The Constitutional History of England from 1760 to 1860

by Charles Duke Yonge

It would be superfluous here to repeat the story of the rise of the boroughs, whose gradual acquisition of charters, with privileges and powers of various degrees, has been sufficiently investigated by Hallam.[[237]] What the Parliament had now to deal with was the way in which the system worked in the nineteenth century; and here it must be confessed that the report of the commissioners, severe as it was, did in no degree exaggerate the prevailing evils. The corporations had gradually become self-elected oligarchies of the worst kind. It must be admitted that, in perverting their authority to political purposes, they might plead the excuse that they were but following the example set them by the ministers of William III., who introduced into their bill for restoring the corporations which James II. had suppressed clauses manifestly intended to preserve the ascendency of the Whig party, "by keeping the Church or Tory faction out of"[[238]] them. But no such palliation (if, indeed, that had any right to be called a palliation) could be alleged for their abuse of the trusts committed to them; abuse which, if committed by single individuals, would have been branded, and perhaps punished, as malversation and fraud of the deepest dye. A sufficient specimen of the kind and extent of their misdeeds in one branch of their duties was afforded by a single paragraph of Lord John Russell's speech, in which he affirmed that, in some of the reports of their management of charitable estates committed to their care, it was proved that "the property, instead of being employed for the general benefit of the town, had been consumed for the partial benefit of a few individuals, and not unfrequently in the feastings and entertainments in which the mayor and other corporators had been in the habit of indulging. In some not very large boroughs these expenses had amounted to £500 and £600 a year; and the enjoyment had been confined to freemen of only one party." And the perpetuity of this mismanagement was in most instances secured by the members of the corporation themselves electing their new colleagues on the occasion of any vacancy.

To put an end to this discreditable state of affairs, the government had prepared a very sweeping scheme of reform, though that it was not too sweeping was proved by the approval with which not only its principle but most of its details were received by the greater part of the Opposition; the leading principle being, to quote the words of the minister in introducing the bill, "that there should be one uniform government instituted, applicable to all; one uniform franchise for the purpose of election; and a like description of officers in each, with the exception of some of the larger places, in which there would be a recorder, or some other such magistrate. The first thing to be amended was the mode of election to the corporation, which was now to be intrusted to all such rate-payers in each borough as had paid poor-rates for three years, and resided within seven miles of the place." Lord John Russell had considered, he said, "whether this franchise should be limited to those paying a certain amount of rates; to the ten-pound householders, for instance, to whom the parliamentary franchise was confined;" but he decided on proposing to extend it to all rate-payers, because, according to the established principle, to the known and recognized principle of the constitution, it is right that those who contribute their money should have a voice in the election of the persons by whom the money is expended. The old modes of acquiring the freedom of a corporation, such as birth, apprenticeship, etc., were to be abolished, as also were all exclusive rights of trade, vested rights, however, being preserved. The next point to be decided was the composition of the corporation which these rate-payers were to elect, and the ministerial proposal was that each corporation should consist of a mayor, aldermen, and councillors, possessing a certain amount of property as a qualification, and varying in number according to the population of the borough; the larger towns being also divided into wards, with a certain number of common-councilmen and aldermen to be chosen in each ward. The mayor was to be a yearly officer; of the aldermen and councillors a certain number were to retire each year, being, however, capable of re-election. The mayor was to be elected by the councils, and was to be a magistrate during his year of office. And the body thus constituted was to have the entire government of the borough; of its police, its charities, and generally, and most especially, of the raising and expenditure of its funds,[[239]] which had been too often dealt with in a manner not only wasteful, but profligate. Cases had been brought forward in which "corporations had been incurring debts year by year, while the members were actually dividing among themselves the proceeds of the loans they raised." The revenue derived from charitable estates had been "no less scandalously mismanaged." And the bill provided for the appointment of finance committees, trustees, auditors, and a regular publication of all the accounts, as the only efficient remedy and preventive of such abuses. The whole police of the town and administration of justice was also to be completely under the control of the council; and for the appointment of magistrates the council was to have the power of recommending to the crown those whom they thought fit to receive the commission of the peace; and in the large towns it should have power also to provide a salary for stipendiary magistrates. Another clause provided that towns which could not as yet be included in the bill, since they had never been incorporated, might obtain charters of incorporation by petition to the Privy Council.

Such were the general provisions of this great measure of reform; a bill similar in principle having already been enacted for Scotland, and another being shortly after passed, with such variations of detail as the differences in the circumstances of the country required, for Ireland. Some of the clauses, especially those which preserved the vested rights of freemen and their families, and which required a certain amount of property or rating qualifications in the town councillors, were not originally included in the bill, but were inserted as amendments in the House of Lords; and it may be remarked that the result of the discussion in that House afforded a proof of the sagacity of those peers who, though conscientiously opposed to the Reform Bill, preferred allowing it to pass by their own retirement from the final divisions to driving the minister to carry his point by a creation of peers, since the avoidance of such an addition to their numbers as had been threatened enabled them now to force the adoption of these amendments on a reluctant minister. And it seems difficult to deny that the first was required by justice, and that the second was most desirable in the interests of the measure itself. Without it the town councillors, from among whom the mayor was to be chosen, might have been selected from the poorest, the least educated, and least independent class of the rate-payers. In some boroughs, or in some wards of many boroughs, it may be regarded as certain that they would have been so chosen; and such an admixture of unfit persons would have tended to bring some degree of discredit on the whole council, while to the successful inauguration of a new system the establishment of a general feeling of respect for it and confidence in it was of primary importance. The danger, too, of so ill-judged a selection would have been greatest in the larger boroughs, those being, at the same time, the very places in which the occasional difficulty of maintaining order and tranquillity made it even more necessary than in smaller towns that the council should enjoy the esteem and confidence of their fellow-citizens.

The principle that every man who contributed to the rates had a right to claim a voice in the election of those who were to expend them, which the minister laid down as the justification of the clause conferring the municipal franchise on all the rate-payers, was strongly contested by Sir Robert Peel, though neither he nor those of his party in the Upper House proposed any alteration of the bill in this respect; but he pointed out that, though Lord John affirmed it to be the known and recognized principle of the constitution, he had not acted on it in the Reform Bill; and it is certainly open to question whether the adoption of some limitation would not have been an improvement on the present measure. The doctrine established in this instance by Lord John gave a preponderance at every municipal election to mere numbers, since the poorest class is everywhere the most numerous, and its admission led almost inevitably to a reduction of the parliamentary franchise at some future day, though certainly at this time, and for many years afterward, Lord John was far from contemplating any alteration of the Reform Bill, but, on the contrary, took every opportunity of proclaiming his adherence to it as a final solution of the question.

But though in this particular it is possible that the bill might have been improved, it must be allowed to have been a measure very creditable to its framers. Few reforms have been conceived in a more judicious and more moderate spirit; few have been so carefully limited to the removal of real and proved abuses, and the prevention of their recurrence, while avoiding any concessions to the insidious demands of revolutionists, or the ill-regulated fancies of metaphysical theorists. It was a reform strictly in accordance with some of the most important principles of the constitution, as they have been gradually developed by the practical experience of successive generations. It combined with felicitous skill representative with local government; it secured uniformity in working, and that peculiarly English principle of publicity, without which the best-devised system cannot long be preserved from degeneracy.

The Church reforms in England and Ireland, which were carried out about the same time, cannot be said to have involved any constitutional principle, though one of them greatly extended the principle of religious toleration and indulgence to the Dissenters of various sects. No alteration had been made in the Marriage Act of 1754, which declared it indispensable to the validity of a marriage that it should be performed in a church and by a clergyman of the Established Church. And it was not strange that this should be felt as a grievance by those who were not in communion with that Church. But some of the Dissenting sects had an additional cause of discontent in the words of the marriage service, which gave a religious character to the ceremony, while they regarded it as a civil contract. In his short administration Sir Robert Peel had recognized the validity of the arguments against the unmodified maintenance of the existing law, and had framed a measure calculated, in his view, to give the Dissenters the relief their title to which could not be denied. But his bill had been extinguished by his retirement. And Lord John Russell now availed himself of the machinery of another measure, which he introduced at the same time, to make the relief somewhat wider and more effective.

Hitherto there was no record of births and marriages beyond that which was preserved in the registers of different parishes, which in former years had in many instances been carelessly and inaccurately kept. But at the beginning of 1836, the ministers, justly urging that it was important, in a national point of view, both with regard to the security of titles to property, and to that knowledge of the state of population the value of which was recognized by the establishment of the practice of taking a decennial census, that there should be a general register of all such occurrences, introduced a bill to establish a registry and registrar in every Poor-law union, with a farther registry for each county, and a chief or still more general one in London for the whole kingdom, subject to the authority of the Poor-law Commissioners. And by a second bill they farther proposed that the registries to be thus established should be offices at which those who desired to do so might contract purely civil marriages. Previous clauses in it provided that members of any sect of Protestant Dissenters might be married in their own chapels, and by ministers of their own persuasion. After enactments removing all the civil disabilities under which Nonconformists had labored for one hundred and fifty years had been placed on the statute-book, it was clearly inconsistent in the highest degree to retain still more offensive and unreasonable religious disabilities, and to deny to them the right of being married by their own ministers, according to the rites most agreeable to their consciences or prejudices. And though some of the details of the ministerial measure were objected to and slightly altered in its passage through Parliament, the general principle was admitted by the warmest friends and most recognized champions of the Established Church, who wisely felt that a bulwark which is too ill-placed or too unsubstantial to be defended, is often a treacherous source of weakness rather than strength, and that a temperate recognition of the validity of claims founded on justice was the best protection against others which had no such foundation, and that measures such as these adopted in a spirit of generous conciliation could only strengthen the Church by taking at least one weapon from the hands of its enemies.

Another of the measures relating to the Church, of which Peel had prepared a sketch, had for its object the removal of a grievance of which the members of the Church itself had long been complaining, the mode of the collection of tithe. It would be superfluous here to endeavor to trace the origin of tithes, or the purposes beyond the sustentation of the clergymen to which they were originally applied.[[240]] They had undoubtedly been established in England some time before the Conquest, and the principle that the land should support the National Church was admitted by a large majority of the population; it may probably be said with something nearly approaching unanimity on the part of those who really paid it, namely, the land-owners. The objection to the tithe system was founded rather on the way in which it worked, operating, as Lord John Russell described it, as "a discouragement to industry; a penalty on agricultural skill; a heavy mulct on those who expended the most capital and displayed the greatest skill in the cultivation of the land." The present mode of levying the tithes forced the clergy to forbearance at the expense of what they deemed to be their rights, or led them to enforce them at the expense of the influence which they ought to possess with their parishioners, compelling them to lose either their income by their indulgence, or their proper weight and popularity in the parish by the exaction of what the law gave them for "the support of themselves and their families." And this dilemma was felt so keenly by the clergy themselves, that it had become a very general feeling with them that, "if any sort of commutation could be devised, they would be delighted to be delivered from this objectionable mode of payment." Indeed, Sir Robert Peel, whose measure of the preceding year had been chiefly directed to the encouragement of voluntary commutations, had stated to the House that there were already two thousand parishes in the kingdom in which a commutation between the clergyman and his parishioners had been agreed upon, and established as a durable settlement by separate acts of Parliament. Indeed, arrangements of this kind existed very generally; the parishes in which the tithe was taken in kind being comparatively few, and the plan usually adopted being for the occupier of land to pay the incumbent a fixed annual sum bearing a certain proportion to his rent. But arrangements which were optional were, of course, liable to be rescinded; and Peel desired to establish a system which should be universal and permanent. And with this view he had designed the appointment of a temporary commission, one member of which should be nominated by the Primate, as the representative of the Church, under whose supervision the tithes of every parish in the kingdom should be commuted into a rent-charge, regulated partly by the composition which had hitherto been paid, and partly by the average price of grain—wheat, barley, and oats. It was no new idea, since as far back as 1791 Pitt had proposed a general commutation of tithes for a corn rent, and had submitted a plan with that object to the Primate, though circumstances of which we have no accurate knowledge prevented him from proceeding with it.[[241]] Objections[[242]] were taken to this last part of the arrangement, chiefly because it would render perpetual the terms of existing compositions, the extreme augmentation of them which was provided for in the bill being only ten per cent., while it was notorious that the majority of incumbents had shown such liberality in these matters that the compositions rarely amounted to two-thirds of the sum to which they were legally entitled. And it was hardly denied that the measure did involve some sacrifice of the extreme legal rights of the clergy; but it was urged and generally felt by the most judicious friends of the Church that the peace and harmony which might be expected to be the fruit of the measure was worth some sacrifice, and the bill was passed with very general approval; a bill on similar principles, with such variations as were required by the differences between the two countries, being also passed for Ireland.

The last measure on ecclesiastical subjects was also chiefly of a financial character, though its details were calculated, some directly, others indirectly, to produce benefits of a still more important nature. The condition of the property of the bishops and the ecclesiastical chapters had long been a subject of censorious remark. The various dioceses differed greatly in extent, as did, therefore, the labors of the diocesans. Some sees contained above 1000, one (London) even above 1200 parishes; others contained under 150. The revenues of some were very large, in one or two instances approaching £20,000 a year, while those of others scarcely exceeded £1000 or £1500 a year, thus affording incomes palpably inadequate to the support of the Episcopal dignity; so inadequate, indeed, that they were generally supplemented by the addition of some better endowed deanery or canonry. It was universally felt that such a deficiency and such a mode of supplying it were in themselves a scandal, which was greatly augmented by the system of translations to which it had given birth. The poorer bishoprics would hardly have been accepted at all had they not been regarded as stepping-stones to others of greater value; and the hope of such promotion had in some cases the not unnatural, however deplorable, effect of making the bishop anxious to please the minister of the day, to whom alone he could look for translation, by parliamentary subservience; and the still more mischievous result (if possible) of rendering the whole Bench liable to the same degrading suspicion; while the canonries and prebends in the different chapters, whose revenues also varied greatly, were in every diocese so numerous that they had become nearly sinecures, the duties rarely exceeding residence for a month, or, at the outside, six weeks in a year.

These abuses (for such they could not be denied to be) had attracted the attention of Sir Robert Peel, who had appointed a commission, of which many of the highest dignitaries of the Church were members, and who, after very careful investigation and deliberation, presented a series of reports on which the ministry framed its measure. They proposed, as has already been mentioned in connection with the labors of Sir Robert Peel, an amalgamation of four of the smaller bishoprics at their next vacancy, in order hereafter to provide for the addition of two new ones at Manchester, or Lancaster, and Ripon, without augmenting the number of bishops. Lord Melbourne apparently feared to provoke the hostility of some of the extreme Reformers, who had recently proposed to deprive the bishops of their seats in the House of Lords, if he should attempt to increase the number of the spiritual peers; though, as their number had been stationary ever since the Reformation, while that of the lay peers had been quadrupled, such an objection hardly seemed entitled to so much consideration. Another clause was directed toward the establishment of greater equality between the revenues of the different bishoprics, a step which, besides its inherent reasonableness and equity, would extinguish the desire of promotion by translation, except in a few specified instances. Various reasons, sufficiently obvious and notorious, rendered the two archbishoprics, and the bishoprics of London, Durham, and Winchester, more costly to the occupants than the other dioceses; and these were, therefore, left in possession of larger revenues than the rest, proportionate to their wider duties or heavier charges. But all the others were to be nearly equal, none exceeding £5500, and none falling below £4500; while the five richer sees were also the only ones to which a prelate could be translated from another diocese. It followed, almost as a matter of course, that the practice of allowing a bishop to hold any other preferment was to cease with the cessation of the cause that had led to such an abuse.