-residence had been the rule
and residence the exception, a fact which is of itself a melancholy but
all-sufficient proof of the absolute indifference to Irish interests
shown by all classes of English statesmen. And under his government a
bill for shortening Parliaments was passed, though it fixed the possible
duration of each Parliament at eight years instead of seven, the
variation being made to prevent a general election from being held at
the same time in both countries, but, according to common belief, solely
in order to keep up a mark of difference between the Irish and English
Parliaments. And those who entertained this suspicion fancied they saw a
confirmation of it in the retention of the regulation that the Irish
Parliament should only sit in alternate years, a practice wholly
inconsistent with any proper idea of the duties and privileges of a
Parliament such as prevailed on this side of the Channel; since a
Parliament whose sessions were thus intermittent could not possibly
exercise that degree of supervision over the revenue, either in its
collection or its expenditure, which is among its most important duties.
And the continued maintenance of this practice must be regarded farther
as a proof that the English legislators had not yet learned to consider
Ireland as an integral part of the kingdom, entitled in every particular
to equal rights with England and Scotland. Indeed, it is impossible for
any Englishman to contemplate the history of the treatment of Ireland by
the English legislators, whether Kings, ministers, or Parliaments, for
more than a century and a half, without equal feelings of shame at the
injustice and wonder at the folly of their conduct. Not only was Ireland
denied freedom of trade with England (a denial as inconsistent not only
with equity but also with common-sense as if Windsor had been refused
free trade with London),[126] but Irish manufactures were deliberately
checked and suppressed to gratify the jealous selfishness of the English
manufacturers. Macaulay, in his zeal for the memory of William III., has
not scrupled to apologize for, if not to justify, the measures
deliberately sanctioned by that sovereign for the extinction of the
Irish woollen manufactures, on the ground that Ireland was not a sister
kingdom, but a colony; that "the general rule is, that the English
Parliament is competent to legislate for all colonies planted by English
subjects, and that no reason existed for considering the case of the
colony in Ireland as an exception."[127] There is, perhaps, no passage
in his whole work less to his credit. But, if such was the spirit in
which an English historian could write of Ireland in the latter half of
this present century, it may, perhaps, diminish our wonder at the
conduct of our legislators in an earlier generation.
The penal laws on the subject of religion were also conceived and
carried out in a spirit of extraordinary rigor and injustice. By far the
larger portion of the Irish population still adhered to the Roman
Catholic faith; but, as far as the negative punishment of restrictions
and disabilities could go, its profession was visited as one of the most
unpardonable of offences. No Roman Catholic could hold a commission in
the army, nor be called to the Bar, nor practise as an attorney; and
when it was found that a desire to devote themselves to the study of the
law had led many gentlemen to acknowledge a conversion to Protestantism,
a statute was actually passed to require them to prove their sincerity
by five years' adherence to their new form of religion before they could
be regarded as having washed off the defilement of their old heresy
sufficiently to be thought worthy to wear a gown in the Four Courts. No
Roman Catholic might keep a school; while a strange refinement of
intolerance had added a statute prohibiting parents from sending their
children to Roman Catholic Schools in a foreign country.
And the manner in which the government was carried on was, if possible,
worse even than the principle. The almost continual absence of the
Lord-lieutenant inevitably left the chief management of the details in
the hands of underlings, and the favor of the Castle was only to be
acquired by the lowest time-serving, of which those who could influence
elections, wealthy and high-born as they for the most part were, were
not more innocent than the representatives. No support to government
could be looked for from either peer or commoner unless it were
purchased by bribes more or less open, which it was equally
discreditable to ask and to grant; for one of the worst fruits of the
system which had so long reigned throughout the island was the general
demoralization of all classes. Mr. Fronde gives George III. himself the
credit of being the first person who resolutely desired to see a change
of the system, and to "try the experiment whether Ireland might not be
managed by open rectitude and real integrity."[128] But his first
efforts were baffled by the carelessness or incompetency of the
Viceroys, since it was difficult to find any man of ability who would
undertake the office. And for some years things went on with very little
change, great lords of different ranks having equally no object but that
of controlling the Castle and engrossing the patronage of the
government, and in not a few instances of also procuring large grants or
pensions for themselves, each seeking to build up an individual
influence which no Viceroy could ever have withstood, had they been
united instead of being separated by mutual jealousies, which enabled
him from time to time to play off one against the other.
But the war with the North American Colonies, which broke out in 1774,
by some of its indirect consequences brought about a great change in the
affairs of Ireland. The demand for re-enforcements to the armies engaged
in America could only be met by denuding the British islands themselves
of their necessary garrisons. No part of them was left so undefended as
the Irish coast; and, after a time, the captains of some of the American
privateers, learning how little resistance they had to fear, ventured
into St. George's Channel, penetrated even into the inland waters, and
threatened Carrickfergus and Belfast. In matters of domestic policy it
was possible to procrastinate, to defer deciding on relaxations of the
penal laws or the removal of trade restrictions, but to delay putting
the country into a state of defence against an armed enemy for a single
moment was not to be thought of; yet the government was powerless. Of
the regular army almost every available man was in, or on his way to,
America, and the most absolute necessity, therefore, compelled the Irish
to consider themselves as left to their own resources for defence. It
was as impossible to levy a force of militia as one of regular troops,
for the militia could not be embodied without great expense; and the
finances of the whole kingdom had been so mismanaged that money was as
hard to procure as men. In this emergency several gentlemen proposed to
the Lord-lieutenant to raise bodies of volunteers. The government,
though reluctant to sanction the movement, could see no alternative,
since the presence of an armed force of some kind was indispensable for
the safety of the island. The movement grew rapidly; by the summer of
1779 several thousand men were not only under arms, but were being
rapidly drilled into a state of efficiency, and had even established
such a reputation for strength, that, when in the autumn the same
privateers that had been so bold in Belfast Lough the year before
reached the Irish coast, in the hope of plundering Limerick or Galway,
they found the inhabitants of the district well prepared to receive
them, and did not venture to attempt a descent on any part of the
island. And, when the Parliament met in October, some of the members,
who saw in the success that could not be denied to have attended their
exertions an irresistible means of strengthening the rising pretensions
of Ireland to an equality of laws and freedom with England, moved votes
of thanks in both Houses to the whole body of Volunteers. They were
carried by acclamation, and the Volunteers of the metropolis lined the
streets between the Parliament House and the Castle when, according to
custom, the members of the two Houses marched in procession to present
their addresses to the Lord-lieutenant. Such a recognition of the power
of this new force stimulated those members who claimed in a special
degree the title of Friends of Ireland to greater exertion. A wiser
government than that of Lord North would have avoided giving occasion
for the existence of a force which the utter absence of any other had
made masters of the situation. The Volunteers even boasted that they had
been called into existence by English misgovernment. In the words of one
of their most eloquent advocates, "England had sown her laws like
dragons' teeth, and they had sprung up as armed men."
Ireland began to feel that she was strong, and, not unnaturally desired
to avail herself of that strength, which England now could not question,
to put forward demands for concessions which in common fairness could
not well be denied. In 1778, when Lord North, in the hope of recovering
the allegiance of the North American Colonies, brought forward what he
termed his conciliatory propositions, the Irish members began to press
their demand that the advantages thus offered to the Americans should be
extended to their own countrymen also; that the fact of the Irish not
having rebelled should not be made a plea for treating them worse than
those who had; and in the front of all their requests was one for the
abolition of those unjust and vexatious duties which shackled their
trade and manufactures. But the jealousy of the English and Scotch
manufacturers was still as bitter, and, unhappily, still as influential,
as it had proved in the time of William III. And, to humor the grasping
selfishness of Manchester and Glasgow, Lord North met the demands of the
Irish with a refusal of which every word of his speech on the
propositions to America was the severest condemnation, and which he
sought to mitigate by some new regulations in favor of the linen trade,
to which the English and Scotch manufacturers made no objection, since
they had no linen factories. The Irish, in despair, had recourse to
non-importation agreements, of which the Americans had set the example,
binding themselves not to import nor to use any articles of English or
Scotch manufacture with which they could possibly dispense. And the
result was, that Lord North yielded to fear what he had refused to
justice, and the next year brought in bills to grant the Irish the
commercial equality which they demanded. Some of the most oppressive and
vexatious of the penal laws were also relaxed; and some restrictions
which the Navigation Act imposed on commerce with the West Indies were
repealed. But, strange to say, the English ministers still clung to one
grievance of monstrous injustice, and steadily refused to allow judicial
appointments to be placed on the same footing as in England, and to make
the seat of a judge on the bench depend on his own good conduct, instead
of on the caprice of a king or a minister.
But the manifest reluctance with which the English government had
granted this partial relief encouraged the demand for farther
concessions. The Irish members, rarely deficient in eloquence or
fertility of resource, had been lately re-enforced by a recruit of
pre-eminent powers, whom Lord Charlemont had returned for his borough of
Moy, Henry Grattan; and, led by him, began to insist that the remaining
grievances, to the removal of which the nation had a right, would never
be extinguished so long as the supreme power of legislation for the
country rested with the English and Scotch Parliament; and that the true
remedy was only to be found in the restoration to the Irish Parliament
of that independence of which it had been deprived ever since the time
of Henry VII. They were encouraged by the visibly increasing weakness of
Lord North's administration. Throughout the year 1781 it was evidently
tottering to its fall. And on the 22d of February, 1782, Grattan brought
forward in the Irish House of Commons a resolution, intended, if
carried, to lay the foundation of a bill, "that a claim of any body of
men other than the King, Lords, and Commons of Ireland to bind this
kingdom is unconstitutional, illegal, and a grievance." This resolution
aimed at the abolition of Poynings' Act. Other resolutions demanded the
abolition of the "powers exercised by the Privy Council under color of
Poynings' Act," and a farther relaxation of the penal laws. So helpless
did the government by this time feel itself, that the Attorney-general,
who was its spokesman on this occasion, could not venture to resist the
principle of these resolutions, but was contented to elude them for the
time by objections taken to some of the details; and Grattan gave notice
of another motion to bring the question to a more definite decision,
which he fixed for the 16th of April.
Before that day came Lord North's government had ceased to exist, and
had been replaced by Lord Rockingham's, one most influential member of
which was the most distinguished of living Irishmen, Mr. Burke, who,
while in opposition, had always shown himself a warm supporter of the
claims of his countrymen, and was not likely to have his ardor in the
cause damped by being placed in a situation where he could procure a
friendly hearing to his counsels. Once more they had increased their
demands, requiring, besides the removal of the purely political
grievances, a surrender of the right of appeal from the Irish to the
English courts of law. But their new masters were inclined to grant
everything which seemed requisite to the establishment of complete
equality between the two kingdoms; and though the new ministry was
dissolved in a few months by the premature death of its chief, he lived
long enough to carry the repeal of Poynings' Act, the retention of which
was now admitted to be not only senseless but mischievous, since the
existence of a body invested with nominal dignity, but practically
powerless, was calculated not only to provoke discontent, but to furnish
a lever for agitation.
The repeal was, however, nothing less than the establishment of an
entirely new constitution in Ireland. The Irish Parliament, the meetings
of which had hitherto been a mere form and farce, was installed in a
position of absolute independence, to grant money or to make laws,
subject to no other condition than that their legislation should be of a
character to entitle it to the royal assent, a condition to which every
act of the British Parliament was likewise and equally liable.
"Unhappily, as an Irish patriotic writer exclaims on this occasion, it
was written in the book of fate that the felicity of Ireland should be
short-lived."[129] And a similar shortness of existence was to be the
lot of the separate independence of her Parliament. Even while framing
instructions for the Lord-lieutenant, in his honest desire to inaugurate
a system of just government for Ireland, George III. had warned him on
no account to "summon a Parliament without his special command."[130]
And, regarded by the light of subsequent events, it can hardly be denied
that the prohibition displayed an accurate insight into the real
difficulties of the country, and also into the character of the people
themselves as the source of at least some of those difficulties. We
ought not to judge its leaders too severely. A nation which has been
long kept in bondage, and is suddenly presented with liberty, is hardly
more able to bear the change than a man immured for years in a dark
dungeon can at once endure the unveiled light of the sun; and
independence had been granted to the Irish too suddenly for it to be
probable that they would at once and in every instance exercise it
wisely.
All parties were to blame in different degrees. The first danger came
from the Volunteers, who, flushed with self-importance, from the belief
that it was the imposing show of their strength which had enabled the
Parliament to extort Lord Rockingham's concession from the English
Houses, now claimed to be masters of the Parliament itself. With the
termination of the American war, and the consequent return of the
English army to Europe, the reason for their existence had passed away.
But they refused to be disbanded, and established a convention of armed
delegates, to sit in Dublin during the session of Parliament, and to
overawe the Houses into passing a series of measures which they
prescribed, and which included a Parliamentary Reform Bill of a most
sweeping character. On this occasion, however, the House of Commons
acted with laudable firmness. Led by Mr. Fitzgibbon, a man of great
powers, and above all suspicion of corruptibility, it spurned the
dictation of an unauthorized body, and rejected the Reform Bill,
avowedly on the ground of its being presented to it "under the mandate
of a military congress;" and the Convention, finding itself powerless to
enforce its mandates, dissolved.
But the difficulties of the government were not over with the
suppression of the Volunteer Convention. The Lord-lieutenant had a
harder, because a more enduring, contest to encounter with the
Parliament and the patrons of the boroughs. A single act of Parliament
may substitute a new law for an old one; but no one resolution or bill
has a magical power to extinguish long habits of jobbery and corruption.
Members and patrons alike seemed to regard the late concessions as
chiefly valuable on account of the increased value which it enabled them
to place on their services to the government; and one cannot read
without a feeling of shame that one or two of the bishops who were wont
to be regarded as the proprietors of the seats for their diocesan
cities, were not behind the most nameless lay boroughmongers in the
resolution they evinced make a market of their support of the
government. The consequence was that the government was unable to feel
confident of its power to carry any measure except at a price that it
was degrading to pay; while of those few members who were above all
suspicion of personal corruption, many were so utterly wrong-headed, and
had their minds so filled with unreasonable jealousy for what they
called the honor and dignity of Ireland, and with a consequent distrust
of England and of all Englishmen, that their honest folly was even a
greater obstacle to wise and good government than the mean cunning of
the others. There can hardly be a more striking proof of the
difficulties to be overcome by a minister than is furnished by a speech
made by a gentleman of the highest character, and of deservedly wide
influence in the Northern counties, Mr. Brownlow, of Lurgan, one of the
members for Armagh, which is quoted by Mr. Froude.[131]
Pitt was painfully conscious of the commercial injustice with which
hitherto Ireland had always been treated, and in the very first year of
his administration he applied himself to the removal of the most
mischievous of the grievances of which the Irish merchants complained,
adopting to a great extent a scheme which had been put before him by one
of the most considerable gentlemen of that body, which was based on the
principle of equalization of duties in both countries. It is unnecessary
here to enter into the details of the measure which he introduced into
the House of Commons. He avowed it to be the commencement of a new
system of government for Ireland, "a system of a participation and
community of benefits, a system of equality and fairness, which, without
tending to aggrandize one portion of the empire or to depress the other,
should seek the aggregate interest of the whole; it was a substitute for
the system which had hitherto been adopted of making the smaller country
completely subordinate to and subservient to the greater, of making the
smaller and poorer country a mere instrument for the advantage of the
greater and wealthier one. He, therefore, proposed now to create a
situation of perfect commercial equality, in which there was to be a
community of benefits, and also to some extent a community of burdens."
And he urged the House to "adopt that system of trade with Ireland that
would tend to enrich one part of the empire without impoverishing the
other, while it would give strength to both; that, like mercy, the
favorite attribute of Heaven,
"'Is twice blessed--
It blesseth him that gives and him that takes.'"
It might, he said, be regarded as "a treaty with Ireland by which that
country would be put on a fair, equal, and impartial footing with Great
Britain, in point of commerce, with respect to foreign countries and our
colonies." The community of burdens which his measure would impose on
Ireland was this: that whenever the gross hereditary revenue of Ireland
should exceed L650,000 (an amount considerably in excess of anything it
had ever yet reached), the excess should be applied to the support of
the fleet of the United Kingdom. It was, in fact, a burden that could
have no existence at all until the Irish trade had become far more
flourishing and productive than as yet it had ever been. Yet a measure
conceived in such a spirit of liberality, and framed with such careful
attention to the minutest interests of Irish trade, Mr. Brownlow did not
hesitate to denounce as one "tending to make Ireland a tributary nation
to Great Britain. The same terms," he declared, "had been held out to
America, and Ireland had equal spirit with America to reject them." He
even declared that "it was happy for Mr. Orde" (the Chief Secretary, who
had introduced the measure into the Irish House of Commons) "that he was
in a country remarkable for humanity. Had he proposed such a measure in
a Polish Diet, he would not have lived to carry back an answer to his
master. If," he concluded, "the gifts of Britain are to be accompanied
with the slavery of Ireland, I will never be a slave to pay tribute; I
will hurl back her gifts with scorn." Baffled by such frantic and
senseless opposition, Pitt condescended to remodel his measure. In its
new form it was not so greatly for the advantage of Ireland. He had been
constrained to admit some limitation of his original liberality by the
opposition which, it had met with in England also where Fox, at all
times an avowed enemy of freedom of trade, had made himself the
mouth-piece of the London and Liverpool merchants, who could not see,
without the most narrow-minded apprehension, the monopoly of the trade
with India and the West Indies, which they had hitherto enjoyed,
threatened by the admission of Ireland to its benefits. And now a clause
in the second bill, binding the Irish Parliament to reenact the
Navigation Laws existing in England, called up an opposition from
Grattan[132] as furious as that with which Mr. Brownlow had denounced
the original measure. To demand the enactment of the English Navigation
Law, he declared, was "a revocation of the constitution;" and his rival,
Flood, in his zeal to emulate his popularity with the mob, surpassing
him in vehemence, inveighed against the clause, as one intended to make
the Irish Parliament a mere register of the English Parliament, "which
it should never become". All the arguments brought forward in favor of
the measure by the supporters of the government--arguments which,
probably, no one would now be found to deny to have been
unanswerable--failed to make the slightest impression on a House in
which the chief object of each opponent of the ministry seemed to be to
outrun his fellows in violence; and eventually the measure fell to the
ground, and for fifteen years more Ireland was deprived of the
advantages which had been intended for her.
And even yet the danger from the Volunteers was not wholly extinguished.
Though their Convention had been suppressed, its leaders had only
changed their tactics. Under the guidance of a Dublin ironmonger, named
Napper Tandy, they now proposed to convene a Congress, to consist, not,
as before, of delegates from the Volunteer body, but of persons who
should be representatives of the entire nation; and Tandy had even the
audacity to issue circulars to the sheriffs of the different counties,
to require them, in their official capacity, to summon the people to
return representatives to this Congress. The Sheriff of Dublin, a man of
the name of O'Reilly, obeyed the requisition; but Fitzgibbon, who,
luckily, was now Attorney-general, instantly prosecuted him for abuse of
his office. He was convicted, fined, and imprisoned, and his punishment
deterred others from following his example. And a rigorous example had
become indispensable, since it was known to the government that Tandy
and some of his followers were acting in connection with French
emissaries, and that their object was the separation of Ireland from
England, and, in the minds of some of them, certainly the annexation of
the country to France; indeed, on one occasion Fitzgibbon asserted in
the House of Commons that he had seen resolutions inviting the French
into the country. The government would gladly have established a militia
to supersede the Volunteers, but the temper of the Irish Parliament, in
its newly-acquired independence, rendered any such attempt hopeless; and
Mr. Grattan, with a perversity of judgment which his warmest admirers
must find it difficult to reconcile with statesmanship, if not with
patriotism, even opposed with extreme bitterness a bill for the
establishment of a police for Dublin, though he could not deny that
there existed in the city an organized body of ruffians, who made not
only the streets but even the dwelling-houses of the more orderly
citizens unsafe, by outrages of the worst kind, committed on the largest
scale--assaults, plunderings, ravishments, and murders. In the rural
districts of the South the disturbances were so criminally violent, and
so incessant, that the Lord-lieutenant was compelled to request the
presence of some additional regiments from England, as the sole means of
preserving any kind of respect for the law; and more than once the mobs
of rioters showed themselves so bold and formidable, that the soldiers
were compelled to fire in self-defence, and order was not restored but
at the cost of many lives.
Presently a Conspiracy Bill was passed, and gradually the firmness of
the government re-established a certain amount of internal tranquillity.
But shortly afterward a crisis arose which, more than the debates on the
commercial propositions, or on the Volunteers, or on the police, showed
how over-liberal had been the confidence of the English minister who had
repealed Poynings' Act, and had bestowed independent authority on the
Irish Parliament before the members had learned how to use it. We have
seen how keen a contest was excited in the English Parliament by the
deranged condition of the King's health in 1788, and the necessity which
consequently arose for the appointment of a Regency. Grattan was in
London at the time, where he had contracted a personal intimacy with
Fox, and had been presented by him to the Prince of Wales, whose
graciousness of manner, and profession of adherence to the Whig system
of politics, secured his attachment to that party. Grattan was easily
indoctrinated by Fox with his theory of the indefeasible claim of the
Prince to the Regency as his birthright, and is understood to have
promised that the Irish Parliament should adopt that view. The case was
one which seemed unprovided for. There was no question but that the law
enacted that the sovereign of England should also be the sovereign of
Ireland. But no express law of either country contained any such
stipulation respecting a Regent; and Grattan conceived that, in the
absence of any pre-existing ordinance, it would be easy to contend that
the Irish Parliament was the sole judge who the Regent should be, and on
what terms he should exercise the royal authority.
The Irish Parliament had been prorogued in 1787 to the 5th of February,
1789, the same day on which, after numerous examinations of the
physicians in attendance on the royal patient, and after the passing of
a series of resolutions enunciating the principles on which the
government was proceeding, Pitt introduced the Regency Bill into the
English House of Commons, being prepared to conduct it through both
Houses with all the despatch that might be consistent with a due
observance of all the forms of deliberation. Grattan's object was to
anticipate the decision of the English Parliament, so as to avoid every
appearance that the Irish Parliament was only following it; and he
therefore proposed that the House of Commons should instantly vote an
address to the Prince, requesting him to take upon himself the Regency
of the kingdom of Ireland, by his own natural right as the heir of the
crown; making sure not only that his advice would be taken by those whom
he was addressing, but that the House of Lords would not venture to
dissent from it.
Fitzgibbon, as Attorney-general and spokesman of the government in the
Commons, as a matter of course opposed such precipitate action, not only
warning his hearers of the folly and danger of taking a step "which
might dissolve the single tie which now connected Ireland with Great
Britain," but explaining also the whole principle of the constitution of
the two kingdoms, so far as it was a joint constitution, in terms which
give his speech a permanent value as a summary of its principle and its
character. He recalled to the recollection of the House the act of
William and Mary, which declares "the kingdom of Ireland to be annexed
to the imperial crown of England, and the sovereign of England to be by
undoubted right sovereign of Ireland also;" and argued from this that
Mr. Grattan's proposal was contrary to the laws of the realm and
criminal in the extreme. "The crown of Ireland," as he told his hearers,
"and the crown of England are inseparably united, and the Irish
Parliament is totally independent of the British Parliament. The first
of these positions is your security, the second your freedom, and any
other language tends to the separation of the crowns or the subjection
of your Parliament. The only security of your liberty is the connection
with Great Britain; and gentlemen who risk breaking the connection must
make up their minds to a union. God forbid I should ever see that day;
but, if the day comes on which a separation shall be attempted, I shall
not hesitate to embrace a union rather than a separation."
He proceeded to show that, as the Irish Parliament had itself enacted
that all bills which passed their two Houses should require the sanction
of the Great Seal of England, they actually had no legal power to confer
on the Prince of Wales such authority as Grattan advised his being
invested with, whatever might be the form of words in which their
resolution was couched. He pointed out, also, that if the Irish
Parliament should insist on appointing the Prince of Wales Regent before
it was known whether he would accept the Regency of England, it was
manifestly not impossible "that they might be appointing a Regent for
Ireland being a different person from the Regent of England; and in that
case the moment a Regent was appointed in Great Britain, he might send a
commission under the Great Seal appointing a Lord-lieutenant of Ireland,
and to that commission the Regent of Ireland would be bound to pay
obedience. Another objection of great force to his mind was, that the
course recommended by Grattan would be a formal appeal from the
Parliament of England to that of Ireland. It would sow the seeds of
dissension between the Parliaments of the two countries. And, indeed,
those who were professing themselves advocates for the independence of
the Irish crown were advocates for its separation from England."
But the House was too entirely under the influence of Grattan's
impassioned eloquence for Fitzgibbon's more sober arguments to be
listened to. The address proposed by Grattan was carried by acclamation;
and the peers were scarcely less unanimous in its favor, one of the
archbishops even dilating on "the duty of availing themselves of the
opportunity of asserting the total independence of Ireland." Even when,
on a second discussion as to the mode in which the address was to be
presented to the Prince, Fitzgibbon reported that he had consulted the
Chancellor and all the judges, and that they were unanimously of opinion
that, till the Regency Bill should be passed in England, the address was
not only improper but treasonable, he found his warning equally
disregarded. And when the Lord-lieutenant refused to transmit the
address to England, on the avowed ground of its illegality, Grattan
proposed and carried three resolutions: the first, that the address was
not illegal, but that, in addressing the Prince to take on himself the
Regency, the Parliament of Ireland had exercised an undoubted right; the
second, that the Lord-lieutenant's refusal to transmit the address to
his Royal Highness was ill-advised and unconstitutional; the third, that
a deputation from the two Houses should go to London, to present the
address to the Prince. Mr. Fronde affirms that the deputation, even when
preparing to sail for England, was very irresolute and undecided whether
to present the address or not, from a reasonable fear of incurring the
penalties of treason, to which the lawyers pronounced those who should
present it liable. But their courage was not put to the test. As has
been already seen, before the end of the month the King's recovery was
announced, and the question of a Regency did not occur again till the
Irish Parliament had been united to the English.
Since Lord Rockingham's concessions, in 1782, the project of a
legislative union between the two countries, resembling that which
united Scotland to England, had more than once been broached. We have
seen it alluded to by Fitzgibbon in the course of these discussions, and
it was no new idea. It had been discussed even before the union with
Scotland was completed, and had then been regarded in Ireland with
feelings very different from those which prevailed at a later period.
Ten years after the time of which we are speaking, Grattan denounced the
scheme with almost frantic violence. Fitzgibbon (though after the
Rebellion he recommended it as indispensable) as yet regarded it only as
an alternative which, though he might eventually embrace it, he should
not accept without extreme reluctance. But at the beginning of the
century all parties among the Protestant Irish had been eager for it,
and even the leading Roman Catholics had been not unwilling to acquiesce
in it. Unluckily, the English ministers were unable to shake off the
influence of the English manufacturers; and they, in another development
of the selfish and wicked jealousy which had led them in William's reign
to require the suppression of the Irish woollen manufacture, now, in
Anne's, rose against the proposal of a legislative union.[133] In
blindness which was not only fatal but suicidal also, "they persuaded
themselves that the union would make Ireland rich, and that England's
interest was to keep her poor;" as if it had been possible for one
portion of the kingdom to increase in prosperity without every other
portion benefiting also by the improvement.
However, in the reign of Anne the union was a question only of
expediency or of wisdom. The wide divergence of the two Parliaments on
this question of the Regency transformed it into a question of
necessity. The King might have a relapse; the Irish Parliament, on a
recurrence of the crisis, might re-affirm its late resolutions; might
frame another address to the Prince of Wales; and there might be no
alternative between seeing two different persons Regents of England and
Ireland, or, what would be nearly the same thing, seeing the same person
Regent of the two countries on different grounds, and exercising a
different authority.
And if these proceedings of the Irish Parliament had wrought in the mind
of the great English minister a conviction of the absolute necessity of
preventing a recurrence of such dangers by the only practicable means
open to him--the fusion of it into one body with the English Parliament
by a legislative union--the occurrences of the ensuing ten years
enforced that conviction with a weight still more irresistible. It has
been seen how stirring an influence the revolutionary fever engendered
by the overthrow of the French monarchy for a time exerted even over the
calmer temper of Englishmen. In Ireland, where, ever since Sarsfield and
his brave garrison enlisted under the banner of Louis XIV., a connection
more or less intimate with France had been constantly kept up, the
events in Paris had produced a far deeper and wider effect. More than
one demagogue among the Volunteers had avowed a desire to see the whole
country transfer its allegiance from the English to the French
sovereign; and this preference was more pronounced after the triumph of
democracy in the French capital. For the leaders of the movement,
themselves nearly all men of the lowest degree, denounced the Irish
nobles with almost as much vehemence as the English connection.
Yet Pitt's policy, dictated partly by a spirit of conciliation, and
still more by feelings of justice, was gradually removing many of the
grievances of which the Irish had real reason to complain. Next to the
restrictions on trade, nothing had made such an impression on his mind
as the iniquity of the penal laws; and those he proceeded to repeal,
encouraging the introduction of bills to throw open the profession of
the law to Roman Catholics, to allow them seats on the magistrates'
bench and commissions in the army, and to grant them the electoral
franchise, a concession which he himself would willingly have extended
by admitting them to Parliament itself. But these relaxations of the old
Penal Code, important as they were, only conciliated the higher classes
of the Roman Catholics. Most of the Roman Catholic prelates, and most of
the Roman Catholic lay nobles, proclaimed their satisfaction at what had
been done, and their good-will toward the minister who had done it; but
the professional agitators were exasperated rather than conciliated at
finding so much of the ground on which they had rested cut from beneath
their feet. So desirous was Pitt to carry conciliation to the greatest
length that could be consistent with safety, that he held more than one
conference with Grattan himself; but he found that great orator not very
manageable, partly, as it may seem from some of Mr. Windham's letters,
through jealousy of Fitzgibbon, who was now the Irish Chancellor,[134]
and still more from a desire to propitiate the Roman Catholics, for whom
he demanded complete and immediate Emancipation; while Pitt, who was,
probably, already resolved on accomplishing a legislative Union,
thought, as far as we can judge, that Emancipation should follow, not
precede, the Union, lest, if it should precede it, it might prove rather
a stumbling-block in the way than a stepping-stone to the still more
important measure.
It is not very easy to determine what influence the "Emancipation," as
it was rather absurdly called,[135] if it had been granted at that time,
might have had in quieting the prevailing discontent. With one large
party it would probably have increased it, for there was quite as great
an inclination to insurrection in Ulster as in Leinster or Munster; and
with the Northern Presbyterians animosity to Popery was at least as
powerful a feeling as sympathy with the French Republicans. A subsequent
chapter, however, will afford a more fitting opportunity for discussing
the arguments in favor of or against Emancipation. What seems certain
is, that a large party among the Roman Catholics of the lower class
valued Emancipation itself principally as a measure to another end--a
separation from England. Pitt, meanwhile, hopeless of reconciling the
leaders of the different parties--the impulsive enthusiasm of Grattan
with the sober, practical wisdom of Fitzgibbon--pursued his own policy
of conciliation united with vigor; and one of the measures which he now
carried subsists, unaltered in its principle, to the present day.
There was no part of the penal laws of which the folly and iniquity were
more intolerable than the restrictions which they imposed on education.
To a certain extent, they defeated themselves. The clause which
subjected to severe penalties a Roman Catholic parent who sent his child
abroad to enjoy the benefits of an education which he was not allowed to
receive at home, was manifestly almost incapable of enforcement, and the
youths designed for orders in the Romish Church had been invariably sent
to foreign colleges--some to Douai or St. Omer, in France; some to the
renowned Spanish University of Salamanca. But the French colleges had
been swept away by the Revolution, which also made a passage to Spain
(the greater expense of which had at all times confined that resource to
a small number of students) more difficult; and the consequence was,
that in 1794 the Roman Catholic Primate, Dr. Troy, petitioned the
government to grant a royal license for the endowment of a college in
Ireland. Justice and policy were equally in favor of the grant of such a
request. For the sake of the whole kingdom, and even for that of
Protestantism itself, it was better that the Roman Catholic priesthood
should be an educated rather than an ignorant body of men; and, in the
temper which at that time prevailed over the western countries of the
Continent, it was at least equally desirable that the rising generation
should be preserved from the contagion of the revolutionary principles
which the present rulers of France were so industrious to propagate.
Pitt at once embraced the idea, and in the spring of the next year a
bill was introduced into the Irish Parliament by the Chief Secretary,
authorizing the foundation and endowment of a college at Maynooth, in
the neighborhood of Dublin, for the education of Roman Catholics
generally, whether destined for the Church or for lay professions. It is
a singular circumstance that the only opposition to the measure came
from Grattan and his party, who urged that, as the Roman Catholics had
recently been allowed to matriculate and take degrees at Trinity
College, though not to share in the endowments of that wealthy
institution, the endowment of another college, to be exclusively
confined to Roman Catholics, would be a retrograde step, undoing the
benefits of the recent concession of the authorities of Trinity; would
be "a revival and re-enactment of the principles of separation and
exclusion," and an injury to the whole community. For, as he wisely
contended, nothing was so important to the well-doing of the entire
people as the extinction of the religious animosities which had hitherto
embittered the feelings of each Church toward the other, and nothing
could so surely tend to that extinction as the uniting the members of
both from their earliest youth, in the pursuit both of knowledge and
amusement, as school-fellows and playmates. If Mr. Froude's
interpretation of the motives of those who influenced Grattan on this
occasion be correct, he was unconsciously made a tool of by those whose
real object was a separation from England, of the attainment of which
they despaired, unless they could unite Protestants and Roman Catholics
in its prosecution. The bill, however, was passed by a very large
majority, and L9000 a year was appropriated to the endowment of the
college. Half a century afterward, as will be seen, that endowment was
enlarged, and placed on a more solid and permanent footing, by one of
the ablest of Pitt's successors. It was a wise and just measure; and if
its success has not entirely answered the expectations of the minister
who granted it, its comparative failure has been owing to circumstances
which the acutest judgment could not have foreseen.
But it seems certain that neither the concession nor the refusal of any
demands put forward by any party in Ireland could have prevented the
insurrection which broke out shortly afterward. There were two parties
among the disaffected Irish--or it should, perhaps, rather be said that
two different objects were kept in view by them--one of which, the
establishment of a republic, was dearer to one section of the
malcontents; separation from England, with the contingency of annexation
to France, was the more immediate aim of the other, though the present
existence of a republican form of government in France to a great extent
united the two. As has been mentioned before, the original movers in the
conspiracy were of low extraction, Dublin tradesmen in a small way of
business. Napper Tandy was an ironmonger, Wolfe Tone was the son of a
coach-maker. But they had obtained a recruit of a very different class,
a younger son of the Duke of Leinster, Lord Edward Fitzgerald, a man of
very slender capacity, who, at his first entrance into Parliament, when
scarcely more than of age, had made himself remarkable by a furious
denunciation of Pitt's Irish propositions; had married a natural
daughter of the Duke of Orleans, a prince, in spite of his royal birth,
one of the most profligate and ferocious of the French Jacobins; and had
caught the revolutionary mania to such a degree that he abjured his
nobility, and substituted for the appellation which marked his rank the
title of "Citizen Fitzgerald." He had enrolled himself in a society
known as the United Irishmen, and had gone to France, as its
plenipotentiary, to arrange with Hoche, one of the most brilliant and
popular of the French generals, a scheme for the invasion of Ireland, in
which he promised him that, on his landing, he should be joined by tens
of thousands of armed Irishmen. Hoche entered warmly into the plan, was
furnished with a splendid army by the Directors, and in December, 1796,
set sail for Ireland; but the fleet which carried him was dispersed in a
storm; many of the ships were wrecked, others were captured by the
British cruisers, and the remnant of the fleet, sadly crippled, was glad
to regain its harbors. Two years afterward another invading expedition
had still worse fortune. General Humbert, who in 1796 had been one of
Hoche's officers, did succeed in effecting a landing at Killala Bay, in
Mayo; but he and the whole of his force was speedily surrounded, and
compelled to surrender; and a month afterward a large squadron, with a
more powerful division of troops, under General Hardy, on board, found
itself unable to effect a landing, but fell in with a squadron under Sir
John Warren, who captured every ship but two; Wolfe Tone, who was on
board one of them, being taken prisoner, and only escaping the gallows
by suicide.
This happened in October, 1798. But it is difficult to conceive with
what object these last expeditions had been despatched from France at
all; for in the preceding summer the rebellion of the Irish had broken
out, and had been totally crushed in a few weeks;[136] not without
terrible loss of life on both sides, nor without the insurgent
leaders--though many of them were gentlemen of good birth, fortune, and
education, and still more were clergy--showing a ferocity and ingenuity
in cruelty which the worst of the French Jacobins had scarcely exceeded;
one of the saddest circumstances of the whole rebellion being, that the
insurgents, who had burnt men, women, and children alive, who had
deliberately hacked others to pieces against whom they did not profess
to have a single ground of complaint beyond the fact that they were
English and Protestant, found advocates in both Houses of the English
Parliament, who declared that the rebellion was owing to the severity of
the Irish Viceroy and his chief councillors, who denied that the rebels
had solicited French aid, and who even voted against granting to the
government the re-enforcements necessary to prevent a revival of the
treason.
The rebellion was crushed with such celerity as might have convinced the
most disaffected of the insanity of defying the power of Great Britain;
but it was certain that the spirit which prompted the rebellion was not
extinguished, and that, as it had been fed before, so it would continue
to be fed by the factious spirit of members of the Irish House of
Commons, and of those who could return members,[137] so long as Ireland
had a separate Parliament. Not, indeed, that Pitt required the argument
in favor of a Union which was thus furnished. The course adopted by the
Irish Parliament on the Regency question was quite sufficient to show
how great a mistake had been made by the repeal of Poynings' Act. But
what the rebellion proved was, that the Union would not admit of an
instant's delay; and Pitt at once applied himself to the task of framing
a measure which, while it should strengthen England, by the removal of
the necessity for a constant watchfulness over every transaction and
movement in Ireland, should at the same time confer on and secure to
Ireland substantial advantages, such as, without a Union, the English
Parliament could scarcely be induced to contemplate.
Mr. Hallam, in one of the last chapters of his work,[138] while showing
by unanswerable arguments the advantages which Scotland has derived from
her Union with England, has also enumerated some of the causes which
impeded the minister of the day in his endeavors to render it acceptable
to the Scotch members to whom it was proposed. The most apparently
substantial of these was the unprecedented character of the measure. No
past "experience of history was favorable to the absorption of a lesser
state, at least where the government partook so much of the republican
form, in one of superior power and ancient rivalry." But, in the case of
the present measure, what had thus been a difficulty in the Scotch Union
might have been expected to be regarded as an argument in its favor,
since the keenest patriots among the Scotch had long been convinced that
the Union had brought a vast increase of prosperity and importance to
their country, and what was now confessed to have proved advantageous to
Scotland might naturally be expected to be equally beneficial to
Ireland. Another obstacle had been the fear of the danger to which the
Presbyterian Church might be "exposed, when brought thus within the
power of a Legislature so frequently influenced by one which held her,
not as a sister, but rather a bastard usurper to a sister's
inheritance." But here again experience might give her testimony in
favor of an Irish Union, since it was incontestable that those
apprehensions--which, no doubt, many earnest Scotchmen had sincerely
entertained--had not been realized, but that since the Union the
Presbyterian Church had enjoyed as great security, as complete
independence, and as absolute an authority over its members as in the
preceding century; that the Parliament had never attempted the slightest
interference with its exercise of its privileges, and that the Church of
England had been equally free from the exhibition of any desire to
stimulate the Parliament to such action; while the Roman Catholic
Church, which had many more adherents in England than the Presbyterian
Church had ever had, was quite powerful enough to exact for itself the
maintenance of its rights, and the minister was quite willing to grant
equal securities to those which, at the beginning of the century, had
been thought sufficient for the Church of Scotland. A third reason which
our great historical critic puts forward for the disfavor with which the
Union was at the time regarded by many high-minded Scotchmen, he finds
in "the gross prostitution with which a majority sold themselves to the
surrender of their own legislative existence." That similar means were
to some extent employed to win over opponents of the government in
Ireland cannot, it must be confessed, be denied, though the temptations
held out to converts oftener took the shape of titles, promotions,
appointments, and court favors than of actual money. The most recent
historian of this period--who, to say the least, is not biassed in favor
of either the English or Irish government of the period--pronounces as
his opinion, formed after the most careful research, that the bribery
was on the other side. "Cornwallis and Castlereagh" (the Lord-lieutenant
and the Chief Secretary) "both declared it to be within their knowledge
that the Opposition offered four thousand pounds, ready money, for a
vote. But they name only one man who was purchased, and his vote was
obtained for four thousand pounds. From the language of Lord Cornwallis,
it is certain that if money was spent by the government in this way it
was without his knowledge; but many things may have been done by the
inferior agents of the government, and possibly by Castlereagh himself,
which they would not venture to lay before the Lord-lieutenant. It
appears, however, from the papers which have recently come to light,
that the prevalent belief of the Union having been mainly effected by a
lavish expenditure of money is not well-founded; still it is certain
that some money was expended in this way." Besides actual payment for
votes, he adds that a very large sum--a hundred thousand pounds--is said
to have been expended in the purchase of seats, the holders of which
were, of course, to vote against the measure; and names Lord Downshire
as subscribing L5000, Lord Lismore and Mr. White L3000 each, while the
government funds were chiefly expended "in engaging[139] young
barristers of the Four Courts to write for the Union." But, even if it
were true that corruption was employed to the very utmost extent that
was ever alleged by the most vehement opponent of the measure and of the
government, it may be feared that very few of the last century Irishmen
would have been so shocked at it as to consider that fact an objection
to the Union, especially, it is sad and shameful to say, among the upper
classes. The poorer classes, those who could render no political service
to a minister, as being consequently beneath official notice, were
unassailed by his temptations; but the demoralization of the men of rank
and property was almost universal, and few seats were disposed of, few
votes were given, except in return for favors granted, or out of
discontent at favors refused. And it cannot be denied that the tendency
to political jobbery had not been diminished by the concessions of 1782,
if, indeed, it may not be said that the increased importance which those
concessions had given to the Irish Parliament had led the members of
both Houses to place an increased value on their services. Certainly no
previous Lord-lieutenant had given such descriptions of the universality
of the demands made on him as were forwarded to the English government
by those who held that office in the sixteen years preceding the
outbreak of the Rebellion.
It is remarkable that the transaction which, as has been said before,
may be conceived to have first forced on Pitt's mind the conviction of
the absolute necessity of the Union--namely, the course pursued by the
Irish Parliament on the Regency Bill--bore a close resemblance to that
which, above all other considerations, had made the Scotch Union
indispensable, namely, the Act of Security passed by the Scottish
Estates in 1703, which actually provided that, on the decease of Queen
Anne without issue, the Estates "should name her successor, but should
be debarred from choosing the admitted successor to the crown of
England, unless such forms of government were settled as should fully
secure the religion, freedom, and trade of the Scottish nation."[140]
The Scotch Estates, therefore, had absolutely regarded the possible
separation of the two kingdoms as a contingency which might become not
undesirable; and, though it was too ticklish an argument to bring
forward, it may very possibly have occurred to Pitt that a similar vote
of the Irish Parliament was not impossible. The claim which Grattan,
following Fox, had set up on behalf of the Prince of Wales, was one of
an indefeasible right to the Regency; and, as far as right by
inheritance went, his claim to the crown, if, or whenever, a vacancy
should occur, was far less disputable. But, as has been mentioned in the
last chapter, a question had already been raised whether his Royal
Highness had not forfeited his right to the succession, and it was quite
possible that that question might be renewed. The fact of the Prince's
marriage to a Roman Catholic was by this time generally accepted as
certain; the birth of the Princess Charlotte gave greater importance to
the circumstance than it seemed to have while the Prince remained
childless; and, if the performance of the marriage ceremony should be
legally proved, and the English law courts should pronounce that the
legal invalidity of the marriage did not protect the Prince from the
penalty of forfeiture, it was highly probable that the Irish Parliament
would take a different view--would refuse, in spite of the Bill of
Rights, to regard marriage with a Roman Catholic as a disqualification,
but would recognize the Prince of Wales as King of Ireland.
Several minor considerations, such as the desirableness of uniformity in
the proceedings of the two countries with respect to Money Bills, the
Mutiny Act, and other arrangements of parliamentary detail, all pointed
the same way; and, on the whole, it may be said that scarcely any of the
opponents of the government measure were found to deny its expediency,
especially as regarded the interests of Great Britain. The objections
which were made were urged on different grounds. In the Irish House of
Commons, a member who, though a young man, had already established a
very high reputation for professional skill as a barrister, for
eloquence equally suited to the Bar and to the Senate, and for sincere
and incorruptible patriotism, Mr. Plunkett, took upon himself to deny
the competency of the Irish Parliament to pass a bill not only to
extinguish its own existence, but to prevent the birth of any future
Parliament, and to declare that the act, if it "should be passed," would
be a mere nullity, and that no man in "Ireland would be bound to obey
it." And, in the English House of Commons, Mr. Grey may be thought to
have adopted something of the same view, when he proposed an amendment
"to suspend all proceedings on the subject till the sentiments of the
people of Ireland respecting that measure could be ascertained." He did
not, of course, deny (he was speaking on the 21st of April, 1800) that
the bill had been passed by both Houses of the Irish Parliament by
considerable majorities.[141] But he contended that that Parliament did
not speak the sentiments of the people; and, that being the case, that
its voice was of no authority. It is evident that all arguments founded
on a denial of the omnipotence of a Parliament, whether English or
Irish, are invalid. The question of that omnipotence, as has been seen
in a former chapter, had been fully discussed when Mr. Pitt's father
denied the power of Parliament to tax the American Colonies; and that
question may fairly be regarded as having been settled at that time. It
is equally clear that the denial that, on any question whatever, the
House of Commons must be taken to speak the sentiments of the
constituencies, whether the proposal of such question had been
contemplated at the time of their election or not, is the advancement of
a doctrine wholly inconsistent with our parliamentary constitution, and
one which would practically be the parent of endless agitation and
mischief. To expect that the members could pronounce on no new question
without a fresh reference to their constituents, would be to reduce them
from the position of representatives to that of delegates; such as that
of the members of the old States-general, in France, whose early decay
is attributed by the ablest political writers in no small degree to the
dependence of the members on their constituents for precise
instructions. Another argument on which Mr. Grey insisted with great
earnestness is worth preserving, though subsequent inventions have
destroyed its force; he contended that the example of the Scotch Union
did not, when properly considered, afford any argument in favor of an
Irish Union, from the difference of situation of the two countries.
Scotland was a part of the same island as England; "there was no
physical impediment to rapid and constant communication; the relative
situation of the two countries was such that the King himself could
administer the executive government in both, and there was no occasion
for a separate establishment being kept up in each." But the sea lay
between England and Ireland, and the delays and sometimes difficulties
which were thus interposed rendered it "necessary that Ireland should
have a separate government;" and he affirmed that "this was an
insuperable bar to a beneficial Union," quoting a saying of Lord Somers,
that "if it were necessary to preserve a separate executive government
at Edinburgh after the Union, he would abandon the measure." Mr. Grey
even denied that the prosperity of Scotland since the Union was mainly
attributable to that measure. "It was not the Union; it was the adoption
of a liberal policy, the application of a proper remedy to the
particular evils under which the country labored, that removed the
causes which had impeded the prosperity of Scotland." But this argument
was clearly open to the reply that the adoption of that liberal policy
had been a direct effect of the Union, and would have been impracticable
without it, and was, therefore, a strong inducement to the adoption of a
similar Union with Ireland, where the existing evils were at least as
great as those which, a century before, had kept down Scotland. Another
of his arguments has been remarkably falsified by the event. With a
boldness in putting forward what was manifestly, indeed avowedly, a
party objection, and which, as such, must be looked upon as somewhat
singular, he found a reason for resisting the addition of a hundred
Irish members to the British House of Commons in the probability that
they would, as a general rule, be subservient to the minister. He
instanced "the uniform support which the members for Scotland had given
to every act of ministers," and saw in that example "reason to apprehend
that the Irish members would become a no less regular band of
ministerial adherents." It would be superfluous to point out how
entirely contrary the result has been to the prediction.
It is, however, beside the purpose of this work to dwell on the
arguments by which the minister supported his proposal, or on those with
which the Opposition resisted it, whether apparently founded on
practical considerations, such as those brought forward by Mr. Grey, or
those of a more sentimental character, which rested on the loss of
national "dignity and honor," which, it was assumed, would be the
consequence of the measure. It seems desirable rather to explain the
principal conditions on which the Union was to be effected, as Pitt
explained it to the House of Commons in April, 1800. In the preceding
year he had confined himself to moving a series of resolutions in favor
of the principle, which, though they were adopted by both Houses in
England, he did not at that time endeavor to carry farther, since in the
Irish House of Commons the utmost exertions of the government could only
prevail by a single vote;[142] and he naturally thought such a majority
far too slender to justify his relying on it so far as to proceed
farther with a measure of such vast importance. But, during the recess,
he had introduced some modifications into his original draft of the
measure, which, though slight, were sufficient to conciliate much
additional support; and the consequence was, that in February of this
year both the Irish Houses accepted it by sufficient majorities;[143]
and, therefore, he now felt able to lay the details of the measure
before the English Parliament. To take them in the order in which he
enumerated them, that which had appeared to the Irish Parliament "the
first and most important, was the share which the Irish constituencies
ought to have in the representation of the House of Commons." On this
point, "the Parliament of Ireland was of opinion that the number of
representatives for Ireland ought to be one hundred." And he was not
disposed to differ from the conclusion to which it had come. He regarded
it, indeed, as "a matter of but small importance whether the number of
representatives from one part of the united empire were greater or less.
If they were enough to make known the local wants, to state the
interests and convey the sentiments of the part of the empire they
represented, it would produce that degree of general security which
would be wanting in any vain attempt to obtain that degree of
theoretical perfection about which in modern times they had heard so
much." He approved of "the principle which had been laid down upon this
part of the subject in the Parliament of Ireland--a reference to the
supposed population of the two countries, and to the proposed rate of
contribution. The proportion of contribution proposed to be established
was seven and a half for Great Britain, and one for Ireland; while in
the proportion of population Great Britain was to Ireland as two and a
half or three to one;[144] so that the result, on a combination of these
two calculations, would be something more than five to one in favor of
Great Britain, which was about the proportion which it was proposed to
establish between the representation of the two countries." The
principle of selection of the constituencies which had been adopted he
likewise considered most "equitable and satisfactory for Ireland. The
plan proposed was, that the members of the counties and the principal
commercial cities should remain entire.... The remaining members were to
be selected from those places which were the most considerable in point
of population and wealth.... This was the only plan which could be
adopted without trenching on the constitution; it introduced no
theoretical reforms in the constitution or in the representation of this
country; it made no distinction between different parliamentary rights,
nor any alteration, even the slightest, in the internal forms of
Parliament."
Another consideration which he had kept in mind in framing this measure
was this: "By the laws of England care had been taken to prevent the
influence of the crown from becoming too great by too many offices being
held by members of Parliament." And Pitt had no doubt that there would
be a general feeling "that some provision ought to be made on this
subject" in the arrangements for the new Parliament. At present, among
the representatives of the counties and great commercial towns, whose
seats were to be preserved in the new united Parliament, there were not
above five or six who held offices; and, though it was impossible to
estimate the possible number of place-holders with precision, he thought
what would he most fair for him to propose would be, that "no more than
twenty of the Irish members should hold places, and that if it should
happen that a greater number did hold places during pleasure, then those
who had last accepted them should vacate their seats."
In the House of Peers he proposed that twenty-eight lords temporal of
Ireland should have seats in the united Parliament, who should be
elected for life by the Peers of Ireland--an arrangement which differed
from that which, at the beginning of the century, had been adopted for
the representative Peers of Scotland; but he argued, and surely with
great reason, that "the choice of Peers to represent the Irish nobility
for life was a mode that was more congenial to the general spirit and
system of a Peerage than that of their being septennially elected, as
the nobility of Scotland were." Of the spiritual Peers, four were to sit
in rotation; to the lay Peers a farther privilege was given, which the
minister regarded as of considerable, and even constitutional
importance. By the articles of the Scotch Union, a Peer, if not chosen
as a representative of the Peerage, was not eligible as a candidate for
the House of Commons in either England or Scotland. But this bill
"reserved a right to the Peers of Ireland who should not be elected to
represent their own Peerage, to be elected members of the House of
Commons of the united Parliament of Great Britain;" and Pitt urged that
this was "a far better mode of treatment than had been adopted for the
nobility of Scotland; so that a nobleman of Ireland, if not representing
his own order, might be chosen as a legislator by a class of inferior
rank, which he was so far from regarding as improper, that he deemed it
in a high degree advantageous to the empire, analogous to the practice
as well as friendly to the spirit of the British constitution." And he
enforced his argument by pointing out with honest pride the advantage
which in that respect the spirit and practice of our constitution gave
to our nobility over the nobles of other countries. "We know full well,"
he continued, "the advantage we have experienced from having in this
House those who, in the course of descent, as well as in hopes of merit,
have had a prospect of sitting in our House of Peers. Those, therefore,
who object to this part of the arrangement" (for, as he had previously
mentioned, it had been made a subject not only of objection, but of
ridicule) "can only do so from the want of due attention to the true
character of our constitution, one of the great leading advantages of
which is, that a person may for a long time be a member of one branch of
the Legislature, and have it in view to become a member of another
branch of it. This it is which constitutes the leading difference
between the nobility of Great Britain and those of other countries. With
us they are permitted to have legislative power before they arrive at
their higher stations; and as they are, like all the rest of mankind, to
be improved by experience in the science of legislation as well as in
every other science, our constitution affords them that opportunity by
their being eligible to seats in this House from the time of their
majority. This is one of those circumstances which arise frequently in
practice, but the advantages of which do not appear in theory till
chance happens to cast them before us, and makes them subjects of
discussion. These are the shades of the British constitution in which
its latent beauties consist;" and he affirmed his conviction that this
privilege would prove "an advantage to the nobility of Ireland, and an
improvement in the system of representation in the House."
It will hardly be denied that the arrangement that the representative
Peers of Ireland should enjoy their seats for life did make it desirable
that those who were not so elected to the Upper House should be eligible
as candidates for a place in the Lower House. Otherwise, those who were
not chosen as representatives of the peerage would have been placed in
the anomalous and unfair position of being the only persons in the
kingdom possessed of the requisite property qualification, and not
disqualified by sex or profession, who were absolutely excluded from the
opportunity of distinguishing themselves and serving their country in
Parliament. How great the practical benefit to the House of Commons and
the country the clause he was recommending was calculated to confer, was
shown in a remarkable manner the very year of his death, when an Irish
Peer was returned to the House of Commons, who, retaining his seat for
nearly sixty years as the representative of different constituencies,
the University of Cambridge being among the number, during the course of
that period rose through a variety of offices to that of Prime-minister,
and, as is admitted even by those who dissented most widely from some of
his opinions and actions, earned for himself an honorable reputation, as
one who had rendered faithful services to the crown, and on more than
one occasion had conferred substantial benefits on the country.
The arrangements proposed with respect to the Peers were not opposed.
But Mr. Grey--generally acting as the spokesman of the Opposition on
this question--raised an objection to making so large an addition as
that of one hundred new members to the British House of Commons. He
repeated his prophecy, made on a previous occasion, of the subserviency
to the minister which the Irish members might be expected to exhibit,
and therefore moved an amendment to reduce the number of Irish
representatives to eighty-five; but, to obviate the discontent which
such a reduction might be expected to excite in Ireland, he proposed to
diminish the number of English members also, by disfranchising forty "of
the most decayed boroughs," a step which would leave the number of
members in the new united Parliament as nearly as possible the same as
it was before. He found, however, very few to agree with him; his
amendment was rejected by 176 to 34; and the minister's proposal was
adopted in all its details.
Mr. Pitt touched lightly on the next article, which limited the royal
prerogative of creating Peers by a provision that the King should never
confer any fresh Irish peerage till three peerages should have become
extinct. This, again, was a point of difference between the conditions
of the Scotch and Irish Unions; since by the terms of the Scotch Union
the King was forever debarred from creating any new Scotch peerages. But
it was pointed out that the greater antiquity of the Scotch peerages,
and the circumstance that in Scotland the titles descended to collateral
branches, were calculated to make the extinction of a Scotch peerage an
event of very rare occurrence; while the comparative newness (with very
few exceptions) of Irish peerages, and the rule by which they are
"confined to immediate male descendants," rendered the entire extinction
of the Irish peerage probable, "if the power of adding to or making up
the number were not given to the crown."
Recent legislation has given such importance to the next resolution,
that it will be well to quote his precise words:
"5. That it would be fit to propose, as the fifth article of union, that
the Churches of that part of Great Britain called England and of Ireland
shall be united into one Church; and that when his Majesty shall summon
a Convocation, the archbishops, bishops, and clergy of the several
provinces in Ireland shall be respectively summoned to and sit in the
Convocation of the united Church, in the like manner and subject to the
same regulations as to election and qualification as are at present by
law established with respect to the like orders of the Church of
England; and that the doctrine, worship, discipline, and government of
the said united Church shall be preserved as now by law established for
the Church of England, saving to the Church of Ireland all the rights,
privileges, and jurisdictions now thereunto belonging; and that the
doctrine, worship, discipline, and government of the Church of Scotland
shall likewise be preserved as now by law, and by the Act of Union
established for the Church of Scotland; and that the continuance and
preservation forever of the said united Church, as the Established
Church, of that part of the said United Kingdom called England and
Ireland, shall be deemed and taken to be an essential and fundamental
article and condition of the Union."
Pitt's comment on this article was so brief as to show that he regarded
its justice as well as its importance too obvious to need any elaborate
justification. He pointed out that that portion of it which related to
Convocation had been added by the Irish Parliament, and "would only say
on so interesting a subject that the prosperity of the Irish Church
could never be permanent, unless it were a part of the Union, to leave
as a guard a power to the United Parliament to make some provision in
this respect as a fence beyond any act of their own that could at
present be agreed on." But, while he thus showed his conviction that the
permanent prosperity of the Irish Church was essential to the welfare of
the kingdom, he was by no means insensible to the claims of the Roman
Catholic Church (as founded not more in policy than in justice) to be
placed in some degree on a footing of equality with it; not only by a
recognition of the dignity of its ministers, but also by an endowment
which should be proportioned to their requirements, and should place
them in a position of worldly competence and comfort for which hitherto
they had been dependent on their flocks.[145] To use the expression of a
modern statesman, he contemplated "levelling up," not "levelling down."
Perhaps it may be said that he contemplated levelling up, as the surest
and most permanent obstacle to any proposal of levelling down.
At the same time it is fair to remark, that the argument which on a
recent occasion was so strongly pressed by the champions of the Church,
that it was beyond the power of Parliament to repeal what was here
declared to be "an essential and fundamental article and condition of
the Union," is untenable, on every consideration of the power of
Parliament, and, indeed, of common-sense; since it would be an
intolerable evil, and one productive of the worst consequences, if the
doctrine were admitted that any Parliament could make an unchangeable
law and bind its successors forever; and, moreover, since the very words
of this article do clearly imply the power of Parliament over the
Church, the power asserted, to "make some provision for the permanence
of its prosperity," clearly involving a power to make provisions of an
opposite character. The expediency or impolicy, the propriety or
unrighteousness, of a measure must always depend on the merits of the
question itself at the time, and not on the judgment or intentions of
legislators of an earlier generation. And advocates weaken instead of
strengthening their case when they put forward arguments which, however
plausible or acceptable to their own partisans, are, nevertheless,
capable of refutation.
The next article related to a question of paramount practical
importance, and of special interest, since, as has been seen before,
there was no subject on which the past legislation of the English
Parliament had been so discreditable. But the jealousy of English
manufacturers, though it had prevailed over the indifference of William
III., who reserved all his solicitude for matters of foreign diplomacy,
could find no echo in the large mind and sound commercial and financial
knowledge of the modern statesman. He laid it down as the principle of
his legislation on this subject--a principle which "he was sure that
every gentleman in the House was ready to admit--that the consequence of
the Union ought to be a perfect freedom of trade, whether of produce or
manufacture, without exception, if possible; that a deviation from that
principle ought to be made only when adhering to it might possibly shake
some large capital, or materially diminish the effect of the labor of
the inhabitants, or suddenly and violently shock the received opinion or
popular prejudices of a large portion of the people; but that, on the
whole, the communication between the two kingdoms should in spirit be
free; that no jealousy should be attempted to be created between the
manufacturers of one place or the other upon the subject of 'raw
materials' or any other article; for it would surely be considered very
narrow policy, and as such would be treated with derision, were an
attempt made to create a jealousy between Devonshire and Cornwall,
between Lancashire and Durham.... He said, then, that the principle of
the Union on this head should be liberal and free, and that no departure
from it should ever take place but upon some point of present
unavoidable necessity." He was even able to add (and he must have felt
peculiar satisfaction in making the statement, since the change in the
feelings of the English manufacturers on the subject must have been
mainly the fruit of his own teaching, and was a practical recognition of
the benefits which they had derived from his commercial policy taken as
a whole), that "the English manufacturers did not wish for any
protective duties; all they desired was free intercourse with all the
world; and, though the want of protective duties might occasion them
partial loss, they thought it amply compensated by the general
advantage." He even thought the arrangements now to be made "would
encourage the growth of wool in Ireland, and that England would be able
to draw supplies of it from thence; and he did not fear that there would
be trade enough for both countries in the markets of the world, and in
the market which each country would afford to the other." The English
manufacturers did not, however, acquiesce very cheerfully in every part
of his commercial arrangements. On the contrary, against the clause
which repealed all prohibitions of or bounties on exportation of
different articles grown or manufactured in either country, they
petitioned, and even set up a claim, which was granted, to be heard by
counsel and to produce witnesses. But Pitt steadily refused the least
modification of this part of his measure, not merely on account of its
intrinsic reasonableness and justice, but because there was scarcely any
condition to which the Irish themselves attached greater importance.
An equally important and more difficult matter to adjust to the
satisfaction of both Parliaments was the apportionment of the financial
burdens between the two nations. It would be tiresome as well as
superfluous to enter into minute details; the more so as the arrangement
proposed was of a temporary character. After a long and minute
discussion, Pitt's appraisement was admitted to come as near to strict
fairness and equity as any that could be made; the separate discharge of
its public debt already incurred was left to each kingdom; and it was
farther settled that for twenty years fifteen parts of the expense of
the nation out of seventeen should be borne by Great Britain and two by
Ireland.
Other articles provided that the laws and courts of both kingdoms, civil
and ecclesiastical, should remain in their existing condition, subject,
of course, to such alterations as the united Legislature might hereafter
deem desirable.
The resolutions, when adopted--as they speedily were--were embodied in a
bill, which passed through the last stage by receiving the royal assent
at the beginning of July. The state of public feeling in Ireland was not
yet sufficiently calmed down after the Rebellion for it to be prudent to
venture on a general election, and it was, consequently, ordained that
the members for the Irish counties and for those Irish boroughs which
had been selected for the retention of representation should take their
seats in the united Parliament on its next meeting. On the 22d of
January, 1801, the united, or, to give it its more proper designation,
the Imperial Parliament held its first meeting, being, although in its
sixth session, so far regarded as a new Parliament, that the King
directed a fresh election of a Speaker.
The Union, as thus effected, was so far a vital change in the
constitution of both Great Britain and Ireland, that it greatly altered
the situation in which each kingdom had previously stood to the other.
Till 1782 the position of Ireland toward England had been one of entire
political subordination; and, though that had in appearance been
modified by the repeal of Poynings' Act, yet no one doubted or could
doubt that, whenever the resolutions of the two Parliaments came into
conflict, the Irish Parliament would find submission unavoidable. But by
the Union that subordination was terminated forever. The character of
the Union--of the conditions, that is, on which the two countries were
united--was one of perfect and complete equality on all important
points, indeed, in all matters whatever, except one or two of minor
consequence, where some irremovable difference between them compelled
some trifling variations. It was not a connection of domination on the
one side and subordination on the other, where every concomitant
circumstance might tempt the one to overbearing arrogance, while the
other could not escape a feeling of humiliation. It was rather--to quote
the eloquent peroration of Pitt, when, in the preceding year, he first
introduced the subject to the consideration of the House of Commons--"a
free and voluntary association of two great countries, joining for their
common benefit in one empire, where each retained its proportionate
weight and importance, under the security of equal laws, reciprocal
affection, and inseparable interests; and which wanted nothing but that
indissoluble connection to render both invincible."
On that occasion Pitt had argued, from the great subsequent increase in
the population and wealth of Edinburgh and Glasgow, and in the
prosperity of the whole country of Scotland, that a similar result might
be looked for in Ireland. And the general trade of Ireland, and
especially the linen manufacture, within a very few years began to
realize his prediction. So that it is strange to find Fox, on the great
minister's death, five years afterward, reiterating his disapproval of
the Union as a plea for refusing him the appellation of a great
statesman.[146] In one point alone the intrigues of a colleague
prevented Pitt from carrying out to the full his liberal and enlightened
views, and compelled him to leave the Union incomplete in a matter of
such pre-eminent importance, that it may be said that all the subsequent
disquietudes which have prevented Ireland from reaping the full benefit
he desired from the Union are traceable to his disappointment on that
subject.[147] We have seen that he contemplated, as a natural and
necessary consequence or even part of the Union, an extensive reform of
the laws affecting the Roman Catholics. Indeed, the understanding that
he was prepared to introduce a measure with that object had no small
weight in conciliating in some quarters support to the Act of Union.
Accordingly, when describing the arrangements which he had in view for
the Church of Ireland, he indicated his intention with sufficient
plainness by the statement, that "it might be proper to leave to
Parliament an opportunity of considering what might be fit to be done
for his Majesty's Catholic subjects;" words which were generally
understood to express his feeling, that both justice and policy required
the removal of the restrictions which debarred the Roman Catholics from
the complete enjoyment of political privileges. But the history and
different bearings of that question it will be more convenient to
discuss in a subsequent chapter, when we shall have arrived at the time
when it was partially dealt with by the ministry of the Duke of
Wellington.
Notes:
[Footnote 125: Mr. Froude says four great families--the Fitzgeralds of
Kildare, the Boyles, the Ponsonbys, and the Beresfords--returned a
majority of the House of Commons ("English in Ireland," ii., 5); and
besides those peers, the arrangement for the Union proved that the
influence of the Loftuses and the Hills fell little short of them.]
[Footnote 126: Such a system actually had existed in France, where
articles of ordinary trade could not be transported from one province to
another without payment of a heavy duty; but Colbert had abolished that
system in France above one hundred years before the time of which we are
speaking.]
[Footnote 127: "History of England," vol. v., c. xxiii., p. 57.]
[Footnote 128: "The English in Ireland," ii., 39.]
[Footnote 129: Fronde's "English in Ireland," ii., 345. He does not name
the author whom he quotes.]
[Footnote 130: _Ibid_., ii, 42.]
[Footnote 131: See p. 164.]
[Footnote 132: Mr. Froude imputes to Grattan a singularly base object.
"Far from Grattan was a desire to heal the real sores of the country for
which he was so zealous. These wild, disordered elements suited better
for the campaign in which he engaged of renovating an Irish
nationality."--_English in Ireland_, ii., 448. But, however on many
points we may see reason to agree with Mr. Froude's estimate of the
superior wisdom of Fitzgibbon, we conceive that this opinion is quite
consistent with our acquittal of the other of the meanness of
deliberately aiming at a continuance of evils, in order to find in them
food for a continuance of agitation.]
[Footnote 133: Froude, "English in Ireland," i., 304.]
[Footnote 134: See especially a letter of Mr. Windham's. quoted by Lord
Stanhope ("Life of Pitt," ii., 288).]
[Footnote 135: Mr. Archdall, in his place in Parliament, denounced the
term as utterly inapplicable. "Emancipation meant that a slave was set
free. The Catholics were not slaves. Nothing more absurd had ever been
said since language was first abused for the delusion of mankind."]
[Footnote 136: The first beginning of the insurrection was at
Prosperous, County Kildare, May 24. General Lake dealt it the final blow
on Vinegar Hill, June 21.]
[Footnote 137: Mr. Sheridan, Mr. Tierney, and Lord William Russell led
the denunciations of the government in the English House of Commons. A
protest against Pitt's refusal to dismiss the Lord-lieutenant, Lord
Camden, the Chancellor Fitzgibbon, and the Commander-in-chief, Lord
Carhampton, was signed by the Dukes of Norfolk, Devonshire, and
Leinster; Lords Fitzwilliam, Moira, and Ponsonby, "two of them Irish
absentees, who were discharging thus their duties to the poor country
which supported their idle magnificence."--_The English in Ireland_,
iii., 454.]
[Footnote 138: "Constitutional History," iii., 451 seq.]
[Footnote 139: Massey's "History of England," iv., 397 (quoting the
Cornwallis correspondence).]
[Footnote 140: Lord Stanhope's "Reign of Queen Anne," p. 89.]
[Footnote 141: In the House of Commons by 158 to 115; in the House of
Lords, February 10, by 75 to 26.]
[Footnote 142: An amendment pledging the House to maintain "an
independent Legislature, as established in 1782," was only defeated by
106 to 105.]
[Footnote 143: In the House of Commons the majority was 158 to 115; in
the House of Lords, 75 to 26.]
[Footnote 144: This estimate, which was but a guess, proved very
inaccurate. The first census for the United Kingdom, which was taken the
next year (1801), showed that Ireland was considerably more populous
than its own representatives had imagined. The numbers returned (as
given by Alison, "History of Europe," ii., 335, c. ix., sec. 8) were:
England..................................... 8,382,484
Wales....................................... 547,346
Scotland.................................... 1,599,068
Army, Navy, etc............................. 470,586
----------
Total...................................10,999,434
Ireland..................................... 5,396,436
So that the proportion of population in Great Britain, as compared with
that of Ireland, only exceeded two to one by an insignificant fraction.]
[Footnote 145: See his letter to the King, dated January 31, 1801,
quoted by Lord Stanhope in the appendix to vol. iii. of his "Life of
Pitt," p. 25.]
[Footnote 146: Mr. Fox, called on by Mr. Alexander to explain his
expressions (in the debate relative to Mr. Pitt's funeral), by which he
had declared his disapprobation of the Union, and his concurrence in
opinion with Mr. O'Hara that it ought to be rescinded. Mr. Fox repeated
his disapprobation, but disclaimed ever having expressed an opinion or
entertained a thought of proposing its repeal, that being now
impracticable, though he regretted its ever having been
effected.--_Diary of Lord Colchester_, February 17, 1806, ii., 39.]
[Footnote 147: It may be remarked that in another respect also political
critics have pronounced the Union defective. Archbishop Whately, whose
long tenure of office in Ireland, as well as the acuteness and candor
which he brought to bear on every subject he discussed, entitle his
opinions to most respectful consideration, held this view very strongly.
In several conversations which he held with Mr. W.N. Senior, in 1858 and
1862, he condemned the retention of the Lord-lieutenancy as "a half
measure," which, however unavoidable at the time when "no ship could be
certain of getting from Holyhead to Dublin in less than three weeks," he
pronounced "inconsistent with the fusion of the two peoples, which was
the object of the Union," and wholly indefeasible "in an age of
steam-vessels and telegraphs." And, besides its theoretical
inconsistency, he insisted that it produced many great and practical
mischiefs, among which he placed in the front "the keeping up in
people's minds the notion of a separate kingdom; the affording a hotbed
of faction and intrigue; the presenting an image of Majesty so faint and
so feeble as to be laughed at and scorned. Disaffection to the English
Lieutenancy is cheaply shown, and it paves t |
