The Constitutional History of England from 1760 to 1860

by Charles Duke Yonge

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.