The Constitutional History of England from 1760 to 1860

by Charles Duke Yonge

And it will, probably, be generally admitted that this was the statesman-like view of the subject. There is no doubt that the practice in question does infringe the great constitutional right of every individual in these kingdoms to absolute freedom of communication with his friends. But the most important and the most cherished constitutional rights must possess something of elasticity. It must be necessary at times to go back to the original object for which those rights have been conferred and secured. That original object is the safety and welfare of the whole body corporate—of the entire nation. And if that safety and welfare at times require the sacrifice, a wise ruler will not hesitate to demand it of the people, or to impose it on them for their own good. So another principle of the constitution is the absolute freedom of action for all the subjects of the sovereign; yet that principle is infringed by more than one statute: Factory Acts, which limit the hours of even voluntary labor; Education Acts, which compel the parent to a certain line of conduct toward his children; each in their way substitute another rule for that entire freedom of action which, as has been said before, is the fundamental principle of the constitution; but they make the substitution on the reasonable ground that the course of action which they compel is for the benefit, not only of the individual constrained, but of the whole community of which he is a member, and for whose welfare all laws and constitutions exist.

One of the grounds of complaint against the exercise of this power, which had been alleged by some of the opponents of the government, had been that Sir James Graham's conduct had been dictated by an unworthy subservience to some of the despotic sovereigns of the Continent. The fact was indignantly denied in the House of Lords by the Duke of Wellington; and in the course of the session a remarkable proof was afforded how little influence such motives had on the decisions of our government, when they acquiesced in the passing of a bill which was a virtual repeal of the Alien Act, which had existed for more than half a century, and of which more than one Continental sovereign would certainly have desired the retention. Of late, indeed, it had been so modified, that practically it had become little more than a dead letter; and now, in 1844, without being formally repealed, it was virtually abrogated by an act which enabled all foreigners to obtain letters of naturalization, which conferred on them every right of British subjects, except those of becoming members of Parliament,[[265]] or of the Privy Council.

Generally speaking, few governments had enjoyed more of the confidence of the nation than Peel's did in 1844; yet in this year it was exposed to two remarkable mortifications. The charter of the East India Company, as framed by Pitt in subsequent events, which has led to the entire extinction of the political power of the Company, makes anything beyond this brief mention of the transaction superfluous at the present time.

The other mortification of the ministry to which allusion has been made fell upon it at home in the Parliamentary discussion of the Prime-minister's financial measures, on which his judgment was usually regarded as pre-eminent, and on which a large majority of the House was generally disposed implicitly to follow his guidance. Sir Robert was not, indeed, himself Chancellor of the Exchequer, that office being filled by Mr. Goulburn, but it was certain that the Budget was inspired by a deference to the Prime-minister's views. And, among the arrangements which it proposed, one consisted of a relaxation of the sugar-duties, which was regarded with dread by those interested in the West Indies, as a farther step in the direction of free-trade, and as depriving them of the modified protection which they were as yet enjoying. To preserve that protection to them, Mr. Miles, the member for Bristol, proposed an amendment which, after an animated debate, was carried by a majority of twenty. Three months before, on the Factory Bill and the question whether the hours of labor should be limited to ten or to twelve, the minister had also found himself defeated, though by a much smaller majority; but in that case the defeat had been the less pronounced from the inconsistency of the votes on the different limits.[[266]] And he extricated himself from that difficulty by abandoning the bill altogether, and introducing a new one, not without angry resistance on the part of Lord John Russell and other members of the Opposition. They denounced such a manoeuvre as alike unconstitutional and unparliamentary; while he, on the contrary, insisted that the House had always jealously retained the right of reconsidering its own decisions. In that instance, however, the introduction of a new bill might have been regarded as the simplest mode of harmonizing the variety of views which had been represented by the discussion of and votes on the ministerial proposal and the amendments; but no such expedient was practicable in this case, that of the sugar-duties. A defeat on an important clause in the Budget by a majority of twenty was a far more serious matter; it was such a blow as had generally been reckoned sufficient to require a resignation of a ministry. But on this occasion Peel did not feel himself called on to take that step; nor was he inclined to dissolve Parliament, which some regarded as his only legitimate alternative, though he had little doubt that, if he did so, he should be supported by the confidence of the country. After careful reflection, the course on which he eventually decided was to adhere to the principle of a relaxation of duties, but to consent to a moderate variation from his original proposal as to the amount. And in pursuit of this plan, on the next discussion of the Budget, he proposed an amendment to that effect, making the adoption of it by the House a test of its confidence in the administration. Lord John Russell opposed the amendment with great vehemence, pronouncing the acceptance of it, if it should be accepted, and the House should thus consent "to retract its previous vote, a lamentable proof of subserviency, which would disgrace it with the country." What Sir Robert now asked was, substantially, that they should now declare that to be expedient which they had declared to be inexpedient only three nights ago; and Lord Palmerston insisted that the proper course to be taken by the government was to resign; while Mr. Labouchere, who had also been a member of Lord Melbourne's cabinet,[[267]] though he admitted that there might be "circumstances under which a minister might without impropriety ask the House to reconsider a vote," denied that the present was such a case, and especially denounced the importation of the question of confidence or no confidence in the ministry into the discussion as "dangerous and unconstitutional." Another section of the Opposition agreed in taking the same line; Mr. Disraeli (then beginning to lay the foundations of his reputation and influence) strongly denouncing the conduct of the minister, as degrading both to his own supporters and still more to the whole House, and recommending him to say frankly to both, "We have gauged your independence, and you may have a semblance of parliamentary freedom as far as this point, but the moment you go farther, you must either submit to public disgrace, or we must submit to private life." The end of the discussion was, that the minister prevailed by a majority a trifle larger than that which had defeated him before. This is not the place to discuss the difference between one principle of taxation and another; but the question whether a minister when defeated is justified in asking either House of Parliament to reconsider its vote, seems one that could only have been raised in a House under the influence of unusual excitement of some kind. The charge that such a request was unconstitutional only serves to show how loosely the words "constitution" and "unconstitutional" are often used even by those from whom precision of language might most be expected; for Sir Robert Peel's proposal that the House should retract its vote was not unprecedented, the very same demand having been made in 1833 by Lord Althorp, then Chancellor of the Exchequer of Lord Grey's ministry, of which those very men were members who were now loudest in denouncing the conduct of the present government. And on that occasion it is worth remarking that, though Lord Althorp's demand was resisted in one or two quarters, he was vigorously supported by Sir Robert Peel, on the ground that, though to rescind one night a vote passed on a former one might be not altogether free from objection, it would be a far greater evil that questions of importance should be held to be in all cases finally decided by a single vote, passed, it might be, in a thin House, or in obedience to some sudden impulse.

And this seems to be the view of the case commended not only by constitutional and parliamentary practice, but by common-sense. It would be strange, indeed, when the questions submitted to the British Parliament and the decisions of that Parliament on them are so often of paramount importance to the whole world, if the Parliament should be the only body in the world denied the right of revising its own judgments, the only one whose first resolution is so irrevocable that even itself may not change or modify it. To rescind a recent vote is, no doubt, as Sir Robert Peel said, a step not wholly free from objection. It should be an exceptional act, as one which, if often repeated, would give an appearance of capricious fickleness and instability to the opinions of Parliament, calculated to impair that respect for it which the whole state and nation are deeply concerned in upholding; but to refuse, under any circumstances, to confess a change of judgment, would lay the Parliament open to an imputation at least equally dangerous to that respect—that of an obstinacy which refuses to confess the possibility of being mistaken, or to hear reason. It would not be well, therefore, that the abrogation of a previous vote should become an ordinary practice; but it would be equally undesirable that any fixed or unchangeable rule should be interposed to prevent a second discussion of an important question, with the possibility of its leading to a reversal of the opinion first expressed.

In the same year (1844) the ministers felt compelled to raise a constitutional point of singular refinement, which had the effect of arresting the progress of a bill, in which one part of the kingdom took a lively interest, which a division in its favor proved to be fully shared by the House of Lords.[[268]] It has been already mentioned that in the last year of the preceding reign a bill had passed for creating, when opportunity offered by the sees affected becoming vacant, two new bishoprics at Ripon and Manchester, the incomes of which were to be provided by the union of some of the smaller existing bishoprics, Gloucester with Bristol, St. Asaph with Bangor. But the Welsh regarded with great disapproval any reduction of the number of bishoprics in the principality, and Lord Powis now brought in a bill to repeal so much of the act as provided for the union of two Welsh sees, urging not only their great extent, which he stated at 3000 square miles of very mountainous country, but the fact that the population of North Wales was steadily and largely increasing. The bill, as has been intimated, was favorably received by the Lords, who passed the second reading by a majority of twelve; but, before it could be read a third time, the Duke of Wellington, as leader of the ministry in that House, announced that the bill was one which touched the prerogative of the crown, and therefore could not be proceeded with without the consent of her Majesty, which he was not authorized to express.

As the matter was explained by the Chancellor, Lord Lyndhurst, the manner in which the bill touched the royal prerogative was this: as, during the vacancy of any see, its temporalities belonged to the crown, any alterations in a see affected the direct pecuniary interests of the crown, and he, as Speaker of the House, doubted whether he should be justified in putting a question which so touched the royal prerogative without the sovereign's consent. A committee which was appointed to investigate the case fully confirmed the view thus taken by the ministers, and the bill was dropped.

It was, however, an exercise of the royal prerogative which was received by the House in general with great dissatisfaction. Certainly, since the Civil List and royal income had been placed on their present footing, it was only by a very forced construction that the pecuniary interests of the sovereign could be said to be affected. And it seemed a very insufficient plea for evoking the exercise of a power which, as it was said, had certainly never been exerted before since the accession of the Hanoverian dynasty. Nor was it made more acceptable by the explanation of Lord Brougham, who on this occasion came to the support of the minister, that the refusal of the crown's consent at this stage was "a warning, as it were, a polite and courteous communication between the sovereign, as guardian of the privileges of the crown, and the two Houses of Parliament, that if they passed a certain bill it would not receive the royal assent;" for, though the right to refuse the royal assent to any bill was incontestable, it had not been exercised since the time of William III., and to put it in force for the protection of an imaginary interest of the crown itself would have been so unpopular an exercise of it that no administration could have ventured to advise it.

One of the arguments which the Duke of Wellington brought forward in the discussion, and which, probably, contributed to induce him thus to strangle Lord Powis's bill, has had an influence on subsequent legislation. He urged that its adoption—since the resolution to establish bishoprics at Manchester and Ripon was one which every one desired to carry out—would increase the number of bishops, "and thus make an organic change in the constitution of the House of Lords." It is not very clear how the addition of a single spiritual peer could have that effect. But the Duke had dwelt upon the same argument before in the debate on the proposed union of the sees affected, urging that there was such a jealousy of the Church in many quarters, and especially in some of the large towns, that it would be very undesirable to pass any measure the effect of which would be to increase the number of Episcopal peers. Even if there was any general reluctance at that time to see such an increase (a fact which was by no means ascertained), it may be doubted whether it was founded on any sufficient reason. It is not easy to see why, when there is no limit to the augmentation of the number of lay peers, it should be judged impolitic or unjust to make even so small an addition to the number of spiritual peers. At the Restoration the spiritual peers were, probably, more than a fifth of the entire House. From the great number of subsequent creations of lay peers they were now less than a sixteenth, so that there could be no ground for apprehending that a slight re-enforcement of the Episcopal bench would disturb the balance, or give the Church an undue preponderating weight in the decisions of the House. The difficulty, however, such as it appeared to the Duke then, has had such weight with subsequent administrations, that a new principle has been established of creating bishoprics which shall not at first confer seats in the Upper House till their holders become entitled to them by seniority. As they are peers from the moment of their consecration, it may be doubted whether this creation of peers, without seats in Parliament, does not deserve the name of "an organic change in the constitution," far more than the addition of one or two ecclesiastical peers to the Episcopal bench; and also whether it has not established a dangerous principle and precedent; the disconnection of bishoprics from seats in Parliament, in even a single instance, seeming to furnish an argument in favor of the exclusion of the whole order, a measure which, if unjust and injurious to the Church, would be at least equally injurious to Parliament itself, and to the whole state.

But all questions of this kind were presently lost sight of in the excitement produced by the measure which more than any other has stamped Sir Robert Peel's administration with a lasting character, the repeal of the Corn-laws. Many statesmen, even of those who were most in favor of free-trade in other articles of commerce, made an exception in the case of corn, partly from a feeling of the necessity of encouraging agriculture, and partly from a conviction of the danger of in any way contributing to create or increase a dependence on foreign countries for the food of the people. Both Whigs and Tories were generally thus agreed on the necessity of maintaining the principle of protection; the dispute between the two parties being whether it were best achieved by a fixed duty on imported corn, or by what was commonly known as a sliding scale: a scale, that is, which varied inversely with the price of the grain itself, rising as the price in the home market fell, and falling as it rose. In the manufacturing districts a different feeling had prevailed for some years. In the first years of the present reign severe distress in Manchester and others of the chief manufacturing towns had led to the formation of an association whose chief object was sufficiently indicated by its title of the Anti-Corn-law League. At first Mr. Villiers, the member for Wolverhampton, was its principal spokesman in the House of Commons, but at subsequent elections two manufacturers of great eloquence obtained seats, and year after year urged the entire repeal of all duties on corn with great earnestness, though for some time their arguments made but little impression on the House. Their motions were rejected in 1842 by a majority of 300; in 1843 by one exceeding 250; in 1844 by above 200; and in 1845 by one of more than 130 in a much smaller House. But this last division had scarcely been taken when an unprecedented calamity—the almost entire failure of the potato crop, which was attacked in nearly every part of both islands by a new disease, the cause of which is not to this day fully ascertained—suddenly changed the aspect of the subject. To the English farmer and laborer it was a severe loss; to the Irish farmer it was ruin; to the Irish peasant famine. The grain harvest, too, was generally deficient. And it was evident that rigorous measures, promptly taken, were indispensable, if a large portion of the peasantry in the southern and western provinces of Ireland were not to be left to perish of actual starvation. In the face of so terrible an emergency Peel acted with great decision. On his own responsibility he authorized the purchase of a large supply of Indian corn from the United States, hoping, among other indirect effects of such a step, to accustom the Irish to the use of other kinds of food besides the root on which hitherto they had too exclusively relied.[[269]] And he laid before his colleagues in the cabinet a proposal to suspend the existing Corn-law "for a limited period," a measure which all saw must lead to its eventual repeal. It would be superfluous now to recapitulate the discussions which took place, the various alternative proposals which were suggested, or the dissensions in the cabinet to which his proposal gave birth; the resignation of the ministry, and its subsequent resumption of office, when Lord Stanley and Lord John Russell had found it impossible to form an administration. It is sufficient to say that, as soon as Parliament met, Sir Robert brought forward a bill to reduce the duty on corn to four shillings, a price only half of the lowest fixed duty that had ever been proposed before, that reduction, too, being a stepping-stone to the abolition of all duties, at the end of three years, beyond a shilling a quarter, which was to be retained, in order to acquire an accurate knowledge of the quantity of grain imported. The diminution, however, of this duty was not the whole object of his new measure. It included other arrangements which would serve as a compensation to the agriculturists, by relieving them from some of the peculiar burdens to which the land was subjected; and it contained, farther, a reduction or abolition of import duties hitherto levied on many other articles, especially on such as "formed the clothing of the country," on the fair ground that if the removal of protection from the agriculturist were "a sacrifice for the common good," the commercial and manufacturing interests might justly be required to make a similar sacrifice for the same patriotic object.