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

by Henry Hallam

Bill for septennial parliaments.—Upon this prevalent disaffection, and the general dangers of the established government, was founded that measure so frequently arraigned in later times, the substitution of septennial for triennial parliaments. The ministry deemed it too perilous for their master, certainly for themselves, to encounter a general election in 1717; but the arguments adduced for the alteration, as it was meant to be permanent, were drawn from its permanent expediency. Nothing can be more extravagant than what is sometimes confidently pretended by the ignorant, that the legislature exceeded its rights by this enactment; or, if that cannot legally be advanced, that it at least violated the trust of the people, and broke in upon the ancient constitution. The law for triennial parliaments was of little more than twenty years' continuance. It was an experiment which, as was argued, had proved unsuccessful; it was subject, like every other law, to be repealed entirely, or to be modified at discretion. As a question of constitutional expediency, the septennial bill was doubtless open at the time to one serious objection. Every one admitted that a parliament subsisting indefinitely during a king's life, but exposed at all times to be dissolved at his pleasure, would become far too little independent of the people, and far too much so upon the Crown. But, if the period of its continuance should thus be extended from three to seven years, the natural course of encroachment, or some momentous circumstances like the present, might lead to fresh prolongations, and gradually to an entire repeal of what had been thought so important a safeguard of its purity. Time has happily put an end to apprehensions which are not on that account to be reckoned unreasonable.[343]

Many attempts have been made to obtain a return to triennial parliaments; the most considerable of which was in 1733, when the powerful talents of Walpole and his opponents were arrayed on this great question. It has been less debated in modern times than some others connected with parliamentary reformation. So long indeed as the sacred duties of choosing the representatives of a free nation shall be perpetually disgraced by tumultuary excess, or, what is far worse, by gross corruption and ruinous profusion (evils which no effectual pains are taken to redress, and which some apparently desire to perpetuate, were it only to throw discredit upon the popular part of the constitution), it would be evidently inexpedient to curtail the present duration of parliament. But even, independently of this not insuperable objection, it may well be doubted whether triennial elections would make much perceptible difference in the course of government, and whether that difference would on the whole be beneficial. It will be found, I believe, on a retrospect of the last hundred years, that the House of Commons would have acted, in the main, on the same principles, had the elections been more frequent; and certainly the effects of a dissolution, when it has occurred in the regular order, have seldom been very important. It is also to be considered whether an assembly which so much takes to itself the character of a deliberative council on all matters of policy, ought to follow with the precision of a weather-glass the unstable prejudices of the multitude. There are many who look too exclusively at the functions of parliament, as the protector of civil liberty against the Crown; functions, it is true, most important, yet not more indispensable than those of steering a firm course in domestic and external affairs, with a circumspectness and providence for the future, which no wholly democratical government has ever yet displayed. It is by a middle position between an oligarchical senate, and a popular assembly, that the House of Commons is best preserved both in its dignity and usefulness, subject indeed to swerve towards either character by that continual variation of forces which act upon the vast machine of our commonwealth. But what seems more important than the usual term of duration, is that this should be permitted to take its course, except in cases where some great change of national policy may perhaps justify its abridgment. The Crown would obtain a very serious advantage over the House of Commons, if it should become an ordinary thing to dissolve parliament for some petty ministerial interest, or to avert some unpalatable resolution. Custom appears to have established, and with some convenience, the substitution of six for seven years as the natural life of a House of Commons; but an habitual irregularity in this respect might lead in time to consequences that most men would deprecate. And it may here be permitted to express a hope that the necessary dissolution of parliament within six months of a demise of the Crown will not long be thought congenial to the spirit of our modern government.

Peerage bill.—A far more unanimous sentence has been pronounced by posterity upon another great constitutional question, that arose under George I. Lord Sunderland persuaded the king to renounce his important prerogative of making peers; and a bill was supported by the ministry, limiting the House of Lords, after the creation of a very few more, to its actual numbers. The Scots were to have twenty-five hereditary, instead of sixteen elective, members of the house; a provision neither easily reconciled to the union, nor required by the general tenor of the bill. This measure was carried with no difficulty through the upper house, whose interests were so manifestly concerned in it. But a similar motive, concurring with the efforts of a powerful malcontent party, caused its rejection by the Commons.[344] It was justly thought a proof of the king's ignorance or indifference in everything that concerned his English Crown, that he should have consented to so momentous a sacrifice; and Sunderland was reproached for so audacious an endeavour to strengthen his private faction at the expense of the fundamental laws of the monarchy. Those who maintained the expediency of limiting the peerage, had recourse to uncertain theories as to the ancient constitution, and denied this prerogative to have been originally vested in the Crown. A more plausible argument was derived from the abuse, as it was then generally accounted, of creating at once twelve peers in the late reign, for the sole end of establishing a majority for the court; a resource which would be always at the command of successive factions, till the British nobility might become as numerous and venal as that of some European states. It was argued that there was a fallacy in concluding the collective power of the House of Lords to be augmented by its limitation, because every single peer would evidently become of more weight in the kingdom; that the wealth of the whole body must bear a less proportion to that of the nation, and would possibly not exceed that of the lower house, while on the other hand it might be indefinitely multiplied by fresh creations; that the Crown would lose one great engine of corrupt influence over the Commons, which could never be truly independent, while its principal members were looking on it as a stepping-stone to hereditary honours.[345]

Though these reasonings however are not destitute of considerable weight, and the unlimited prerogative of augmenting the peerage is liable to such abuses, at least in theory, as might overthrow our form of government; while, in the opinion of some, whether erroneous or not, it has actually been exerted with too little discretion, the arguments against any legal limitation seem more decisive. The Crown has been carefully restrained by statutes, and by the responsibility of its advisers; the Commons, if they transgress their boundaries, are annihilated by a proclamation; but against the ambition, or, what is much more likely, the perverse haughtiness of the aristocracy, the constitution has not furnished such direct securities. And, as this would be prodigiously enhanced by a consciousness of their power, and by a sense of self-importance which every peer would derive from it after the limitation of their numbers, it might break out in pretensions very galling to the people, and in an oppressive extension of privileges which were already sufficiently obnoxious and arbitrary. It is true that the resource of subduing an aristocratical faction by the creation of new peers could never be constitutionally employed, except in the case of a nearly equal balance; but it might usefully hang over the heads of the whole body, and deter them from any gross excesses of faction or oligarchical spirit. The nature of our government requires a general harmony between the two houses of parliament; and indeed any systematic opposition between them would of necessity bring on the subordination of one to the other in too marked a manner; nor had there been wanting within the memory of man, several instances of such jealous and even hostile sentiments as could only be allayed by the inconvenient remedies of a prorogation or a dissolution. These animosities were likely to revive with more bitterness, when the country gentlemen and leaders of the commons should come to look on the nobility as a class into which they could not enter, and the latter should forget more and more, in their inaccessible dignity, the near approach of that gentry to themselves in respectability of birth and extent of possessions.[346]

These innovations on the part of the new government were maintained on the score of its unsettled state, and want of hold on the national sentiment. It may seem a reproach to the house of Hanover that, connected as it ought to have been with the names most dear to English hearts, the protestant religion and civil liberty, it should have been driven to try the resources of tyranny, and to demand more authority, to exercise more control, than had been necessary for the worst of their predecessors. Much of this disaffection was owing to the cold reserve of George I., ignorant of the language, alien from the prejudices of his people, and continually absent in his electoral dominions, to which he seemed to sacrifice the nation's interest and the security of his own crown. It is certain that the acquisition of the duchies of Bremen and Verden for Hanover in 1716 exposed Great Britain to a very serious danger, by provoking the King of Sweden to join in a league for the restoration of the Pretender.[347] It might have been impossible (such was the precariousness of our revolution settlement) to have made the abdication of the electorate a condition of the house of Brunswick's succession; but the consequences of that connection, though much exaggerated by the factious and disaffected, were in various manners detrimental to English interests during these two reigns; and not the least in that they estranged the affections of the people from sovereigns whom they regarded as still foreign.

Jacobitism among the clergy.—The tory and jacobite factions, as I have observed, were powerful in the church. This had been the case ever since the revolution. The avowed non-jurors were busy with the press; and poured forth, especially during the encouragement they received in part of Anne's reign, a multitude of pamphlets, sometimes argumentative, more often virulently libellous. Their idle cry that the church was in danger, which both houses in 1704 thought fit to deny by a formal vote, alarmed a senseless multitude. Those who took the oaths were frequently known partisans of the exiled family; and those who affected to disclaim that cause, defended the new settlement with such timid or faithless arms as served only to give a triumph to the adversary. About the end of William's reign grew up the distinction of high and low churchmen; the first distinguished by great pretensions to sacerdotal power, both spiritual and temporal, by a repugnance to toleration, and by a firm adherence to the tory principle in the state; the latter by the opposite characteristics. These were pitched against each other in the two houses of convocation, an assembly which virtually ceased to exist under George I.

Convocation.—The convocation of the province of Canterbury (for that of York seems never to have been important) is summoned by the archbishop's writ, under the king's direction, along with every parliament, to which it bears analogy both in its constituent parts and in its primary functions. It consists (since the reformation) of the suffragan bishops, forming the upper house; of the deans, archdeacons, a proctor or proxy for each chapter, and two from each diocese, elected by the parochial clergy, who together constitute the lower house. In this assembly subsidies were granted, and ecclesiastical canons enacted. In a few instances under Henry VIII. and Elizabeth, they were consulted as to momentous questions affecting the national religion; the supremacy of the former was approved in 1533, the articles of faith were confirmed in 1562, by the convocation. But their power to enact fresh canons without the king's licence, was expressly taken away by a statute of Henry VIII.; and, even subject to this condition, is limited by several later acts of parliament (such as the acts of uniformity under Elizabeth and Charles II., that confirming, and therefore rendering unalterable, the thirty-nine articles, those relating to non-residence and other church matters), and still more perhaps by the doctrine gradually established in Westminster Hall, that new ecclesiastical canons are not binding on the laity, so greatly that it will ever be impossible to exercise it in any effectual manner. The convocation accordingly, with the exception of 1603, when they established some regulations, and of 1640 (an unfortunate precedent), when they attempted some more, had little business but to grant subsidies, which, however, were from the time of Henry VIII. always confirmed by an act of parliament; an intimation, no doubt, that the legislature did not wholly acquiesce in their power even of binding the clergy in a matter of property. This practice of ecclesiastical taxation was silently discontinued in 1664; at a time when the authority and pre-eminence of the church stood very high, so that it could not then have seemed the abandonment of an important privilege. From this time the clergy have been taxed at the same rate and in the same manner with the laity.[348]

It was the natural consequence of this cessation of all business, that the convocation, after a few formalities, either adjourned itself or was prorogued by a royal writ; nor had it ever, with the few exceptions above noticed, sat for more than a few days, till its supply could be voted. But, about the time of the revolution, the party most adverse to the new order sedulously propagated a doctrine that the convocation ought to be advised with upon all questions affecting the church, and ought even to watch over its interests as the parliament did over those of the kingdom.[349] The Commons had so far encouraged this faction as to refer to the convocation the great question of a reform in the liturgy for the sake of comprehension, as has been mentioned in the last chapter; and thus put a stop to the king's design. It was not suffered to sit much during the rest of that reign, to the great discontent of its ambitious leaders. The most celebrated of these, Atterbury, published a book, entitled The Rights and Privileges of an English Convocation, in answer to one by Wake, afterwards Archbishop of Canterbury. The speciousness of the former, sprinkled with competent learning on the subject, a graceful style, and an artful employment of topics, might easily delude, at least, the willing reader. Nothing indeed could, on reflection, appear more inconclusive than Atterbury's arguments. Were we even to admit the perfect analogy of a convocation to a parliament, it could not be doubted that the king may, legally speaking, prorogue the latter at his pleasure; and that, if neither money were required to be granted nor laws to be enacted, a session would be very short. The church had by prescription a right to be summoned in convocation; but no prescription could be set up for its longer continuance than the Crown thought expedient; and it was too much to expect that William III. was to gratify his half-avowed enemies, with a privilege of remonstrance and interposition they had never enjoyed. In the year 1701 the lower house of convocation pretended to a right of adjourning to a different day from that fixed by the upper, and consequently of holding separate sessions. They set up other unprecedented claims to independence, which were checked by a prorogation.[350] Their aim was in all respects to assimilate themselves to the House of Commons, and thus both to set up the convocation itself as an assembly collateral to parliament, and in the main independent of it, and to maintain their co-ordinate power and equality in synodical dignity to the prelates' house. The succeeding reign, however, began under tory auspices; and the convocation was in more activity for some years than at any former period. The lower house of that assembly still distinguished itself by the most factious spirit, and especially by insolence towards the bishops, who passed in general for whigs, and whom, while pretending to assert the divine rights of episcopacy, they laboured to deprive of that pre-eminence in the Anglican synod which the ecclesiastical constitution of the kingdom had bestowed on them.[351] None was more prominent in their debates than Atterbury himself, whom, in the zenith of tory influence, at the close of her reign, the queen reluctantly promoted to the see of Rochester.

The new government at first permitted the convocation to hold its sittings. But they soon excited a flame which consumed themselves by an attack on Hoadley, Bishop of Bangor, who had preached a sermon abounding with those principles concerning religious liberty, of which he had long been the courageous and powerful assertor.[352] The lower house of convocation thought fit to denounce, through the report of a committee, the dangerous tenets of this discourse, and of a work not long before published by the bishop. A long and celebrated war of pens instantly commenced, known by the name of the Bangorian controversy; managed, perhaps on both sides, with all the chicanery of polemical writers, and disgusting both from its tediousness, and from the manifest unwillingness of the disputants to speak ingenuously what they meant.[353] But, as the principles of Hoadley and his advocates appeared, in the main, little else than those of protestantism and toleration, the sentence of the laity, in the temper that was then gaining ground as to ecclesiastical subjects, was soon pronounced in their favour; and the high-church party discredited themselves by an opposition to what now pass for the incontrovertible truisms of religious liberty. In the ferment of that age, it was expedient for the state to scatter a little dust over the angry insects; the convocation was accordingly prorogued in 1717, and has never again sat for any business.[354] Those who are imbued with high notions of sacerdotal power have sometimes deplored this extinction of the Anglican great council; and though its necessity, as I have already observed, cannot possibly be defended as an ancient part of the constitution, there are not wanting specious arguments for the expediency of such a synod. It might be urged that the church, considered only as an integral member of the commonwealth, and the greatest corporation within it, might justly claim that right of managing its own affairs which belongs to every other association; that the argument from abuse is not sufficient, and is rejected with indignation when applied, as historically it might be, to representative governments and to civil liberty; that in the present state of things, no reformation even of secondary importance can be effected without difficulty, nor any looked for in greater matters, both from the indifference of the legislature, and the reluctance of the clergy to admit its interposition.

It is answered to these suggestions, that we must take experience when we possess it, rather than analogy, for our guide; that ecclesiastical assemblies have in all ages and countries been mischievous, where they have been powerful, which that of our wealthy and numerous clergy must always be; that, notwithstanding, if the convocation could be brought under the management of the state (which by the nature of its component parts might seem not unlikely), it must lead to the promotion of servile men, and the exclusion of merit still more than at present; that the severe remark of Clarendon, who observes that of all mankind none form so bad an estimate of human affairs as churchmen, is abundantly confirmed by experience; that the representation of the church in the House of Lords is sufficient for the protection of its interests; that the clergy have an influence which no other corporation enjoys over the bulk of the nation, and are apt to abuse it for the purposes of undue ascendancy, unjust restraint, or factious ambition; that the hope of any real good in reformation of the Church by its own assemblies to whatever sort of reform we may look, is utterly chimerical; finally, that as the laws now stand, which few would incline to alter, the ratification of parliament must be indispensable for any material change. It seems to admit of no doubt that these reasonings ought much to outweigh those on the opposite side.