The Constitutional History of England from 1760 to 1860

by Charles Duke Yonge

In the first excitement of the Restoration, when the nation was still exasperated at the recollection of what it had suffered under the triumphant domination of the Puritans, two laws had been framed to chastise them, conceived in a spirit as intolerant and persecuting as had dictated the very worst of their own. One, which was called the Conventicle Act, inflicted on all persons above the age of sixteen, who should be present at any religious service performed in any manner differently from the service of the Church of England, in any meeting-house, where more than five persons besides the occupiers of the house should be present, severe penalties, rising gradually to transportation; and gave a single magistrate authority to convict and to pass sentence on the offenders. The other, commonly known as the Five Mile Act, forbade all ministers, of any sect, who did not subscribe to the Act of Uniformity, and who refused to swear to their belief in the doctrine of passive obedience, from teaching in any school, and from coming within five miles of any city, corporate town, or borough sending members to Parliament, or any town or village in which they themselves had resided as ministers. The latter statute had fallen into complete disuse, and many of the provisions of the former had been relaxed, though magistrates in general construed the relaxing enactments as leaving the relaxations wholly at their discretion to grant or to withhold, and were very much in the habit of withholding or abridging them. Other statutes, such as the Test Act, had subsequently been passed against every sect of Dissenters, though they had only imposed civil disabilities, and had not inflicted penalties. But the new Prime-minister was a man to whose disposition anything resembling persecution was foreign and repugnant. Before his predecessor's unhappy death he had already discussed with him the propriety of abolishing laws conceived in such a spirit; and he no sooner found himself at the head of the government than he prepared a bill to carry out his views. He drew a distinction between the acts inflicting penalties and those which only imposed disabilities. With these latter he did not propose to interfere; but, in July, his colleague, Lord Castlereagh, introduced into the House of Commons a bill to repeal the Conventicle Act and the Five Mile Act altogether, and, when it had passed the Commons, he himself moved its adoption by the Lords, enforcing his recommendation by the argument, that "an enlarged and liberal toleration was the best security to the Established Church, a Church not founded on the exclusion of religious discussion, but, in its homilies, its canons, and all the principles on which it rested, courting the investigation of the Scriptures, upon which it founded its doctrines." At the same time, while urging the repeal of acts which he truly branded as a disgrace to the statute-book, he was not blind to the duty imposed on him, as responsible for the public tranquillity, of taking care that meetings held ostensibly for purposes of devotion should not be perverted to the designs of political agitators; and therefore he provided in the bill for the registration of all places appropriated to religious worship, and for the exaction from "the preachers and teachers in those meetings of some test or security in the oaths to be taken by them." He had already secured the acquiescence of the bishops, and he was equally successful now in winning the assent of the House. The conditions, such as they were, did not prevent the bill from being entirely acceptable to the Non-conformists; and though their spokesman in the House of Commons, Mr. W. Smith, member for Norwich, confessed a wish "that it had gone a little farther, and had granted complete religious liberty," he at the same time expressed sincere gratitude on the part of the Non-conformists for what was thus done for them; and declared that, "as an act of toleration, it certainly was the most complete which had hitherto been passed in this country." It was, in fact, the beginning of the abandonment of that system of discouragement of and hostility to all sects except the Established Church, which had hitherto been regarded by a large party as one of the most essential principles of the constitution. And as such it makes the year 1812 in some respects a landmark in our constitutional history.

Mr. Smith had referred to an omission which prevented him from speaking of the bill as complete. He was alluding to the Test and Corporation Acts, which had been passed ten years later than the Conventicle Act, in the same reign of Charles II., and which many of the Non-conformists, and especially the Unitarians, had urged Lord Liverpool to include in this measure of repeal, but which he decided on retaining. As has been said above, he drew a distinction between acts inflicting penalties and those which went no farther than imposing political disabilities, feeling that any relief of Protestant Dissenters from such disabilities must inevitably lead to the concession of a similar indulgence to Roman Catholics, and not being as yet prepared to admit to Parliament the members of a Church which recognized the duty of obedience in any matter to a foreign sovereign; for, as the disabilities had been originally imposed on the Roman Catholics, so they were now maintained on political, not religious, grounds; and even those most opposed to a relaxation of them were careful to explain their resistance to be one which time and a change of circumstances might mitigate.[[173]]

As a fitter opportunity for discussing the question will be afforded by the Duke of Wellington's bill, in 1829, we should not have mentioned it at all in this place, had not Lord Liverpool, in arranging his administration, adopted a mode of dealing with it which, though rather a parliamentary or departmental than a constitutional innovation, was, nevertheless, one of so strange a character as to seem to call for examination. Ever since the formation of Walpole's ministry it had been the invariable rule and practice for all the members of the cabinet to act in concert on all measures of importance, or, indeed it may be said, on all measures on which a Parliamentary vote was taken. But, in arranging his administration after Mr. Perceval's death, Lord Liverpool found it absolutely impossible to form one satisfactory either to the nation or to himself if it were to be confined to members in perfect agreement with himself on the subject of the retention of the disabilities affecting the Roman Catholics; and therefore, in order to be able to form a ministry generally strong and respected, he adopted the strange expedient of allowing every member of it to act independently on this one question. He made it what was called an open question. The arrangement, as explained to the House of Commons by Lord Castlereagh, the ministerial leader of that assembly, was that, "in submission to the growing change of public opinion in favor of those claims (the Roman Catholic claims), and the real sentiments of certain members of the government, it had been resolved upon, as a principle, that the discussion of this question should be left free from all interference on the part of the government, and that every member of that government should in it be left to the free and unbiassed suggestions of his own conscientious discretion."

It was an arrangement which secured the Prime-minister the co-operation of Lord Castlereagh himself, and eventually of Mr. Canning; but it failed to propitiate the Opposition, the leader of which in the House of Commons, Mr. Ponsonby, turned it into open ridicule, affirming that "nothing could be more absurd than a cabinet professing to have no opinion on such an important subject." And it must be confessed that Mr. Ponsonby's language on the subject seems the language of common-sense. So far from the importance of a question justifying such an arrangement, that importance appears rather to increase, if possible, the necessity for absolute unanimity in the administration than to diminish it; and on a grave and momentous subject to leave each member of a ministry free to pronounce a separate and different judgment, so that one may resist what his colleague advocates, is to abdicate the functions of government altogether. To permit such liberty was either a proof that the ministry was weak altogether—which it was not—or that its conduct on this question was weak. In either case, it was a mischievous precedent that was thus set;[[174]] and the fact that it has since been followed in more than one instance, is so far from being any justification of it, that it rather supplies an additional reason for condemning it, as being the cause of wider mischief than if it had been confined to one single question, or had influenced the conduct of one cabinet only. It has often been said that the name "cabinet" is unknown to the law, and that what we call the cabinet is, in fact, only a committee of the Privy Council. As a statement of law the assertion may be correct, but it is certain that for more than a century and a half the constitution has adopted the principle that the cabinet consists of the holders of a certain, to some extent a fluctuating, number of the principal state officers; and, recognizing the responsibility of all for the actions of each member of it, does by that recognition sanction an expectation that on all questions, or at all events on all but those of the most trivial character, they will speak and act with that unanimity which is indispensable, not only to the strength of the government itself, but to its being held in respect by the people; such respect being, indeed, among the most essential elements of its strength.

The incidents of the war itself do not belong to a work such as this; but, tantalizing as it must be to an historian of any class to pass over the brilliant series of achievements which gave Britain the glory of being twice[[175]] the principal agent in the deliverance of Continental Europe, the glories of Salamanca, Victoria, Orthes, and Waterloo must be left to other writers, who, it is not unpatriotic to hope, may never again have similar cause for exulting descriptions. But out of the crowning triumph of Waterloo a difficulty arose which, though it may be difficult to characterize the principle on which it was settled, since it was not strictly a question of constitutional, international, or military law; and though the circumstances were so peculiar that the conclusion adopted is never likely to be referred to as a precedent, seems still deserving of a brief mention, especially as an act of Parliament was passed to sanction the decision of the cabinet. Baffled by the vigilance of our cruisers in every attempt to escape from one of the western ports of France to America, Napoleon was at last compelled to surrender himself to a British squadron. But, though he was our prisoner, the Prime-minister considered us, in all our dealings with him, as so bound by engagements to our allies, that he was to be regarded as "the common prisoner of all, so far that we should not give him up or release him without the joint consent of all." The question was full of difficulty. There were, probably, very few persons in this or any other country who did not coincide in the impropriety of releasing him, and so putting it in his power once more to rekindle a war in Europe. But it was a political view of the case, founded on a consideration of what was required by the tranquillity of Europe; and it was not easy to lay down any legal ground to justify the determination. Some regarded him as a French subject, and, if that view were correct, he could hardly be detained by us as a prisoner of war after we had concluded a treaty of peace with France. But, again, it seemed to some, the Lord Chancellor being among them, a questionable point whether in the last campaign we had been at war with France; whether, on the contrary, we had not assumed the character of an ally of France against him. And, on the supposition that we had been at war with France, a second question was raised by Lord Ellenborough, the Chief-justice, "what rights result on principle from a state of war, as against all the individuals of the belligerent nations—rights, whatever they may be, seldom, if ever, enforced against individuals, because individuals hardly ever make war but as part of an aggregate nation." The question—as, after consultation with Lord Ellenborough and his own brother, Sir William Scott, it finally appeared to Lord Eldon, on whom the Prime-minister naturally depended, as his chief legal counsellor, though in its political aspect he judged for himself—was, firstly, "whether it could possibly be inconsistent with justice or the law of nations that, till some peace were made by treaty with some person considered as Napoleon's sovereign, or till some peace were made with himself, we should keep him imprisoned in some part of our King's dominions." And, secondly, "whether there were any person who could possibly be considered his sovereign, after the treaty of 1814 had clothed him with the character of Emperor of Elba, with imperial dignity and imperial revenue." Lord Liverpool himself, however, raised another question: whether, by his invasion of France, he had not forfeited his right to be regarded as an independent sovereign; resting this doubt on a suggestion which, among others, he proposed to the Lord Chancellor, that "at Elba he enjoyed only a limited and conditional sovereignty, which ceased when the condition on which he held it was violated."

This last suggestion, it must be confessed, appears untenable, as totally inconsistent with the language of the Treaty of Fontainebleau, under the provisions of which Napoleon became sovereign of Elba, and which does not contain a single article which bears out the opinion that his sovereignty was limited or conditional. On the contrary, the words of the treaty expressly agree that "Elba should form during his life a separate principality, which should be possessed by him in full sovereignty and property."

There is no need to discuss the views of Blucher. On the news of Napoleon's landing at Frejus reaching the plenipotentiaries assembled at the Congress of Vienna, they at once issued a declaration that, "in breaking the convention which had established him at Elba, Buonaparte" (for they refused him his imperial appellation of Napoleon) "had destroyed the only legal title on which his existence depended.... He had placed himself out of the pale of civil and social relations, and, as the enemy and disturber of the peace of the world, he was delivered over to public justice." And the old Prussian, burning with a desire to avenge the indignities and injuries which he had inflicted on Prussia, avowed his determination to execute him as an outlaw, if he should fall into his hands. And it is still less worthwhile to inquire—though Lord Holland in his place in Parliament did desire the House to consult the judges on the point—whether, if Napoleon were a prisoner of war, he "were not entitled to his habeas corpus, if detained after the signature of a treaty of peace with all the powers, or any of which he could be considered as the subject."

On the whole, the simplest view of the position and of our detention of him, the view most reconcilable with the principles which regulate the waging and the relinquishing a state of war, seems to be to consider that Napoleon was a sovereign with whom we were at war; that that war could only be terminated by a treaty of peace between ourselves and him; that it rested with us to conclude, or to abstain from concluding, any such treaty; and that, till we should conclude it, we had clearly a right to detain him as a prisoner of war. It must, at the same time, be admitted that modern history afforded no precedent for the detention of a prisoner for his whole life (unless, indeed, Elizabeth's imprisonment of the Queen of Scots may be considered as one), and that the most solid justification for it was necessity. To quote the language of Lord Eldon, "I believe it will turn out that, if you can't make this a casus exceptionis or omissus in the law of nations, founded upon necessity, you will not really know what to say upon it. Salus Reipublicae suprema lex, as to one state; Salus omnium Rerumpublicarum must be the suprema lex as to this case."[[176]]

In the course of the year 1818 a somewhat singular question as to the position of the Regent was raised by a claim advanced by Colonel Berkeley to produce his Royal Highness as a witness in a court of law. The Prince consulted the Prime-minister, and the Prime-minister referred it to the Attorney and Solicitor General, not concealing his own impression that it could not be consistent with his constitutional position and prerogative for the King to appear as a witness to be subjected to examination and cross-examination.[[177]] They, in their statement of opinion, assumed it to be an undeniable principle of the constitution that the sovereign, "by reason of his royal character, could not give testimony." And therefore they had no doubt that the Regent, exercising his authority, was equally prevented from so doing. Colonel Berkeley's counsel had urged that, even if he could not appear in open court and be sworn, he had the privilege of communicating his evidence in a peculiar mode, by certificate under the Sign Manual or Great Seal. But the Attorney and Solicitor General professed that they could not discover whence this last privilege was derived; they urged, as an insurmountable objection to such a contrivance, that "all instruments under the Sign Manual or Great Seal must, in point of form, be in the name of and on behalf of the King, which would manifestly be incongruous when the evidence certified was not that of the King, but of the Regent himself." And they quoted a case in which Lord Chief-justice Willes had said "that the certificate of the King, under his Sign Manual, of a fact (except in an old case in Chancery) had always been refused." As it had been urged also, on Colonel Berkeley's behalf, that the Prince had formerly "joined in proving the will of the Duke of Brunswick," his brother-in-law, they farther expressed an opinion that "he ought not to have done so, but should have left it to the other executors."

On the point whether "the King himself could give evidence orally or in any other manner," their opinion expressed very plainly the principle on which they maintained that he could not. "That he was not compellable to do so; that he could not be sworn (there being no power capable of administering an oath to him in a court of justice). That, whether his testimony be given vivâ voce or otherwise, no question in chief or on cross-examination could be proposed to him, was admitted by Colonel Berkeley's counsel. And that his testimony must be conclusive as to the facts stated by him, appeared necessarily to follow from the perfection ascribed by law to his royal character. For such remarkable exceptions, therefore, to the case of all other witnesses they could not but think that strong and decisive authority ought to be produced; while the silence of text-writers on the subject, so far from being favorable to the notion that the King can give evidence, appeared to afford a directly contrary inference." And they summed up their opinion in a few words: "that his Royal Highness the Prince Regent, while in the personal exercise of the royal authority, was in the situation of the King in this respect, and that the King could not by any mode give evidence as a witness in a civil suit."