The Constitutional History of England from 1760 to 1860

by Charles Duke Yonge

The principle of such a law, supported as it was by the precedent of Ireland, could hardly be resisted. And Mr. Walpole, who had been Home-secretary in Lord Derby's ministry, avowed his determination to support the bill, "as being right in principle." But even he limited his promise of support by a condition "that the honor of England should be previously vindicated;" arguing that the French despatch bore the character of a demand, based upon allegations which were contrary to truth, and which, therefore, the ministers were bound to repudiate; and that to pass such a bill without putting on record a formal denial of those allegations would, in the general view of Europe, imply a confession that to them we had no answer to give. And it was this consideration which eventually determined the decision of the House, Mr. Disraeli, who closed the debate on his side, condemning the conduct of the ministers as "perplexed, timid, confused, wanting in dignity and self-respect. In not replying to the despatch, they had lost a great opportunity of asserting the principles of public law." The House, taking his view of their conduct, threw out the bill by a majority of nineteen;[[309]] and the ministry resigned, and was succeeded by one under the presidency of Lord Derby.

Many of those who on this occasion combined to form the majority had denounced the bill, as an infringement of the principles of our constitution. It is, however, evident that, had it passed, it would not have deserved such a description. It would in no degree whatever have deprived a foreign resident of safety and the protection of English law, so long as he should obey that law; and that is all the indulgence that the constitution ever gave or ought to give. Foreigners had always been amenable to our courts of justice for any violation of the law. And Lord Palmerston's bill not only went no farther than removing a certain class of offences from the category of misdemeanors to that of felonies, but it also imposed no liability in that respect on foreigners which it did not at the same time impose on all the Queen's subjects. Indeed, the bill was so moderate, and the improvement it proposed so desirable, that, in a subsequent discussion in the House of Lords, Lord Campbell, the Chief-justice, expressed a hope that Lord Derby's government would take it up; though Lord Derby, in view of the existing feeling of the country on the subject, prudently forbore to act on that suggestion. But, as one of Orsini's most guilty accomplices, a man named Bernard, was still in London, he caused him to be indicted for murder, as having incurred that guilt as accessary to the death of some whom the explosion had killed. The excitement on the question had, however, not died away when the trial came on; and, though it will, probably, be generally admitted that the evidence was sufficiently clear, Bernard was acquitted.

Lord Derby, however, did not long retain his office. Indeed, the Earl was so conscious that, on questions of general policy, the House of Commons was inclined to views differing from his own, that he would have preferred declining the task of forming a ministry, had he not conceived that, in the difficulty in which the Queen was placed by recent circumstances, he was bound by his duty to make the attempt, even if the result of it were merely to obtain a kind of respite for his sovereign and the country, which might give time for the present excitement of feeling to calm down. He was not deceived in his forebodings of his inability to maintain his position. In the course of the next spring he was twice defeated in the House of Commons—once by the House which he found in existence, and a second time in one which was the fruit of a general election. And in the summer of 1859 Lord Palmerston returned to office, with power increased by the junction of many of those who had helped to overthrow him in 1858, but who now combined with him to strike a similar blow at his Conservative successor.

Yet, brief as was Lord Derby's tenure of power, it was made memorable by the commencement of a movement which cannot be regarded as devoid of constitutional importance, since, though originally it was only designed to supply a temporary re-enforcement to our ancient constitutional forces, the regular army and the militia, it has eventually created a force which, to the great honor of those who constitute it, has become a permanent addition to them. In the great war against Revolutionary France, when it was generally believed that those who held rule in Paris were contemplating an invasion of these islands, Pitt, as we have seen, had encouraged the formation of corps of volunteers, which continued to be of great use till the very end of the war, by performing, in conjunction with the militia, a great portion of the home duties which must otherwise have fallen on the line regiments, and thus disengaging the regular army for service on the Continent. There was now no such formidable enemy to be dreaded as the first Napoleon, but in every part of Europe affairs were in a state so unquiet that every kingdom seemed at times on the very brink of war; and since, if it should once break out, no one could feel confident that we should not be involved in it, or, if we should be, who would be our allies or our enemies, measures of precaution and self-defence seemed as needful now as they had been sixty years before. Our boldest statesmen were disquieted and anxious; and the nation at large, sharing their uneasiness, kindled with the feeling that it was a time to show that the present generation inherited the self-denying patriotism of their fathers. Leaders were not wanting again to prompt the formation of a volunteer force. The government at once saw the value of the scheme. Fortunately, the Secretary for War, Colonel Peel, happened to be an old soldier, a veteran who had learned the art of war under Wellington himself; and he, having great talents for organization, placed the force from its infancy on a sound footing. How thoroughly the movement harmonized with the martial spirit of the nation—to which, indeed, it owed its birth—is shown by the history of the force, which now, above twenty years after its original formation, maintains its full numbers and yearly improves its efficiency. Though there has not for many years been any apprehension of war, above one hundred and twenty thousand men still annually devote no small portion of their time to the acquisition of military discipline and science, and that so successfully, that, by the testimony of the most experienced judges, they have attained a degree of efficiency which, if the necessity for their services should ever arise, would render them valuable and worthy comrades to the more regularly trained army. Lord Derby retired from office while the force was still in its infancy; but Lord Palmerston was equally sensible of its value, and gave a farther proof of his appreciation of the vast importance of measures of national defence by the vigor with which he carried out the recommendations of a royal commission which had been appointed by the preceding ministry to investigate the condition of our national defences. Its report had pointed out the absolute necessity of an improved system of protection for our great dockyards and arsenals, which, from their position on the coast, were more liable to attack than inland fortresses would have been, had we had such. And, in accordance with that warning, in the summer of 1860, Lord Palmerston proposed the grant of a large sum of money for the fortification of our chief dockyards. It was opposed on a strange variety of grounds; some arguing that the proposed fortifications were superfluous, because our navy was the defence to which the nation was wont deservedly to trust; some that they were needless, because no other nation was in a condition to attack us; others that they were disgraceful, because it was un-English and mean to skulk behind stone walls, and because Lycurgus had refused to trust to stone walls for the safety of Sparta; and one member, the chief spokesman of a new and small party, commonly known as the "peace-at-any-price party," boldly denounced the members of the commission as a set of "lunatics" for framing such a report, and the ministers as guilty of "contemptible cowardice" for suggesting to the nation that there was any danger in being undefended. But the ministry prevailed by a large majority;[[310]] the money was voted, and the nation in general warmly approved of the measure. As Lord Palmerston subsequently expressed it, "the government, the Parliament, and the nation acted in harmonious concert"[[311]] on the subject.

One of the arguments against it which the objectors had brought forward was, that the ministry was not unanimous in the conviction of the necessity; and we learn from the "Life of the Prince Consort"[[312]] that Mr. Gladstone, the Chancellor of the Exchequer, was vehement in his resistance to it, threatening even to carry his opposition so far as to resign his office, if it were persevered in. And, as has been intimated on a previous page, this was not the only question on which in the course of this year the Prime-minister did in his heart differ from his Chancellor of the Exchequer, though he did not think it expedient to refuse his sanction to his proposals on a matter belonging to his own department, the Exchequer. The subject on which he secretly doubted his colleague's judgment was one of the proposals made in the Budget of the year. As has already been mentioned, the transaction throws a rather curious light on the occasional working of our ministerial system; and the fate of the measure in the two Houses of Parliament is also deserving of remark and recollection, as re-opening the question, which had not been agitated for nearly a century, as to the extent of the power of the House of Lords with respect to votes of money. In a [former chapter][[313]] we have had occasion to mention the angry feeling on the part of the House of Commons which, in the year 1772, had been evoked by the act of the House of Lords, in making some amendments on a bill relating to the exportation of corn which had come up to them from the Commons. A somewhat similar act had, as we have also seen, revived the discussion a few years later, when the minister of the day had shown a more temperate feeling on the subject. On neither occasion, however, had the question of the privileges of the Lords been definitively settled; and no occasion had since arisen for any consideration of the subject. But the Budget of 1860 contained a clause which, in spite of the deserved reputation of the Chancellor of the Exchequer as a skilful financier, was not regarded with general favor. There was a large deficiency in the revenue for the year; but while, among his expedients for meeting it, Mr. Gladstone proposed an augmentation of the income-tax, he proposed also to repeal the excise duty on paper, which produced about a million and a quarter. It is now known that the Prime-minister himself highly disapproved of the sacrifice at such a time of so productive a tax.[[314]] And, if that had been suspected at the time, the House of Commons would certainly not have consented to it; even when the ministry was supposed to be unanimous in its approval of it, it was only carried by a majority of nine; and, when the bill embodying it came before the House of Lords, a Whig peer, who had himself been formerly Chancellor of the Exchequer in Lord Melbourne's administration, moved its rejection, and it was rejected by a majority of eighty-nine.

The rejection of a measure relating to taxation caused great excitement among a large party in the House of Commons—so violent, indeed, that the only expedient that presented itself to the Prime-minister, if he would prevent the proposal of some step of an extreme and mischievous character, was to take the matter into his own hands. Had he been able to act entirely on his own judgment, it may, perhaps, be thought that, with his sentiments on the inexpediency of the measure which had been rejected, he would have preferred a silent acquiescence in the vote of the Lords; but he would have been quite unable to induce the majority of his own supporters, and even some of his own colleagues, to adopt so moderate a course; and accordingly he moved the appointment of a committee to examine and report on the practice of Parliament in regard to bills for imposing or repealing taxes. And when it had made its report, which was purely of an historical character, setting forth the precedents bearing on the subject, he proposed three resolutions, asserting "that the right of granting aids and supplies to the crown is in the Commons alone, as an essential part of their constitution, etc.; that, although the Lords had exercised the power of rejecting bills of several descriptions relating to taxation by negativing the whole, yet the exercise of that power by them had not been frequent, and was justly regarded by the Commons with peculiar jealousy, as affecting their rights, etc.; and that, to guard for the future against an undue exercise of that power by the Lords, and to secure to the Commons their rightful control over taxation and supply, the Commons had it in their power so to impose and remit taxes, and to frame bills of supply, that their right, etc., might be maintained inviolate."

In the debate which ensued his chief opponents came from his own party, and even his own colleague, the Chancellor of the Exchequer, displayed a fundamental difference of feeling from his on the subject, a difference which was expressed by one of the most eloquent supporters of the resolutions, Mr. Horsman, M.P. for Stroud, saying that "Lord Palmerston wished to make the independence of the House of Lords a reality, while Mr. Gladstone seemed to desire that it should be a fiction." Lord Palmerston, indeed, showed the feeling thus attributed to him in a statesman-like declaration that, if "this nation had enjoyed a greater amount of civil, political, social, and religious liberty than, as he believed, any other people in the world, that result had been accomplished, not by vesting in either of the three estates, the Crown, the Lords, or the Commons, exclusive or overruling power over the others, but by maintaining for each its own separate and independent authority, and also by the three powers combining together to bear and forbear, endeavoring by harmonious concert with each other to avoid those conflicts and clashings which must have arisen if independent authority and independent action had been exerted by each or by all." He entered into the history of the question, explaining that, though "each branch of the Legislature retained its respective power of rejecting any measure, the Commons had claimed from time immemorial particular privileges in regard to particular measures, and especially the exclusive right of determining matters connected with the taxation of the people. They claimed for themselves, and denied to the Lords, the right of originating, altering, or amending such measures; but, as long ago as 1671, the Attorney-general, in a memorable conference between the two Houses, had admitted that the Lords, though they could not originate or amend, had, nevertheless, power to reject money-bills;" and this admission he regarded as consistent with common-sense, for "it was well known that, though the Commons contended for the right of originating measures for the grant of supply, and of framing bills with that object, according to their belief of what was best for the public interest, yet such bills could not pass into law without the assent of the Lords; and it was clear that an authority whose assent was necessary to give a proposal the force of law, must, by the very nature of things, be at liberty to dissent and refuse its sanction."

The committee had enumerated a large number of precedents (above thirty) in which, since that conference, the Lords had rejected such bills; but the cases were not in general exactly similar to that now under consideration, since the bills which they had rejected had commonly, if not in every case, been for the imposition and not for the repeal of a tax; and in most cases some question of national policy had been involved which had influenced their vote. But the view which Lord Palmerston pressed on the House was that the present was "a case in which party feelings ought to be cast aside. It was one in which higher and larger interests than those of party were concerned, and in which the course that the House now took would be a precedent to guide future Parliaments." He pointed out, moreover, that the smallness of the majority in the House of Commons had been to the Lords "some encouragement to take this particular step," and that "he was himself led to think that they had taken it, not from any intention to step out of their province, and to depart from the line of constitutional right which the history of the country has assigned them, but from motives of policy dependent on the circumstances of the moment; and therefore he thought it would be wise if the Commons forbore to enter into a conflict with the Lords on a ground which might really not exist, but satisfied themselves with a declaration of what were their own constitutional powers and privileges. It was of the utmost importance in a constitution like ours, where there are different branches, independent of each other, each with powers of its own, and where cordial and harmonious action is necessary, that care should be taken to avoid the commencement of an unnecessary quarrel, and the party that acted otherwise would incur a grave responsibility."

Mr. Gladstone, however, though he ended by expressing his concurrence in the resolution proposed by his chief, used very different language respecting the vote of the House of Lords, characterizing it as "a gigantic innovation, the most gigantic and the most dangerous that had been attempted in our time," since "the origination of a bill for the imposition of a tax, or the amendment of a money-bill, was a slight thing compared with the claim to prevent the repeal of a tax;" and, dealing with assertions which he had heard, that in this instance "the House of Commons had been very foolish and the House of Lords very wise," he asked whether that really described the constitution under which we live. The House of Commons could not be infallible in matters of finance more than in other matters. It might make errors, but he demanded to know whether those errors in finance were or were not liable to correction by the House of Lords. If they were, "what became of the privileges of the Commons?" On the other hand, Mr. Disraeli, as leader of the Opposition or Conservative party, supported the resolutions, and applauded the speech of the Prime-minister, as "a wise, calm, and ample declaration of a cabinet that had carefully and deliberately considered this important subject. It had acknowledged that the conduct of the Lords was justified by law and precedent, and sanctioned by policy," and he maintained that it showed that "the charge made by the Chancellor of the Exchequer was utterly untenable, and had no foundation." And Mr. Horsman, taking a large general view of the legitimate working of the parliamentary constitution, argued that, while it was an undoubted rule that "all taxes should originate with the Commons, as that elective and more immediately responsible assembly that is constantly referred back to the constituencies, the reviewing power of a permanent and independent chamber was no less essential;" and that, considering that "the Reform Bill of 1832 had given a preponderance of powers to the Commons, and that the tendency of any farther Reform Act must be in the same direction, so far from narrowing the field of action for the peers, the wiser alternative might be to adopt a generous construction of their powers, with a view to preserving the equilibrium that is held to be essential to the safety and well-working of the constitution. The House of Commons," he concluded, "is perpetually assuming fresh powers and establishing new precedents. Virtually all bills now originate with the Commons; but this is not the consequence of any aggressive spirit in them, but is the necessary and inevitable result of the historic working of the constitution; and so this act of the Lords was but the natural working of the constitution to meet a definite emergency." The resolutions were passed, the first and third without a division; the second, to which an amendment had been proposed, designed to limit the force of the precedents alleged as justifying the act of the Lords, by a majority of nearly four hundred.[[315]] In their form and language the resolutions cannot be said to have greatly affected the power claimed by the Lords, and exercised by them in this instance. The first two were simply declaratory of acknowledged principles or facts, and the third intimated no desire to guard against anything but an undue exertion by the Lords of the right which they were admitted to possess. But it can hardly be doubted that the intention even of Lord Palmerston, dictated by the strong feeling which he perceived to prevail in the House of Commons on the subject, was to deter the Lords from any future exercise of their powers of review and rejection of measures relating to taxation, when, perhaps, the Commons might be under less prudent guidance; nor that the effect of the resolutions will correspond with the design rather than with the language of the mover, and will prevent the Lords, unless under the pressure of some overpowering necessity, from again interfering to control the Commons in such matters. At the same time it seems superfluous to point out that one claim advanced by the Chancellor of the Exchequer, who was apparently carried beyond his usual discretion by his parental fondness for the rejected bill, is utterly unreconcileable with the maintenance of any constitution at all that can deserve the name. When there are three bodies so concerned in the legislation that the united consent of all is indispensable to give validity to any act, to claim for any one of them so paramount an authority that, even if it should adopt a manifestly mischievous course, neither of the others should have the right to control or check or correct the error, would be to make that body the irresponsible master of the whole government and nation; to invest it with that "overruling power" which Lord Palmerston with such force of reasoning had deprecated; and to substitute for that harmonious concert of all to which, in his view, the perfection of our liberties was owing, a submission to one, and that the one most liable to be acted upon by the violence or caprice of the populace. He was a wise man who said that he looked on the tyranny of one man as an evil, but on the tyranny of a thousand as a thousand times worse. And for this reason also the resolutions which were now adopted seem to have been conceived in a spirit of judicious moderation, since, while rendering it highly improbable that the Lords would again reject a measure relating to taxation, it avoided absolutely to extinguish their power to do so. Lord Palmerston, it may be thought, foresaw the possibility of an occasion arising when the notoriety that such a power still existed might serve as a check to prevent its exercise from being required. In the very case which had given rise to this discussion he regarded it as certain that the feeling of the majority of the nation approved of the action of the peers; and, as what had occurred once might occur again, it was certainly within the region of possibility that another such emergency might arise, when the Lords might interfere with salutary effect to save the country from the evil result of ill-considered legislation; finance being, above all others, the subject on which a rash or unscrupulous minister may find the greatest facility for exciting the people by plausible delusions. There is, moreover, another reason why it would not only be impolitic, but absolutely unfair, to deprive the Lords altogether of their power of rejection even in cases of taxation; namely, that the Commons, when imposing taxes, are taxing the Lords themselves, as well as the other classes of the community; while the Lords alone of the whole nation are absolutely unrepresented in the House of Commons. There is a frequent cry for a graduated income-tax; and surely if an unscrupulous demagogue in office were to contrive such a graduation as would subject a peer to three times the income-tax borne by a commoner, it would be a monstrous iniquity if the peers were to have no power of protecting themselves in their own House.

In the last sentence of his speech the Chancellor of the Exchequer had "respectfully reserved to himself the freedom of acting in such a way as should appear to offer any hope of success in giving effect by a practical measure to the principle contained in the first resolution." And it was, probably, an exemplification of the power of which he thus bespoke the use that he the next year struck out a scheme for insuring the repeal of the paper-duties, including it in one bill with all his other financial propositions, instead of dividing them in the ordinary way in several distinct bills. It was a manoeuvre which too much resembled the system of "tacking," which had been so justly denounced as one of the most unseemly manoeuvres of faction in the previous century.[[316]] But, as some of the principal reasons which in the preceding year had led the Lords to condemn the repeal had ceased to exist, and the deficiency of the revenue had been converted into a surplus, they thought it wiser to prove their superiority of wisdom to the House of Commons by showing a more conciliatory spirit, and passed the bill; though the course adopted, which had the effect of depriving the Lords of that power of examination of the details of the financial scheme of the government which they had hitherto enjoyed without any question or dispute, was strongly protested against in both Houses, and by some members who were not generally unfriendly to the administration.