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

by Henry Hallam

This army was always understood to be kept on foot, as it is still expressed in the preamble of every mutiny bill, for better preserving the balance of power in Europe. The Commons would not for an instant admit that it was necessary as a permanent force, in order to maintain the government at home. There can be no question however that the court saw its advantage in this light; and I am not perfectly sure that some of the multiplied negotiations on the continent in that age were not intended as a pretext for keeping up the army, or at least as a means of exciting alarm for the security of the established government. In fact, there would have been rebellions in the time of George I., not only in Scotland, which perhaps could not otherwise have been preserved, but in many parts of the kingdom, had the parliament adhered with too pertinacious bigotry to their ancient maxims. Yet these had such influence that it was long before the army was admitted by every one to be perpetual; and I do not know that it has ever been recognised as such in our statutes. Mr. Pulteney, so late as 1732, a man neither disaffected nor democratical, and whose views extended no farther than a change of hands, declared that he "always had been, and always would be, against a standing army of any kind; it was to him a terrible thing, whether under the denomination of parliamentary or any other. A standing army is still a standing army, whatever name it be called by; they are a body of men distinct from the body of the people; they are governed by different laws; blind obedience and an entire submission to the orders of their commanding officer is their only principle. The nations around us are already enslaved, and have been enslaved by those very means; by means of their standing armies they have every one lost their liberties; it is indeed impossible that the liberties of the people can be preserved in any country where a numerous standing army is kept up."[367]

This wholesome jealousy, though it did not prevent what was indeed for many reasons not to be dispensed with, the establishment of a regular force, kept it within bounds which possibly the administration, if left to itself, would have gladly overleaped. A clause in the mutiny bill, first inserted in 1718, enabling courts-martial to punish mutiny and desertion with death, which had hitherto been only cognisable as capital offences by the civil magistrate, was carried by a very small majority in both houses.[368] An act was passed in 1735, directing that no troops should come within two miles of any place, except the capital or a garrisoned town, during an election;[369] and on some occasions, both the Commons and the courts of justice showed that they had not forgotten the maxims of their ancestors as to the supremacy of the civil power.[370] A more important measure was projected by men of independent principles, at once to secure the kingdom against attack, invaded as it had been by rebels in 1745, and thrown into the most ignominious panic on the rumours of a French armament in 1756, to take away the pretext for a large standing force, and perhaps to furnish a guarantee against any evil purposes to which in future times it might be subservient, by the establishment of a national militia, under the sole authority, indeed of the Crown, but commanded by gentlemen of sufficient estates, and not liable, except in war, to be marched out of its proper county. This favourite plan, with some reluctance on the part of the government, was adopted in 1757.[371] But though, during the long periods of hostilities which have unfortunately ensued, this embodied force had doubtless placed the kingdom in a more respectable state of security, it has not much contributed to diminish the number of our regular forces; and, from some defects in its constitution, arising out of too great attention to our ancient local divisions, and of too indiscriminate a dispensation with personal service, which has filled the ranks with the refuse of the community, the militia has grown unpopular and burthensome, rather considered of late by the government as a means of recruiting the army than as worthy of preservation in itself, and accordingly thrown aside in time of peace; so that the person who acquired great popularity as the author of this institution, lived to see it worn out and gone to decay, and the principles, above all, upon which he had brought it forward, just enough remembered to be turned into ridicule. Yet the success of that magnificent organisation which, in our own time, has been established in France, is sufficient to evince the possibility of a national militia; and we know with what spirit such a force was kept up for some years in this country, under the name of volunteers and yeomanry, on its only real basis, that of property, and in such local distribution as convenience pointed out.

Nothing could be more idle, at any time since the revolution, than to suppose that the regular army would pull the speaker out of his chair, or in any manner be employed to confirm a despotic power in the Crown. Such power, I think, could never have been the waking dream of either king or minister. But as the slightest inroads upon private rights and liberties are to be guarded against in any nation that deserves to be called free, we should always keep in mind not only that the military power is subordinate to the civil, but, as this subordination must cease where the former is frequently employed, that it should never be called upon in aid of the peace without sufficient cause. Nothing would more break down this notion of the law's supremacy than the perpetual interference of those who are really governed by another law; for the doctrine of some judges, that the soldier, being still a citizen, acts only in preservation of the public peace, as another citizen is bound to do, must be felt as a sophism, even by those who cannot find an answer to it. And, even in slight circumstances, it is not conformable to the principles of our government to make that vain display of military authority which disgusts us so much in some continental kingdoms. But, not to dwell on this, it is more to our immediate purpose that the executive power has acquired such a coadjutor in the regular army that it can, in no probable emergency, have much to apprehend from popular sedition. The increased facilities of transport, and several improvements in military art and science, which will occur to the reader, have in later times greatly enhanced this advantage.

II. It must be apparent to every one that since the restoration, and especially since the revolution, an immense power has been thrown into the scale of both houses of parliament, though practically in more frequent exercise by the lower, in consequence of their annual session during several months, and of their almost unlimited rights of investigation, discussion, and advice. But, if the Crown should by any means become secure of an ascendancy in this assembly, it is evident that, although the prerogative, technically speaking, might be diminished, the power might be the same, or even possibly more efficacious; and that this result must be proportioned to the degree and security of such an ascendancy. A parliament absolutely, and in all conceivable circumstances, under the control of the sovereign, whether through intimidation or corrupt subservience, could not, without absurdity, be deemed a co-ordinate power, or, indeed, in any sense, a restraint upon his will. This is however an extreme supposition, which no man, unless both grossly factious and ignorant, will ever pretend to have been realised. But, as it would equally contradict notorious truth to assert that every vote has been disinterested and independent, the degree of influence which ought to be permitted, or which has at any time existed, becomes one of the most important subjects in our constitutional policy.

I have mentioned in the last chapter both the provisions inserted in the act of settlement, with the design of excluding altogether the possessors of public office from the House of Commons, and the modifications of them by several acts of the queen. These were deemed by the country party so inadequate to restrain the dependents of power from overspreading the benches of the Commons that perpetual attempts were made to carry the exclusive principle to a far greater length. In the two next reigns, if we can trust to the uncontradicted language of debate, or even to the descriptions of individuals in the lists of each parliament, we must conclude that a very undue proportion of dependents on the favour of government were made its censors and counsellors. There was still, however, so much left of an independent spirit, that bills for restricting the number of placemen, or excluding pensioners, met always with countenance; they were sometimes rejected by very slight majorities; and, after a time, Sir Robert Walpole found it expedient to reserve his opposition for the surer field of the other house.[372] After his fall, it was imputed with some justice to his successors, that they shrunk in power from the bold reformation which they had so frequently endeavoured; the king was indignantly averse to all retrenchment of his power, and they wanted probably both the inclination and the influence to cut off all corruption. Yet we owe to this ministry the place bill of 1743, which, derided as it was at the time, seems to have had a considerable effect; excluding a great number of inferior officers from the House of Commons, which has never since contained so revolting a list of court-deputies as it did in the age of Walpole.[373]

Secret corruption.—But while this acknowledged influence of lucrative office might be presumed to operate on many staunch adherents of the actual administration, there was always a strong suspicion, or rather a general certainty, of absolute corruption. The proofs in single instances could never perhaps be established; which, of course, is not surprising. But no one seriously called in question the reality of a systematic distribution of money by the Crown to the representatives of the people; nor did the corrupters themselves, in whom the crime seems always to be deemed less heinous, disguise it in private.[374] It is true that the appropriation of supplies, and the established course of the exchequer, render the greatest part of the public revenue secure from misapplication; but, under the head of secret service money, a very large sum was annually expended without account, and some other parts of the civil list were equally free from all public examination.[375] The committee of secrecy appointed after the resignation of Sir Robert Walpole endeavoured to elicit some distinct evidence of this misapplication; but the obscurity natural to such transactions, and the guilty collusion of subaltern accomplices, who shrouded themselves in the protection of the law, defeated every hope of punishment, or even personal disgrace.[376] This practice of direct bribery continued, beyond doubt, long afterwards, and is generally supposed to have ceased about the termination of the American war.

There is hardly any doctrine with respect to our government more in fashion than that a considerable influence of the Crown (meaning of course a corrupt influence) in both houses of parliament, and especially in the Commons, has been rendered indispensable by the vast enhancement of their own power over the public administration. It is doubtless most expedient that many servants of the Crown should be also servants of the people; and no man who values the constitution would separate the functions of ministers of state from those of legislators. The glory that waits on wisdom and eloquence in the senate should always be the great prize of an English statesman, and his high road to the sovereign's favour. But the maxim that private vices are public benefits is as sophistical as it is disgusting; and it is self-evident, both that the expectation of a clandestine recompense, or what in effect is the same thing, of a lucrative office, cannot be the motive of an upright man in his vote, and that if an entire parliament should be composed of such venal spirits, there would be an end of all control upon the Crown. There is no real cause to apprehend that a virtuous and enlightened government would find difficulty in resting upon the reputation justly due to it; especially when we throw into the scale that species of influence which must ever subsist, the sentiment of respect and loyalty to a sovereign, of friendship and gratitude to a minister, of habitual confidence in those intrusted with power, of averseness to confusion and untried change, which have in fact more extensive operation than any sordid motives, and which must almost always render them unnecessary.

III. Commitments for breach of privilege.—The co-operation of both houses of parliament with the executive government enabled the latter to convert to its own purpose what had often in former times been employed against it, the power of inflicting punishment for breach of privilege. But as the subject of parliamentary privilege is of no slight importance, it will be convenient on this occasion to bring the whole before the reader in as concise a summary as possible, distinguishing the power, as it relates to offences committed by members of either house, or against them singly, or the houses of parliament collectively, or against the government and the public.

1. It has been the constant practice of the House of Commons to repress disorderly or indecent behaviour by a censure delivered through the speaker. Instances of this are even noticed in the journals under Edward VI. and Mary; and it is in fact essential to the regular proceedings of any assembly. In the former reign they also committed one of their members to the Tower. But in the famous case of Arthur Hall in 1581, they established the first precedent of punishing one of their own body for a printed libel derogatory to them as a part of the legislature; and they inflicted the threefold penalty of imprisonment, fine, and expulsion.[377] From this time forth it was understood to be the law and usage of parliament, that the Commons might commit to prison any one of their members for misconduct in the house, or relating to it. The right of imposing a fine was very rarely asserted after the instance of Hall. But that of expulsion, no earlier precedent whereof has been recorded, became as indubitable as frequent and unquestioned usage could render it. It was carried to a great excess by the long parliament, and again in the year 1680. These, however, were times of extreme violence; and the prevailing faction had an apology in the designs of the court, which required an energy beyond the law to counteract them. The offences, too, which the whigs thus punished in 1680, were in their effect against the power and even existence of parliament. The privilege was far more unwarrantably exerted by the opposite party in 1714, against Sir Richard Steele, expelled the house for writing the "Crisis," a pamphlet reflecting on the ministry. This was, perhaps, the first instance wherein the House of Commons so identified itself with the executive administration, independently of the sovereign's person, as to consider itself libelled by those who impugned its measures.[378]