The Constitutional History of England from 1760 to 1860

by Charles Duke Yonge

It is very improbable that Colonel Berkeley should have made the application without previously ascertaining the willingness of the Prince to give evidence, could such a course be permitted. And as his Royal Highness, on receiving this opinion of the law-officers of the crown, did not come forward as a witness, that opinion may be held to have settled the question. And, apart from the constitutional objections relied on by those able lawyers, it is evident that there would be serious practical objections to the sovereign being made a witness. It would be derogatory to his royal character to put himself in a position where comments could be made, either by the opposing barrister or by the public outside, on his evidence. And, on the other hand, it would be perilously unfair to one litigant for his adversary to be able to produce a witness who was not subject to cross-examination, nor to remarks upon his testimony.

The reign of George III. was now drawing to its close, and, if it produced no legislation affecting the principles of the constitution (it will presently be seen that it did produce one measure which its opponents branded as a violation of these principles), yet in its last years it witnessed the revival of an agitation which was kept up with varying animation till it was temporarily quieted by the concession of its demands. We have seen that one of Pitt's earliest efforts at legislation had been directed to a reform in Parliament, an object which to the end of his life he considered of great importance, though the revolutionary spirit aroused by the troubles in France, and the open sympathy with the French Jacobins and Republicans avowed by a party among ourselves—which, if numerically weak, was sufficiently loud and active to be dangerous—prevented him from ever re-opening the subject. But, though the French Revolution in this way proved for the time an insurmountable obstacle to the success of the reformers, in another way it insured the revival of the question, by the general spirit of inquiry which it awakened among the population at large, and which soon went beyond the investigation of any single abuse or anomaly. For even less far-sighted statesmen than Pitt confessed the existence of much that was not only theoretically indefensible, but practically mischievous. The period, little short of a century, which elapsed between the death of William III. and Pitt's accession to office had been one of almost complete stagnation and apathy. The Scotch Union, the Septennial Bill, the establishment of a militia, and the Place Bill of 1743 were the only instances of any legislation deserving the name of constitutional which made the reigns of Anne and the first two Georges memorable. And in the very nature of things it was impossible that, after so long a slumber, there should not be much to do, and many, whether capable or incapable, eager to bear a share in the work. The sudden cessation of the excitement of war had begotten a restless craving for some other excitement to take its place, and none seemed so creditable as energy and acuteness in the discovery and removal of abuses. Complaints were made, and not without reason, of the working of the poor-law; of the terrible severity of our criminal code; of the hardships and sufferings of the younger members of the working classes, especially in the factories; of the ignorance of a large portion of the people, in itself as prolific a cause of mischief and crime as any other. But, though committees and commissions were appointed by Parliament to investigate the condition of the kingdom in respect of these matters, a feeling was growing up that no effectual remedy would be applied till the constitution of the House of Commons itself were reformed, so as to make it a more real representation of the people than it could as yet be considered. And a farther stimulus to this wish for such a Parliamentary reform was supplied by the distress which a combination of circumstances spread among almost all classes in the years immediately following the conclusion of the second treaty of peace.[[178]] The harvests of the years 1816 and 1817 were unusually deficient, and this pressed heavily on the farmers and landed proprietors. The merchants and manufacturers, who, while every part of the Continent was disturbed or threatened by the operations of contending armies, had practically enjoyed almost a monopoly of the trade of the world, found their profits reduced, by the new competition to which the re-establishment of peace exposed them, to a point which compelled them to a severe reduction of expenditure. The uncertainty felt as to the results to be brought about by the inevitable repeal of the Bank Act of 1797, and the return to cash payments—results which it was impossible to estimate correctly beforehand—had a tendency to augment the distress, by the general feeling of uneasiness and distrust which it created. And the employers of labor could not suffer without those who depended on them for employment suffering still more severely. The consequence was, that there was a general stagnation of trade; numbers of artisans and laborers of every kind were thrown out of work, and their enforced idleness and poverty, which was its result, made them ready to become the tools of demagogues such as are never wanting in the hour of distress and perplexity. Meetings were convened, ostensibly to petition for reform, but in reality to afford opportunities for mob-orators, eager for notoriety, to denounce the government and those whom they styled the "ruling classes," as the causes of the present and past evils. From these meetings multitudes issued forth ripe for mischief. In some places they rose against the manufacturers, and destroyed their machines, to the recent introduction of which they attributed their want of employment. In others, still more senselessly, they even set fire to the stores of grain in the corn-dealers' warehouses, aggravating by their destruction the most painful of their own sufferings. On one occasion, a mob which had assembled in one of the eastern districts of London, on pretence of framing a petition to be presented to the Prince Regent, at the close of the meeting paraded the streets with a tricolor flag, the emblem of the French Revolutionists, and pillaged a number of shops, especially those of the gun-makers, spreading terror through all that side of the metropolis. In at least one instance the violence of the rioters rose to the height of treason. Assassins fired at the Regent in the Park as he was returning from the House of Lords, whither he had been to open Parliament; and when it was found that they had missed their aim, the mob attacked the royal carriage, pelting it with large stones, and breaking the windows; nor was it without some difficulty that the escort of troops cleared a path for him through the mob, and enabled him to reach Carlton House in safety.

The first effect of these outrages was to damage the cause of Reform itself, even such uncompromising reformers as Lord Grey denouncing "meetings at which extensive schemes of Reform were submitted to individuals incapable of judging of their propriety." The second consequence was to compel the ministers to take steps to prevent a recurrence of such tumults and crimes. At first they were contented with a temporary suspension of the Habeas Corpus Act; but, even while that suspension was in force, it did not entirely prevent meetings, at some of which the language of the speakers certainly bordered on sedition; and when the suspension was taken off, fresh meetings on a larger scale, and of a more tumultuous character than ever, were held in more than one rural district; finally, in July of 1819, the whole kingdom was thrown into a violent state of excitement by a meeting held at Birmingham, at which the leaders, assuming the newly-invented party name of Radicals, not only demanded the remodelling of the whole system of government, but, because Birmingham as yet sent no members to the House of Commons, took it upon themselves to elect Sir Charles Wolseley, a baronet of respectable family, as their representative to the Parliament, and charged him to claim a place in the House of Commons in the next session, by the side of those elected in obedience to the royal writs. Sir Charles was at once arrested on the charge of having at this meeting used seditious language calculated to lead to a breach of the peace; but the Radical leaders, far from being intimidated by this demonstration of vigor on the part of the government, immediately summoned a similar meeting in Manchester, announcing their intention to elect a representative of that great town likewise, which, though the largest of all the manufacturing towns, was also unrepresented in the Imperial Parliament. The magistrates prohibited the meeting. It was only postponed for a week, when the people assembled in such formidable numbers (no estimate reckoned them at fewer than 60,000), that the ordinary civil authorities deemed themselves unequal to dealing with it, and called in the aid first of the Yeomanry and then of a hussar regiment. The soldiers behaved with great forbearance, as soldiers always do behave on such occasions; but they were bound to execute the orders which were given them to arrest some of the leaders, and, in the tumult which was the inevitable consequence of their attempt to force a way through so dense a crowd, three or four lives were, unfortunately, lost.

So unusual a catastrophe called out the energies of both parties. The Radical leaders published manifestoes declaring the people had been "massacred" by the soldiers by the orders of the government. Meetings were held to denounce the conduct of the ministers, one being even promoted by Lord Fitzwilliam, as Lord-lieutenant of Yorkshire, a dignity of which he was instantly deprived; while, on the other hand, the grand-juries of Cheshire and Lancashire made reports of the condition of those counties to the Secretary of State, which showed that a most alarming spirit prevailed over the greater part of the district. "The most inflammatory publications had been issued in the principal towns, at a price which put them within the reach of the poorest classes of society. The training and military drilling of large bodies of men under regular leaders had been carried on to a great extent for some time, chiefly by night; and there was no doubt that an extensive manufacture of arms was going on." What was a hardly inferior symptom of danger was a system of intimidation which prevailed to a most serious degree. Many magistrates had received notices threatening their lives, and combinations had been formed to withhold custom from publicans and shopkeepers who had come forward to support the civil power. In many parts of the two counties the grand-juries declared "that no warrant of arrest or other legal process could be executed; the payment of taxes had ceased, and the landlords were threatened with the discontinuance of their rents."

It was admitted that the spirit of disaffection was local, confined to three or four counties; but those counties were, next to Middlesex itself, the most populous and among the most important in the kingdom, and there was danger lest the feeling, if not checked, might spread. The crisis seemed so momentous, that some even of the Opposition leaders volunteered their counsels and aid to the ministers in dealing with it. And the ministers, after long deliberation, decided on calling Parliament together in November, and introducing some bills which they conceived necessary to enable them to restore and preserve tranquillity. They were six in number; and—perhaps, with some sarcastic reference to Gardiner's Six Acts in the sixteenth century—they were very commonly spoken of as Lord Sidmouth's Six Acts, that noble lord being the Home-secretary, to whose department they belonged. It is not necessary here to do more than mention the general purport of five of them. One prohibited military training without the sanction of the government; another empowered magistrates to search for arms which they had reason to believe were collected for illegal purposes; the third authorized the seizure of seditious and blasphemous libels; the fourth subjected publications below a certain size to the same stamp as that required for a newspaper; the fifth regulated the mode of proceeding in trials for misdemeanor of a political character. But these enactments were regarded as little more than arrangements of detail or procedure involving no principles, and some of them were admitted even by the most steadfast opponents of the ministers to be necessary. But the sixth, designed to restrain the practice of holding large open-air meetings—not, indeed, forever, but for a certain period, fixed at five years—was strongly resisted by the greater portion of the Whig party in both Houses, as a denial to the people of one of their most ancient and constitutional rights.[[179]]

Its principal clauses enacted that "no meeting exceeding the number of fifty persons (except a meeting of any county or division of any county, called by the Lord-lieutenant or sheriff of such county, etc., or by five or more acting justices of the peace for such county, or by the major part of the grand-jury; or any meeting of any city, borough, etc., called by the mayor or other head officer of such city, etc.) should be holden for the purpose or on the pretext of deliberating upon any public grievance, or upon any matter relating to any trade, manufacture, etc., or upon any matter of Church or State, or of considering, proposing, or agreeing to any petition, address, etc., etc., unless in the parish or township within which the persons calling any such meeting usually dwell;" and it required six days' notice of the intention to hold such meetings, with their time, place, and object, to be given to a magistrate. It empowered the magistrate to whom such notice was given to alter the time and place. It forbade adjournments intended to evade these prohibitions. It forbade any one to attend such meetings except freeholders of the county, or parishioners of the parish, or members of the corporation of the city or borough in which they were held, or members of the House of Commons for such places. It empowered magistrates to proceed to the places where such meetings were being held, and, if they thought it necessary, to require the aid of constables. It enacted that any meeting, the tendency of which should be "to incite or stir up the people to hatred and contempt of the person of his Majesty, his heirs and successors, or of the government or constitution of this country as by law established, should be deemed an unlawful assembly." It empowered one or more justices of the peace, in the event of any meeting being held contrary to the provisions of this act, to warn every one present, in the King's name, to depart; and made those who did not depart in obedience to such warning liable to prosecution for felony, and, if convicted, to seven years' transportation. It forbade the display of flags, banners, or ensigns at any meeting, and the employment of any drum, or military or other music; but it excepted from its operation "any meeting or assembly which should be wholly holden in any room."

There was one peculiarity in the line taken by the opponents of the bill, that they did not deny that the meetings which had induced the ministers to propose it were an evil, dangerous to the general tranquillity; but it was strongly urged by Lord Erskine and others that the existing laws were quite strong enough to deal with them, so that a new enactment was superfluous; and by others, in both Houses, that such meetings were "an ancient and constitutional mode of discussing abuses or petitioning Parliament," any interference with which was a greater evil than the meetings themselves, as being a violation of the constitution. Mr. Brougham in particular admitted, to the full extent of the assertions of the ministers themselves, "the wickedness and folly of many of the speeches" made at the recent meetings. He expressed with great force his entire disapproval of the system on which these meetings had been conducted, and admitted that the martial array which had been exhibited, and the vastness of the numbers of those who had attended, were of themselves calculated to excite alarm; but he declared that "he could not on that account acquiesce in a total subversion of a popular right." On the other hand, the ministers themselves did not deny "the general right of the people to petition the Legislature, or to carry their addresses to the foot of the throne. And therefore (as Lord Harrowby, the President of the Council, admitted) there could be no doubt of their right to assemble, so far as was necessary to agree to their petitions or addresses. It was a right that did not depend on the Bill of Rights, on which it was usually grounded, but had existed long before. But this bill," he contended, "imposed no restrictions on the legitimate enjoyment of that privilege; it only regulated the meetings at which it was to be exercised." And Lord Liverpool affirmed that the bill was not only "consistent with the existing laws and principles of the constitution, but was even proposed in furtherance of those principles, and for the purpose of protecting the people of this country against a series of evils which, if not checked, must subvert their laws and liberties."

In attempting to form a correct judgment on the question whether this bill were constitutional or unconstitutional, it must, I think, be admitted that, as has been remarked before, the terms "constitutional" and "unconstitutional" are somewhat vague and elastic. There is no one document—not Magna Charta, nor the Petition of Eight, nor the Bill of Rights—which can be said to contain the whole of the British constitution. Its spirit and principles are, indeed, to be found in all the laws, to which they give animation and life, but not in any one law. And among its leading principles are those which embrace the right of every individual to freedom of action and freedom of speech, so long as he does not commit any crime himself, nor tempt others to do so. Yet it does not follow that a new enactment which for a while abridges or suspends that freedom of action or speech is inconsistent with those constitutional principles.

Ministers, to whom the government of a country is intrusted, do wrong if they limit their operations to the punishment of offences which have been committed. It is at least equally their duty, as far as possible, to prevent their commission; to take precautionary measures, especially at times when there is notorious danger of offences being committed. At the same time they are bound not to legislate under the influence of panic; not to yield to fears having no substantial ground. And in their measures of precaution they are farther bound to depart from or overstep the ordinary law as little as is compatible with the attainment of their object. In all such cases each action of theirs must stand or fall by its own merits; by the greatness of the emergency which has caused it, and by its sufficiency for its end. For as no law, except such as forbids moral crimes, is invariable, so even the dearest privileges of each subject, being his for the common good, are liable to temporary suspension for that common good. But the burden of justification lies on those who propose that suspension.

Now, that this bill was such a suspension of the long-established rights of the subject, and so far an overstepping of the principles of the constitution, is admitted by the very fact of its framers only proposing for it a temporary authority. Had it not invaded a valuable and real right, it might have been made of perpetual obligation. But it is not easy to see how it can be denied that the dangers against which it was intended to guard were also real. It was certain that itinerant demagogues were visiting districts with which they had no connection, for the sole purpose of stirring up political agitation. It was clear that such meetings as they convened, where those assembled could only be counted by tens of thousands, were too large for deliberation, and were only meant for intimidation; and equally clear that, though the existing laws may have armed the magistrate with authority to disperse such meetings, they did not furnish him with the means of doing so without at least the risk of bloodshed (for such a risk must be involved in the act of putting soldiers in motion), and still less did they invest him with the desirable power of preventing such meetings. It was necessary, therefore, to go back to the original principles and objects of every constitution, the tranquillity, safety, and welfare of the nation at large. And it does not appear that this bill went beyond what was necessary for that object. Indeed, though party divisions are not always trustworthy tests of the wisdom or propriety of a measure, the unusual magnitude of the majorities by which on this occasion the minister was supported in both Houses may fairly be regarded as a testimony to the necessity of the bill,[[180]] while its sufficiency was proved by the abandonment of all such meetings, and the general freedom from agitation in every part Of the country which prevailed in the following year, though its most remarkable incident was one of which demagogues might well have taken advantage, if they had not had so convincing a proof of the power of government, and of the resolution of the ministers to exert it.[[181]]