The Constitutional History of England from 1760 to 1860

by Charles Duke Yonge

The King had hitherto borne himself between the contending parties in the state with scrupulous fairness to both. Though, he had, probably, been taken by surprise by the sweeping character of the changes his ministers had proposed, he had given them a frank support, consenting, even at a moment's notice, to dissolve the Parliament after the unfavorable division in the House of Commons on the first bill; but he had, at the same time, warned them that he would never consent to employ any means of coercion to overbear the free decision of the House of Lords. And he had more than once rejected as unconstitutional their solicitations to allow them to make peers with that object. At last they endeavored to compel his consent by resigning their offices, though the ground for so decided a step can hardly be deemed sufficient, since the provocation which they alleged was only Lord Lyndhurst's success in carrying an amendment to take the enfranchising clauses of the bill before those of disfranchisement, so as to give the latter a more gracious appearance, as if the boroughs to be extinguished were made to suffer, not so much for their own positive unworthiness as in order to make room for others which had become of undeniably greater importance. The King took the strictly constitutional line of accepting their resignation and intrusting the Duke of Wellington with the task of forming a new administration, warning the Duke, at the same time, that he considered himself now pledged to grant a large measure of Reform; but the Duke found the task impracticable, and then, as the only means of averting farther insurrectionary tumults, which bore no slight resemblance to civil war, and might not impossibly end in it, the King did at last consent to permit the creation of a sufficient number of peers to insure the passing of the bill. But he could not overcome his repugnance to the measure as a severe blow to the constitution—one which would in effect be tantamount to the extinction of the independence of the Upper House as a legislative body; and, thinking no means unjustifiable that would avert the necessity of such a creation, he conceived the idea of authorizing his private secretary, Sir Herbert Taylor, to request the chief peers on the Opposition side to absent themselves from the division on the third reading. It seemed to him, and indeed to many of them, the only thing that could be done. Their judgment of the character and eventual consequences of the ministerial bill was unaltered; but they saw the violence of the public feeling on the subject, and the danger to the state of too stubborn and uncompromising a resistance to it, and, yielding loyal obedience to their royal master's wish, they retired from the House without voting. Those who remained passed the bill, and in the beginning of June, 1832, it became law.

We have ventured in a previous chapter to call in question the propriety of the conduct of the King's father, George III., in using his personal entreaties to influence the House of Lords against the India Bill of Mr. Fox. The transaction which has been related here is the second and only other instance since the Revolution of a sovereign having recourse to such a device to sway the votes of members of either House. But the circumstances were so entirely different, nay, so diametrically opposite, that an opinion of the impropriety of the sovereign's deed in the former case imposes no obligation on the ground of consistency to censure it in the later instance. The interference of George III. was designed to thwart and defeat his ministers on a measure of which he had not previously intimated any disapproval. William IV., on the other hand, was exerting himself to support his ministers, not, as it seems probable, without some sacrifice of his own judgment. His father acted as he did to avert an inroad on his prerogative and independence, which he had been persuaded to apprehend, but the danger of which can hardly be said to have been proved beyond all question; so that even those who think the result of his action fortunate for the nation cannot defend the action as one that on any constitutional principle can be justified. The son, at a far more critical moment, adopted the course which he did adopt as the only means which he saw of extricating the state and the nation from an alternative of great calamities: the extinction of, or at least a deep wound to, the legislative independence of the House of Lords, by the following of a single precedent[[218]] which had ever since been universally condemned; or, on the other hand, a continuance of outrages and tumults which had already disgraced the nation in the eyes of the world, and which, if renewed and continued, could not fail to imperil the safety of the state. Such a motive may certainly be allowed to excuse the irregularity of the act.

When, however, we come to consider the proposal to create peers, which drove the King to take such a step, that is a question on which, while it is still more important, it is also more difficult to form a satisfactory judgment. It was denounced by the Duke of Wellington and other peers as utterly unconstitutional and revolutionary; as a destruction of the great principle of the equality of the two Houses; as a denial to the peers of their right to form and act upon their own deliberate judgment; and as a reduction of their position to that of a body existing merely to register the decrees of the other House. Indeed, that it had this character was admitted by Lord Grey himself, with no abatement beyond such mitigation as might be found in the idea that it was only intended to affect their decision on a single question. So far it may be said that even while defending it he condemned it; Habemus confitentem reum. But the task of a ruler or legislator is often but a choice between difficulties, or even between manifest evils. And, even if an act or course be admitted to be intrinsically evil, taken by itself, yet, if the evil which it is calculated or designed to avert be a greater evil still, the defence is complete, or, at all events, sufficient. And this, in fact, is the principle of the justification which Lord Grey alleged. He was, perhaps, unconsciously referring to a passage in Mr. Hallam's great work on "Constitutional History" (then very recently published), in which, while discussing Sunderland's Peerage Bill, and admitting that "the unlimited prerogative of augmenting the peerage is liable to such abuses, at least in theory, as might overthrow our form of government," he proceeds to point out that in the exercise of this, as of every other power, "the crown has been carefully restrained by statutes, and by the responsibility of its advisers;" but that, while "the Commons, if they transgress their boundaries, are annihilated by a proclamation" (that is, by a dissolution) "against the ambition, or, what is much more likely, the perverse haughtiness of the aristocracy, the constitution has not furnished such direct securities.... The resource of subduing an aristocratical faction by the creation of new peers could never be constitutionally employed, except in the case of a nearly equal balance; but it might usefully hang over the heads of the whole body, and deter them from any gross excesses of faction or oligarchical spirit. The nature of our government requires a general harmony between the two Houses of Parliament."[[219]] In the present case no one could impute the difference between the two Houses to any "perverse haughtiness" on the part of the peers. But the difference existed, and was too deeply founded on the cautious principles of the Tory party to be surmountable by ordinary means. It was certain also that the Commons would not give way; that, without danger to the public peace, they could not give way. And this was, in fact, Lord Grey's contention: that a crisis had arisen in which compulsion must be exercised on one or other of the disagreeing parties; and that coercion of the peers by an augmentation of their number, or a threat of it, was the only compulsion practicable. In upholding this position, however, it must be remarked that he was betrayed into the use of language which was as great a violation of constitutional and parliamentary principle and usage as the action which he was recommending; language, too, which was quite unnecessary to strengthen his argument. He accused the Lords of "opposing the declared and decided wishes both of the crown and the people;" of "acting adversely to the crown;" and this introduction of the sovereign's name to overawe the assembly was unconstitutional in the highest degree. For, constitutionally, the sovereign has no right to signify his opinion, nor, indeed, any recognized means of signifying it but by giving or withholding his royal assent to measures which the two Houses have passed. On any bill which has not yet been passed by them he has, as has been already implied, no legitimate means whatever of expressing his judgment. The time has not come for him to do so. Moreover, the statement was, probably, not believed by any one to be strictly true, for it was pretty generally understood that the King would have preferred a far more moderate measure. But, indeed, in the very speech in which the Prime-minister made this use of the King's name he presently added an observation which was a sufficient condemnation of his previous language. For, in denouncing the "vile attacks which had been made on his Majesty in the public press," and disclaiming all share in them (a disclaimer which however true of himself, could not, it is believed, have been uttered with equal truth by all his colleagues), he pointed out that "it ought always to be recollected that it is contrary to the principles of the constitution to arraign the personal conduct of the sovereign." It follows, as a matter of course, that it is equally contrary to those principles to allege his personal opinions in either House on any measure before it, since, if alleged, they must be open to criticism; unless, indeed, the mere allegation of the royal sentiments were to be taken as decisive of the question, in which case all freedom of discussion would be at once extinguished.

But this irregularity, into which the Prime minister was apparently betrayed by his desire of victory, must not be allowed to affect our verdict on the main question; and, now that the lapse of time has enabled us to contemplate dispassionately the case on which he had to decide, it will, probably, be thought that his justification of his conduct in recommending a creation of peers is fairly made out. That, under any pressure short of that, the peers would have again rejected the Reform Bill, or at least would have pared it down to much smaller proportions than would have satisfied the popular demand for Reform, may be regarded as certain; and equally certain that such a line of conduct would have led to a renewal of disgraceful and dangerous tumults. The minister, therefore, as has been said before, had to choose between two evils. It was a grievous dilemma; but those who had to deal with it (even while it may be admitted that they cannot be held wholly free from blame, as having themselves contributed by their own language to the popular excitement and irritation)[[220]] may be excused for thinking the wound inflicted on the constitution, by thus overbearing the voice of one House of Parliament on a single occasion, less formidable in its immediate fruit, and more capable of being remedied and retrieved, than that which would have followed from a renewal of insurrectionary tumults, even if they should have come short of actual civil war.

One critic of these transactions[[221]] whose experience and high reputation entitle his opinion to respectful consideration, after reminding his readers that, "although Parliament is said to be dissolved, a dissolution extends, in fact, no farther than to the Commons, and that the Peers are not affected by it; no change can take place in the constitution of their body, except as to a small number of Scotch representative peers," proceeds to argue that, "so far as the House of Peers is concerned, a creation of peers by the crown on extraordinary occasions is the only equivalent which the constitution has provided for the change and renovation of the House of Commons by a dissolution. In no other way can the opinions of the House of Lords be brought into harmony with those of the people." But it may be feared that this comparison is rather ingenious than solid. Indeed, the writer himself limits such an expedient as a creation of peers to insure the passing of a particular measure to "extraordinary occasions." But a dissolution of the House of Commons is so far from being so limited, that it is the natural and inevitable end of every House of Commons after an existence which cannot exceed seven years, and which is very rarely so protracted. And though it may be, and probably has been, the case that a House of Commons has passed measures to which it had no great inclination, lest it should provoke a minister to a premature dissolution, yet no submission on its part can long postpone it; and a threat or apprehension of a dissolution would certainly fail to overcome the opposition of the House of Commons, or of a party within it, if the measure before them seemed open to serious objection. The presumed or presumable immortality of the one body, and the limited existence of the other, seem to constitute so essential a difference between them as must prevent the measures adopted toward one being fairly regarded as any guide to a justification of those employed in the case of the other.

The Reform Bill of 1832 has sometimes been called a new Revolution, and to some extent it deserved the name; for it was not, like the Catholic Emancipation Act, a mere restoration of privileges to any class or classes of the people which had once been enjoyed by them, and had subsequently been withdrawn, but it was a grant of a wholly new privilege to places and to classes which had never enjoyed it; while it was manifest that the political power thus conferred on these classes involved a corresponding diminution of the powers of those who had hitherto monopolized it. It was also the introduction of a new principle. The old doctrine of the constitution had been, that the possession of freehold property, as the only permanent stake in the country, was the only qualification which could entitle a subject to a voice in the government and legislation of the kingdom. The new doctrine was that, as others besides owners of land contributed to the revenue by the payment of taxes, those who did so contribute to a sufficient amount had a right to a voice, however indirect or feeble, in the granting of those taxes; and so far it was the extension and application to subjects at home of the principle for which Lord Chatham and Burke had contended sixty years before in the case of the American Colonies, that taxation and a right to representation went together; a principle which, many ages before, had been laid down by the greatest of our early kings as the foundation of our parliamentary constitution and rights. But this principle, however generally it may have been asserted, had hitherto been but very partially carried out in practice, and the old borough system had been skilfully devised by successive kings and ministers to keep the political power in the hands of the crown and the aristocracy. It was with that object that most of the boroughs which were first allowed to return members under the Tudors had been enfranchised,[[222]] a great noble or landholder, whose affection to the government could not be doubted, being often able to obtain the promotion of some village or petty town in the neighborhood of his estates to the dignity of a parliamentary borough, and thus acquiring a great addition to his political and social importance by his power of influencing the election. No one could deny that the existence of such boroughs was an abuse, or at least an anomaly, rendered the more conspicuous as time went on by the denial of representatives to towns which contained as many thousands of citizens as they could boast single burgesses. At the same time it was equally undeniable that the aristocracy, generally speaking, exerted their influence advantageously for the state. A peer or great squire who could return the members for a borough took a worthy pride in the abilities and reputation of those whom he thus sent to Parliament; especially the leaders of the two parties sought out promising young men for their seats; and it has often been pointed out that, of the men who in the House of Commons had risen to eminence in the country before the Reform Bill, there was scarcely one who had not owed his introduction to Parliament to the patron of one of those boroughs which were now wholly or partially disfranchised; while on one or two occasions these "rotten boroughs," as, since Lord Chatham's time, they were often derisively called, had proved equally useful in providing seats for distinguished statesmen who, for some reason or other, had lost the confidence of their former constituents. So, when Bristol had disgraced itself by the rejection of Burke, Malton had averted the loss with which Parliament and the country were threatened by again, through the influence of Lord Rockingham, returning the great statesman as their representative. So, to take a later instance, Westbury, under the influence of Sir Manasseh Lopes, had provided a refuge for Sir Robert Peel, when the course which he had taken on Catholic Emancipation had cost him his seat for Oxford. And these practical uses of these small boroughs—anomalies in a representative system, as they were called in the debates on the subject, and as they must be confessed to have been—were so important, that some even of those who felt compelled by their principles to vote for their parliamentary extinction have, nevertheless, confessed a regret for the sacrifice, lamenting especially that it has, in a great degree, closed the doors of the House of Commons against a class whose admission to it is on every account most desirable, the promising young men of both parties.

In one point of great importance the framers of the Reform Bill of 1832 proved to be mistaken. They justified the very comprehensive or sweeping range which they had given it by their wish to make it a final settlement of the question, and by the expression of their conviction that the completeness with which it had satisfied all reasonable expectations had effectually prevented any necessity for ever re-opening the question. Their anticipations on this head were not shared by their opponents, who, on the contrary, foretold that the very greatness of the changes now effected would only whet the appetite for a farther extension of them; nor by a growing party, now beginning to own the title of Radicals, which till very recently had only been regarded as a reproach, and who, even before the bill passed,[[223]] expressed their discontent that it did not go farther, but accepted it as an instalment of what was required, and as an instrument for securing "a more complete improvement." And their expectations have been verified by subsequent events. Indeed, it may easily be seen that the principles on which one portion of the bill—that which enfranchised new classes of voters—was framed were such as, in shrewd hands, might easily be adduced as arguments in favor of the necessity of reconsideration of the question from time to time. So long as the right of voting was confined to owners of property, or members of corporate bodies, the line thus laid down was one which was not liable to be crossed. But the moment that tenancy was added to ownership, and a line was drawn distinguishing electors from non-electors, not by the nature of their qualifications, but by the amount of their rent, detail was substituted for principle; and the proposer or maintainer of the rule that the qualification should be a yearly rental of £10 might be called on to explain why, if £10 were a more reasonable limit than £15, £8 were not fairer than £10. Or again, if the original argument were, that a line must of necessity be drawn somewhere, and that £10 was the lowest qualification which seemed to guarantee such an amount of educated intelligence in the voter as would enable him to exercise the franchise conferred on him judiciously and honestly, such reasoning would from time to time invite the contention that the spread of education had rendered £8 tenants now as enlightened as £10 tenants had been some years before. And thus the measure of 1832, instead of forever silencing the demand for Reform by the completeness of its concessions, did in fact lay the foundation for future agitation, which has been farther encouraged and fed by farther submission to it, and which its leaders, who have so far triumphed, show no purpose to discontinue. To discuss whether such extensions of the franchise as have already been adopted, and those farther steps in the same direction which are generally understood to be impending, will eventually be found compatible with the preservation of our ancient monarchical constitution, is a fitting task for the statesmen and senators whose duty it is to examine in all their bearings the probable effects of the measures which may be proposed. But the historian's business is rather "to compile the records of the past" than to speculate on the future.[[224]] And the course which was too perilous or difficult for Mr. Hallam to undertake we will follow his example in avoiding. But it cannot be denied that, if the Reform Bill of 1832 transferred the chief political power of the state from the aristocracy to the middle classes, a farther lowering of the qualification for the exercise of the franchise must transfer it from the middle to the lower classes; and that those who view such transfer with alarm, and deprecate it as fraught with peril to all our ancient institutions, maintain their opinions by arguments as old, indeed, as the days of the Roman republic,[[225]] but which have not lost strength by lapse of time, if indeed, they have not been fortified by events in the history of more than one modern nation.

Even before the introduction of the first Reform Bill one measure had been passed of constitutional importance, though the concurrence of both parties in its principle and details prevented it from attracting much notice. Two daughters who had been born to the King and Queen had died in their infancy, and the royal pair were now childless; and, as some years had elapsed since the birth of the last, it was probable that they might remain so. The presumptive heiress to the throne was, therefore, the daughter of the deceased Duke of Kent, the Princess Victoria, our present most gracious sovereign, and, as she was as yet only eleven years of age, it was evidently necessary to provide for the contingency of the death of the King before she should attain her majority. A Regency Bill for that purpose had, therefore, been prepared by the Duke of Wellington's cabinet, and had been introduced by Lord Chancellor Lyndhurst in the House of Lords before the resignation of the ministry. It could not be so simple in its arrangements as such bills had sometimes been, since there was more than one contingency possible, for which it was requisite to provide. It was possible not only that William IV. might die within the next seven years, but also that at his death he might leave a child, or his widow in a state which warranted the expectation of one, the latter case being the more difficult to decide upon, since no previous Regency Bill furnished any precedent for the ministers' guidance.

The first point, however, to be settled was, who was the most proper person to administer the affairs of the kingdom as Regent, in the event of the heiress to the crown being still a minor at the King's death. It was a question on which it was evidently most desirable that no difference of opinion should be expressed. And, in fact, no difference existed. The leaders of both parties—the Duke and his colleagues, who had framed the bill, and Lord Grey, with his colleagues, who adopted it—agreed that the mother of the young sovereign would be the fittest person to exercise the royal authority during the minority; and, farther, that she should neither be fettered by any limitations to that authority, nor by any councillors appointed by Parliament nominally to advise and assist, but practically to control her. It was felt that a Regent acting for a youthful daughter would need all the power which could be given her; while, as she could never herself succeed to the throne, she could be under no temptation, from views of personal ambition, to misuse the power intrusted to her.

At first sight it seemed a more difficult and delicate question what course should be pursued with reference to the possible event of the King dying while the Queen, his widow, was expecting to become a mother. As has been said above, no precedent was to be found in any former bill; yet it seemed to be determined by the old constitutional maxim, that the King never dies. Not even for a moment could the throne be treated as vacant, and, therefore, it was proposed and determined that in such a case the Princess Victoria must instantly be proclaimed Queen, and the Duchess of Kent must instantly assume the authority of Regent; but that, on the birth of a posthumous child to the Queen Dowager, the Princess and the Duchess, as a matter of course, should resume their previous rank, and Queen Adelaide become Regent, and govern in the name of her new-born infant and sovereign. The strict constitutional correctness of the principle elaborately and eloquently expounded to the peers by Lord Lyndhurst was unanimously admitted, and the precedent now set was followed, with the needful modification, when, ten years afterward, it became necessary to provide for the possibility of Queen Victoria dying during the minority of her heir. The parent of the infant sovereign, Prince Albert, was appointed Regent, with the cordial approval of the nation; the dissent of the Queen's uncle, the Duke of Sussex who, with a very misplaced ambition, urged instead the appointment of a Council of Regency, of which he hoped to become the most influential member, only serving to make the unanimity of the rest of the Parliament more conspicuous.