The Constitutional History of England from 1760 to 1860

by Charles Duke Yonge

Lord Palmerston's bill was dropped, in consequence of the fall of his ministry, before the time came for its second reading; but the discussion on it had to some extent smoothed the way for that of his successor, Lord Derby. A great impression on the Parliament, and on the country in general, had been made by a very able speech of Sir G.C. Lewis, Chancellor of the Exchequer. He traced the whole history of the Indian government from the day of Plassy, and substantiated the right of the home government and Parliament to remodel it as they might judge best, by proving that ever since the passing of Pitt's first bill, in 1784, the Company had been constantly subject to Parliamentary control. He showed, too, most convincingly, that a petition which the Company had presented to the House of Commons, deprecating any change in the existing system which should tend to diminish the authority of the Directors, was based on one great fallacy—speaking, as it did, of the Company as one and indivisible, and unchanged in character, functions, and influence, down to the date of the last renewal of its charter, only five years previously; whereas the truth was, that in the one hundred years since Plassy the system had undergone as many changes as the English constitution between the Heptarchy and the reign of Queen Victoria.

He had thus removed some of the obstacles out of the way of the measure of the new government, though Lord Derby would have preferred postponing it till tranquillity should have been restored to the country by the complete suppression of the revolt, had not the large majority[[298]] which had sanctioned the introduction of Lord Palmerston's bill, in his opinion, "placed the Company in such a situation that they could no longer command the same amount of public confidence and public support as they were entitled to receive previously to that vote of the House of Commons." It may be added that the first bill on the subject which was introduced by his government bore evident marks of the difficulties under which it was framed—difficulties existing from the unexpected suddenness of his accession to office; so that, after a not very short discussion, it was eventually withdrawn, and it was not till the end of June that the measure which was finally adopted was introduced.

The leading enactments of the measure[[299]] provided that for the future the government of India, described as having been hitherto vested in, or exercised by, the Company in trust for her Majesty, should be vested in her Majesty, and exercised in her name; that one of her Majesty's principal Secretaries of State should have and perform all such powers and duties relating to the government or revenues of India as had formerly belonged to the Court of Directors, as the Court of Proprietors of the Company; that a Council of the Governor-general should be established, consisting of fifteen members, seven of whom should be appointed by the Court of Directors, being persons who were, or had formerly been, Directors of the Company, and eight should be nominated by the crown. And as to both classes, it was provided that the majority should consist of persons who had served or resided in India for ten years at the least, and should not have left India more than ten years when appointed. They were to hold their offices during good behavior, to receive salaries, and to be entitled to retiring pensions, but to be incapable of sitting in Parliament. The appointment of Governor-general and Governor of each Presidency was to belong to the crown. The expenditure of the revenues of India, both in India and elsewhere, was to be subject to the control of the Secretary of State in Council; other clauses provided for the dividends of the Company, for the admission of persons into the civil service; and, with reference to existing establishments, one clause provided that "the Indian military and naval forces should remain under existing conditions of service."

This last clause was strongly objected to by the Queen,[[300]] as "inconsistent with her constitutional position as head of the army, which required that the Commander-in-chief should be put in communication with the new Secretary of State for India, in the same manner in which he is placed with regard to the troops at home or in the colonies toward the Secretary of State for War.... With regard to the whole army, whether English or Indian, there could, with due regard to the public interest, be only one head and one general command." She yielded her opinion, however, to the resolute objections of the Prime-minister, with whom on this point his predecessor,[[301]] Lord Palmerston, agreed; but the result proved the superior soundness of her Majesty's view. It was not only a most anomalous arrangement, since the supreme control of all the warlike forces was one of the most inalienable prerogatives of the crown, but it had the strange fault of preserving the double government in the case in which, above all others, unity of system and unity of command were most indispensable. And, what weighed more than either consideration with the generally practical views of English statesmen, it was from the beginning found to work badly, creating, as it did, great and mischievous jealousies between the two divisions, the Royal and the Indian army. It was found that all the generals then in the highest commands in India—Lord Clyde (Sir Colin Campbell having been ennobled by that title), Sir Hugh Rose, and Sir William Mansfield—strongly disapproved of it, and recommended a change; and consequently, in the summer of 1860, Lord Palmerston, who in the mean while had returned to the Treasury, came round to the Queen's view of the subject, and a new act was passed which amalgamated the two armies into one Imperial army, taking its turn of duty throughout all parts of the British empire.[[302]]

A letter addressed by Lord Palmerston to the Queen in the autumn of 1857, which appears to have been his first statement to her Majesty of the opinion which he had formed of the necessity of abolishing the governing authority of the Company, states the principal arguments in favor of such a measure with great clearness, as arising from "the inconvenience and difficulty of administering the government of a vast country on the other side of the globe by means of two cabinets, the one responsible to the crown and Parliament, the other only responsible to the holders of Indian stock, meeting for a few hours three or four times a year, which had been shown by the events of the year to be no longer tolerable." His disapproval of parts of Lord Ellenborough's policy probably prevented him from alluding to his recall from India by the Directors, in direct defiance of the opinion of the government,[[303]] though that strange step can hardly have been absent from his mind. But, in fact, the case for taking the whole rule of so vast a dominion wholly into the hands of the Queen's government at home was so irresistible, that it did not require to be strengthened by reference to any individual instances of inconvenience. When the double government was originally established, the English in India were still but a small mercantile community, with very little territory beyond that in the immediate neighborhood of its three chief cities. Of the conduct of the affairs of such a body, still almost confined to commerce, the chief share might not unreasonably be left to the merchants themselves, subject to such supervision on the part of the government at home as was implied in the very name of the department invested with that supervision, the Board of Control, which, as Pitt explained the name, was meant to show that it was not to be, like the measure proposed by the Coalition Ministry, a board of political influence.[[304]] But the case was wholly altered when British India reached from Point de Galle to the Himalayas, and spread beyond the Ganges on the east, to beyond the Indus on the west; when the policy adopted in India often influenced our dealings with European states, and when the force required for the protection of those vast interests exceeded the numbers of the royal army. India, too, is a country the climate of which prevents our countrymen from emigrating to it as settlers, as they do to Canada or Australia, and where, consequently, the English residents are, and always must be, a mere handful in comparison with the millions of natives. In such a case their government must at all times rest mainly on opinion, on the belief in the pre-eminent power of the ruler; and it was obvious that that belief would be greatly fortified by the sovereign of Britain becoming that ruler.[[305]] The great rajahs cordially recognized the value of the transfer of power considered in this light, and felt their own dignity enhanced by becoming the vassals of the sovereign herself.

Turning to French affairs, a brilliant French writer has remarked, that his countrymen are, of all peoples, the least suited to be conspirators, since none of them can ever keep a secret. But it was the ill-fortune of Louis Napoleon that he had provoked enmities, not only among his own countrymen, but among the republican fanatics of other nations also, who saw in his zeal for absolute authority the greatest obstacle to their designs, which aimed at the overthrow of every established government on the Continent, and shrunk from no crimes which they conceived to be calculated to promote their object. To free themselves from such an antagonist, the most wholesale murders seemed by no means too large a price. And in the middle of January, as the Emperor and Empress were going to the Opera, a prodigious explosion took place almost beneath the wheels of their carriage, from the effect of which they themselves had a most narrow escape, both being struck in the face by splinters, the aide-de-camp in their carriage also being severely wounded on the head; while their escort and attendants were struck down on all sides, ten being killed and above one hundred and fifty wounded.[[306]] It was soon found out that the authors of this atrocious crime were four Italians, of whom a man named Orsini was the chief, and that he, who had but recently escaped from a prison in Mantua, had fled from that town to England, and had there concocted all the details of his plot, and had procured the shells which had been his instruments.

It was not unnatural that so atrocious a crime, causing such wide-spread destruction, should awaken great excitement in France, and in many quarters violent reclamations against England and her laws, which enabled foreign plotters to make her a starting-place for their nefarious schemes. Even in the French Chambers very bitter language was used on the subject by some of the most influential Deputies, for which our ministers were disposed to make allowance, Lord Clarendon, the Foreign Secretary, writing to the Prince Consort that "it was not to be expected that foreigners, who see that assassins go and come here as they please, and that conspiracies may be hatched in England with impunity, should think our laws and policy friendly to other countries, or appreciate the extreme difficulty of making any change in our system."[[307]]

But a different feeling was roused by a despatch of the French Secretary of State to the ambassador here, which seemed to impute to this country that it deliberately sheltered and countenanced men by whose writings "assassination was elevated into a doctrine openly preached, and carried into practice by reiterated attacks" upon the person of the French sovereign, and asked, in language which had rather an imperious tone, "Ought the English Legislature to contribute to the designs of men who were not mere fugitives, but assassins, and continue to shelter persons who place themselves beyond the pale of common right, and under the ban of humanity? Her Britannic Majesty's Government can assist us in averting a repetition of such guilty enterprises, by affording us a guarantee of security which no state can refuse to a neighboring state, and which we are justified in expecting from an ally. Fully relying, moreover, on the profound sagacity of the English Cabinet, we refrain from indicating in any way the measures which it may seem fit to take in order to comply with this wish. We confidently leave it to decide on the course which it shall deem best fitted to the end in view." Still, though the charge that our Legislature contributed to the designs of assassins was some departure from the measured language more usual in diplomatic communications between friendly powers, under the circumstances this remonstrance might have been borne with. Unluckily, it was not all, nor the worst, that we were called upon to bear. A few days afterward some addresses to the Emperor from different military corps were published in the Moniteur, which not only poured forth bitter reproaches against the whole English nation, but demanded to be led to an invasion of the country, "as an infamous haunt for the carrying out of infernal machinations." Political addresses seem to our ideas inconsistent with military discipline; but the army had been permitted, and even encouraged, to make them ever since the days of the Consulate, though such addresses never received the recognition of a publication in the official journal till they had been subjected to careful revision, and, if necessary, expurgation. On this occasion, however, that supervision had been carelessly performed, and the offensive passages were left standing, though, when the Emperor learned the indignation which they had excited even among his well-wishers in England, he instructed his ambassador to apologize for their retention and publication, as an act of inadvertence on the part of the officials whose duty it had been to revise such documents. So far all was well. And had the English ministers replied to the despatch of M. de Persigny in firm and temperate language, they would have escaped the difficulties which eventually overthrew them. There was no doubt that, according to diplomatic usage, a written despatch formally communicated to the Secretary of State required a written reply.

Unfortunately, a written reply was not given. Lord Clarendon was too apprehensive of the mischief which might possibly arise from a protracted discussion, leading, perhaps, to an angry controversy; and under the influence of this feeling contented himself, when the despatch was presented, with giving the ambassador a verbal answer, that "no consideration on earth would induce Parliament to pass a measure for the extradition of foreign political refugees; that our asylum could not be infringed, and that we adhered to certain principles on that subject which were so old and so sacred that they could not be touched;"[[308]] adding, however, at the same time an assurance that the Attorney-general was already, at his request, examining our law of conspiracy, to see whether it was sufficiently comprehensive or stringent. The purport of this answer was all that could have been desired; but there was a very general impression that the omission to reply by a written despatch was a sacrifice of the national dignity, if not an unworthy submission to scarcely disguised menace; though at the same time there was also a feeling among both parties in Parliament that our laws with respect to the conduct of foreigners residing among us were, perhaps, susceptible of improvement. On the very first night of the session, in allusion to the attack on the French Emperor, Lord Derby had said that "he could wish to hear the opinion of the ministers whether the existing laws of this country were adequate to afford security for the lives of foreign princes against plots contrived in this country; and, if they were not, whether they might not be amended, so as to meet the case of such crimes as had recently been perpetrated, which were so heinous and revolting to every feeling of humanity." And even before that speech the ministers had applied themselves to frame a measure to amend the law, which in the second week of February the Prime-minister himself introduced to the House of Commons.

It was read a first time, though not without some opposition; but before it arrived at the second reading, though only a week afterward, the feeling of the country, reflected in this instance by the House, had become so inflamed, that the measure was not discussed on its own merits, but on the point whether, since no other answer had been given to the French despatch, this must not be regarded as the ministerial answer, and therefore whether it were such an answer as it befitted England to send. Had it been examined on its own merits solely, it could hardly have provoked much adverse criticism. It was entitled, "A bill to amend the law with relation to the crime of conspiracy to commit murder," and it merely proposed to establish in England a law which had long existed in Ireland. Hitherto, as Lord Palmerston explained the matter, England had treated conspiracy to murder as a misdemeanor, punishable with fine and imprisonment. In Ireland it had long been a capital crime; and, though he did not propose to assimilate the English to the Irish statute in all its severity, he proposed to enact that conspiracy to murder should be a felony, punishable with penal servitude, by whomsoever the conspiracy might be concocted, or wherever the crime might be designed to be committed.