Constitutional History of England, Henry VII to George II. Volume 3 of 3

by Henry Hallam

Jealousy of the Commons.—The House of Commons which sat at the conclusion of the treaty of Ryswick, chiefly composed of whigs, and having zealously co-operated in the prosecution of the late war, could not be supposed lukewarm in the cause of liberty, or indifferent to the aggrandisement of France. But the nation's exhausted state seemed to demand an intermission of its burthens, and revived the natural and laudable disposition to frugality which had characterised in all former times an English parliament. The arrears of the war, joined to loans made during its progress, left a debt of about seventeen millions, which excited much inquietude, and evidently could not be discharged but by steady retrenchment and uninterrupted peace. But, besides this, a reluctance to see a standing army established prevailed among the great majority both of whigs and tories. It was unknown to their ancestors—this was enough for one party; it was dangerous to liberty—this alarmed the other. Men of ability and honest intention, but, like most speculative politicians of the sixteenth and seventeenth centuries, rather too fond of seeking analogies in ancient history, influenced the public opinion by their writings, and carried too far the undeniable truth, that a large army at the mere control of an ambitious prince may often overthrow the liberties of a people.[204] It was not sufficiently remembered that the bill of rights, the annual mutiny bill, the necessity of annual votes of supply for the maintenance of a regular army, besides, what was far more than all, the publicity of all acts of government, and the strong spirit of liberty burning in the people, had materially diminished a danger which it would not be safe entirely to contemn.

Army reduced.—Such, however, was the influence of what may be called the constitutional antipathy of the English in that age to a regular army, that the Commons, in the first session after the peace, voted that all troops raised since 1680 should be disbanded, reducing the forces to about 7000 men, which they were with difficulty prevailed upon to augment to 10,000.[205] They resolved at the same time that, "in a just sense and acknowledgment of what great things his majesty has done for these kingdoms, a sum not exceeding £700,000 be granted to his majesty during his life, for the support of the civil list." So ample a gift from an impoverished nation is the strongest testimony of their affection to the king.[206] But he was justly disappointed by the former vote, which, in the hazardous condition of Europe, prevented this country from wearing a countenance of preparation, more likely to avert than to bring on a second conflict. He permitted himself, however, to carry this resentment too far, and lost sight of that subordination to the law which is the duty of an English sovereign, when he evaded compliance with this resolution of the Commons, and took on himself the unconstitutional responsibility of leaving sealed orders, when he went to Holland, that 16,000 men should be kept up, without the knowledge of his ministers, which they as unconstitutionally obeyed. In the next session a new parliament having been elected, full of men strongly imbued with what the courtiers styled commonwealth principles, or an extreme jealousy of royal power,[207] it was found impossible to resist a diminution of the army to 7000 troops.[208] These too were voted to be natives of the British dominions; and the king incurred the severest mortification of his reign, in the necessity of sending back his regiments of Dutch guards and French refugees. The messages that passed between him and the parliament bear witness how deeply he felt, and how fruitlessly he deprecated, this act of unkindness and ingratitude, so strikingly in contrast with the deference that parliament has generally shown to the honours and prejudices of the Crown in matters of far higher moment.[209] The foreign troops were too numerous, and it would have been politic to conciliate the nationality of the multitude by reducing their number; yet they had claims which a grateful and generous people should not have forgotten: they were, many of them, the chivalry of protestantism, the Huguenot gentlemen who had lost all but their swords in a cause which we deemed our own; they were the men who had terrified James from Whitehall, and brought about a deliverance, which, to speak plainly, we had neither sense nor courage to achieve for ourselves, or which at least we could never have achieved without enduring the convulsive throes of anarchy.

Irish forfeitures resumed.—There is, if not mere apology for the conduct of the Commons, yet more to censure on the king's side, in another scene of humiliation which he passed through, in the business of the Irish forfeitures. These confiscations of the property of those who had fought on the side of James, though, in a legal sense, at the Crown's disposal, ought undoubtedly to have been applied to the public service. It was the intention of parliament that two-thirds at least of these estates should be sold for that purpose; and William had, in answer to an address (Jan. 1690) promised to make no grant of them till the matter should be considered in the ensuing session. Several bills were brought in to carry the original resolutions into effect, but, probably through the influence of government, they always fell to the ground in one or other house of parliament. Meanwhile the king granted away the whole of these forfeitures, about a million of acres, with a culpable profuseness, to the enriching of his personal favourites, such as the Earl of Portland and the Countess of Orkney.[210] Yet as this had been done in the exercise of a lawful prerogative, it is not easy to justify the act of resumption passed in 1699. The precedents for resumption of grants were obsolete, and from bad times. It was agreed on all hands that the royal domain is not inalienable; if this were a mischief, as could not perhaps be doubted, it was one that the legislature had permitted with open eyes till there was nothing left to be alienated. Acts therefore of this kind shake the general stability of possession, and destroy that confidence in which the practical sense of freedom consists, that the absolute power of the legislature, which in strictness is as arbitrary in England as in Persia, will be exercised in consistency with justice and lenity. They are also accompanied for the most part, as appears to have been the case in this instance of the Irish forfeitures, with partiality and misrepresentation as well as violence, and seldom fail to excite an odium far more than commensurate to the transient popularity which attends them at the outset.[211]

But, even if the resumption of William's Irish grants could be reckoned defensible, there can be no doubt that the mode adopted by the Commons, of tacking, as it was called, the provisions for this purpose to a money bill, so as to render it impossible for the Lords even to modify them without depriving the king of his supply, tended to subvert the constitution and annihilate the rights of a co-equal house of parliament. This most reprehensible device, though not an unnatural consequence of their pretended right to an exclusive concern in money bills, had been employed in a former instance during this reign.[212] They were again successful on this occasion; the Lords receded from their amendments, and passed the bill at the king's desire, who perceived that the fury of the Commons was tending to a terrible convulsion.[213] But the precedent was infinitely dangerous to their legislative power. If the Commons, after some more attempts of the same nature, desisted from so unjust an encroachment, it must be attributed to that which has been the great preservative of the equilibrium in our government, the public voice of a reflecting people, averse to manifest innovation, and soon offended by the intemperance of factions.

Parliamentary enquiries.—The essential change which the fall of the old dynasty had wrought in our constitution displayed itself in such a vigorous spirit of enquiry and interference of parliament with all the course of government as, if not absolutely new, was more uncontested and more effectual than before the revolution. The Commons indeed under Charles II. had not wholly lost sight of the precedents which the long parliament had established for them; but not without continual resistance from the court, in which their right of examination was by no means admitted. But the tories throughout the reign of William evinced a departure from the ancient principles of their faction in nothing more than in asserting to the fullest extent the powers and privileges of the Commons; and, in the coalition they formed with the malcontent whigs, if the men of liberty adopted the nickname of the men of prerogative, the latter did not less take up the maxims and feelings of the former. The bad success and suspected management of public affairs co-operated with the strong spirit of party to establish this important accession of authority to the House of Commons. In June 1689, a special committee was appointed to enquire into the miscarriages of the war in Ireland, especially as to the delay in relieving Londonderry. A similar committee was appointed in the Lords. The former reported severely against Colonel Lundy, governor of that city; and the house addressed the king, that he might be sent over to be tried for the treasons laid to his charge.[214] I do not think there is any earlier precedent in the Journals for so specific an enquiry into the conduct of a public officer, especially one in military command. It marks therefore very distinctly the change of spirit which I have so frequently mentioned. No courtier has ever since ventured to deny this general right of enquiry, though it is the constant practice to elude it. The right to enquire draws with it the necessary means, the examination of witnesses, records, papers, enforced by the strong arm of parliamentary privilege. In one respect alone these powers have fallen rather short; the Commons do not administer an oath; and having neglected to claim this authority in the irregular times when they could make a privilege by a vote, they would now perhaps find difficulty in obtaining it by consent of the house of peers. They renewed this committee for enquiring into the miscarriages of the war in the next session.[215] They went very fully into the dispute between the board of admiralty and Admiral Russell, after the battle of La Hogue;[216] and the year after investigated the conduct of his successors, Killigrew and Delaval, in the command of the Channel Fleet.[217] They went, in the winter of 1694, into a very long examination of the admirals and the orders issued by the admiralty during the preceding year; and then voted that the sending the fleet to the Mediterranean, and the continuing it there this winter, has been to the honour and interest of his majesty, and his kingdoms.[218] But it is hardly worth while to enumerate later instances of exercising a right which had become indisputable, and, even before it rested on the basis of precedent, could not reasonably be denied to those who might advise, remonstrate, and impeach.

It is not surprising that, after such important acquisitions of power, the natural spirit of encroachment, or the desire to distress a hostile government, should have led to endeavours, which by their success would have drawn the executive administration more directly into the hands of parliament. A proposition was made by some peers, in December 1692, for a committee of both houses to consider of the present state of the nation, and what advice should be given to the king concerning it. This dangerous project was lost by 48 to 36, several tories and dissatisfied whigs uniting in a protest against its rejection.[219] The king had in his speech to parliament requested their advice in the most general terms; and this slight expression, though no more than is contained in the common writ of summons, was tortured into a pretext for so extraordinary a proposal as that of a committee of delegates, or council of state, which might soon have grasped the entire administration. It was at least a remedy so little according to precedent, or the analogy of our constitution, that some very serious cause of dissatisfaction with the conduct of affairs could be its only excuse.

Burnet has spoken with reprobation of another scheme engendered by the same spirit of enquiry and control, that of a council of trade, to be nominated by parliament, with powers for the effectual preservation of the interests of the merchants. If the members of it were intended to be immovable, or if the vacancies were to be filled by consent of parliament, this would indeed have encroached on the prerogative in a far more eminent degree than the famous India bill of 1783, because its operation would have been more extensive and more at home. And, even if they were only named in the first instance, as has been usual in parliamentary commissioners of account or enquiry, it would still be material to ask, what extent of power for the preservation of trade was to be placed in their hands. The precise nature of the scheme is not explained by Burnet. But it appears by the Journals that this council was to receive information from merchants as to the necessity of convoys, and send directions to the board of admiralty, subject to the king's control, to receive complaints and represent the same to the king, and in many other respects to exercise very important and anomalous functions. They were not however to be members of the house. But even with this restriction, it was too hazardous a departure from the general maxims of the constitution.[220]

Treaties of partition.—The general unpopularity of William's administration, and more particularly the reduction of the forces, afford an ample justification for the two treaties of partition which the tory faction, with scandalous injustice and inconsistency, turned to his reproach. No one could deny that the aggrandisement of France by both of these treaties was of serious consequence. But, according to English interests, the first object was to secure the Spanish Netherlands from becoming provinces of that power; and next to maintain the real independence of Spain and the Indies. Italy was but the last in order; and though the possession of Naples and Sicily, with the ports of Tuscany, as stipulated in the treaty of partition, would have rendered France absolute mistress of that whole country and of the Mediterranean sea, and essentially changed the balance of Europe, it was yet more tolerable than the acquisition of the whole monarchy in the name of a Bourbon prince, which the opening of the succession without previous arrangement was likely to produce. They at least who shrunk from the thought of another war, and studiously depreciated the value of continental alliances, were the last who ought to have exclaimed against a treaty which had been ratified as the sole means of giving us something like security, without the cost of fighting for it. Nothing therefore could be more unreasonable than the clamour of a tory House of Commons in 1701 (for the malcontent whigs were now so consolidated with the tories as in general to bear their name) against the partition treaties; nothing more unfair than the impeachment of the four lords, Portland, Orford, Somers, and Halifax, on that account. But we must at the same time remark, that it is more easy to vindicate the partition treaties themselves, than to reconcile the conduct of the king and of some others with the principles established in our constitution. William had taken these important negotiations wholly into his own hands, not even communicating them to any of his English ministers, except Lord Jersey, until his resolution was finally settled. Lord Somers, as chancellor, had put the great seal to blank powers, as a legal authority to the negotiators; which evidently could not be valid, unless on the dangerous principle that the seal is conclusive against all exception.[221] He had also sealed the ratification of the treaty, though not consulted upon it, and though he seems to have had objections to some of the terms; and in both instances he set up the king's command as a sufficient defence. The exclusion of all those whom, whether called privy or cabinet counsellors, the nation holds responsible for its safety, from this great negotiation, tended to throw back the whole executive government into the single will of the sovereign, and ought to have exasperated the House of Commons far more than the actual treaties of partition, which may probably have been the safest choice in a most perilous condition of Europe. The impeachments however were in most respects so ill substantiated by proof, that they have generally been reckoned a disgraceful instance of party spirit.[222]

Improvements in constitution under William.—The whigs, such of them at least as continued to hold that name in honour, soon forgave the mistakes and failings of their great deliverer; and indeed a high regard for the memory of William III. may justly be reckoned one of the tests by which genuine whiggism, as opposed both to tory and republican principles, has always been recognised. By the opposite party he was rancorously hated; and their malignant calumnies still sully the stream of history.[223] Let us leave such as prefer Charles I. to William III. in the enjoyment of prejudices which are not likely to be overcome by argument. But it must ever be an honour to the English Crown that it has been worn by so great a man. Compared with him, the statesmen who surrounded his throne, the Sunderlands, Godolphins, and Shrewsburys, even the Somerses and Montagues, sink into insignificance. He was, in truth, too great, not for the times wherein he was called to action, but for the peculiar condition of a king of England after the revolution; and as he was the last sovereign of this country, whose understanding and energy of character have been very distinguished, so was he the last who has encountered the resistance of his parliament, or stood apart and undisguised in the maintenance of his own prerogative. His reign is no doubt one of the most important in our constitutional history, both on account of its general character, which I have slightly sketched, and of those beneficial alterations in our law to which it gave rise. These now call for our attention.

Bill for triennial parliaments.—The enormous duration of seventeen years, for which Charles II. protracted his second parliament, turned the thoughts of all who desired improvements in the constitution towards some limitation on a prerogative which had not hitherto been thus abused. Not only the continuance of the same House of Commons during such a period destroyed the connection between the people and their representatives, and laid open the latter, without responsibility, to the corruption which was hardly denied to prevail; but the privilege of exemption from civil process made needy and worthless men secure against their creditors, and desirous of a seat in parliament as a complete safeguard to fraud and injustice. The term of three years appeared sufficient to establish a control of the electoral over the representative body, without recurring to the ancient but inconvenient scheme of annual parliaments, which men enamoured of a still more popular form of government than our own were eager to recommend. A bill for this purpose was brought into the House of Lords in December 1689, but lost by the prorogation.[224] It passed both houses early in 1693, the whigs generally supporting, and the tories opposing it; but on this, as on many other great questions of this reign, the two parties were not so regularly arrayed against each other as on points of a more personal nature.[225] To this bill the king refused his assent: an exercise of prerogative which no ordinary circumstances can reconcile either with prudence or with a constitutional administration of government. But the Commons, as it was easy to foresee, did not abandon so important a measure; a similar bill received the royal assent in November 1694.[226] By the triennial bill it was simply provided that every parliament should cease and determine within three years from its meeting. The clause contained in the act of Charles II. against the intermission of parliaments for more than three years is repeated; but it was not thought necessary to revive the somewhat violent and perhaps impracticable provisions by which the act of 1641 had secured their meeting; it being evident that even annual sessions might now be relied upon as indispensable to the machine of government.