The Constitutional History of England from 1760 to 1860

by Charles Duke Yonge

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 fainéant. 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.