The Constitutional History of England from 1760 to 1860

by Charles Duke Yonge

The third question, as affecting the relative ranks and positions of the different members of the royal family, cannot be said to have been wholly unconnected with the provisions of the constitution; and the mismanagement of the minister was, perhaps, even more sure to attract notice in this case than in the other, since to introduce into a bill a clause which had no connection whatever with its title had something of the appearance of a deliberate slight to the two Houses. A bill to naturalize the Prince was, of course, indispensable. But into it the ministers, without any notice, had introduced a clause enabling him "during his life to take precedence in rank after her Majesty in Parliament and elsewhere as her Majesty might think fit and proper, any law, statute, or custom to the contrary notwithstanding." It was admitted that no such precedence had been given to Prince George of Denmark, nor to Prince Leopold. And there were obvious difficulties in the way of conferring such a life-long precedence, because, as Lord Brougham had pointed out, it was possible that the Queen might die without issue, in which case the King of Hanover would become King of England also, and his son the Prince of Wales; and it would have been an inconceivable anomaly that a foreign naturalized prince should take precedence of the Prince of Wales, whose special rank and importance was recognized in many acts of Parliament. This objection was so clearly insuperable, that Lord Melbourne consented to alter the clause so as to give the Prince precedence only "after the heir-apparent." But even this concession failed to satisfy the objectors, the King of Hanover, among others, positively refusing to waive his precedence over any foreign prince. And eventually the minister withdrew the clause altogether, and the bill, as it was passed, was confined to the naturalization of the Prince. Lord Melbourne had thus contrived to make the Queen and Prince appear as if they were desirous to induce the two Houses by a sort of trick to confer on the Prince a precedence and dignity to which he was not entitled, and to render the refusal of Parliament to be so cajoled a fresh cause of mortification to the royal pair. The course that was eventually adopted is understood to have been suggested by the Duke of Wellington—to withdraw the affair altogether from the cognizance of Parliament, and to leave it to the Queen to confer on the Prince whatever precedence she might choose, as it was certainly within her right to do. And so, a few days after the bill had passed, she did by letters-patent give him precedence next to herself "on all occasions and in all meetings, except when otherwise provided by act of Parliament," as, seventeen years later, she, in the same way, with the cordial approval of the whole nation, conferred on him the title of Prince Consort. And apart from its convenience, as avoiding all unseemly discussions, this would seem to have been the most natural and proper mode of settling such a matter. The Queen is the fountain of honor in this kingdom, and at her own court she can certainly confer on any of her own subjects whatever precedence she may think fit, while it may be doubted whether any act of a British Parliament could give precedence at a foreign court. It was, probably, not in his character of Duke of Cumberland, but as an independent sovereign, that the King of Hanover maintained his claim to superior precedence; and it was plain that the most illustrious subject could not possibly at any court be allowed to rank above a king. With reference to its possible effect on the subsequent relations of Peel and his followers with the court, it was, perhaps, well that a few months later they had the opportunity of proving that no personal objection to the Prince himself had influenced their course in these transactions, by giving a cordial assent to the ministerial proposal of conferring the Regency on him in the event of the Queen giving an heir to the throne, and dying while he was still a minor. The principle was the same as that which had guided the arrangements for a Regency ten years before; but it was not inconceivable that Parliament might have hesitated to intrust so large an authority to so very young a man, and him a comparative stranger, such as the Prince still was, had the leaders of the Opposition given the slightest countenance to such an objection.

Lord Melbourne's ministry was hardly strengthened by the circumstances under which it resumed office. Yet the close of the same year witnessed a reform of which it is hardly too much to say that no single measure of this century has contributed more to the comfort of the whole mass of the people, with which it has also combined solid commercial benefits. Hitherto the Post-office had been managed in a singular manner, and the profit derived from it had been treated as something distinct from the ordinary revenue of the kingdom. In the reign of Charles II. it had been given to the Duke of York, and the grant was regarded as conferring on him such extensive rights, that when, some years afterward, an enterprising citizen set up a penny post for the delivery of letters in the City and its precincts, the Duke complained of the scheme as an infraction of his monopoly, and the courts of law decided in his favor. That grant ceased, as a matter of course, on the Duke's accession to the throne; and in the reign of Queen Anne a portion of the Post-office proceeds was appropriated, with the general consent of a grateful country, to reward the great achievements of the Duke of Malborough, a perpetual charge on it of £5000 a year being annexed to the dukedom. In those days the postage of a letter was twopence for short distances, and threepence for any distance beyond eighty miles.[[251]] But those charges had been gradually increased; about the middle of the century the lowest charge was fixed at fourpence, rising in proportion to the distance, till the conveyance of a single letter from one extremity of the kingdom to the other cost eighteen-pence. Such a rate could not fail to be very profitable; and by the beginning of the present reign the yearly profit exceeded a million and a half of money. The heaviness of the charge, however, had latterly attracted attention, and had been the cause of many complaints, as being a great discouragement, and, in the case of the poorer classes, a complete obstacle to communication. However, neither the ministers nor the Parliament had succeeded in devising any remedy, since a system affording so large a return was not a thing lightly to tamper with, when those who complained suddenly found a practical leader in Mr. Rowland Hill, who published a pamphlet on the subject, in which he affirmed the cost of the conveyance of each letter even for such a distance as from London to Edinburgh to be infinitely less than a farthing; and that, consequently, all the rest of the postage was a tax for the purposes of revenue. When this fact was once established, it needed no argument to prove that to increase the tax paid by each recipient of a letter in proportion to the distance at which he lived from the writer was an indefensible unfairness; and, after much investigation and discussion, Mr. Hill succeeded in converting the ministers to his view. Accordingly, the Budget for 1839, introduced by Mr. Spring Rice, then Chancellor of the Exchequer, contained a clause which reduced the postage for every letter weighing less than an ounce to a uniform charge of a penny, to be prepaid by means of a stamp to be affixed to each letter by the sender. It was not without plainly-expressed reluctance that the scheme was consented to by the Opposition; nor can their hesitation be considered as unreasonable, in the very unsatisfactory condition of the finances of the kingdom at the time. The balance-sheet of the preceding year showed a considerable deficiency. There was a large unfunded debt; and even Mr. Hill's most sanguine calculations admitted a probable loss to the Post-office of £1,200,000 for the first year or two; though he expressed his confidence that eventually the correspondence of the kingdom would be found to increase so largely as to make up for the greater part, if not the whole, of the deficiency. His anticipations were far outran by the reality.

In 1839 the Postmaster-general estimated the number of letters sent yearly by the post at less than twenty-five millions. They are now upward of a thousand millions, a number the conveyance of which (with the addition of newspapers, whose circulation had also been greatly augmented by a recent reduction of the tax to a penny) would have severely taxed the whole carrying power of the kingdom before the introduction of railroads. Nor have the benefits of the new system been confined to ourselves. Foreign nations have followed our example, though not quite in the same degree, till an international postage is at length established throughout the whole of the civilized world. And it has not been only the happiness of private individuals that has been augmented by this facility of communication. In its gradual development it has largely promoted the extension of trade of every kind, and, by facilitating a commercial intercourse between nations, it cannot but contribute to the maintenance of friendship and peace.

The full advantages of this reform could not be seen at first; but, even had it been appreciated as fully as we appreciate it now, no approval of it could have counterbalanced the general dissatisfaction with which the ministry was regarded. At home the finances were falling into great disorder, the expenditure of the year greatly exceeding the income; while the feeling that their Irish policy was dictated by a wish to purchase at any price the support of O'Connell, was still more injurious to them, for he was already beginning to renew agitation in Ireland, inaugurating a new association, which, though its purposes were faintly veiled for a time under the title of the Precursor Association, was understood to point at a repeal of the Union; while the ministers, though they denounced such a measure as ruinous to every part of the kingdom, seemed willing to give it practical encouragement by a bill which they introduced, which bore the name of a Registration Act for Ireland, but which was not confined to that object. On the contrary, it contained a provision for lowering the qualification for the franchise by one-half; so that it was, in fact, a new Reform Bill for Ireland,[[252]] calculated greatly to increase his influence by the number of voters of the poorer classes whom it would create. The bill was defeated, but the odium of having proposed it remained.

But, besides these home difficulties, there were troubles abroad, both in the East and in the West. In the East, the complications inseparable from a dominion like that of ours in India, where constant expansion seemed to have become a law of its existence, had involved us in a war with a new enemy, the warlike Afghan nation; in the West, both Jamaica and Canada were in a state threatening insurrection. Indeed, the troubles in Jamaica had been the immediate cause of that resignation of the ministry in 1839 which has already been mentioned. Measures adopted in the English Parliament with reference to the termination of that apprenticeship system which, as we have seen, formed a part of the bill for the abolition of slavery, and another for the regulation of the prisons in the island, had given such offence to the colonial Assembly, never very manageable, that the members passed a resolution that their legislative rights had been violated, and that they would abstain from all exercise of their legislative functions, except such as might be necessary "to preserve inviolate the faith of the island with the public creditor, until" (by the rescinding of the resolutions, etc., of which they complained) "they should be left to the free exercise of their inherent rights as British subjects." And this resolution was seconded by an insulting protest, in which they drew an offensive comparison between the state of crime in the island and that which prevailed in Great Britain, taunting the British Parliament with the murders and acts of incendiarism which terrified Ireland night and day, with the murders of Burke and Hare in Scotland, with the law of divorce and crim. con. trials in England, and "a Poor-law which has taken millions from the necessities of the destitute to add to the luxuries of the wealthy." The Governor dissolved the Assembly, but that which succeeded re-adopted the resolutions of its predecessor, and the ministers, in consequence, brought in a bill "to suspend the existing constitution of the island for a limited number of years, and to provide that during that interval its legislative functions should not be exercised by a Governor, a Council, and a House of Assembly, but should reside in the Governor and Council alone." The emergency was too great and undeniable, the remedy proposed was also too unprecedented in its stringency, to be dealt with without the gravest deliberation; and the House of Commons accordingly gave the matter the patient consideration which became both it and themselves. They allowed the island to appear by counsel against the bill, and listened for many hours to an elaborate defence of the conduct of the Assembly, which if it failed to change the intention of the ministers, convinced Sir Robert Peel and his party that their measure was doubtful in its justification and impolitic in its severity. He pointed out that "the bill was neither more nor less than one for the establishment of a complete despotism—one which would establish the most unqualified, unchecked, unmitigated power that was ever yet applied to the government of any community, in place of that liberal system which had prevailed for upward of one hundred and fifty years." And, though he did not for a moment question the power of Parliament to pass such a measure, he greatly doubted the policy of such an exertion of it. A somewhat similar measure affecting Canada they had been compelled to enact in the preceding year, and he feared lest "it might seem to be coming to be a practice of Parliament to suspend a constitution every session." And he quoted a speech of Canning, delivered fifteen years before, in which that eloquent statesman, a man by no means inclined to a timorous policy, had declared that "no feeling of wounded pride, no motive of questionable expediency, nothing short of real and demonstrable necessity, should ever induce him to moot the awful question of the transcendental power of Parliament over every dependency of the British crown. That transcendental power was an ordinance of empire, which ought to be kept back within the penetralia of the constitution. It exists, but it should be veiled. It should not be produced on trifling occasions, or in cases of petty refractoriness or temporary misconduct."

And Sir Robert, "looking at all the papers before the House, could not say that there was here any vindication for bringing forward this transcendental power." He asked whether "they had ever treated with so much severity a conquered colony amid the first heat of animosity after the contest." And he traced the history of our government of the island back to the time of Charles II., pointing out (as Burke had formerly argued with respect to our Colonies in North America) that "Jamaica owed its colonization by British subjects to the conquest that was made of it by the arms of Cromwell; that its first English population was composed of those who, disgusted with the excesses of the civil wars, there found a refuge," and who had carried with them that attachment to liberty which, as early as 1678, had led them successfully to repel the attacks made on the privileges of their House of Assembly by the ministers of Charles II. He warned the House, also, that if this measure were passed, "a sympathy for the people of Jamaica would be excited throughout the other West Indian possessions of the crown." And, while fully admitting that the conduct of the Assembly had been "foolish and unjustifiable," he still recommended that it should be treated in a conciliatory spirit, which as yet had not been shown toward it.

The government carried their proposal by a majority of no more than five in a very full house, a success which they regarded as a defeat, and, as has been already mentioned, resigned. But as the state of the question and of the island did not admit of delay, on their resumption of their offices they introduced a fresh measure, which the Conservatives again curtailed of its most severe clauses, and which, in the form in which it was eventually passed, gave the Assembly time to reconsider its conduct, and, without the humiliation of confessing itself guilty, to give a practical recantation of their offensive resolutions, by resuming its work of legislation, any farther delay of which would on many subjects be very mischievous to the island itself. The distinct assertion by both parties of the power of the Parliament to inflict even the severest penalty enabled the Houses to take this conciliatory course without loss of dignity; while the stern disapproval of the conduct of the Assembly which the Conservative leader had expressed, even when pleading for a milder treatment of it, convinced the colonists that any protracted contumacy would be dangerous, and would deprive them for the future of all title to even the modified protection which on this occasion had saved them.

In the discussion of these transactions, Peel, as we have seen, had alluded to the affairs of Canada, which had been of a still more serious complexion; since there the discontent of the colonists in the Lower Province had developed into armed insurrection. We have seen that, from the first moment after the country had passed into our possession, there had been almost constant dissensions between the old French colonists and the English immigrants who crossed over both from England and from the colonies on the southern side of the St. Lawrence in the early part of the reign of George III. The desire of terminating these divisions, which had their root in a difference of religion as well as of race, the French settlers being Roman Catholics, had been one of the chief motives which had led Pitt in 1791 to divide the country into two provinces.[[253]] And for many years the scheme was fairly successful; but, toward the end of the reign of George IV., the political excitement caused by the agitation in England of the question of Catholic Emancipation, and subsequently of Reform, spread across the Atlantic to the Canadas; and the French portion of the colonists, who almost monopolized the representation in Lower Canada, began to urge the adoption of changes utterly inconsistent with the existing constitution of the colony. In the hope of compelling the compliance of the home government with their demands, in 1832 and the following years they refused to vote the necessary supplies; and, gaining courage, as it were, from the contemplation of their own violence, and under the guidance of a leader of French extraction, a M. Papineau, who scarcely concealed his hope of effecting the complete severance of the Lower Province from the British dominion, they proceeded to put forth farther demands, which they regarded as plausible from the apparent resemblance of the changes which they required to the system of the English constitution, but which, to use the words in which Sir Robert Peel described them, would have established "a French republic." The most important of them were that the Upper or Legislative Council should, like the Assembly, be rendered elective, instead of, as had hitherto been the case, being nominated by the crown. And another asked that the Executive Council should be made responsible to the Assembly, in the same manner as in England the ministers of the crown were responsible to Parliament. As it was at once shown that the ministry at home had no intention of granting these demands, Papineau collected a band of malcontents in arms, with whom he took possession of one or two small towns, and ventured even to measure his strength with the Commander-in-chief of the province, Sir John Colborne, one of the most distinguished of Wellington's comrades and pupils. His force was utterly routed, and he himself fled across the frontier to New York. A similar outbreak, excited in the Upper Province by a newspaper editor, was crushed with equal ease and rapidity.[[254]] And the next year, 1838, Lord John Russell brought forward a bill to suspend the constitution of the colony, and to confer on a new Governor, who was at once to proceed thither, very ample powers for remodelling the government of the province, subject, of course, to the sanction of the home government. In the previous year he had succeeded in carrying some resolutions announcing the determination of Parliament not to concede the demands of the Assembly of the Lower Province, which have been already mentioned. And the reasons which he gave for this course are worth preserving, as expressing the view recognized by Parliament of the relations properly existing between the mother country and a colony. It was on a proper understanding of them that he based his refusal to make the Executive Council in Canada responsible to the Assembly. He held such a step to be "entirely incompatible with those relations. Those relations require that his Majesty should be represented, not by a person removable by the House of Assembly, but by a Governor sent out by the King, responsible to the King, and responsible to the Parliament of Great Britain. This is the necessary constitution of a colony; and if we have not these relations existing between the mother country and the colony, we shall soon have an end of these relations altogether." And he pointed out the practical difficulties which might reasonably be apprehended if such a change as was asked were conceded. "The person sent out by the King as Governor, and those ministers in whom the Assembly confided, might differ in opinion, and there would be at once a collision between the measures of the King and the conduct of the representatives of the colony."