Exclusion of placemen and pensioners from parliament.—During the reign of William, this distinction of the cabinet from the privy council, and the exclusion of the latter from all business of state became more fully established.[276] This however produced a serious consequence as to the responsibility of the advisers of the Crown; and at the very time when the controlling and chastising power of parliament was most effectually recognised, it was silently eluded by the concealment in which the objects of its enquiry could wrap themselves. Thus, in the instance of a treaty which the House of Commons might deem mischievous and dishonourable, the chancellor setting the great seal to it would of course be responsible; but it is not so evident that the first lord of the treasury, or others more immediately advising the Crown on the course of foreign policy, could be liable to impeachment with any prospect of success, for an act in which their participation could not be legally proved. I do not mean that evidence may not possibly be obtained which would affect the leaders of a cabinet, as in the instances of Oxford and Bolingbroke; but that, the cabinet itself having no legal existence, and its members being surely not amenable to punishment in their simple capacity of privy counsellors, which they generally share, in modern times, with a great number even of their adversaries, there is no tangible character to which responsibility is attached; nothing, except a signature or the setting of a seal, from which a bad minister need entertain any further apprehension than that of losing his post and reputation.[277] It may be that no absolute corrective is practicable for this apparent deficiency in our constitutional security; but it is expedient to keep it well in mind, because all ministers speak loudly of their responsibility, and are apt, upon faith of this imaginary guarantee, to obtain a previous confidence from parliament which they may in fact abuse with impunity. For should the bad success or detected guilt of their measures raise a popular cry against them, and censure or penalty be demanded by their opponents, they will infallibly shroud their persons in the dark recesses of the cabinet, and employ every art to shift off the burthen of individual liability.
William III., from the reservedness of his disposition as well as from the great superiority of his capacity for affairs to any of our former kings, was far less guided by any responsible counsellors than the spirit of our constitution requires. In the business of the partition treaty, which, whether rightly or otherwise, the House of Commons reckoned highly injurious to the public interest, he had not even consulted his cabinet; nor could any minister, except the Earl of Portland and Lord Somers, be proved to have had a concern in the transaction; for, though the house impeached Lord Orford and Lord Halifax, they were not in fact any farther parties to it than by being in the secret, and the former had shown his usual intractability by objecting to the whole measure. This was undoubtedly such a departure from sound constitutional usage as left parliament no control over the executive administration. It was endeavoured to restore the ancient principle by this provision in the act of settlement, that, after the accession of the house of Hanover, all resolutions as to government should be debated in the privy council, and signed by those present. But, whether it were that real objections were found to stand in the way of this article, or that ministers shrunk back from so definite a responsibility, they procured its repeal a very few years afterwards.[278] The plans of government are discussed and determined in a cabinet council, forming indeed part of the larger body, but unknown to the law by any distinct character or special appointment. I conceive, though I have not the means of tracing the matter clearly, that this change has prodigiously augmented the direct authority of the secretaries of state, especially as to the interior department, who communicate the king's pleasure in the first instance to subordinate officers and magistrates, in cases which, down at least to the time of Charles I., would have been determined in council. But proclamations and orders still emanate, as the law requires, from the privy council; and on some rare occasions, even of late years, matters of domestic policy have been referred to their advice. It is generally understood, however, that no counsellor is to attend, except when summoned;[279] so that, unnecessarily numerous as the council has become, in order to gratify vanity by a titular honour, these special meetings consist only of a few persons besides the actual ministers of the cabinet, and give the latter no apprehension of a formidable resistance. Yet there can be no reasonable doubt that every counsellor is as much answerable for the measures adopted by his consent, and especially when ratified by his signature, as those who bear the name of ministers, and who have generally determined upon them before he is summoned.
The experience of William's partiality to Bentinck and Keppel, in the latter instance not very consistent with the good sense and dignity of his character, led to a strong measure of precaution against the probable influence of foreigners under the new dynasty; the exclusion of all persons not born within the dominions of the British Crown from every office of civil and military trust, and from both houses of parliament. No other country, as far as I recollect, has adopted so sweeping a disqualification; and it must, I think, be admitted that it goes a greater length than liberal policy can be said to warrant. But the narrow prejudices of George I. were well restrained by this provision from gratifying his corrupt and servile German favourites with lucrative offices.[280]
The next article is of far more importance; and would, had it continued in force, have perpetuated that struggle between the different parts of the legislature, especially the Crown and House of Commons, which the new limitations of the monarchy were intended to annihilate. The baneful system of rendering the parliament subservient to the administration, either by offices and pensions held at pleasure, or by more clandestine corruption, had not ceased with the house of Stuart. William, not long after his accession, fell into the worst part of this management, which it was most difficult to prevent; and, according to the practice of Charles's reign, induced by secret bribes the leaders of parliamentary opposition to betray their cause on particular questions. The tory patriot, Sir Christopher Musgrave, trod in the steps of the whig patriot, Sir Thomas Lee. A large expenditure appeared every year, under the head of secret service money; which was pretty well known, and sometimes proved, to be disposed of, in great part, among the members of both houses.[281] No check was put on the number or quality of placemen in the lower house. New offices were continually created, and at unreasonable salaries. Those who desired to see a regard to virtue and liberty in the parliament of England could not be insensible to the enormous mischief of this influence. If some apology might be offered for it in the precarious state of the revolution government, this did not take away the possibility of future danger, when the monarchy should have regained its usual stability. But in seeking for a remedy against the peculiar evil of the times, the party in opposition to the court during this reign, whose efforts at reformation were too frequently misdirected, either through faction or some sinister regards towards the deposed family, went into the preposterous extremity of banishing all servants of the Crown from the House of Commons. Whether the bill for free and impartial proceedings in parliament, which was rejected by a very small majority of the House of Lords in 1693, and having in the next session passed through both houses, met with the king's negative, to the great disappointment and displeasure of the Commons, was of this general nature, or excluded only certain specified officers of the Crown, I am not able to determine; though the prudence and expediency of William's refusal must depend entirely upon that question.[282] But in the act of settlement, the clause is quite without exception; and, if it had ever taken effect, no minister could have had a seat in the House of Commons, to bring forward, explain, or defend the measures of the executive government. Such a separation and want of intelligence between the Crown and parliament must either have destroyed the one, or degraded the other. The House of Commons would either, in jealousy and passion, have armed the strength of the people to subvert the monarchy, or, losing that effective control over the appointment of ministers, which has sometimes gone near to their nomination, would have fallen almost into the condition of those states-general of ancient kingdoms, which have met only to be cajoled into subsidies, and give a passive consent to the propositions of the court. It is one of the greatest safeguards of our liberty, that eloquent and ambitious men, such as aspire to guide the councils of the Crown, are from habit and use so connected with the houses of parliament, and derive from them so much of their renown and influence, that they lie under no temptation, nor could without insanity be prevailed upon, to diminish the authority and privileges of that assembly. No English statesman, since the revolution, can be liable to the very slightest suspicion of an aim, or even a wish, to establish absolute monarchy on the ruins of our constitution. Whatever else has been done, or designed to be done amiss, the rights of parliament have been out of danger. They have, whenever a man of powerful mind shall direct the cabinet, and none else can possibly be formidable, the strong security of his own interest, which no such man will desire to build on the caprice and intrigue of a court. And, as this immediate connection of the advisers of the Crown with the House of Commons, so that they are, and ever profess themselves, as truly the servants of one as of the other, is a pledge for their loyalty to the entire legislature, as well as to their sovereign (I mean, of course, as to the fundamental principles of our constitution), so has it preserved for the Commons their preponderating share in the executive administration, and elevated them in the eyes of foreign nations, till the monarchy itself has fallen comparatively into shade. The pulse of Europe beats according to the tone of our parliament; the counsels of our kings are there revealed, and by that kind of previous sanction which it has been customary to obtain, become, as it were, the resolutions of a senate; and we enjoy the individual pride and dignity which belong to republicans, with the steadiness and tranquillity which the supremacy of a single person has been supposed peculiarly to bestow.
But, if the chief ministers of the Crown are indispensably to be present in one or other house of parliament, it by no means follows that the doors should be thrown open to all those subaltern retainers, who, too low to have had any participation in the measures of government, come merely to earn their salaries by a sure and silent vote. Unless some limitation could be put on the number of such officers, they might become the majority of every parliament, especially if its duration were indefinite or very long. It was always the popular endeavour of the opposition, or, as it was usually denominated, the country party, to reduce the number of these dependants; and as constantly the whole strength of the court was exerted to keep them up. William, in truth, from his own errors, and from the disadvantage of the times, would not venture to confide in an unbiassed parliament. On the formation, however, of a new board of revenue, in 1694, for managing the stamp-duties, its members were incapacitated from sitting in the House of Commons.[283] This, I believe, is the first instance of exclusion on account of employment; and a similar act was obtained in 1699, extending this disability to the commissioners and some other officers of excise.[284] But when the absolute exclusion of all civil and military officers by the act of settlement was found, on cool reflection, too impracticable to be maintained, and a revision of that article took place in the year 1706, the House of Commons were still determined to preserve at least the principle of limitation, as to the number of placemen within their walls. They gave way indeed to the other house in a considerable degree, receding, with some unwillingness, from a clause specifying expressly the description of offices which should not create a disqualification, and consenting to an entire repeal of the original article.[285] But they established two provisions of great importance, which still continue the great securities against an overwhelming influence: first, that every member of the House of Commons accepting an office under the Crown, except a higher commission in the army, shall vacate his seat, and a new writ shall issue; secondly, that no person holding an office created since the 25th of October 1705, shall be capable of being elected or re-elected at all. They excluded at the same time all such as held pensions during the pleasure of the Crown; and, to check the multiplication of placemen, enacted, that no greater number of commissioners should be appointed to execute any office than had been employed in its execution at some time before that parliament.[286] These restrictions ought to be rigorously and jealously maintained, and to receive a construction, in doubtful cases, according to their constitutional spirit; not as if they were of a penal nature towards individuals, an absurdity in which the careless and indulgent temper of modern times might sometimes acquiesce.
Independence of judges.—It had been the practice of the Stuarts, especially in the last years of their dynasty, to dismiss judges, without seeking any other pretence, who showed any disposition to thwart government in political prosecutions. The general behaviour of the bench had covered it with infamy. Though the real security for an honest court of justice must be found in their responsibility to parliament and to public opinion, it was evident that their tenure in office must, in the first place, cease to be precarious, and their integrity rescued from the severe trial of forfeiting the emoluments upon which they subsisted. In the debates previous to the declaration of rights, we find that several speakers insisted on making the judges' commissions quamdiu se bene gesserint, that is, during life or good behaviour, instead of durante placito, at the discretion of the Crown. The former, indeed, is said to have been the ancient course till the reign of James I. But this was omitted in the hasty and imperfect bill of rights. The commissions however of William's judges ran quamdiu se bene gesserint. But the king gave an unfortunate instance of his very injudicious tenacity of bad prerogatives, in refusing his assent, in 1692, to a bill that had passed both houses, for establishing this independence of the judges by law and confirming their salaries.[287] We owe this important provision to the act of settlement; not as ignorance and adulation have perpetually asserted, to his late majesty George III. No judge can be dismissed from office, except in consequence of a conviction for some offence, or the address of both houses of parliament, which is tantamount to an act of the legislature.[288] It is always to be kept in mind that they are still accessible to the hope of further promotion, to the zeal of political attachment, to the flattery of princes and ministers; that the bias of their prejudices, as elderly and peaceable men, will, in a plurality of cases, be on the side of power; that they have very frequently been trained, as advocates, to vindicate every proceeding of the Crown; from all which we should look on them with some little vigilance, and not come hastily to a conclusion that, because their commissions cannot be vacated by the Crown's authority, they are wholly out of the reach of its influence. I would by no means be misinterpreted, as if the general conduct of our courts of justice since the revolution, and especially in later times, which in most respects have been the best times, were not deserving of that credit it has usually gained; but possibly it may have been more guided and kept straight than some are willing to acknowledge by the spirit of observation and censure which modifies and controls our whole government.
The last clause in the act of settlement, that a pardon under the great seal shall not be pleadable in bar of an impeachment, requires no particular notice beyond what has been said on the subject in a former chapter.[289]
Oath of abjuration.—In the following session a new parliament having been assembled, in which the tory faction had less influence than in the last, and Louis XIV. having, in the meantime, acknowledged the son of James as King of England, the natural resentment of this insult and breach of faith was shown in a more decided assertion of revolution principles than had hitherto been made. The pretended king was attainted of high treason; a measure absurd as a law, but politic as a denunciation of perpetual enmity.[290] It was made high treason to correspond with him, or remit money for his service. And a still more vigorous measure was adopted, an oath to be taken, not only by all civil officers, but by all ecclesiastics, members of the universities, and schoolmasters, acknowledging William as lawful and rightful king, and denying any right or title in the pretended Prince of Wales.[291] The tories, and especially Lord Nottingham, had earnestly contended, in the beginning of the king's reign, against those words on the act of recognition, which asserted William and Mary to be rightfully and lawfully king and queen. They opposed the association at the time of the assassination plot, on account of the same epithets, taking a distinction which satisfied the narrow understanding of Nottingham, and served as a subterfuge for more cunning men, between a king whom they were bound in all cases to obey and one whom they could style rightful and lawful. These expressions were in fact slightly modified on that occasion; yet fifteen peers and ninety-two commoners declined, at least for a time, to sign it. The present oath of abjuration therefore was a signal victory of the whigs who boasted of the revolution over the tories who excused it.[292] The renunciation of the hereditary right, for at this time few of the latter party believed in the young man's spuriousness, was complete and unequivocal. The dominant faction might enjoy perhaps a charitable pleasure in exposing many of their adversaries, and especially the high church clergy, to the disgrace and remorse of perjury. Few or none however who had taken the oath of allegiance, refused this additional cup of bitterness, though so much less defensible, according to the principles they had employed to vindicate their compliance in the former instance; so true it is that, in matters of conscience, the first scruple is the only one which it costs much to overcome. But the imposition of this test, as was evident in a few years, did not check the boldness, or diminish the numbers, of the Jacobites; and I must confess, that of all sophistry that weakens moral obligation, that is the most pardonable, which men employ to escape from this species of tyranny. The state may reasonably make an entire and heartfelt attachment to its authority the condition of civil trust; but nothing more than a promise of peaceable obedience can justly be exacted from those who ask only to obey in peace. There was a bad spirit abroad in the church, ambitious, factious, intolerant, calumnious; but this was not necessarily partaken by all its members, and many excellent men might deem themselves hardly dealt with in requiring their denial of an abstract proposition, which did not appear so totally false according to their notions of the English constitution and the church's doctrine.[293]
CHAPTER XVI
ON THE STATE OF THE CONSTITUTION IN THE REIGNS OF ANNE, GEORGE I., AND GEORGE II.
The act of settlement was the seal of our constitutional laws, the complement of the revolution itself and the bill of rights, the last great statute which restrains the power of the Crown, and manifests, in any conspicuous degree, a jealousy of parliament in behalf of its own and the subject's privileges. The battle had been fought and gained; the statute-book, as it becomes more voluminous, is less interesting in the history of our constitution; the voice of petition, complaint, or remonstrance is seldom to be traced in the Journals; the Crown in return desists altogether, not merely from the threatening or objurgatory tone of the Stuarts, but from that dissatisfaction sometimes apparent in the language of William; and the vessel seems riding in smooth water, moved by other impulses, and liable perhaps to other dangers, than those of the ocean-wave and the tempest. The reigns, accordingly, of Anne, George I., and George II., afford rather materials for dissertation, than consecutive facts for such a work as the present; and may be sketched in a single chapter, though by no means the least important, which the reader's study and reflection must enable him to fill up. Changes of an essential nature were in operation during the sixty years of these three reigns, as well as in that beyond the limits of this undertaking, which in length measures them all; some of them greatly enhancing the authority of the Crown, or rather of the executive government, while others had so opposite a tendency, that philosophical speculators have not been uniform in determining on which side was the sway of the balance.