THE CONSTITUTIONAL HISTORY OF ENGLAND from 1760 to 1860
BY CHARLES DUKE YONGE, M.A.
REGIUS PROFESSOR OF MODERN HISTORY, QUEEN'S COLLEGE, BELFAST AND AUTHOR OF "THE HISTORY OF THE BRITISH NAVY" "THE LIFE OF MARIE ANTOINETTE" ETC.
NEW YORK
PREFACE.
Mr. Hallam's "Constitutional History" closes, as is well known, with the death of George II. The Reformation, the great Rebellion, and the Revolution, all of which are embraced in the period of which it treats, are events of such surpassing importance, and such all-pervading and lasting influence, that no subsequent transactions can ever attract entirely equal attention. Yet the century which has elapsed since the accession of George III. has also witnessed occurrences not only full of exciting interest at the moment, but calculated to affect the policy of the kingdom and the condition of the people, for all future time, in a degree only second to the Revolution itself. Indeed, the change in some leading features and principles of the constitution wrought by the Reform Bill of 1832, exceeds any that were enacted by the Bill of Rights or the Act of Settlement. The only absolutely new principle introduced in 1688 was that establishment of Protestant ascendency which was contained in the clause which disabled any Roman Catholic from wearing the crown. In other respects, those great statutes were not so much the introduction of new principles, as a recognition of privileges of the people which had been long established, but which, in too many instances, had been disregarded and violated.
But the Reform Bill conferred political power on classes which had never before been admitted to be entitled to it; and their enfranchisement could not fail to give a wholly new and democratic tinge to the government, which has been visible in its effect on the policy of all subsequent administrations.
And, besides this great measure, the passing of which has often been called a new Revolution, and the other reforms, municipal and ecclesiastical, which were its immediate and almost inevitable fruits, the century which followed the accession of George III. was also marked by the Irish Union, the abolition of slavery, the establishment of the principle of universal religious toleration; the loss of one great collection of colonies, the plantation of and grant of constitutions to others of not inferior magnitude, which had not even come into existence at its commencement; the growth of our wondrous dominion in India, with its eventual transfer of all authority in that country to the crown; with a host of minor transactions and enactments, which must all be regarded as, more or less, so many changes in or developments of the constitution, as it was regarded and understood by the statesmen of the seventeenth century.
It has seemed, therefore, to the compiler of this volume, that a narrative of these transactions in their historical sequence, so as to exhibit the connection which has frequently existed between them; to show, for instance, how the repeal of Poynings' Act, and the Regency Bill of 1788, necessitated the Irish Union; how Catholic Emancipation brought after it Parliamentary Reform, and how that led to municipal and ecclesiastical reforms, might not be without interest and use at the present time. And the modern fulness of our parliamentary reports (itself one not unimportant reform and novelty), since the accession of George III., has enabled him to give the inducements or the objections to the different enactments in the very words of the legislators who proposed them or resisted them, as often as it seemed desirable to do so.
CONTENTS.
Mr. Hallam's View of the Development of the Constitution.—Symptoms of approaching Constitutional Changes.—State of the Kingdom at the Accession of George III.—Improvement of the Law affecting the Commissions of the Judges.—Restoration of Peace.—Lord Bute becomes Minister.—The Case of Wilkes.—Mr. Luttrell is Seated for Middlesex by the House of Commons.—Growth of Parliamentary Reporting.—Mr. Grenville's Act for trying Election Petitions.—Disfranchisement of Corrupt Voters at New Shoreham.
The Regency Bill.—The Ministry of 1766 lay an Embargo on Corn.—An Act of Indemnity is Passed.—The Nullum Tempus Act concerning Crown Property; it is sought to Extend it to Church Property, but the Attempt fails.—The Royal Marriage Act.—The Lords amend a Bill imposing Export Duties, etc., on Corn.
Mr. Grenville imposes a Duty on Stamps in the North American Colonies.—Examination of Dr. Franklin.—Lord Rockingham's Ministry Repeals the Duty.—Lord Mansfield affirms a Virtual Representation in the Colonies.—Mr. C. Townsend imposes Import Duties in America.—After some Years, the Civil War breaks out.—Hanoverian Troops are sent to Gibraltar.—The Employment of Hanoverian Regiments at Gibraltar and Minorca.—End of the War.—Colonial Policy of the Present Reign.—Complaints of the Undue Influence of the Crown.—Motions for Parliamentary Reform.—Mr. Burke's Bill for Economical Reform.—Mr. Dunning's Resolution on the Influence of the Crown.—Rights of the Lords on Money-bills.—The Gordon Riots.
Changes of Administration.—The Coalition Ministry.—The Establishment of the Prince of Wales.—Fox's India Bill.—The King Defeats it by the Agency of Lord Temple.—The Ministry is Dismissed, and Succeeded by Mr. Pitt's Administration.—Opposition to the New Ministry in the House of Commons.—Merits of the Contest between the Old and the New Ministry.—Power of Pitt.—Pitt's India Bill.—Bill for the Government of Canada.—The Marriage of the Prince of Wales to Mrs. Fitzherbert.—The King becomes Deranged.—Proposal of a Regency.—Opinions of Various Writers on the Course adopted.—Spread of Revolutionary Societies and Opinions.—Bills for the Repression of Sedition and Treason.—The Alien Act.—The Traitorous Correspondence Act.—Treason and Sedition Bills.—Failure of some Prosecutions under them.
The Affairs of Ireland.—Condition of the Irish Parliament.—The Octennial Bill.—The Penal Laws.—Non-residence of the Lord-lieutenant.—Influence of the American War on Ireland.—Enrolment of the Volunteers.—Concession of all the Demands of Ireland.—Violence of the Volunteers.—Their Convention.—Violence of the Opposition in Parliament: Mr. Brownlow, Mr. Grattan, Mr. Flood.—Pitt's Propositions Fail.—Fitzgibbon's Conspiracy Bill.—Regency Question.—Recovery of the King.—Question of a Legislative Union.—Establishment of Maynooth College.—Lord Edward Fitzgerald.—Arguments for and against the Union.—It passes the Irish Parliament.—Details of the Measure.—General Character of the Union.—Circumstances which Prevented its Completeness.
A Census is Ordered.—Dissolution of Pitt's Administration.—Impeachment of Lord Melville.—Introduction of Lord Ellenborough into the Cabinet.—Abolition of the Slave-trade.—Mr. Windham's Compulsory Training Bill.—Illness of the King, and Regency.—Recurrence to the Precedent of 1788-'89.—Death of Mr. Perceval.—Lord Liverpool becomes Prime-minister.—Question of Appointments in the Household.—Appointment of a Prime-minister.
The Toleration Act.—Impropriety of making Catholic Emancipation (or any other Important Matter) an Open Question.—Joint Responsibility of all the Ministers.—Detention of Napoleon at St. Helena.—Question whether the Regent could Give Evidence in a Court of Law in a Civil Action.—Agitation for Reform.—Public Meetings.—The Manchester Meeting.—The Seditious Meetings Prevention Bill.—Lord Sidmouth's Six Acts.
Survey of the Reign of George III.—The Cato Street Conspiracy.—The Queen's Return to England, and the Proceedings against her.—The King Visits Ireland and Scotland.—Reform of the Criminal Code.—Freedom of Trade.—Death of Lord Liverpool.—The Duke of Wellington becomes Prime-minister.—Repeal of the Test and Corporation Act.—O'Connell is Elected for Clare.—Peel Resigns his Seat for Oxford.—Catholic Emancipation.—Question of the Endowment of the Roman Catholic Clergy.—Constitutional Character of the Emancipation.—The Propriety of Mr. Peel's Resignation of his Seat for Oxford Questioned.
Demand for Parliamentary Reform.—Death of George IV., and Accession of William IV.—French Revolution of 1830.—Growing Feeling in Favor of Reform.—Duke of Wellington's Declaration against Reform.—His Resignation: Lord Grey becomes Prime-minister.—Introduction of the Reform Bill.—Its Details.—Riots at Bristol and Nottingham.—Proposed Creation of Peers.—The King's Message to the Peers.—Character and Consequences of the Reform Bill.—Appointment of a Regency.—Re-arrangement of the Civil List.
Abolition of Slavery.—Abridgment of the Apprenticeship.—The East India Company's Trade is Thrown Open.—Commencement of Ecclesiastical Reforms.—The New Poor-law.—State of Ireland.—Agitation against Tithes.—Coercion Bill.—Beginning of Church Reform.—Sir Robert Peel becomes Prime-minister.—Variety of Offices held Provisionally by the Duke of Wellington.—Sir Robert Peel Retires, and Lord Melbourne Resumes the Government.—Sir Robert Peel Proposes a Measure of Church Reform.—Municipal Reform.—Measures of Ecclesiastical Reform.
Death of William IV., and Accession of Queen Victoria.—Rise of the Chartists.—Resignation of Lord Melbourne in 1839, and his Resumption of Office.—Marriage of the Queen, and Consequent Arrangements.—The Precedence of the Prince, etc.—Post-office Reform.—War in Afghanistan.—Discontent in Jamaica.—Insurrection in Canada.—New Constitution for Canada and other Colonies.—Case of Stockdale and Hansard.
Sir Robert Peel becomes Prime-minister.—Commercial Reforms.—Free-trade.—Religious Toleration.—Maynooth.—The Queen's University.—Post-office Regulations.—The Opening of Letters.—Naturalization of Aliens.—Recall of Lord Ellenborough.—Reversal of the Vote on the Sugar Duties.—Refusal of the Crown to Sanction a Bill.—The Question of Increase in the Number of Spiritual Peers.—Repeal of the Corn-laws.—Revolution in France, and Agitation on the Continent.—Death of Sir Robert Peel.—Indifference of the Country to Reform.—Repeal of the Navigation Laws.—Resolutions in Favor of Free-trade.—The Great Exhibition of 1851.
Dismissal of Lord Palmerston.—Theory of the Relation between the Sovereign and the Cabinet.—Correspondence of the Sovereign with French Princes.—Russian War.—Abolition of the Tax on Newspapers.—Life Peerages.—Resignation of two Bishops.—Indian Mutiny.—Abolition of the Sovereign Power of the Company.—Visit of the Prince of Wales to India.—Conspiracy Bill.—Rise of the Volunteers.—National Fortifications.—The Lords Reject the Measure for the Repeal of the Paper-duties.—Lord Palmerston's Resolutions.—Character of the Changes during the last Century.
CONSTITUTIONAL HISTORY OF ENGLAND.
CHAPTER I.
Mr. Hallam's View of the Development of the Constitution.—Symptoms of approaching Constitutional Changes.—State of the Kingdom at the Accession of George III.—Improvement of the Law affecting the Commissions of the Judges.—Restoration of Peace.—Lord Bute becomes Minister.—The Case of Wilkes.—Mr. Luttrell is Seated for Middlesex by the House of Commons.—Growth of Parliamentary Reporting.—Mr. Grenville's Act for trying Election Petitions.—Disfranchisement of Corrupt Voters at New Shoreham.
The learned and judicious writer to whom is due the first idea of a "Constitutional History of England," and of whose admirable work I here venture to offer a continuation, regards "the spirit of the government" as having been "almost wholly monarchical till the Revolution of 1688," and in the four subsequent reigns, with the last of which his volumes close, as "having turned chiefly to an aristocracy."[[1]] And it may be considered as having generally preserved that character through the long and eventful reign of George III. But, even while he was writing, a change was already preparing, of which more than one recent occurrence had given unmistakable warning. A borough had been disfranchised for inveterate corruption in the first Parliament of George IV.[[2]] Before its dissolution, the same House of Commons had sanctioned the principle of a state endowment of the Roman Catholic clergy in Ireland, and had given a third reading to a bill for the abolition of all civil restrictions affecting members of that religion. It was impossible to avoid foreseeing that the Parliamentary Reform inaugurated by the disfranchisement of Grampound would soon be carried farther, or that the emancipation, as it was termed, of all Christian sects was at least equally certain not to be long delayed. And it will be denied by no one that those measures, which had no very obscure or doubtful connection with each other, have gradually imparted to the constitution a far more democratic tinge than would have been willingly accepted by even the most liberal statesman of the preceding century, or than, in the days of the Tudors or of the Stuarts, would have been thought compatible with the maintenance of the monarchy.
When George III. came to the throne, he found the nation engaged in a war which was occupying its arms not only on the Continent of Europe, but in India and America also, and was extending her glory and her substantial power in both hemispheres. Inter arma silent leges. And, while the contest lasted, neither legislators in Parliament nor the people outside had much attention to spare for matters of domestic policy. Yet the first year of the new reign was not suffered to pass without the introduction of one measure limiting the royal prerogative in a matter of paramount importance to the liberty of the people, the independence of the judges. The rule of making the commissions of the judges depend on their good conduct instead of on the pleasure of the crown had, indeed, been established at the Revolution; but it was still held that these commissions expired with the life of the sovereign who had granted them; and, at the accession of Anne, as also at that of George II., a renewal of their commissions had been withheld from some members of the judicial bench. But now, even before the dissolution of the existing Parliament, the new King recommended to it such a change in the law as should "secure the judges in the enjoyment of their offices during their good behavior, notwithstanding any demise of the crown;" giving the proposal, which was understood to have been originally suggested by himself, additional weight by the very unusual step of making it the subject of a speech to the two Houses in the middle of the session. A bill to give effect to it was at once brought in, and, though the Houses sat only a fortnight longer, was carried before the dissolution.
The close of the year 1762, however, saw the restoration of peace; and the circumstances connected with the treaty which re-established it gave birth to a degree of political and constitutional excitement such as had not agitated the kingdom for more than half a century. That treaty had not been concluded by the minister who had conducted the war. When George III. came to the throne he found the Duke of Newcastle presiding at the Treasury, but the seals of one Secretary of State in the hands of Mr. Pitt, who was universally regarded as the guiding genius of the ministry. The other Secretary of State was Lord Holdernesse. But, in the spring of 1761, as soon as the Parliament was dissolved,[[3]] that statesman retired from office, and was succeeded by the Earl of Bute, a Scotch nobleman, who stood high in the favor of the King's mother, the Princess Dowager of Wales, but who had not till very recently been supposed to be actuated by political ambition, and who was still less suspected of any statesman-like ability to qualify him for the office to which he was thus promoted. It was presently seen, however, that he aspired to even higher dignity. He at once set himself to oppose Pitt's warlike policy; and, on the question of declaring war against Spain, he was so successful in inducing the rest of the cabinet to reject Pitt's proposals, that that statesman resigned his office in unconcealed indignation. Having got rid of the real master of the ministry, Bute's next step was to get rid of its nominal chief, and in the spring of 1762 he managed to drive the Duke of Newcastle from the Treasury, and was himself placed by the King at the head of the administration. So rapid an elevation of a man previously unknown as a politician could hardly fail to create very widespread dissatisfaction, which was in some degree augmented by the nationality of the new minister. Lord Bute was a Scotchman, and Englishmen had not wholly forgiven or forgotten the Scotch invasion of 1745. Since that time the Scotch had been regarded with general disfavor; Scotch poverty and Scotch greediness for the good things of England had furnished constant topics for raillery and sarcasm; and more than one demagogue and political writer had sought popularity by pandering to the prevailing taste for attacks on the whole nation. Foremost among these was Mr. John Wilkes, member for Aylesbury, a man of broken fortunes and still more damaged character, but of a wit and hardihood that made his society acceptable to some of high rank and lax morality, and caused his political alliance to be courted by some who desired to be regarded as leaders of a party; many of the transactions of the late reign having, unfortunately, not been favorable to the maintenance of any high standard of either public or private virtue. On Lord Bute's accession to office, Wilkes had set up a periodical paper, whose object and character were sufficiently indicated by its title, The North Briton, and in which the diligence of Lord Bute in distributing places among his kinsmen and countrymen furnished the staple of almost every number; while in many the Princess of Wales herself was not spared, as the cause, for motives not obscurely hinted at, of his sudden elevation. So pertinacious and virulent were the attacks thus launched at him, coinciding as they did, at least in one point, with the prejudices of the multitude, that they were commonly believed to have had some share in driving Lord Bute from office, which, in the spring of 1763, he suddenly resigned, hoping, as it might almost seem, thus to throw on his successor the burden of defending his measures. The most important of these measures had been the conclusion of the Treaty of Versailles, which, when it was first announced to Parliament, had been vehemently attacked in both Houses by Pitt and his followers, but had been approved by large majorities. Wilkes, however, not without reason, believed it to be still unpopular with the nation at large, and, flushed with his supposed victory over Lord Bute, was watching eagerly for some occasion of re-opening the question, when such an opportunity was afforded him by the King's speech at the prorogation of the Parliament, which took place a few days after Lord Bute's resignation.
Lord Bute had been succeeded by Mr. George Grenville, who had for a time been one of his colleagues as Secretary of State; and on him, therefore, the duty devolved of framing the royal speech the opening sentences of which referred to "the re-establishment of peace" in terms of warm self-congratulation, as having been effected "upon conditions honorable to the crown and beneficial to the people." Wilkes at once caught at this panegyric, as affording him just such an opportunity as he had been seeking of renewing his attacks on the government, which he regarded as changed in nothing but the name of the Prime-minister.[[4]] And, four days after the prorogation,[[5]] he accordingly issued a new number of The North Briton (No. 45), in which he heaped unmeasured sarcasm and invective on the peace itself, on the royal speech, and on the minister who had composed it. As if conscious that Mr. Grenville was less inclined by temper than Lord Bute to suffer such attacks without endeavoring to retaliate, he took especial pains to keep within the law in his strictures, and, accordingly, carefully avoided saying a disrespectful word of the King himself, whom he described as "a prince of many great and amiable qualities," "ever renowned for truth, honor, and unsullied virtue." But he claimed a right to canvass the speech "with the utmost freedom," since "it had always been considered by the Legislature and by the public at large as the speech of the minister." And he kept this distinction carefully in view through the whole number. The speech he denounced with bitter vehemence, as "an abandoned instance of ministerial effrontery," as containing "the most unjustifiable public declarations" and "infamous fallacies." The peace he affirmed to be "such as had drawn down the contempt of mankind on our wretched negotiators." And he described the present minister as a mere tool of "the favorite," by whom "he still meditated to rule the kingdom with a rod of iron." But in the whole number there was but one sentence which could be represented as implying the very slightest censure on the King himself, and even that was qualified by a personal eulogy. "The King of England," it said, "is not only the first magistrate of the country, but is invested by the law with the whole executive power. He is, however, responsible to his people for the due execution of the royal functions in the choice of ministers, etc., equally with the meanest of his subjects in his particular duty. The personal character of our present amiable sovereign makes us easy and happy that so great a power is lodged in such hands; but the favorite has given too just cause for him to escape the general odium. The prerogative of the crown is to exert the constitutional power intrusted to it in such a way, not of blind favor and partiality, but of wisdom and judgment. This is the spirit of our constitution. The people, too, have their prerogative; and I hope the fine words of Dryden will be engraven on our hearts, 'Freedom is the English subject's prerogative.'"
These were the last sentences of No. 45. And in the present day it will hardly be thought that, however severe or even violent some of the epithets with which certain sentences of the royal speech were assailed may have been, the language exceeds the bounds of allowable political criticism. With respect to the King, indeed, however accompanied with personal compliments to himself those strictures may have been, it may be admitted that in asserting any responsibility whatever to the people on the part of the sovereign, even for the choice of his ministers, as being bound to exercise that choice "with wisdom and judgment," it goes somewhat beyond the strict theory of the constitution. Undoubtedly that theory is, that the minister chosen by the King is himself responsible for every circumstance or act which led to his appointment. This principle was established in the fullest manner in 1834, when, as will be seen hereafter, Sir Robert Peel admitted his entire responsibility for the dismissal of Lord Melbourne by King William IV., though it was notorious that he was in Italy at the time, and had not been consulted on the matter. But as yet such questions had not been as accurately examined as subsequent events caused them to be; and Wilkes's assertion of royal responsibility to this extent probably coincided with the general feeling on the subject.[[6]] At all events, the error contained in it, and the insinuation that due wisdom and judgment had not been displayed in the appointment of Mr. G. Grenville to the Treasury, were not so derogatory to the legitimate authority and dignity of the crown as to make the writer a fit subject for a criminal prosecution. But Mr. Grenville was of a bitter temper, never inclined to tolerate any strictures on his own judgment or capacity, and fully imbued with the conviction that the first duty of an English minister is to uphold the supreme authority of the Parliament, and to chastise any one who dares to call in question the wisdom of any one of its resolutions. But The North Briton had done this, and more. No. 45 had not only denounced the treaty which both Houses had approved, but had insinuated in unmistakable language that their approval had been purchased by gross corruption (a fact which was, indeed, sufficiently notorious). And, consequently, Mr. Grenville determined to treat the number which contained the denunciation as a seditious libel, the publication of which was a criminal offence; and, by his direction, Lord Halifax, as Secretary of State, issued what was termed a general warrant—a warrant, that is, which did not name the person or persons against whom it was directed, but which commanded the apprehension of "the authors, printers, and publishers" of the offending paper, leaving the officers who were charged with its execution to decide who came under that description, or, in other words, who were guilty of the act charged, before they had been brought before any tribunal. The warrant was executed. Wilkes and some printers were apprehended; Wilkes himself, as if the minister's design had been to make the charge ridiculous by exaggeration, being consigned to the great state-prison of the Tower, such a use of which was generally limited to those impeached of high-treason. And, indeed, the commitment did declare that No. 45 of The North Briton was "a libel tending to alienate the affections of the people from his Majesty, and to excite them to traitorous insurrections against the government." Wilkes instantly sued out a writ of habeas corpus, and was without hesitation released by the Court of Common Pleas, on the legal ground that, "as a member of the House of Commons, he was protected from arrest in all cases except treason, felony, or a breach of the peace;" a decision which, in the next session of Parliament, the minister endeavored to overbear by inducing both Houses to concur in a resolution that "privilege of Parliament did not extend to the case of publishing seditious libels."
In his life of Lord Camden,[[7]] who was Chief-justice of the Common Pleas at the time, Lord Campbell expresses a warm approval of this resolution, as one "which would now be considered conclusive evidence of the law." But, with all respect to the memory of a writer who was himself a Chief-justice, we suspect that in this case he was advancing a position as an author engaged in the discussion of what had become a party question, which he would not have laid down from the Bench.[[8]] The resolution certainly did not make it law, since it was not confirmed by any royal assent; and to interpret the law is not within the province of the House of Commons, nor, except when sitting as a Court of Appeal, of the House of Lords. We may, however, fully agree with the principle which Lord Campbell at the same time lays down, that "privilege of Parliament should not be permitted to interfere with the execution of the criminal law of the country." And this doctrine has been so fully acquiesced in since, that members of both Houses have in more than one instance been imprisoned on conviction for libel.
The legality of the species of warrant under which Wilkes had been arrested was, however, a question of far greater importance; and on that no formal decision was pronounced on this occasion, the Lieutenant of the Tower, in his return to the writ of habeas corpus, and the counsel employed on both sides, equally avoiding all mention of the character of the warrant. But it was indirectly determined shortly afterward. The leaders of the Opposition would fain have had the point settled by what, in truth, would not have settled it—another resolution of the House of Commons. But, though it was discussed in several warm debates, Grenville always contrived to baffle his adversaries, though on one occasion his majority dwindled to fourteen.[[9]] What, however, the House of Commons abstained from affirming was distinctly, though somewhat extra-judicially, asserted by Lord Camden, as Chief-justice of the Common Pleas. Wilkes, with some of the printers and others who had been arrested, had brought actions for false imprisonment, which came to be tried in his court; and they obtained such heavy damages that the officials who had been mulcted applied for new trials, on the plea of their being excessive. But the Chief-justice refused the applications, and upheld the verdict, on the ground that the juries, in their assessment of damages, had been "influenced by a righteous indignation at the conduct of those who sought to exercise arbitrary power over all the King's subjects, to violate Magna Charta, and to destroy the liberty of the kingdom, by insisting on the legality of this general warrant." Such a justification would hardly be admitted now. But, in a subsequent trial, a still higher authority, the Chief-justice of the King's Bench, Lord Mansfield, held language so similar, that, once more to quote the words of Lord Campbell, "without any formal judgment, general warrants have ever since been considered illegal."
However, the release of Wilkes on the ground of his parliamentary privilege gave him but a momentary triumph, or rather respite. The prosecution was not abated by the decision that he could not be imprisoned before trial; while one effect of his liberation was to stimulate the minister to add another count to the indictment preferred against him, on which he might be expected to find it less easy to excite the sympathy of any party. Wilkes had not always confined his literary efforts to political pamphlets. There was a club named the Franciscans (in compliment to Sir Francis Dashwood, Lord Bute's Chancellor of the Exchequer, who, as well as Lord Sandwich, the First Lord of the Admiralty, was one of its members), which met at Medmenham Abbey, on the banks of the Thames, and there held revels whose license recalled the worst excesses of the preceding century. To this club Wilkes also belonged; and, in indulgence of tastes in harmony with such a brotherhood, he had composed a blasphemous and indecent parody on Pope's "Essay on Man," which he entitled "An Essay on Woman," and to which he appended a body of burlesque notes purporting to be the composition of Pope's latest commentator, the celebrated Dr. Warburton, Bishop of Gloucester. He had never published it (indeed, it may be doubted whether, even in that not very delicate age, any publisher could have been found to run the risk of issuing so scandalous a work), but he had printed a few copies in his own house, of which he designed to make presents to such friends as he expected to appreciate it. He had not, however, so far as it appears, given away a single copy, when, on the very first day of the next session of Parliament, Lord Sandwich himself brought the parody under the notice of the House of Lords. If there was a single member of the House whose delicacy was not likely to be shocked, and whose morals could not be injured by such a composition, it was certainly Lord Sandwich himself; but his zeal as a minister to support his chief kindled in him a sudden enthusiasm for the support of virtue and decency also; and, having obtained a copy by some surreptitious means, he now made a formal complaint of it to the House, contending that the use of the name of the Bishop of Gloucester as author of the notes constituted a breach of the privileges of the House. And he was seconded by the bishop himself, whose temper and judgment were, unhappily, very inferior to his learning and piety. It is recorded that he actually compared Wilkes to the devil, and then apologized to Satan for the comparison. But the Lords were in a humor to regard no violence against Wilkes as excessive; and, submitting to the guidance of the minister and the prelate, resolved that the "Essay on Woman,"[[10]] as also another poem by the same writer, a paraphrase of the "Veni Creator," was "a most scandalous, obscene, and impious libel," and presented an address to the King, requesting his Majesty "to give the most effectual orders for the immediate prosecution of the author." And, in the course of the next few weeks, the House of Commons outran the peers themselves in violence and manifest unfairness. They concurred with the Lords in ordering No. 45 of The North Briton to be burnt by the common hangman, an order which was not carried out without great opposition on the part of the London populace, who made it the occasion of a very formidable riot, in which the sheriffs themselves incurred no little danger; and, by another resolution, they ordered Wilkes to attend in his place to answer the charge of having published the two works. But at the time when they made this order it was well known that he could not obey it. A few days before he had been challenged by a Mr. Martin, who till very recently had been one of the Secretaries of the Treasury, and who was generally believed to have prepared himself for the conflict by diligent practice with a pistol; and in the duel which ensued Wilkes had been severely wounded. It was not only notorious that he had been thus disabled, but he sent a physician and surgeon of admitted eminence in their profession, and of unquestioned honor, to testify to the fact at the bar of the House; and subsequently he forwarded written certificates to the same purport from some French doctors who had special knowledge of gunshot wounds. But the Commons declined to accept this evidence as sufficient, and directed two other doctors to examine him. Wilkes, however, refused to admit them: his refusal was treated as a sufficient ground for pronouncing him "guilty of a contempt of the authority of the House," and for deciding on his case in his absence; and, on the 19th of January, before the case had come on for trial, a resolution was carried that "Mr. Wilkes was guilty of writing and publishing The North Briton (No. 45), which this House had voted to be a false, scandalous, and seditious libel, and that, for the said offence, he be expelled the House." At a later period of the year, he was tried on the two charges of publishing No. 45 and the "Essay on Woman," was found guilty of both, and, as he did not appear to receive judgment, in November, 1764, he was outlawed.
So far, it may be said to have been a drawn battle. If, on the one hand, the minister had procured the expulsion of Wilkes, on the other hand Wilkes had gained great notoriety and a certain amount of sympathy, and had, moreover, enriched himself by considerable damages; and again, if the nation at large was a gainer by the condemnation of general warrants, even that advantage might be thought to be dearly gained by the discredit into which the Parliament had fallen through its intemperance. But the contest between Wilkes and the ministry was only closed for a time; and when it was revived, a singular freak of fortune caused the very minister who had led the proceedings against him on this occasion to appear as his advocate. To avoid the consequences of his outlawry, he had taken up his abode in Paris, waiting for a change of ministry, which, as he hoped, might bring into power some to whom he might look for greater favor. But when, though in the course of the next two years two fresh administrations were formed, it was seen that neither Lord Rockingham, the head of the first, nor the Duke of Grafton and Mr. Pitt (promoted to the Earldom of Chatham), the heads of the second, had any greater sympathy with him than Mr. Grenville, he became desperate, and looked out for some opportunity of giving effect to his discontent. He found it in the dissolution of Parliament, which took place in the spring of 1768. In spite of his outlawry, he instantly returned to England, and offered himself as a candidate for London. There, indeed, he did not succeed, though the populace was uproarious in his support, and drew his carriage through the streets as if in triumph. But, before the end of the month, he was returned at the head of the poll for Middlesex, when the mob celebrated his victory by great riot and outrages, breaking the windows of Lord Bute, as his old enemy, and of the Lord Mayor, as the representative of the City of London, which had rejected him, and insulting, and even in some instances beating, passers-by who refused to join in their cheers for "Wilkes and Liberty."
He had already pledged himself to take the necessary steps to procure the reversal of his outlawry; and, in pursuance of his promise, he surrendered in the Court of King's Bench. But his removal to prison caused a renewal of the tumults with greater violence than before. The mob even rescued him from the officers who had him in custody; and when, having escaped from his deliverers, he, with a parade of obedience to the law, again surrendered himself voluntarily at the gate of the King's Bench Prison, they threatened to attack the jail itself, kindled a fire under its walls, which was not extinguished without some danger, and day after day assembled in such tumultuous and menacing crowds, that at last Lord Weymouth, the Secretary of State, wrote a letter to the Surrey magistrates, enjoining them to abstain from no measures which might seem necessary for the preservation of peace, even if that could only be effected by the employment of the soldiery. The riots grew more and more formidable, till at last the magistrates had no resource but to call out the troops, who, on one occasion, after they had been pelted with large stones, and in many instances severely injured, fired, killing or wounding several of the foremost rioters. So tragical an event seemed to Wilkes to furnish him with exactly such an opportunity as he desired to push himself into farther notoriety. He at once printed Lord Weymouth's letter, and circulated it, with an inflammatory comment, in which he described it as a composition having for its fruit "a horrid massacre, the consummation of a hellish plot deliberately planned." Too angry to be prudent, Lord Weymouth complained to the House of Lords of this publication as a breach of privilege, and the Lords formally represented it to the House of Commons as an insult deliberately offered to them by one of its members. There could be no doubt that such language as Wilkes had used was libellous. In its imputation of designs of deliberate wickedness, it very far exceeded the bitterest passages of The North Briton; and Lord Weymouth's colleagues, therefore, thought they might safely follow the precedent set in 1764, of branding the publication as a libel, and again procuring the expulsion of the libeller from the House of Commons. There were circumstances in the present case, such as the difference between the constituencies of Aylesbury and Middlesex, and the enthusiastic fervor in the offender's cause which the populace of the City had displayed, which made it very doubtful whether the precedent of 1764 were quite a safe one to follow; but the ministers not only disregarded every such consideration, but, as if they had wantonly designed to give their measure a bad appearance, and to furnish its opponents with the strongest additional argument against it, they mixed up with their present complaint a reference to former misdeeds of Wilkes with which it had no connection. On receiving the message of the Lords, they had summoned him to appear at the bar of the House of Commons, that he might be examined on the subject; but this proceeding was so far from intimidating him, that he not only avowed the publication of his comment on Lord Weymouth's letter, but gloried in it, asserting that he deserved the thanks of the people for bringing to light the true character of "that bloody scroll." Such language was regarded as an aggravation of his offence, and the Attorney-general moved that his comment on the letter "was an insolent, scandalous, and seditious libel;" and, when that motion had been carried, Lord Barrington followed it up with another, to the effect that "John Wilkes, Esq., a member of this House, who hath at the bar of this House confessed himself to be the author and publisher of what the House has resolved to be an insolent, scandalous, and seditious libel, and who has been convicted in the Court of King's Bench of having printed and published a seditious libel, and three[[11]] obscene and impious libels, and by the judgment of the said Court has been sentenced to undergo twenty-two months' imprisonment, and is now in execution under the said judgment, be expelled this House." This motion encountered a vigorous opposition, not only from Mr. Burke and the principal members of the Rockingham party, which now formed the regular Opposition, but also from Mr. Grenville, the former Prime-minister, who on the former occasion, in 1764, had himself moved the expulsion of the same offender. His speech on this occasion is the only one which is fully reported; and it deserved the distinction from the exhaustive way in which it dealt with every part of the question. It displayed no inclination to extenuate Wilkes's present offence, but it pointed out with great force the circumstance that the supporters of the motion were far from agreement as to the reasons by which they were guided; that some members of the greatest authority in the House, while they had avowed their intention of voting for the expulsion, had at the same time been careful to explain that the comment on Lord Weymouth's letter was not the ground of their vote; that so great a lawyer as Mr. Blackstone had asserted that that comment "had not been properly and regularly brought before the House," but had founded his intention to vote for the expulsion solely "upon that article of the charge which related to the three obscene and impious libels mentioned in it, disavowing in the most direct terms all the other articles." That, on the other hand, other members of deserved weight and influence, such as Lord Palmerston and Lord F. Campbell, had disdained the idea of regarding "the article of the three obscene and impious libels as affording any ground for their proceeding." So practised a debater as Mr. Grenville had but little difficulty, therefore, in arguing against the advocates of expulsion, when they were so divided that one portion of them did, in fact, reply to the other. But it would be superfluous here to enter into the arguments employed on either side to justify the expulsion, or to prove it to be unjustifiable, from a consideration of the character of either Wilkes or his publication. The strength and importance of Mr. Grenville's speech lay in the constitutional points which it raised.
Some supporters of the ministers had dwelt upon the former expulsion, insisting that "a man who had been expelled by a former House of Commons could not possibly be deemed a proper person to sit in the present Parliament, unless he had some pardon to plead, or some merit to cancel his former offences." By a reference to the case of Sir R. Walpole, Mr. Grenville proved that this had not been the opinion of former Parliaments; and he contended, with unanswerable logic, that it would be very mischievous to the nation if such a principle should be now acted on, and such a precedent established, since, though employed in the first instance against the odious and the guilty, it might, when once established, be easily applied to, and made use of against, the meritorious and the innocent; and so the most eminent and deserving members of the state, under the color of such an example, by one arbitrary and discretionary vote of one House of Parliament, the worst species of ostracism, might be excluded from the public councils, cut off and proscribed from the rights of every subject of the realm, not for a term of years alone, but forever. He quoted from "L'Esprit des Lois" an assertion of Montesquieu, that "one of the excellences of the English constitution was, that the judicial power was separated from the legislative, and that there would be no liberty if they were blended together; the power over the life and liberty of the citizens would then be arbitrary, for the judge would be the legislator." And, having thus proved that it would be a violation of the recognized constitution to found a second expulsion on the first, he proceeded to argue that to expel him for this new offence would be impolitic and inexpedient, as a step which would inevitably lead to a contest with the constituency which he represented, since, "in the present disposition of the county of Middlesex, no one could entertain a doubt that Wilkes would be re-elected. The House would then probably think itself under a necessity of again expelling him, and he would as certainly be again re-elected. The House might, indeed, refuse to issue a new writ, which would be to deprive the freeholders of Middlesex of the right of choosing any other representative; but he could not believe that the House would think it fit to inflict such a punishment on the electors of a great county. Should it not do so, the other alternative would be to bring into the House as representative and knight of the shire for Middlesex a man chosen by a few voters only, in contradiction to the declared sense of a great majority of the freeholders on the face of the poll, upon the supposition that all the votes of the latter were forfeited and thrown away on account of the expulsion of Mr. Wilkes." It seemed premature to discuss that point before it arose, and therefore the Speaker contented himself for the present with saying that "he believed there was no example of such a proceeding; and that, if it should appear to be new and unfounded as the law of the land, or even if any reasonable doubt could be entertained of its legality, the attempt to forfeit the freeholders' votes in such a manner would be highly alarming and dangerous."
Few prophecies have been more exactly fulfilled. The House did expel Mr. Wilkes; he did offer himself for re-election, and was re-elected; and the minister, in consequence, moved and carried a resolution that "John Wilkes, Esq., having been, in this session of Parliament, expelled this House, was and is incapable of being elected a member to serve in this present Parliament." And, in pursuance of this vote, a writ was again issued. At the end of another month the proceeding required to be repeated. Wilkes had again offered himself for re-election. No other candidate had presented himself, and, in answer to an inquiry, the under-sheriff reported that "no other candidate had been proposed but John Wilkes, Esq., and that no elector had given or tendered his vote for any other person." Once more the House resolved that he was "incapable of being elected," and issued a new writ. But on this second occasion the ministry had provided a rival candidate in the person of the Honorable H.K. Luttrell. He was duly proposed and seconded; a poll was taken and kept open for several days, and, as it appeared at the close that 1143 votes had been given for Wilkes and 296 for Mr. Luttrell, the sheriff again returned Wilkes as duly elected.
A debate of singularly angry excitement arose on the reception of this return. Even lawyers, such as Mr. De Grey, the Attorney-general, and Sir Fletcher Norton, who had been Attorney-general, were not ashamed to denounce the conduct of the sheriff in returning Mr. Wilkes as "highly improper and indecent," as "a flying in the face of a resolution of the House of Commons;" and Sir Fletcher even ventured to advance the proposition that, "as the Commons were acting in a judicial capacity, their resolutions were equal to law." Lord North, too, the Chancellor of the Exchequer, as we learn from the "Parliamentary History," "spoke long, but chiefly to the passions. He described Mr. Wilkes and his actions in a lively manner; showed the variety of troubles which he had given the ministry; and that unless, by voting in Mr. Luttrell, an end were put to this debate, the whole kingdom would be in confusion; though he owned that he did not think that measure would put an end to the distractions. He spoke much more to the expediency than to the legality of the measure proposed."
On the other side, it was contended by several members, Burke and Mr. Grenville being of the number, that "the House of Commons alone could not make a law binding any body but themselves. That, if they could disqualify one person, they could disqualify as many as they pleased, and thus get into their own hands the whole power of the government;" and precedents were produced to prove that votes of the House of Lords, and also of the House of Commons, regarding their own members, had been disregarded by the judges of the Court of King's Bench as being contrary to law. But the minister was secure of the steadiness of his adherents, and a majority of 221 to 152 declared that Mr. Luttrell had been duly elected.
But Lord North was correct in his anticipation that their vote would not put an end to the agitation on the question, and it was renewed in the next session in a manner which at one time threatened to produce a breach between the two Houses.
The "Parliamentary History" closes its report of the debate on the resolution by which Mr. Luttrell was seated with a summary of the arguments used in it, taken from the "Annual Register," which, as is universally known, was at this time edited by Mr. Burke. It is a very fair and candid abstract, which, in fact, puts the whole question on one single issue, "that the House of Commons is the sole court of judicature in all cases of election, and that this authority is derived from the first principles of our government, viz., the necessary independence of the three branches of the Legislature." But, though that doctrine was fully admitted by the Opposition, they made "that very admission a ground for reviving the question in the next session, by moving for a resolution which should declare that, 'being a Court of Judicature, the House of Commons, in deciding matters of election, was bound to judge according to the law of the land, and the known and established law of Parliament, which was part thereof.'" It was understood that this resolution, if carried, was intended as a stepping-stone to others which should condemn the decision of the previous session; yet it seemed such a truism that even the ministers could not venture to deny it; but they proposed to defeat the object of its framers by adding to it a declaration that the late decision was "agreeable to the said law of the land." And we might pass on to the subsequent debate, in which the constitutional correctness of that addition was distinctly challenged, did it not seem desirable to notice two arguments which were brought forward against the motion, one by an independent member, Mr. Ongley, the other by the Attorney-general. Mr. Ongley contended that "a power of preserving order and decency is essentially necessary to every aggregate body; and, with respect to this House, if it had not power over its particular members, they would be subject to no control at all." The answer to this argument is obvious: that a right on the part of the House to control the conduct of its members is a wholly different thing from a right to determine who are or ought to be members; and that for the House to claim this latter right, except on grounds of qualification or disqualification legally proved, would be to repeat one of the most monstrous of all Cromwell's acts of tyranny, when, in 1656, he placed guards at the door of the House, with orders to refuse admission to all those members whom, however lawfully elected, he did not expect to find sufficiently compliant for his purposes. Mr. De Grey's argument was of a different character, being based on what he foretold would be the practical result of a decision that expulsion did not involve an incapacity to be re-elected. If it did not involve such incapacity, and if, in consequence, Mr. Wilkes should be re-elected, he considered that the House would naturally feel it its duty to re-expel him as often as the constituency re-elected him. But one answer given to this argument was, that to expel a second time would be to punish twice for one offence, a proceeding at variance not only with English law but with every idea of justice. Another, and one which has obtained greater acceptance, was, that the legitimate doctrine was, that the issue of a new writ gave the expelled member an appeal from the House to the constituency, and that the constituency had a constitutional right to overrule the judgment of the House, and to determine whether it still regarded the candidate as its most suitable representative.
The ministers, however, were, as before, strong enough in the House to carry their resolution. But the Opposition returned to the charge, taking up an entirely different though equally general position, "That, by the law of the land and the known law and usage of Parliament, no person eligible by common right can be incapacitated by vote or resolution of this House, but by act of Parliament only." It is remarkable that, in the debate which ensued, two members who successively rose to the dignity of Lord Chancellor, Mr. Thurlow and Mr. Wedderburn, took different sides; but nothing could shake the ministerial majority. The resolution was rejected. And when Lord Rockingham proposed the same resolution in the House of Lords, though it was supported by all the eloquence of Lord Chatham, he was beaten by a majority of more than two to one, and the ministers even carried a resolution declaring "that any interference of the House of Lords with any judgment of the House of Commons, in matters of election, would be a violation of the constitutional rights of the Commons."
Even these decisive defeats of the Opposition did not finally terminate the struggle. The notoriety which Wilkes had gained had answered his purpose to no slight extent. The City had adopted his cause with continually increasing earnestness and effect. It had made him Sheriff, Alderman, Lord Mayor, and had enriched him with the lucrative office of City Chamberlain; and, as one of the City magistrates, he subsequently won the good opinion of many who had previously condemned him, by his conduct during the Gordon Riots, in which he exerted his authority with great intrepidity to check and punish the violence of the rioters. And when, in 1782, Lord Rockingham became, for the second time, Prime-minister, he thought he might well avail himself of the favor he had thus acquired, and of the accession to office of those whom the line which they had formerly taken bound to countenance him, to bring forward a motion for the expunction of the resolutions against him which had been passed in 1770. It was carried by a largo majority; and though this was as evidently a party division as those had been by which he had been defeated twelve years before, still, as the last resolution on the subject, it must be regarded as decisive of the law and practice of Parliament, and as having settled the doctrine that expulsion does not incapacitate a member who has been expelled from immediate re-election.[[12]]
The establishment of this rule, and the abolition of general warrants, were, however, not the only nor the most important result of these proceedings. They led indirectly to an innovation which, it is hardly too much to say, has had a greater influence on the character and conduct of Parliament, and indeed on the whole subsequent legislation of the country, than can be attributed to any other single cause. Hitherto the bulk of the people had enjoyed but very scanty and occasional means of acquiring political education. At times of vehement political excitement, or any special party conflict, pamphlets and periodical essays had enlightened their readers—necessarily a select and small body—on particular topics. But standing orders of both Houses, often renewed, strictly forbade all publication of the debates which took place in either. To a certain extent, these orders had come to be disregarded and evaded. Almost ever since the accession of the House of Brunswick, a London publisher had given to the world an annual account of the Parliamentary proceedings and most interesting discussions of the year; and before the middle of the reign of George II, two monthly magazines had given sketches of speeches made by leading members of each party. The reporters, however, did not venture to give the names of the speakers at full length, but either disguised them under some general description, or at most gave their initials; and sometimes found that even this profession of deference to the standing orders did not insure them impunity. As late as the year 1747, Cave, the proprietor and editor of the Gentleman's Magazine, was brought to the bar of the House of Commons for publishing an account of a recent debate, and only obtained his release by expressions of humble submission and the payment of heavy fees. The awe, however, which his humiliation and peril had been intended to diffuse gradually wore off; the keen interest which was awakened by the ministerial changes at the beginning of the reign of George III., which have been already mentioned, naturally prompted a variety of efforts to gratify it by a revelation of the language concerning them which was held by statesmen of different parties; and these revelations were no longer confined to yearly or monthly publications. More than one newspaper had of late adopted the practice of publishing what it affirmed to be a correct report of the debates of the previous day, though, in fact, each journal garbled them to suit the views of the party to which it belonged, and, to quote the words of the historian of the period, "misrepresented the language and arguments of the speakers in a manner which could hardly be considered accidental."[[13]] The speakers on the ministerial side in the debates on the Middlesex election had been especial objects of these misrepresentations; and, at the beginning of 1771, one of that party, Colonel Onslow, M.P. for Guilford, brought the subject before the House, complaining that many speeches, and his own among them, had been misrepresented by two newspapers which he named, and that "the practice had got to an infamous height, so that it had become absolutely necessary either to punish the offenders or to revise the standing orders."[[14]] And he accordingly moved "that the publication of the newspapers of which he complained was a contempt of the orders and a breach of the privileges of the House, and that the printers be ordered to attend the House at its next sitting." The habitual unfairness of the reports was admitted by the Opposition; but the publishers complained of evidently felt assured of their sympathy (which, indeed, was sufficiently, and not very decorously, shown by its leaders inflicting on the House no fewer than twenty-three divisions in a single night), and, relying on their countenance, they paid no attention to the order of the House. A fresh order for their arrest having been issued, the Sergeant-at-arms reported that he had been unable to execute it, by reason of their absence from their homes; on which the House, not disposed to allow itself to be thus trifled with, now addressed his Majesty with a request that he would issue his royal proclamation for their apprehension. And Colonel Onslow made a fresh motion, with a similar complaint of the publishers of six more newspapers—"three brace," as he described them in language more sportsman like than parliamentary. Similar orders for their appearance and, when these were disregarded, for their apprehension, were issued. And at last one of those who had been mentioned in the royal proclamation, Mr. Wheble, printer of the Middlesex Journal, was apprehended by an officer named Carpenter, and carried before the sitting magistrate at Guildhall, who, by a somewhat whimsical coincidence, happened to be Alderman Wilkes. Wilkes not only discharged him, on the ground that there was "no legal cause of complaint against him," but when Wheble, in retaliation, made a formal complaint of the assault committed on him by Carpenter in arresting him, bound Wheble over to prosecute, and Carpenter to answer the complaint, at the next quarter sessions, and then reported what he had done in an official Letter to the Secretary of State. Thomson, another printer, was in like manner arrested; and, when brought before Mr. Oliver, another alderman, was discharged by him. And when, a day or two afterward, a third (Mr. Miller) was apprehended by Whetham, a messenger of the House of Commons, Mr. Brass Crosby, the Lord Mayor, and the two Aldermen, signed a warrant committing Whetham to prison for assaulting Miller. Whetham was bailed by the Sergeant-at-arms, who reported what had occurred to the House; and the House, as the Lord Mayor and Alderman Oliver were members of it, as representatives for London and Honiton, ordered that they should attend the House in their places, to explain their conduct, and that Mr. Wilkes should attend at the bar of the House. Wilkes, declining to recognize the validity of the resolutions which had seated Colonel Luttrell for Middlesex, refused compliance with such an order, writing a letter to the Speaker, in which he "observed that no notice was taken of him as a member of the House; and that the Speaker's order did not require him to attend in his place." And he "demanded his seat in Parliament, and promised, when he had been admitted to his seat, to give the House a most exact detail of his conduct." But the Lord Mayor pleaded the charters of the City as a justification of his act in releasing a citizen of London who had been arrested on a warrant which had not been backed by a City magistrate, and demanded to be heard by counsel in support of his plea. His demand, however, was refused, and he and Alderman Oliver were committed to the Tower; but, as if the ministers were afraid of re-opening the question of Colonel Luttrell's election for Middlesex, they evaded taking notice of Wilkes's disobedience to their order by a singularly undignified expedient, issuing a fresh order for his appearance on the 8th of April, and adjourning till the 9th.
The ministers now moved the appointment of a select committee to investigate the whole affair; and the committee, before the end of the month, made an elaborate report, which, however, abstained from all mention of the offence committed by the printers, and confined itself to an assertion that "the power and authority of the House to compel the attendance of any commoner had ever extended as well to the City of London, without exception on account of charters from the crown or any pretence of separate jurisdiction, as to every other part of the realm." And this assertion may be regarded as having been uphold by the refusal of the judges to release the Lord Mayor and Alderman when they sued out writs of habeas corpus; and they consequently remained prisoners in the Tower till they were released by the prorogation.
But with this report of the committee the matter was suffered to drop. The transaction had caused almost unprecedented excitement, which was not confined to the City, for the grand-juries of many English counties and a committee of the Dublin merchants showed their sympathy with the Opposition by sending up addresses to the imprisoned City magistrates; and the ministers had a prudent fear of keeping alive an agitation which had not been always free from danger to the public tranquillity.[[15]] In effect, the victory remained with the Opposition. No farther attempt was made to punish any of the printers; and, though the standing orders which forbid such publication have never been formally repealed, ever since that time the publishers of newspapers and other periodicals have been in the constant habit of giving regular details of the proceedings of both Houses of Parliament. And one enterprising publisher, Mr. Hansard, has for many years published a complete record of the debates in both Houses, which is continually appealed to in the Houses themselves, by members of both parties, as a manual of political and parliamentary history.
The practice, as it now prevails, is one of the many instances of the practical wisdom with which this nation often deals with difficult subjects. The standing order is retained as an instrument which, in certain cases, it may possibly be expedient to employ; as, in fact, it has been employed in one or two instances in the present reign, when matters have been under consideration which, however necessary to be discussed, were of such a nature that the publication of the details into which some speakers deemed it desirable to go was regarded by others as calculated to be offensive to the taste, if not injurious to the morals, of the community at large. But the very fact of such an occasional enforcement of the standing orders under very peculiar circumstances implies a recognition of the propriety of its more ordinary violation; of the principle that publication ought to be the general rule, and secrecy the unusual exception. And, indeed, it is, probably, no exaggeration to say that such publication is not only valuable, as the best and chief means of the political education of the people out-of-doors, but is indispensable to the working of our parliamentary system such as it has now become. The successive Reform Bills, which have placed the electoral power in the hands of so vast a body of constituents as was never imagined in the last century, have evidently regarded the possession by the electors of a perfect knowledge of the language held and the votes given by their representatives as indispensable to the proper exercise of the franchises which they have conferred. And, even if there had previously been no means provided for their acquisition of such information, it is certain that the electors would never have consented to be long kept in the dark on subjects of such interest. In another point of view, the publication of the debates is equally desirable, in the interest of the members themselves, whether leaders or followers of the different parties. Not to mention the stimulus that it affords to the cultivation of eloquence—an incentive to which even those least inclined or accustomed to put themselves forward are not entirely insensible—it enables the ministers to vindicate their measures to the nation at large, the leaders of the Opposition to explain their objections or resistance to those measures in their own persons, and not through the hired agency of pamphleteers, and each humbler member to prove to his constituents the fidelity with which he has acted up to the principles his assertion of which induced them to confide their interests and those of the kingdom to his judgment and integrity. Secrecy and mystery may serve, or be supposed to serve, the interests of arbitrary rulers; perfect openness is the only principle on which a free constitution can be maintained and a free people governed.
It seems convenient to take all the measures which, in this first portion of the reign before us, affected the proceedings or constitution of Parliament together; and, indeed, one enactment of great importance, which was passed in 1770, it is hardly unreasonable to connect in some degree with the decision of the House which adjudged the seat for Middlesex to Colonel Luttrell. Ever since the year 1704 it had been regarded as a settled point that the House of Commons had the exclusive right of determining every question concerning the election of its members. But it was equally notorious that it had exercised that right in a manner which violated every principle of justice and even of decency. Election petitions were decided by the entire House, and were almost invariably treated as party questions, in which impartiality was not even professed. Thirty years before, the Prime-minister himself (Sir Robert Walpole) had given notice to his supporters that "no quarter was to be given in election petitions;" and it was a division on one petition which eventually drove him from office. There was not even a pretence made of deciding according to evidence, for few of the members took the trouble to hear it. A few years after the time of which we are speaking, Lord George Germaine thus described the mode of proceeding which had previously prevailed: "The managers of petitions did not ask those on whose support they calculated to attend at the examination of witnesses, but only to let them know where they might be found when the question was going to be put, that they might be able to send them word in time for the division." The practice had become a public scandal, by which the constituencies and the House itself suffered equally—the constituencies, inasmuch as they were liable to be represented by one who was in fact only the representative of a minority; the House itself, since its title to public confidence could have no solid or just foundation but such as was derived from its members being in every instance the choice of the majority. Yet, so long as petitions were judged by the whole House, there seemed no chance of the abuse being removed, the number of judges conferring the immunity of shamelessness on each individual. To remedy such a state of things, in the spring of 1770 Mr. G. Grenville brought in a bill which provided for the future trial of all such petitions by a select committee of fifteen members, thirteen of whom should be chosen by ballot, one by the sitting member whose seat was petitioned against, and one by the petitioner. The members of the committee were to take an oath to do justice similar to that taken by jurymen in the courts of law; and the committee was to have power to compel the attendance of witnesses, to examine them on oath, and to enforce the production of all necessary papers; it was also to commence its sittings within twenty-four hours of its appointment, and to sit from day to day till it should be prepared to present its report. It was not to the credit of the ministers that they made the passing of such a bill a party question. The abuse which it was designed to remedy was notorious, and Mr. Grenville did not exaggerate its magnitude when he declared that, "if it were not checked, it must end in the ruin of public liberty." He was supported by Burke, and by two lawyers, Mr. Dunning and Mr. Wedderburn, both destined to rise to some of the highest offices in their profession; but he was opposed by the Attorney-general, by Lord North, as leader of the House, and by Mr. Fox—not yet turned into a patriot by Lord North's dismissal of him from office. The debates, both in the whole House and in committee, were long and earnest. Some of the ministerial underlings were not ashamed to deny the necessity of any alteration in the existing practice; but their more favorite argument was founded on the impropriety of the House "delegating its authority to a committee," which was asserted to be "an essential alteration of the constitution of the House of Commons." Lord North himself had too keen an instinct of propriety to deny the existence of a great evil, and contented himself with pleading for time for farther consideration; while the Attorney-general confined his objections to some details of the bill, which it would be easy to amend. Others, with too accurate a foresight, doubted the efficacy of the measure, and prophesied that the additional sanction of the oath, by which its framer hoped to bind the committees to a just and honest decision, would, "like oaths of office and Custom-house oaths, soon fall into matters of form, and lose all sanction, and so make bad worse." On the other hand, besides the arguments founded on the admitted greatness of the evil to be remedied, it was shown that the institution of committees, such as the bill proposed the appointment of, was sanctioned by numerous precedents; and though the committees—sometimes consisting of as many as two hundred members—were by far too large to make it probable that all would bestow a careful attention on the whole case, there was "nothing in the journals of the House to show that their decisions were not regarded as final, or as requiring no subsequent confirmation from the whole House." Generally speaking, Lord North could trust the steadiness of his majority; but, to his great surprise, on this occasion he found himself deserted by the country gentlemen, who voted in a body for the bill, although their spokesman, Sir W. Bagot, had been in no slight degree offended by some remarks of Burke, who, with a strange imprudence, had claimed a monopoly of the title of "friends of the constitution" for himself and his party, and had sneered at the country gentlemen, as "statesmen of a very different description, though, by a late description given of them, a Tory was now the best species of Whig." And the union of the two bodies proved irresistible; the bill was carried by a majority of sixty-two, and the government did not venture to carry on their resistance to it in the House of Lords, any interference by which would, indeed, have been resented by the Commons, as a violation of their privileges.
At first the duration of the bill was limited to seven years; but in 1774 it was made perpetual by a still larger majority, the experience of its working having converted many who had at first opposed it, but who now bore willing testimony to its efficacy. Unhappily, though the House could make the bill perpetual, at least till formally repealed, it could not invest its good effects with equal durability. After a time, the same complaints were advanced against the decision of election committees that had formerly been employed to discredit the judgments of the whole House. The success or failure of a petition again became a party question; and as in a committee of an odd number the ministerialists or the Opposition must inevitably have a majority of at least one member, before the end of the reign it had become as easy to foretell the result of a petition from the composition of the committee as it had been in the time of Walpole. And it was with the approval of almost all parties—an approval extorted only by the absolute necessity of the case—that, after one or two modifications of Mr. Grenville's act had been tried, Mr. Disraeli induced the House to surrender altogether its privilege of judging of elections, and to submit the investigations of petitions on such subjects to the only tribunal sufficiently above suspicion to command and retain the confidence of the nation, the judges of the high courts of law.
We shall probably be doing the House of Commons of the day no injustice, if we surmise that the degree in which public attention had recently been directed to the representation, and the interest which the people were beginning to show in the purity of elections, as the principle on the maintenance of which the very liberties of all might depend, had some share in leading the House to establish the wholly new, though most necessary, precedent of punishing a constituency for habitual and inveterate corruption. It may be called the first fruits of Mr. Grenville's act. At the end of the same year in which that statute had been passed, a select committee had sat to try the merits of a petition which complained of an undue return for the borough of New Shoreham. And its report brought to light an organized system of corruption, which there was too much reason to fear was but a specimen of that which prevailed in many other boroughs as yet undetected. It appeared from the report, founded as it was on the evidence and confession of many of the persons inculpated, that a society had long existed in New Shoreham, entitled the Christian Club, which, under this specious name, was instituted, as they frankly acknowledged, for the express purpose of getting as much money as possible at every election from the candidates they brought in. The members of the club were under an oath and bond of £500 not to divulge the secrets of the club, and to be bound by the majority. On every election, a committee of five persons was nominated by the club to treat with the candidates for as much money as they could get. And, in pursuance of this system, when, on the death of Sir Stephen Cornish, one of the members for the borough, five candidates offered themselves to supply the vacancy, this committee of five opened negotiations with them all. The offers of the rival purchasers were liberal enough. One (General Smith) proposed to buy the entire club in the lump for £3000, adding a promise to build 600 tons of shipping in the town. A second (a Mr. Rumbold) was willing to give every freeman £35; and his offer was accepted by the committee, who, however, cautioned him that no freeman was entitled to the money who was not a member of the Christian Club. He willingly agreed to this limitation of his expenditure, and both he and the club regarded the matter as settled. He paid every freeman who belonged to the club his stipulated bribe, and on the polling day they tendered eighty-seven votes in his favor, the entire constituency being something under one hundred and fifty. The general, finding his £3000 declined, did not go to the poll; but a Mr. Purling and Mr. James did, the latter polling only four votes, the former only thirty-seven. What bribe Mr. Purling had given was never revealed; but by some means or other he had contrived to render himself the most acceptable of all the candidates to Mr. Roberts, the returning officer. Roberts had himself been a member of the Christian Club, but had quarrelled with it, and on the day of the election, as Rumbold's voters came up, he administered to each of them the oath against bribery. They took it without scruple; but he took it on himself to pronounce seventy-six of them disqualified, and to refuse their votes; and, having thus reduced Mr. Rumbold's voters to eleven, he returned Mr. Purling as duly elected.
Mr. Rumbold, not unnaturally, petitioned against such a return; when Mr. Roberts admitted the facts alleged against him, but pleaded that he had acted under the advice of counsel, who had assured him that it was within his own discretion to admit or to refuse any votes that might be tendered, and that he might lawfully refuse any "which in his own mind he thought illegal." It is a striking proof of the laxity which prevailed on every quarter in electioneering practices, that the House, to a great extent, admitted his justification or excuse as valid. By a strange stretch of lenity, they gave him credit for an honest intention, and contented themselves with ordering him to be reprimanded by the Speaker. But the case of the bribed freemen and of the borough generally was too gross to be screened by any party. All agreed that the borough must be regarded as incurably corrupt, and deserving of heavy punishment. The Attorney-general was ordered to prosecute the five members of the managing committee for "an illegal and corrupt conspiracy;" and a bill was brought in to disfranchise and declare forever incapable of voting at any election eighty-one freemen who had been proved to have received bribes, and to punish the borough itself, by extending the right of voting at future elections to all the freeholders in the rape of Bramber, the district of Sussex in which New Shoreham lies, an arrangement which reduced the borough itself to comparative insignificance. Mr. Fox opposed the bill, on the ground that the offence committed could be sufficiently punished by the ordinary courts of law. But he stood alone in his resistance; the bill was passed, and a salutary precedent was established; the penalty inflicted on New Shoreham being for many years regarded as the most proper punishment for all boroughs in which similar practices were proved to prevail.
And it might have continued to be thought so, had corruption been confined to the smaller boroughs; but there was no doubt that in many large towns corruption was equally prevalent and inveterate, while there were also many counties in which the cost of a contest was by far too large to be accounted for by any legitimate causes of expenditure. And consequently, as time wore on, severer measures were considered necessary. Some boroughs were deprived of the right of election altogether; in others, whose population or constituency was too numerous to make their permanent disfranchisement advisable, the writ was suspended for a time, that its suspension might serve both as a punishment and as a warning, a practice which is still not unfrequently adopted. But no plan could be devised for dealing with the evil in counties, till what seemed hopeless to achieve by direct legislation was, in a great degree, effected by the indirect operation of the Reform Bill of 1832. The shortening of the duration of an election, which was henceforth concluded in a single day, and the multiplication of polling places, which rendered it impossible to ascertain the progress of the different candidates till the close of the poll, were provisions having an inevitable and most salutary effect in diminishing alike the temptation to bribe on the part of the candidate, and the opportunity of enhancing the value of his vote by the elector. The vast increase of newspapers, by diffusing political education and stimulating political discussion, has had, perhaps, a still greater influence in the same direction. And, as bribery could only be brought to bear on electors too ignorant to estimate the importance of the exercise of the franchise by any higher test than the personal advantage it might bring to themselves, it is to the general diffusion of education among the poorer classes, and their gradually improved and improving intelligence that a complete eradication of electoral corruption can alone be looked for.
Notes:
[!-- Note Anchor 1 --][Footnote 1: "Constitutional History," vol. iii., p. 380; ed. 3, 1832. The first edition was published in 1827.]
[!-- Note Anchor 2 --][Footnote 2: Grampound. Corrupt voters had been disfranchised in New Shoreham as early as 1771, and the franchise of the borough of Cricklade had been transferred to the adjoining hundreds in 1782.]
[!-- Note Anchor 3 --][Footnote 3: Parliament was dissolved March 19. Lord Bute succeeded Lord Holdernesse March 25.]
[!-- Note Anchor 4 --][Footnote 4: The greater part of Lord Bute's colleagues did, in fact, retain their offices. Lord Egremont and Lord Halifax continued to be Secretaries of State; Lord Henley (afterward Lord Northington) retained the Great Seal; Lord North and Sir John Turner remained as Lords of the Treasury; and Mr. Yorke and Sir Fletcher Norton were still Attorney and Solicitor General.]
[!-- Note Anchor 5 --][Footnote 5: Parliament was prorogued April 19, and The North Briton (No. 45) was published April 23.]
[!-- Note Anchor 6 --][Footnote 6: A letter of the Prince Consort examines the principle of ministerial responsibility with so remarkable a clearness of perception and distinctness of explanation, that we may be excused for quoting it at length: "The notion that the responsibility of his advisers impairs the monarch's dignity and importance is a complete mistake. Here we have no law of ministerial responsibility, for the simple reason that we have no written constitution; but this responsibility flows as a logical necessity from the dignity of the crown and of the sovereign. 'The King can do no wrong,' says the legal axiom, and hence it follows that somebody must be responsible for his measures, if these be contrary to law or injurious to the country's welfare. Ministers here are not responsible quâ ministers, that is, quâ officials (as such they are responsible to the crown), but they are responsible to Parliament and the people, or the country, as 'advisers of the crown.' Any one of them may advise the crown, and whoever does so is responsible to the country for the advice he has given. The so-called accountability of ministers to Parliament does not arise out of an abstract principle of responsibility, but out of the practical necessity which they are under of obtaining the consent of Parliament to legislation and the voting of taxes, and, as an essential to this end, of securing its confidence. In practice, ministers are liable to account for the way and manner in which they have administered the laws which they, conjointly with the Parliament, have made, and for the way they have expended the moneys that have been voted for definite objects. They are bound to furnish explanations, to justify their proceedings, to satisfy reasonable scruples, and the answer, 'We have, as dutiful subjects, obeyed the sovereign,' will not be accepted. 'Have you acted upon conviction, or have you not?' is the question. 'If you have not, then you are civil servants of the crown, who counsel and do what you consider wrong or unjust, with a view to retain your snug places or to win the favor of the sovereign.' And this being so, Parliament withdraws its confidence from them. Herein, too, lies that ministerial power of which sovereigns are so much afraid. They can say, 'We will not do this or that which the sovereign wishes, because we cannot be responsible for it.' But why should a sovereign see anything here to be afraid of? To him it is, in truth, the best of safeguards. A really loyal servant should do nothing for which he is not prepared to answer, even though his master desires it. This practical responsibility is of the utmost advantage to the sovereign. Make independence, not subservience, the essential of service, and you compel the minister to keep his soul free toward the sovereign, you ennoble his advice, you make him staunch and patriotic, while time-servers, the submissive instruments of a monarch's extreme wishes and commands, may lead, and often have led, him to destruction.
"But to revert to the law of responsibility. This ought not to be in effect a safeguard for law itself. As such, it is superfluous in this country, where law reigns, and where it would never occur to any one that this could be otherwise. But upon the Continent it is of the highest importance; as, where the government is an outgrowth of a relation of supremacy and subordination between sovereign and subject, and the servant, trained in ideas natural to this relation, does not know which to obey, the law of the sovereign, the existence of such a law would deprive him of the excuse which, should he offend the law, and so be guilty of a crime, is ready to his hand in the phrase, 'The sovereign ordered it so, I have merely obeyed,' while it would be a protection to the sovereign that his servants, if guilty of a crime, should not be able to saddle him with the blame of it."—Life of the Prince Consort, v., 262.]
[!-- Note Anchor 7 --][Footnote 7: "Lives of the Lord Chancellors," c. cxliii.]
[!-- Note Anchor 8 --][Footnote 8: Indeed, the opinion which Lord Campbell thus expresses is manifestly at variance with that which he had previously pronounced in his life of Lord Northington, where he praised the House of Lords for "very properly rejecting the bill passed by the Commons declaring general warrants to be illegal, leaving this question to be decided (as it was, satisfactorily) by the Courts of Common Law.">[
[!-- Note Anchor 9 --][Footnote 9: From a speech of Mr. Grenville delivered at a later period (February 3, 1769, "Parliamentary History," xvi., 548), it appears that the Secretaries of State who signed this general warrant did so against their own judgment. "They repeatedly proposed to have Wilkes's name inserted in the warrant of apprehension, but were overruled by the lawyers and clerks of the office, who insisted that they could not depart from the long-established precedents and course of proceeding." And in one of these debates, Mr. Pitt, while denouncing with great severity Grenville's conduct in procuring the issue of this particular warrant, was driven to a strange confession of his own inconsistency, since he was forced to admit that, while Secretary of State, he had issued more than one general warrant in exactly similar form.]
[ [!-- Note Anchor 10 --][Footnote 10: Strange to say, it does not seem absolutely certain that Wilkes was the author of the "Essay on Woman." Horace Walpole eventually learned, or believed that he had learned, that the author was a Mr. Thomas Potter. (See Walpole's "George III.," i., 310; and Cunningham's "Note on his Correspondence," iv., 126.)]
[ [!-- Note Anchor 11 --][Footnote 11: These are the words of the resolution.—Parliamentary History, xvi., 537. But it does not appear what the three libels were. The "Essay on Woman" was one, the paraphrase of "Veni Creator" was a second; no third of that character is mentioned.]
[ [!-- Note Anchor 12 --][Footnote 12: The last resolution is approved by Mr. Hallam. "If a few precedents were to determine all controversies of constitutional law, it is plain enough from the journals that the House has assumed the power of incapacitation. But as such authority is highly dangerous and unnecessary for any good purpose, and as, according to all legal rules, so extraordinary a power could not be supported except by a sort of prescription that cannot be shown, the final resolution of the House of Commons, which condemned the votes passed in times of great excitement, appears far more consonant to first principles."—Constitutional History, iii., 357.]
[ [!-- Note Anchor 13 --][Footnote 13: Adolphus, "History of England," i., 484.]
[ [!-- Note Anchor 14 --][Footnote 14: An idea of the license which the newspapers complained of had permitted themselves at this time may be derived from the manner in which one of them had introduced a speech of Mr. Jeremiah Dyson, M.P. for Weymouth, and a Commissioner of the Treasury: "Jeremiah Weymouth, the d——n of the kingdom, spoke as follows." And it may seem that the Opposition (for the affair was made a party question) can hardly be acquitted of a discreditable indifference to the dignity of the House in supporting a resolution of Colonel Barré, that "Jeremiah Weymouth, the d——n of this kingdom, is not a member of this House." On which the previous question was moved by the ministers, and carried by 120 to 38.—Parliamentary History, xvii., 78. And an instance of rather the opposite kind, of the guarded way in which the most respectable publications were as yet accustomed to relate the transactions of Parliament, may be gathered from the account of the proceedings in the case of Wilkes, given in the "Annual Register" for 1770—drawn up, probably, by Burke himself—in which Lord Camden is only mentioned as "a great law lord;" Lord Chatham as "Lord C——m;" Lord Rockingham as "a noble Marquis who lately presided at the head of public affairs;" the King as "the K——;" Parliament as "P.;" and the House of Commons as the "H. of C."—Annual Register, 1770, pp. 59-67.]
[ [!-- Note Anchor 15 --][Footnote 15: On more than one occasion there had been disturbances in the City, and in the streets adjacent to the Houses of Parliament, which were little short of riot. One day the mob paraded effigies of the principal ministers, which, after hanging and beheading them, they committed to the flames with great uproar. On another day Mr. Charles Fox (as yet a vehement Tory) complained to the House that the mob in Palace Yard had insulted him, breaking the glasses of his chariot, and pelting him with oranges, stones, etc.—Parliamentary History, xvii., 163.]
CHAPTER II.
The Regency Bill.—The Ministry of 1766 lay an Embargo on Corn.—An Act of Indemnity is Passed.—The Nullum Tempus Act concerning Crown Property; it is sought to Extend it to Church Property, but the Attempt fails.—The Royal Marriage Act.—The Lords amend a Bill imposing Export Duties, etc., on Corn.
The prosecution of Wilkes was not the only act of Mr. Grenville's administration which excited both the Parliament and the people. In 1764 the King was attacked by a serious illness, and, as the Prince of Wales was an infant scarcely two years old, it was manifestly necessary to make arrangements for a Regency, in the event of the throne becoming vacant while the heir was still a minor. A similar necessity had arisen in the preceding reign on the death of the present King's father, and a bill had accordingly been introduced by Mr. Pelham, the minister of the day, which, in the event of the reigning sovereign dying during the minority of the boy who had now become the immediate heir to the throne, vested both the guardianship of his person and the Regency of the kingdom in his mother, the Princess Dowager of Wales, who, however, in the latter capacity, was only to act with the advice of a council, composed of her brother-in-law, the Duke of Cumberland, and nine principal officers of state. It was not concealed by either the King or the Duke that they would have preferred a different arrangement, one which would have conferred an uncontrolled Regency on the Duke himself; but the bill was passed by great majorities in both Houses, and served in some respects as a model for that which was now to be brought forward, the difference being that the Regent was not to be expressly named in it. To quote the words of the royal speech, the King "proposed to the consideration of the two Houses whether, under the present circumstances, it would not be expedient to vest in him the power of appointing from time to time, by instrument in writing under his sign-manual, either the Queen or any other member of the royal family usually residing in Great Britain, to be the guardian of the person of his successor, and the Regent of these kingdoms, until such successor should attain the age of eighteen years, subject to such restrictions and regulations as were specified and contained in an act passed on a similar occasion in the fourteenth year of the late King; the Regent so appointed to be assisted by a council, composed of the several persons who, by reason of their dignities and offices, were constituted members of the council established by that act, together with those whom the Parliament might think proper to leave to his nomination."
It may be doubted whether such a power as his Majesty desired was quite consistent with the principles of the constitution. Parliament had, indeed, granted Henry VIII. the still greater power of nominating a series of successors; but the appointment which he consequently made by will was eventually superseded, when, on the failure of his immediate descendants, the representative of his elder sister, whom he had passed over, was seated on the throne, to the exclusion of the descendants of his younger sister, to whom he had given the preference. In France, the last two kings, Louis XIII. and XIV., had both, when on their death-beds, assumed the right of making the arrangements for the Regency which would become necessary, the heir to the throne being in each case a minor; but in each instance the arrangements which they had made were disregarded.
However, on the present occasion the minister (who must be taken to have framed the King's speech) and the Parliament agreed in the propriety of conferring the nomination of the Regent on the King himself;[[16]] and the bill might have passed almost without notice, had it not been for a strange display of the Prime-minister's ill-temper and mismanagement. Mr. Grenville was at all times uncourtly and dictatorial in his manner, even to the King himself; he was also of a suspicious disposition; and though he was universally believed to have owed his promotion to his present office to the recommendation of Lord Bute,[[17]] he was extremely jealous of his predecessor. He professed to believe, and probably did believe, that the King was still greatly under Lord Bute's influence (though, in fact, they had never met since that minister had quitted the Treasury), that Lord Bute was still as closely connected with the Princess of Wales as scandal had formerly reported him to be, and that George III., under the pressure of their combined influence, would be induced to name his mother rather than his wife as the future Regent. And he was so entirely swayed by this ridiculous and wholly groundless fear, that, when the bill to give effect to the royal recommendation was introduced into the House of Lords, he instigated one of his friends to raise the question who were included in the general term "the royal family," which Lord Halifax, as Secretary of State, answered by saying that he regarded it as meaning "those only who were in order of succession to the throne." Such a definition would have excluded the Queen as effectually as the Princess Dowager; and when Mr. Grenville found the peers reluctant to accept this view (which, indeed, his own Lord Chancellor pronounced untenable), he then sent another of his colleagues to represent to the King that his mother was so unpopular that, even if the Lords should pass the bill in such a form as rendered her eligible for nomination, the Commons would introduce a clause to exclude her by name. With great unwillingness, and, it is said, not without tears, George III. consented to the bill being so drawn as to exclude her, and it passed the Lords in such a form. But when it reached the Commons it was found that if the leaders of the Opposition hated Bute much, they hated Grenville more. They moved the insertion of the name of the Princess Dowager as one of the members of the royal family whom the King might nominate Regent, if it should please him. Even Grenville had not the boldness publicly to disparage his royal master's royal mother; the Princess's name was inserted by a unanimous vote in the list of those from whom the King was empowered to select the Regent, and the amendment was gladly accepted by the House of Lords.[[18]]
In spite, however, of the unanimity of the two Houses on the question, it will probably be thought that the authors of the amendment, by which it was proposed to address the King with an entreaty to name in the bill the person to whom he desired to intrust the Regency, acted more in the spirit of the constitution than those who were contented that the name should be omitted; indeed, that statesmen of the present century agree in holding that an arrangement of such importance should be made by the Houses of Parliament, in concurrence with the sovereign, and not by the sovereign alone, is shown by the steps taken to provide for a Regency in the event of the demise of the reigning sovereign while the heir was a minor, in the last and in the present reign, the second bill (that of 1840) being in this respect of the greater authority, since Lord Melbourne, the Prime-minister, did not propose it without previously securing the approval of the Duke of Wellington, in his character of leader of the Opposition.
We pass over for a moment the administration of Lord Rockingham, as we have already passed over the taxation of our North American Colonies by Mr. Grenville, because it will be more convenient to take all the transactions relating to that subject together when we arrive at the time when the troubles arising out of the policy of the different administrations toward those Colonies were brought to a head by the breaking out of civil war. Lord Rockingham's ministry, which succeeded Mr. Grenville's, had, as is well known, but a brief existence, and was replaced by the cabinet so whimsically composed by Mr. Pitt, who reserved to himself the office of Privy Seal, with the Earldom of Chatham; the Duke of Grafton being the nominal head of the Treasury, but the direction of affairs being wholly in the hands of the new Earl, till the failure of his health compelled his temporary retirement from public life. Lord Chatham was brother-in-law to Mr. Grenville, to whom in the occasional arrogance and arbitrariness of his disposition he bore some resemblance; and one of the earliest acts of his administration, when coupled with the language which he held on the subject in the House of Lords, displayed that side of his character in a very conspicuous light.
The summer of 1766 had been unusually wet and cold, both at home and abroad, and the harvest had, in consequence, been so deficient as to cause a very general apprehension of scarcity, while rumors were spread that the high prices which the shortness of the crops could not fail to produce were artificially raised by the selfish covetousness of some of the principal corn-dealers, who were buying up all the grain which came into the market, and storing it, with the object of making an exorbitant profit out of the necessities of the consumer, not only at home but abroad. The poorer classes, seeing themselves, as they believed, threatened with famine, rose in riotous crowds, in some places attacking the barns in which the corn was stored, and threatening destruction to both the storehouses and the owners. The ministry first tried to repress the discontent by the issue of a proclamation against "forestallers and regraters," framed in the language and spirit of the Middle Ages; and, when that proved ineffectual to restore confidence, they issued an Order in Council absolutely prohibiting the exportation of any kind of grain, and authorizing the detention of any vessels lying in any British harbor which might be loaded with such a cargo. Our annals furnished no instance of such an embargo having been laid on any article of commerce in time of peace; but the crisis was difficult, the danger to the tranquillity of the kingdom was great and undeniable, the necessity for instant action seemed urgent, and probably few would have been inclined to cavil at Lord Chatham's assertion, that the embargo "was an act of power which, during the recess of Parliament, was justifiable on the ground of necessity," had the ministry at once called Parliament together to sanction the measure by an act of indemnity. But Lord Chatham was at all times inclined to carry matters with a high hand, and willingly adopted the opinion advanced by the Chancellor (Lord Northington), that "the measure was strictly legal, and that no indemnity was necessary." Lord Northington's language on the subject Lord Campbell describes as "exhibiting his characteristic rashness and recklessness, which seemed to be aggravated by age and experience,"[[19]] and the censure does not seem too severe, since he presently "went so far as to maintain that the crown had a right to interfere, even against a positive act of parliament, and that proof of the necessity amounted to a legal justification." But, however ill-considered his language may have been, Lord Chatham adopted it, and acted on it so far as to decline calling the Parliament together before the appointed time, though, when the Houses did meet, he allowed General Conway, as Secretary of State, to introduce a bill of indemnity in the House of Commons. It was warmly opposed in that House, partly on the ground that, if such a measure as the embargo had been necessary, it would have been easy to have assembled Parliament before the Order in Council was issued (for, in fact, the proclamation against forestallers and regraters had been issued on the 10th of September, when Parliament, if not farther prorogued, would have met within a week). But on that same day Parliament was farther prorogued from the 16th of September till the 11th of November,[[20]] and it was not till after that prorogation, on the 24th of September, that the Order in Council was issued.
In the House of Lords it seems to have been admitted that the embargo was, under all the circumstances, not only desirable, but "indispensably necessary."[[21]] But the Opposition in that House, being led by a great lawyer (Chief-justice Lord Mansfield), took a wider view of the whole case; and, after denouncing the long prorogation of Parliament as having been so culpably advised that there was no way left of meeting the emergency but by an interposition of the royal power, directed the principal weight of their argument against the doctrine of the existence of any dispensing power. It was urged that the late Order in Council could only be justified by "the general proposition that of any, and, if of any, of every, act of parliament the King, with the advice of the Privy Council, may suspend the execution and effect whenever his Majesty, so advised, judges it necessary for the immediate safety of the people." And this proposition was denounced as utterly inconsistent with the principles of the Revolution, which had been "nothing but a most lawless and wicked invasion of the rights of the crown," if such a dispensing power were really one of the lawful prerogatives of the sovereign. Reference was made to the powers in more than one instance, and especially in the case of ship-money claimed and exercised by Charles I.; and it was affirmed that "the dispensing and suspending power, and that of raising money without the consent of Parliament, were precisely alike, and stood on the very same ground. They were born twins; they lived together, and together were buried in the same grave at the Revolution, past all power of resurrection." It was even argued that the dispensing or suspending power was yet more dangerous than that of raising money without a Parliamentary vote, since it was a power which might do the most mischief, and with the greatest speed, so many were the subjects which it included. It would be a return to the maxims of the idolators of prerogative as understood in those earlier days, that is, of absolute and arbitrary power, a Deo Rex, a Rege Lex. It was farther argued that, unless it could be said that the moment Parliament breaks up the King stands in its place, and that the continuance of acts is consigned into his hands, he cannot of right suspend any more than he can make laws, both acts requiring the same power. The law is above the King, and the crown as well as the subject is bound by it as much during the recess as in the session of Parliament; and therefore the wisdom of the constitution has excluded every discretion in the crown over a positive statute, and has emancipated Parliament from the royal prerogative, leaving the power of suspension, which is but another name for a temporary repeal, to reside where the legislative power is lodged—that is, in King, Lords, and Commons, who together constitute the only supreme authority of this government. Precedents were cited to prove that in former times different ministries had avoided thus taking the law into their own hands, as when, in 1709 and again in 1756, there was a similar apprehension of scarcity, even though both those years were years of war. And the Bill of Rights was quoted as the statute in which every sort of dispensing power was condemned, though, as exercised by James II., it had only been exerted in dispensing with penal laws and remitting penalties.
"Finally," said one speaker, who perhaps was Lord Mansfield himself, "he is not a moderate minister who would rashly decide in favor of prerogative in a question where the rights of Parliament are involved, nor a prudent minister who, even in a doubtful case, commits the prerogative, by a wanton experiment, to what degree the people will bear the extent of it. The opposite course was that by which a minister would consult the best interests of the crown, as well as of the people. The safety of the crown, as well as the security of the subject, requires the closing up of every avenue that can lead to tyranny."[[22]]
These arguments prevailed, and the indemnity bill was passed, to quote the words of the "Annual Register"—at that time written by Burke—"very much to the satisfaction of the public." And that it should have been so accepted is creditable to the good-sense of both parties. The precedent which was thus established does, indeed, seem to rest on a principle indispensable to the proper working of a constitutional government. In so extensive an empire as ours, it is scarcely possible that sudden emergencies, requiring the instant application of some remedy, should not at times arise; and, unless Parliament be sitting at the time, such can only be adequately dealt with if the ministers of the crown have the courage to take such steps as are necessary, whether by the suspension of a law or by any other expedient, on their own responsibility, trusting in their ability to satisfy the Parliament, instantly convoked to receive their explanation, of the necessity or wisdom of their proceedings; and in the candor of the Parliament to recognize, if not the judiciousness of their action, at all events the good faith in which it has been taken, and the honest, patriotic intention which has dictated it. The establishment of the obligation instantly to submit the question to the judgment of Parliament will hardly be denied to be a sufficient safeguard against the ministerial abuse of such a power; and the instances in which such a power has since been exercised, coupled with the sanction of such exercise by Parliament, are a practical approval and ratification by subsequent Parliaments of the course that was now adopted.[[23]]
The next year a not very creditable job of the ministry led to the enactment of a statute of great importance to all holders of property which had ever belonged to the crown. In the twenty-first year of James I. a bill had been passed giving a secure tenure of their estates to all grantees of crown lands whose possession of them had lasted sixty years. The Houses had desired to make the enactment extend to all future as well as to all previous grants. But to this James had refused to consent; and, telling the Houses that "beggars must not be choosers," he had compelled them to content themselves with a retrospective statute. Since his time, and especially in the reigns of Charles II. and William III., the crown had been more lavish and unscrupulous than at any former period in granting away its lands and estates to favorites. And no one had been so largely enriched by its prodigality as the most grasping of William's Dutch followers, Bentinck, the founder of the English house of Portland. Among the estates which he had obtained from his royal master's favor was one which went by the name of the Honor of Penrith. Subsequent administrations had augmented the dignities and importance of his family. Their Earldom had been exchanged for a Dukedom; but the existing Duke was an opponent of the present ministry, who, to punish him, suggested to Sir James Lowther, a baronet of ancient family, and of large property in the North of England, the idea of applying to the crown for a grant of the forest of Inglewood, and of the manor of Carlisle, which hitherto had been held by Portland as belonging to the Honor of Penrith, but which, not having been expressly mentioned in the original grant by William III., it was now said had been regarded as included in the honor only by mistake. It was not denied that Portland had enjoyed the ownership of these lands for upward of seventy years without dispute; and, had the statute of James been one of continual operation, it would have been impossible to deprive him of them. But, as matters stood, the Lords of the Treasury willingly listened to the application of Sir James Lowther; they even refused permission to the Duke to examine the original deed and the other documents in the office of the surveyor, on which he professed to rely for the establishment of his right; and they granted to Sir James the lands he prayed for at a rent which could only be regarded as nominal. The injustice of the proceeding was so flagrant, that in the beginning of 1768 Sir George Savile brought in a bill to prevent any repetition of such an act by making the statute of James I. perpetual, so that for the future a possession for sixty years should confer an indisputable and indefeasible title. The ministers opposed it with great vehemence, even taking some credit to themselves for their moderation in not requiring from the Duke a repayment of the proceeds of the lands in question for the seventy years during which he had held them. But the case was so bad that they could only defeat Sir George Savile by a side-wind and a scanty majority, carrying an amendment to defer any decision of the matter till the next session. Sir George, however, was not discouraged; he renewed his motion in 1769, when it was carried by a large majority, with an additional clause extending its operation to the Colonies in North America; and thus, in respect of its territorial rights, the crown was placed on the same footing as any private individual, and the same length of tenure which enabled a possessor to hold a property against another subject henceforth equally enabled him to hold it against the crown. The policy not less than the justice of such an enactment might have been thought to commend it to every thinking man as soon as the heat engendered by a party debate had passed away. It had merely placed the sovereign and the subject on the same footing in respect of the security which prescription gave to possession. And it might, therefore, have been thought that the vote of 1769 had settled the point in every case; since what was the law between one private individual and another, and between the sovereign and a subject, might well have been taken to be of universal application. But the ministry were strangely unwilling to recognize such a universal character in the late act, and found in the peculiar character of ecclesiastical bodies and ecclesiastical property a pretext for weakening the force of the late enactment, by denying the applicability of the principle to the claims of ecclesiastical chapters. In 1772 Mr. Henry Seymour, one of the members for Huntingdon, moved for leave to bring in a bill, which he described as one "for quieting the subjects of the realm against the dormant claims of the Church;" or, in other words, for putting the Church on the same footing with respect to property which had passed out of its possession as the crown had been placed in by the act of 1769. He contended that such a bill ought to be passed, not only on the general principle that possessors who derived their property from one source ought not to be less secure than they who derived it from another, but also on the grounds that, as ecclesiastical bodies occasionally used their power, "length of possession, which fortified and strengthened legal right and just title in every other case, did in this alone render them more weak and uncertain," from the difficulty which often occurred in finding documentary proof of very ancient titles; and that this was not an imaginary danger, since a member of the House then present had recently lost £120,000 by a bishop reviving a claim to an estate after the gentleman's family had been in undisturbed possession of it above a hundred years. The defence of the Church, however, was taken up by Mr. Skinner, Attorney-general for the Duchy of Lancaster, who argued that though, in the case of the crown, the nullum tempus which it had formerly claimed, and which had been put an end to in 1769, was "an engine in the hands of the strong to oppress the weak, the nullum tempus of the Church was a defence to the weak against the strong," as its best if not its sole security "against the encroachment of the laity." The "Parliamentary History" records that in the course of a long debate Lord North opposed the bringing in of the bill, as did "the Lord-advocate of Scotland, who gave as a reason in favor of the bill, though he voted against it, that a law of similar nature had passed in Scotland, and that the whole kingdom, clergy as well as laity, found the very best effects from it."[[24]] Burke argued in favor of the bill with great force, declaring that in so doing "he did not mean anything against the Church, her dignities, her honor, her privileges, or her possessions; he should wish even to enlarge them all; but this bill was to take nothing from her but the power of making herself odious." But the ministerial majority was too well disciplined to be broken, and Mr. Seymour could not even obtain leave to bring in the bill.
The year 1772 was marked by the discussion of a measure which the King seems to have regarded as one of private interest only, affecting his personal rights over his own family. But it is impossible to regard transactions which may affect the right of succession to the throne as matters of only private interest. And indeed the bill was treated as one involving a constitutional question by both sides of both Houses, and as such was discussed with remarkable earnestness, and with vehemence equalling that of any other debate which had as yet taken place since the commencement of the reign. The bill had its origin in the personal feelings of the King himself, who had been greatly annoyed at the conduct of his brother, the Duke of Cumberland, in marrying a widow of the name of Horton, daughter of Lord Irnham, and sister of the Colonel Luttrell whom the vote of the House of Commons had seated as member for Middlesex; and perhaps still more at the discovery that his other brother, the Duke of Gloucester, to whom he was greatly attached, had married another subject, the widowed Lady Waldegrave. His Majesty's dissatisfaction was, perhaps, heightened by the recollection that he himself, in early manhood, had also been strongly attracted by the charms of another subject, and had sacrificed his own inclinations to the combined considerations of pride of birth and the interests of his kingdom. And, though there was a manifest difference between the importance of the marriage of the sovereign himself and that of princes who were never likely to become sovereigns, he thought it not unreasonable that he should be empowered to exercise such a general guardianship over the entire family, of which he was the head, as might enable him to control its members in such arrangements, by making his formal sanction indispensable to the validity of any matrimonial alliances which they might desire to contract. A somewhat similar question had been raised in 1717, when George I., having quarrelled with the Prince of Wales (afterward George II.), asserted a claim to control and direct the education of all the Prince's children, and, when they should be of marriageable age, to arrange their marriages. The Prince, on the other hand, insisted on his natural and inalienable right, as their father, to have the entire government of his own offspring, a right which, as he contended, no royal prerogative could be enabled or permitted to override. That question was not, however, brought before Parliament, to which, at that time, the King could, probably, not have trusted for any leanings in his favor; but he referred it, in an informal way, to the Lord Chancellor (Lord Cowper) and the Common-law Judges. They investigated it with great minuteness. A number of precedents were adduced for the marriage and education of the members of the royal family being regulated by the sovereign, beginning with Henry III., who gave his daughter Joan, without her own consent, in marriage to the King of Scotland, and coming down to the preceding century, at the commencement of which the Council of James I. committed the Lady Arabella Stuart and Mr. Seymour to the Tower for contracting a secret marriage without the King's permission, and at the end of which King William exercised the right of selecting a tutor for the Duke of Gloucester, the son of the Princess Anne, without any consultation with the Princess herself; and finally the judges, with only two dissenting voices, expressed their conviction that the King was entitled to the prerogative which he claimed. The case does not, however, seem to have been regularly argued before them; there is no trace of their having been assisted in their deliberations by counsel on either side, and their extra-judicial opinion was clearly destitute of any formal authority;[[25]] so that it came before Parliament in some degree as a new question.
But George III. was not of a disposition to allow such matters to remain in doubt, and, in compliance with his desire, a bill was, in 1772, introduced by Lord Rochfort, as Secretary of State, which proposed to enact that no descendants of the late King, being children or grandchildren, and presumptive heirs of the sovereign, male or female, other than the issue of princesses who might be married into foreign families, should be capable of contracting a valid marriage without the previous consent of the reigning sovereign, signified under his sign-manual, and that any marriage contracted without such consent should be null and void. The King or the ministers apparently doubted whether Parliament could be prevailed on to make such a prohibition life-long, and therefore a clause was added which provided that if any prince or princess above the age of twenty-five years should determine to contract a marriage without such consent of the sovereign, he or she might do so on giving twelve months' notice to the Privy Council; and such marriage should be good and valid, unless, before the expiration of the twelve months, both Houses of Parliament should declare their disapproval of the marriage. The concluding clause of the bill made it felony "to presume to solemnize, or to assist, or to be present, at the celebration of any such marriage without such consent being first obtained."
The bill was stoutly resisted in both Houses at every stage, both on the ground of usage and of general principle. It was positively denied that the "sovereign's right of approving of all marriages in the royal family," which was asserted in the preamble of the bill, was either founded in law, or established by precedent, or warranted by the opinion of the judges. And it was contended that there never had been a time when the possession of royal rank had been considered necessary to qualify any one to become consort of an English prince or princess. It had not even been regarded as a necessary qualification for a queen. Three of the wives of Henry VIII. had been English subjects wholly unconnected with the royal family; nor had the Parliament nor the people in general complained of any one of those marriages; moreover, two of his children, who had in their turn succeeded to the crown, had been the offspring of two of those wives; and in the last century James II., while Duke of York, had married the daughter of an English gentleman; and, though it had not been without notorious reluctance that his royal brother had sanctioned that connection, it was well known that Charles II. himself had proposed to marry the niece of Cardinal Mazarin. In the House of Peers, Lord Camden especially objected to the clause annulling a marriage between persons of full age; and in the Commons, Mr. Dowdeswell, who had been Chancellor of the Exchequer in Lord Rockingham's administration, dwelt with especial vigor on the unreasonableness of the clause which fixed twenty-five as the age before which no prince or princess could marry without the King's consent. "Law, positive law," he argued, "and not the arbitrary will of an individual, should be the only restraint. Men who are by law allowed at twenty-one[[26]] to be fit for governing the realm may well be supposed capable of choosing and governing a wife."[[27]] Lord Folkestone condemned with great earnestness the expression in the preamble that the bill was dictated "by the royal concern for the honor and dignity of the crown," as implying a doctrine that an alliance of a subject with a branch of the royal family is dishonorable to the crown—a doctrine which he denounced as "an oblique insult" to the whole people, and which, as such, "the representatives of the people were bound to oppose." And he also objected to the "vindicatory part," as he termed the clause which declared those who might assist, or even be present, at a marriage contracted without the royal permission guilty of felony.[[28]]
The ministry, however, had a decided majority in both Houses, and the bill became and remains the law of the land, though fourteen peers, including one bishop, entered a protest against it on nine different grounds, one of which condemned it as "an extension of the royal prerogative for which the great majority of the judges found no authority;" while another, with something of prophetic sagacity, urged that the bill "was pregnant with civil discord and confusion, and had a natural tendency to produce a disputed title to the crown."
It may be doubted whether the circumstances which had induced George III. to demand such a power as that with which the bill invested him justified its enactment. He was already the father of a family so numerous as to render it highly improbable that either of his brothers or any of their children would ever come to the throne; while, as a previously existing law barred any prince or princess who might marry a Roman Catholic from the succession, the additional restraint imposed by the new statute practically limited their choice to an inconveniently small number of foreign royal houses, many of which, to say the least, are not superior in importance or purity of blood to many of our own nobles.
Nor can it be said to have been successful in accomplishing his Majesty's object. It is notorious that two of his sons, and very generally believed that one of his daughters, married subjects; the Prince of Wales having chosen a wife who was not only inferior in rank and social position to Lady Waldegrave or Mrs. Horton, but was moreover a Roman Catholic; and that another of his sons petitioned more than once for permission to marry an English heiress of ancient family. And our present sovereign may be thought to have pronounced her opinion that the act goes too far, when she gave one of her younger daughters in marriage to a nobleman who, however high in rank, has no royal blood in his veins. The political inconvenience which might arise from the circumstance of the reigning sovereign being connected by near and intimate relationship with a family of his British subjects will, probably, always be thought to render it desirable that some restriction should be placed on the marriage of the heir-apparent; but where the sovereign is blessed with a numerous offspring, there seems no sufficient reason for sending the younger branches of the royal house to seek wives or husbands in foreign countries. And as the precedent set in the case of the Princess Louise has been generally approved, it is probable that in similar circumstances it may be followed, and that such occasional relaxation of the act of 1772 will be regarded as justified by and consistent with the requirements of public policy as well as by the laws of nature.[[29]] Generally speaking, the two Houses agreed in their support of the ministerial policy both at home and abroad; but, in spite of this political harmony, a certain degree of bad feeling existed between them, which on one occasion led to a somewhat singular scene in the House of Commons. The Commons imputed its origin to the discourtesy of the Lords, who, when members of the Commons were ordered by their House to carry its bills up to the peers, sometimes kept them "waiting three hours in the lobby among their lordships' footmen before they admitted them." Burke affirmed that this had happened to himself, and that he "spoke of it, not out of any personal pride, nor as an indignity to himself, but as a flagrant disgrace to the House of Commons, which, he apprehended, was not inferior in rank to any other branch of the Legislature, but co-ordinate with them." And the irritation which such treatment excited led the Commons, perhaps not very unnaturally, to seek some opportunity to vindicate their dignity. They found it in an amendment which the Lords made on a corn bill. In the middle of April, 1772, resolutions had been passed by the Commons, in a committee of the whole House, imposing certain duties on the importation of wheat[[30]] and other grain when they were at a certain price, which was fixed at 48s., and granting bounties on exportation when the price fell below 44s. The Lords made several amendments on the bill, and, among others, one to strike out the clause which granted bounties. But when the bill thus amended came back to the Commons, even those who disliked the principle of bounties resented this act of the Lords in meddling with that question, which they regarded as a violation of their peculiar and most cherished privilege, the exclusive right of dealing with questions of taxation. Governor Pownall, who had charge of the bill, declared that the Lords had forgotten their duty when they interfered in raising money by the insertion of a clause that "no bounty should be paid upon exported corn." And on this ground he moved the rejection of the bill.[[31]] In the [last chapter of this volume], a more fitting occasion for examining the rights and usages of the House of Lords with respect to money-bills will be furnished by a series of resolutions on the subject, moved by the Prime-minister of the day. It is sufficient here to say that the power of rejection is manifestly so different from that of originating grants—which is admitted to belong exclusively to the Commons—and that there were so many precedents for the Lords having exerted this power of rejection in the course of the preceding century, that they probably never conceived that in so doing now they were committing any encroachment on the constitutional rights and privileges of the Lower House. But on this occasion the ill-feeling previously existing between the two Houses may be thought to have predisposed the Commons to seek opportunity for a quarrel. And there never was a case in which both parties in the House were more unanimous. Governor Pownall called the rejection of the clause by the Lords "a flagrant encroachment upon the privileges of the House," and affirmed that the Lords had "forgotten their duty." Burke termed it "a proof that the Lords did not understand the principles of the constitution, an invasion of a known and avowed right inherent in the House as the representatives of the people," and expressed a hope that "they were not yet so infamous and abandoned as to relinquish this essential right," or to submit to "the annihilation of all their authority." Others called it "an affront which the House was bound to resent, and the more imperatively in consequence of the absence of a good understanding between the two Houses." And the Speaker, Sir John Cust, went beyond all his brother members in violence, declaring that "he would do his part in the business, and toss the bill over the table." The bill was rejected nem. con., and the Speaker tossed it over the table, several of the members on both sides of the question kicking it as they went out;[[32]] and to such a pitch of exasperation had they worked themselves up, that "the Game Bill, in which the Lords had made alterations, was served in a similar manner," though those alterations only referred to the penalties to be imposed for violations of the Game-law, and could by no stretch of ingenuity be connected with any question of taxation.
Notes:
[ [!-- Note Anchor 16 --][Footnote 16: A motion was, indeed, made (but the "Parliamentary History," xvi., 55, omits to state by whom) that the House should "humbly entreat his Majesty, out of his tender and paternal regard for his people, that he would be graciously pleased to name the person or persons whom, in his royal wisdom, he shall think fit to propose to the consideration of Parliament for the execution of those high trusts, this House apprehending it not warranted by precedent nor agreeable to the principles of this free constitution to vest in any person or persons not particularly named and approved of in Parliament the important offices of Regent of these kingdoms and guardian of the royal offspring heirs to the crown." But "it passed in the negative," probably, if we may judge by other divisions on motions made by the same party, by an overwhelming majority.]
[ [!-- Note Anchor 17 --][Footnote 17: No one doubted that this choice had been made under the influence of Lord Bute, and was designed for the preservation of that influence.—Lord Stanhope, History of England, v., 41.]
[ [!-- Note Anchor 18 --][Footnote 18: In his speech in the House of Lords on the Regency Bill of 1840, the Duke of Sussex stated that George III. had nominated the Queen as Regent in the first instance, and, in the event of her death, the Princess Dowager.]
[ [!-- Note Anchor 19 --][Footnote 19: "Lives of the Chancellors," c. cxli.]
[ [!-- Note Anchor 20 --][Footnote 20: It appears from these dates that it was not yet understood that Parliament could not be prorogued for a longer period than forty days.]
[ [!-- Note Anchor 21 --][Footnote 21: These words occur in a speech attributed to Lord Mansfield. There is no detailed account of the debates on this subject in either House. All that exists in the "Parliamentary History" is a very brief abstract of the discussion in the Commons, and a document occupying above sixty pages of the same work (pp. 251-314), entitled "A Speech on behalf of the Constitution against the Suspending and Dispensing Prerogative," etc., with a foot-note explaining that "this speech was supposed to be penned by Lord Mansfield, but was, in fact, written by Mr. Macintosh, assisted by Lord Temple and Lord Lyttleton." It certainly seems to contain internal evidence that it was not written by any lawyer, from the sneers at and denunciations of lawyers which it contains, as a class of men who "have often appeared to be the worst guardians of the constitution, and too frequently the wickedest enemies to, and most treacherous betrayers of, the liberties of their country." But, by whomsoever it was "penned" and published, the arguments which it contains against the dispensing power were, probably, those which had been urged by the great Chief-justice, and as such I have ventured to cite them here.]
[ [!-- Note Anchor 22 --][Footnote 22: In his "Lives of the Chief-justices" (c. xxxvi., life of Lord Mansfield), Lord Campbell says, with reference to this case: "The Chief-justice's only considerable public exhibition during this period was his attack on the unconstitutional assertion of Lord Chatham and Lord Camden, that, in a case of great public emergency, the crown could by law dispense with an act of parliament. The question arising from the embargo on the exportation of corn, in consequence of apprehended famine, he proved triumphantly that, although the measure was expedient and proper, it was a violation of law, and required to be sanctioned by an act of indemnity." And Lord Campbell adds, in a note: "This doctrine, acted upon in 1827, during the administration of Mr. Canning, and on several subsequent occasions, is now universally taken for constitutional law" (ii., 468).]
[ [!-- Note Anchor 23 --][Footnote 23: To adduce a single instance, worthy of remark as affecting the personal liberty of the subject, in 1818 a bill of indemnity was passed to sanction the action of the ministry in arresting and detaining in prison, without bringing them to trial, several persons accused of being implicated in seditious proceedings (vide infra).]
[ [!-- Note Anchor 24 --][Footnote 24: Vol. xvii., 304.]
[ [!-- Note Anchor 25 --][Footnote 25: The case is mentioned by Lord Campbell in his "Lives of the Chancellors," c. cxxi. (life of Lord Macclesfield) and c. cxxiv. (life of Lord Chancellor King).]
[ [!-- Note Anchor 26 --][Footnote 26: In fact, however, the age at which a young prince was considered competent to exercise the royal authority in person had been fixed at eighteen; and it is so stated in the speech in which the King, in 1765, recommended the appointment of a Regent to Parliament.—Parliamentary History, xvi., 52.]
[ [!-- Note Anchor 27 --][Footnote 27: This idea was expanded into an epigram, which appeared in most of the daily papers, and has been thought worthy of being preserved in the "Parliamentary History," xvii., 401 (note):
"Quoth Dick to Tom, 'This act appears
Absurd, as I'm alive,
To take the crown at eighteen years,
A wife at twenty-five.
The mystery how shall we explain?
For sure, as Dowdeswell said,
Thus early if they're fit to reign,
They must be fit to wed.'
Quoth Tom to Dick, 'Thou art a fool,
And nothing know'st of life;
Alas! it's easier far to rule
A kingdom than a wife.'">[
[ [!-- Note Anchor 28 --][Footnote 28: It is remarkable that this clause on one occasion proved an obstacle to the punishment of the abettors of such a marriage. In 1793 the Duke of Sussex married Lady Augusta Murray, first at Rome, and afterward, by banns, at St. George's, Hanover Square. And when the affair came to be investigated by the Privy Council, Lord Thurlow denounced the conduct of the pair in violent terms, and angrily asked the Attorney-general, Sir John Scott, why he had not prosecuted all the parties concerned in this abominable marriage. Sir John's reply, as he reported it himself, was sufficiently conclusive: "I answered that it was a very difficult business to prosecute; that the act, it was understood, had been drawn by Lord Mansfield, the Attorney-general Thurlow, and the Solicitor-general Wedderburn, who, unluckily, had made all persons present at the marriage guilty of felony. And as nobody could prove the marriage except a person who had been present at it, there could be no prosecution, because nobody present could be compelled to be a witness."—Thorp's Life of Eldon, i., 235.]
[ [!-- Note Anchor 29 --][Footnote 29: A protest against the bill, entered by fourteen peers, including one bishop (of Bangor), denounced it, among other objections, as "contrary to the original inherent rights of human nature ... exceeding the power permitted by Divine Providence to human legislation ... and shaking many of the foundations of law, religion, and public security."—Parliamentary History, xvii., 391.]
[ [!-- Note Anchor 30 --][Footnote 30: The import duty on wheat was fixed at 6d. a quarter on grain, and 2d. per cwt. on flour, when the price of wheat in the kingdom should be at or above 48s.; when it was at or above 44s., the exportation was to be altogether prohibited.—Parliamentary History, xvii., 476.]
[ [!-- Note Anchor 31 --][Footnote 31: See Hallam, "Constitutional History," iii., 38-46, ed. 1833, where, as far as the imperfection of our early Parliamentary records allows, he traces the origin of the assertion of this peculiar privilege by the Commons, especially referring to a discussion of the proper limits of this privilege in several conferences between the two Houses; where, as on some other occasions, he sees, in the assertion of their alleged rights by the Commons, "more disposition to make encroachments than to guard against those of others." A few years before (in 1763), the House of Lords showed that they had no doubt of their right to reject a money-bill, since they divided on the Cider Bill, which came under that description. As, however, the bill was passed, that division was not brought under the notice of the House. But in 1783, in the time of the Coalition Ministry, the peers having made amendments on the American Intercourse Bill, "the Speaker observed that, as the bill empowered the crown to impose duties, it was, strictly speaking, a money-bill, and therefore the House could not, consistently with its own orders, suffer the Lords to make any amendments on it, and he recommended that the consideration of their amendments should be postponed for three months, and in the mean time a new bill framed according to the Lords' amendments should be passed." The recommendation was approved by Mr. Pitt, as leader of the Opposition, and approved and acted on by Mr. Fox, as leader of the ministry in that House. But, at the same time, Mr. Fox fully admitted the right of the Lords to discuss such questions, "for it would be very absurd indeed to send a loan bill to the Lords for their concurrence, and at the same time deprive them of the right of deliberation. To lay down plans and schemes for loans belonged solely to the Commons; and he was willing, therefore, that the amended bill should be rejected, though he was of opinion that the order of the House respecting money-bills was often too strictly construed." And he immediately moved for leave to bring in a new bill, which was verbatim the same with the amended bill sent down by the Lords.—Parliamentary History, xxiii., 895. The question was revived in the present reign, on the refusal of the Lords to concur in the abolition of the duty on paper, when the whole subject was discussed with such elaborate minuteness, and with so much more command of temper than was shown on the present occasion, that it will be better to defer the examination of the principle involved till we come to the history of that transaction.]
[ [!-- Note Anchor 32 --][Footnote 32: "Parliamentary History," xvii., 515.]
CHAPTER III.
Mr. Grenville imposes a Duty on Stamps in the North American Colonies.—Examination of Dr. Franklin.—Lord Rockingham's Ministry Repeals the Duty.—Lord Mansfield affirms a Virtual Representation in the Colonies.—Mr. C. Townsend imposes Import Duties in America.—After some Years, the Civil War breaks out.—Hanoverian Troops are sent to Gibraltar.—The Employment of Hanoverian Regiments at Gibraltar and Minorca.—End of the War.—Colonial Policy of the Present Reign.—Complaints of the Undue Influence of the Crown.—Motions for Parliamentary Reform.—Mr. Burke's Bill for Economical Reform.—Mr. Dunning's Resolution on the Influence of the Crown.—Rights of the Lords on Money-bills.—The Gordon Riots.
But during these years another matter had been gradually forcing its way to the front, which, though at first it attracted but comparatively slight notice, when it came to a head, absorbed for several years the whole attention, not only of these kingdoms, but of foreign countries also. It was originally—in appearance, at least—merely a dispute between Great Britain and her Colonies in North America on the mode of obtaining a small revenue from them. But, in its progress, it eventually involved us in a foreign war of great magnitude, and thus became the one subject of supreme interest to every statesman in Europe. England had not borne her share in the seven years' war without a considerable augmentation of the national debt, and a corresponding increase in the amount of yearly revenue which it had become necessary to raise;[[33]] and Mr. Grenville, as Chancellor of the Exchequer, had to devise the means of meeting the demand. A year before, he had supported with great warmth the proposal of Sir Francis Dashwood, his predecessor at the Exchequer, to lay a new tax upon cider. Now that he himself had succeeded to that office, he cast his eyes across the Atlantic, and, on the plea that the late war had to a certain extent been undertaken for the defence of the Colonies in North America, he proposed to make them bear a share in the burden caused by enterprises from which they had profited. Accordingly, in March, 1764, he proposed a series of resolutions imposing a variety of import duties on different articles of foreign produce imported into "the British Colonies and plantations in America," and also export duties on a few articles of American growth when "exported or conveyed to any other place except to Great Britain." Another resolution affirmed "that, toward defraying the said expense, it might be proper to charge certain stamp-duties in the said Colonies and plantations."
The resolutions imposing import and export duties were passed by both Houses almost without comment. That relating to a stamp-duty he did not press at the moment, announcing that he postponed it for a year, in order to ascertain in what light it would be regarded by the Colonists themselves; and as most, if not all, of the Colonies had a resident agent in London, he called them together, explained to them the object and anticipated result of the new imposition (for such he admitted it to be), and requested them to communicate his views to their constituents, adding an offer that, if they should prefer any other tax likely to be equally productive, he should be desirous to consult their wishes in the matter.
He probably regarded such language on his part as a somewhat superfluous exercise of courtesy or conciliation, so entire was his conviction of the omnipotence of Parliament, and of the impossibility of any loyal man or body of men calling its power in question. But he was greatly deceived. His message was received in America with universal dissatisfaction. Of the thirteen States which made up the body of Colonies, there was scarcely one whose Assembly did not present a petition against the proposed measure, and against any other which might be considered as an alternative. Grenville, however, was not a man to be moved by petitions or remonstrances. He was rather one whom opposition of any kind hardened in his purpose; and, as no substitute had been suggested, at the opening of the session of 1765 he proposed a series of resolutions requisite to give effect to the vote of the previous year, and imposing "certain stamp-duties and other duties" on the settlements in America, perhaps thinking to render his disregard of the objections which had been made less unpalatable by the insertion of words binding the government to apply the sums to be thus raised to "the expenses of defending, protecting, and securing" the Colonies themselves. The resolutions were passed, as the "Parliamentary History" records, "almost without debate," on the 6th of March.[[34]] But the intelligence was received in every part of the Colonies with an indignant dissatisfaction, which astonished even their own agents in England.[[35]] Formidable riots broke out in several provinces. In Massachusetts the man who had been appointed Distributor of Stamps was burnt in effigy; the house of the Lieutenant-governor was attacked by a furious mob, who avowed their determination to murder him if he fell into their hands; and resolutions were passed by the Assemblies of the different States to convene a General Congress at New York in the autumn, to organize a resistance to the tax, and to take the general state of affairs into consideration.
Before, however, that time came, a series of events having no connection with these transactions had led to a change of ministry in England, and the new cabinet was less inclined to carry matters with a high hand. Indeed, even the boldest statesman could hardly have learned the state of feeling which had been excited in America without apprehension, and those who had the chief weight in the new administration were not men to imperil the state by an insistance on abstract theories of right and prerogative. Accordingly, when, after Lord Rockingham had become Prime-minister, Parliament met in December, 1765, the royal speech recommended the state of affairs in America to the consideration of Parliament (a recommendation which manifestly implied a disposition on the part of the King's advisers to induce the House of Commons to retrace its steps), papers were laid before Parliament, and witnesses from America were examined, and among them a man who had already won a high reputation by his scientific acquirements, but who had not been previously prominent as a politician, Dr. Benjamin Franklin. He had come over to England as agent for Pennsylvania, and his examination, as preserved in the "Parliamentary History," may be taken as a complete statement of the matter in dispute from the American point of view, and of the justification which the Colonists conceived themselves to have for refusing to submit to pay such a tax as had now been imposed upon them. At a later day he was one of the most zealous, as he was probably one of the earliest, advocates of separation from England; but as yet neither his language nor his actions afforded any trace of such a feeling.
He affirmed[[36]] the general temper of the Colonists toward Great Britain to have been, till this act was passed, the best in the world. They considered themselves as a part of the British empire, and as having one common interest with it. They did not consider themselves as foreigners. They were jealous for the honor and prosperity of this nation, and always were, and always would be, ready to support it as far as their little power went. They considered the Parliament of Great Britain as the great bulwark and security of their liberties and privileges, and always spoke of it with the utmost respect and veneration. They had given a practical proof of their goodwill by having raised, clothed, and paid during the last war nearly 25,000 men, and spent many millions; nor had any Assembly of any Colony ever refused duly to support the government by proper allowances from time to time to public officers. They had always been ready, and were ready now, to tax themselves. The Colonies had Assemblies of their own, which were their Parliaments. They were, in that respect, in the same situation as Ireland. Their Assemblies had a right to levy money on the subject, then to grant to the crown, and, indeed, had constantly done so; and he himself was specially instructed by the Assembly of his own State to assure the ministry that, as they always had done, so they should always think it their duty to grant such aids to the crown as were suitable to their circumstances and abilities, whenever called upon for the purpose in a constitutional manner; and that instruction he had communicated to the ministry. But the Colonies objected to Parliament laying on them such a tax as that imposed by the Stamp Act. Some duties, they admitted, the Parliament had a right to impose, but he drew a distinction between "those duties which were meant to regulate commerce and internal taxes." The authority of Parliament to regulate commerce had never been disputed by the Colonists. The sea belonged to Britain. She maintained by her fleets the safety of navigation on it; she kept it clear of pirates; she might, therefore, have a natural and equitable right to some toll or duty, on merchandise carried through that part of her dominions, toward defraying the expenses she was at in ships to maintain the safety of that carriage. But the case of imposition of internal taxes was wholly different from this. The Colonists held that, by the charters which at different times had been granted to the different States, they were entitled to all the privileges and liberties of Englishmen. They found in the Great Charters, and the Petition and Declarations of Right, that one of the privileges of English subjects is that they are not to be taxed but by their common consent; and these rights and privileges had been confirmed by the charters which at different times had been granted to the different States. In reply to a question put to him, he allowed that in the Pennsylvania charter there was a clause by which the King granted that he would levy no taxes on the inhabitants unless it were with the consent of the Colonial Assembly, or by an act of Parliament; words which certainly seemed to reserve a right of taxation to the British Parliament; but he also demonstrated that, in point of fact, the latter part of the clause had never been acted on, and the Colonists had, therefore, relied on it, from the first settlement of the province, that the Parliament never would nor could, by the color of that clause in the charter, assume a right of taxing them till it had qualified itself to exercise such right by admitting representatives from the people to be taxed. And, in addition to objections on principle, he urged some that he regarded as of great force as to the working of this particular tax imposed by the Stamp Act. It was not an equal tax, as the greater part of the revenue derived from it must arise from lawsuits for the recovery of debts, and be paid by the lower sort of people; it was a heavy tax on the poor, and a tax on them for being poor. In the back settlements, where the population was very thin, the inhabitants would often be unable to get stamps without taking a long journey for the purpose. The scarcity of specie, too, in the country would cause the pressure to be felt with great severity, as, in his opinion, there was not gold and silver enough in the Colonies to pay the stamp-duty for a single year. In reply to another question, whether the Colonists would be satisfied with a repeal of the Stamp Act without a formal renunciation of the abstract right of Parliament to impose it, he replied that he believed they would be satisfied. He thought the resolutions of right would give them very little concern, if they were never attempted to be carried into practice. The Colonies would probably consider themselves in the same situation in that respect as Ireland. They knew that the English Parliament claimed the same right with regard to Ireland, but that it never exercised it; and they might believe that they would never exercise it in the Colonies any more than in Ireland. Indeed, they would think that it never could exercise such a right till representatives from the Colonies should be admitted into Parliament, and that whenever an occasion arose to make Parliament regard the taxation of the Colonies as indispensable, representatives would be ordered.
This last question put to the witness, like several others in the course of his examination, had been framed with the express purpose of eliciting an answer to justify the determination on the subject to which Lord Rockingham and his colleagues had come. It could not be denied that the government was placed in a situation of extreme difficulty—difficulty created, in part, by the conduct of the Colonists themselves. That, as even their most uncompromising advocate, Mr. Pitt, admitted, had been imprudent and intemperate, though it was the imprudence of men who "had been driven to madness by injustice." On the one hand, to repeal an act the opposition to which had been marked by fierce riots, such as those of Boston, and even in the Assemblies of some of the States by language scarcely short of treason,[[37]] seemed a concession to intimidation scarcely compatible with the maintenance of the dignity of the crown or the legitimate authority of Parliament. On the other hand, to persist in the retention of a tax which the whole population affected by it was evidently determined to resist to the uttermost, was to incur the still greater danger of rebellion and civil war. In this dilemma, the ministers resolved on a course calculated, as they conceived, to avoid both evils, by combining a satisfaction of the complaints of the Colonists with an assertion of the absolute supremacy of the British crown and Parliament for every purpose. And on February 24, 1766, the Secretary of State brought in a bill which, after declaring, in its first clause, "that the King's Majesty, by and with the consent of the Lords spiritual and temporal, and Commons of Great Britain, in Parliament assembled, had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the Colonists and people of America, subjects of the crown of Great Britain, in all cases whatsoever," proceeded to repeal the Stamp Act, giving a strong proof of the sincerity of the desire to conciliate the Colonists by the unusual step of fixing the second reading of the bill for the next day.
But in its different clauses it encountered a twofold opposition, which he had, probably, not anticipated. It is unnecessary to notice that which rested solely on the inexpediency of repealing the Stamp Act, "the compulsory enforcement of which was required by the honor and dignity of the kingdom." But the first clause was even more strenuously resisted, on grounds which its opponents affirmed to rest on the fundamental principles of the constitution. It was urged in the House of Commons by Mr. Pitt that, "as the Colonies were not represented in Parliament, Great Britain had no legal right nor power to lay a tax upon them—that taxation is no part of the governing or legislative power. Taxes," said the great orator, "are the voluntary gift and grant of the Commons alone. In legislation the three estates of the realm are alike concerned; but the concurrence of the peers and the crown to a tax is only necessary to clothe it with the form of a law; the gift and grant is in the Commons alone.... The distinction between legislation and taxation is essentially necessary to liberty."
Mr. Pitt had no claim to be considered as a great authority in the principles of constitutional law. George II., slight as was his political knowledge or wisdom, complained on one occasion of the ignorance of a Secretary of State who had never read Vattel; and in this very debate he even boasted of his ignorance of "law-cases and acts of Parliament." But his coadjutor in the House of Lords (Lord Camden, at this time Chief-justice of the Common Pleas) owed the chief part of the respect in which he was held to his supposed excellence as a constitutional lawyer, and he fully endorsed and expanded Pitt's arguments when the bill came up to the House of Lords. He affirmed that he spoke as "the defender of the law and the constitution; that, as the affair was of the greatest consequence, and in its consequences might involve the fate of kingdoms, he had taken the strictest review of his arguments, he had examined and re-examined all his authorities; and that his searches had more and more convinced him that the British Parliament had no right to tax the Americans. The Stamp Act was absolutely illegal, contrary to the fundamental laws of nature, contrary to the fundamental laws of this constitution—a constitution governed on the eternal and immutable laws of nature. The doctrine which he was asserting was not new; it was as old as the constitution; it grew up with it; indeed, it was its support. Taxation and representation are inseparably united. God hath joined them; no British government can put them asunder. To endeavor to do so is to stab our very vitals." And he objected to the first clause (that which declared the power and right to tax), on the ground that if the ministers "wantonly pressed this declaration, although they were now repealing the Stamp Act, they might pass it again in a month." He even argued that "they must have future taxation in view, or they would hardly assert their right to enjoy the pleasure of offering an insult." He was answered by Lord Northington (the Chancellor) and by Lord Mansfield (the Chief-justice), both of whom supported the motion to repeal the tax, but who also agreed in denying the soundness of his doctrine that, as far as the power was concerned, there was any distinction between a law to tax and a law for any other purpose; and Lord Mansfield farther denied the validity of the argument which it had been attempted to found on the circumstance that the Colonies were not represented in Parliament, propounding, on the contrary, what Lord Campbell calls "his doctrine of virtual representation." "There can," said he, "be no doubt but that the inhabitants of the Colonies are represented in Parliament, as the greatest part of the people of England are represented, among nine millions of whom there are eight who have no votes in electing members of Parliament. Every objection, therefore, to the dependency of the Colonies upon Parliament which arises upon the ground of representation goes to the whole present constitution of Great Britain.... For what purpose, then, are arguments drawn from a distinction in which there is no real difference of a virtual and an actual representation? A member of Parliament chosen for any borough represents not only the constituents and inhabitants of that particular place, but he represents the inhabitants of every other borough in Great Britain. He represents the City of London and all the other Commons of the land, and the inhabitants of all the colonies and dominions of Great Britain, and is in duty and conscience bound to take care of their interests."
Lord Mansfield's doctrine of a virtual representation of the Colonies must be admitted to be overstrained. The analogy between the case of colonists in a country from no part of which representatives are sent to Parliament, and that of a borough or county where some classes of the population which may, in a sense, be regarded as spokesmen or agents of the rest form a constituency and return members, must be allowed to fail; yet the last sentences of this extract are worth preserving, as laying down the important constitutional principle, subsequently expanded and enforced with irresistible learning and power of argument by Burke, that a member of the House of Commons is not a delegate, bound, under all circumstances, to follow the opinions or submit to the dictation of his constituents, but that from the moment of his election he is a councillor of the whole kingdom, bound to exercise an independent judgment for the interests of the whole people, rather than to guide himself by the capricious or partial judgments of a small section of it. But in its more immediate objects--that of establishing the two principles, that the constitution knows of no limitation to the authority of Parliament, and of no distinction between the power of taxation and that of any other kind of legislation--Lord Mansfield's speech is now universally admitted to have been unanswerable.[[38]]
The abstract right was unquestionably on the side of the minister and the Parliament who had imposed the tax. But he is not worthy of the name of statesman who conceives absolute rights and metaphysical distinctions to be the proper foundation for measures of government, and pays no regard to custom, to precedent, to the habits and feelings of the people to be governed; who, disregarding the old and most true adage, summum jus summa injuria, omits to take into his calculations the expediency of his actions when legislating for a nation which he is in the daily habit of weighing in his private affairs. The art or science of government are phrases in common use; but they would be void of meaning if all that is requisite be to ascertain the strict right or power, and then unswervingly to act upon it in all its rigor. And, therefore, while it must be admitted that the character of the power vested in King, Lords, and Commons assembled in Parliament is unlimited and illimitable, and that the legal competency to enact a statute depends in no degree whatever on the wisdom or folly, the justice or wickedness, of the statute, the advice given to a constitutional sovereign by his advisers must be guided by other considerations. To quote by anticipation the language addressed to the Commons on this subject by Burke eight years afterward, the proper policy was "to leave the Americans as they anciently stood ... To be content to bind America by laws of trade. Parliament had always done it. And this should be the reason for binding their trade. Not to burden them by taxes; Parliament was not used to do so from the beginning; and this should be the reason for not taxing. These are the arguments of states and kingdoms."[[39]]
The ministry were strong enough to carry their resolutions through both Houses. Their measure was divided into two acts, one known as the Declaratory Act, asserting the absolute and universal authority of Parliament; the other repealing the Stamp Act of the preceding year. And both were passed without alteration, though the Lords divided against them on both the second and third readings of the bill for repeal founded on them,[[40]] some of them entering long protests in the journals of the House. The right to tax was asserted, but the tax itself was repealed. And Franklin's estimate of the feelings on the subject entertained by his countrymen was fully verified by the reception which the intelligence met with in the Colonies. To quote the description of Lord Stanhope: "In America the repeal of the Stamp Act was received with universal joy and acclamation. Fireworks and festivals celebrated the good news, while addresses and thanks to the King were voted by all the Assemblies.... The words of the Declaratory Act, indeed, gave the Americans slight concern. They fully believed that no practical grievance could arise from it. They looked upon it merely as a salve to the wounded pride of England; as only that 'bridge of gold' which, according to the old French saying, should always be allowed to a retreating assailant."[[41]]
A recent writer, however, has condemned the addition of the declaration of the abstract right to tax with great vehemence. "Nothing," says Lord Campbell,[[42]] "could exceed the folly of accompanying the repeal of the Stamp Act with the statutable declaration of the abstract right to tax." But it does not seem difficult to justify the conduct of the ministry in this particular. For, besides the great weight deservedly attached to Franklin's assurance that the declaration would not be objected to by the Colonists, and besides the consideration that, on a general view, it was desirable, if not indispensable, to impress on all classes of subjects, whether at home or abroad, the constitutional doctrine of the omnipotence of Parliament, the line of argument adopted by Mr. Pitt and Lord Camden, in denying that omnipotence, left the ministers no alternative but that of asserting it, unless they were prepared to betray their trust as guardians of the constitution. Forbearance to insist on the Declaratory Act could not fail to have been regarded as an acquiescence on their part in a doctrine which Lord Campbell in the same breath admits to be false. It may be added, as a consideration of no small practical weight, that, without such a Declaratory Act, the King would have been very reluctant to consent to the other and more important Repealing Act. And, on the whole, the conduct of the ministry may, we think, be regarded as the wisest settlement both of the law and of the practice. It asserted the law in a manner which offended no one; and it made a precedent for placing the spirit of statesmanship above the letter of the law, and for forbearing to put forth in its full strength the prerogatives whose character was not fully understood by those who might be affected by them, and also could plead that Parliament itself had contributed to lead them to misunderstand it by its own conduct in never before exerting it.
For the moment, then, contentment and tranquillity were restored in the Colonies. Unhappily, they were not lasting. The same year which saw the triumph of the Rockingham administration in the repeal of the Stamp Act, witnessed also its fall before a discreditable intrigue. And the ministry which succeeded it had not been a year in office before the new Chancellor of the Exchequer, Charles Townsend, revived the discontents in America which Lord Rockingham had appeased. It cannot be said, however, that the blame should all belong to him; or that the Rockingham party in the House of Commons were entirely free from a share in it. They were—not unnaturally, perhaps—greatly irritated at the intrigue by which Lord Chatham had superseded them, and were not disinclined to throw difficulties in the way of their successors, for which the events of the next year afforded more than one opportunity. Lord Chatham, as has been mentioned, was universally recognized as the chief of the new ministry, though he abstained from taking the usual office of First Lord of the Treasury, and contented himself with the Privy Seal; but he had constructed it of such discordant elements[[43]] that no influence but his own could preserve consistency in its acts or harmony among its members, as nothing but his name could give it consideration either in Parliament or in the country. In the first months of the next year, 1767, he was attacked with an illness which for a time disabled him from attending the cabinet, being, apparently, the forerunner of that more serious malady which, before the end of the summer, compelled his long retirement from public life; and the Opposition took advantage of the state of disorganization and weakness which his illness caused among his colleagues, to defeat them on the Budget in the House of Commons, by an amendment to reduce the land-tax, which caused a deficiency in the supplies of half a million. This deficiency it, of course, became necessary to meet by some fresh tax; and Townsend—who, though endowed with great richness of eloquence, was of an imprudent, not to say rash, temper, and was possessed of too thorough a confidence in his own ingenuity and fertility of resource ever to be inclined to take into consideration any objections to which his schemes might be liable—proposed to raise a portion of the money which was needed by taxes on glass, paper, tea, and one or two other articles, to be paid as import duties in the American Colonies. His colleagues, and especially the Duke of Grafton himself, the First Lord of the Treasury, and as such the nominal Prime-minister, having been also, as Secretary of State, a member of Lord Rockingham's ministry, which had repealed the former taxes, did not consent to the measure without great and avowed reluctance; but yielded their own judgment to the strong feeling in its favor which notoriously existed in the House of Commons.[[44]] Indeed, that House passed the clauses imposing these import duties without hesitation, being, probably, influenced in no small degree by the evidence given in the preceding year by Dr. Franklin, who, as has been already seen, had explained that the Colonists drew a distinction between what he called "internal taxes" and import duties "intended to regulate commerce," and that to the latter class they were not inclined to object. And a second consideration was, that these new duties were accompanied and counterbalanced by a reduction of some other taxes; so that the ministry contended that the effect of these financial measures, taken altogether, would be to lower to the Colonists the price of the articles affected by them rather than to raise it. But one of the resolutions adopted provided that the whole of the money to be raised from these taxes should not be spent in America, but that, after making provision for certain Colonial objects specified, "the residue of such duties should be paid into the receipt of his Majesty's Exchequer, and there reserved, to be from time to time disposed of by Parliament toward defraying the necessary expenses of defending, protecting, and securing the said Colonies and plantations." And this clause seems to have been understood as designed to provide means for augmenting the number of regular troops to be maintained in the Colonies, whose employment in the recent disturbances had made them more unpopular than formerly.[[45]]
At all events, the intelligence of these new taxes, though only import duties, found the Colonists in a humor to resist any addition of any kind to their financial burdens. The events of the last two years had taught them their strength. It was undeniable that the repeal of the Stamp Act had been extorted by the riots in Boston and other places, and the success of this system of intimidation could not fail to encourage its repetition. Accordingly, the news of this fresh attempt at taxation was met by a unanimous determination to resist it. Newspaper writers and pamphleteers denounced not only the duties but the ministry which imposed them. Petitions from almost every State were sent over to England, addressed to the King and to the Parliament; but the violent temper of the leaders of the populace was not content to wait for answers to them. Associations were at once formed in Boston and one or two other cities, where resolutions were adopted in the spirit of retaliation (as their framers avowed), to desist from the importation of any articles of British commerce, and to rely for the future on American manufactures. The principal Custom-house officers at Boston were badly beaten, and others were compelled to seek refuge in a man-of-war which happened to be in the harbor.
It would be painful, and at the present day useless, to trace the steps by which these local disturbances gradually grew into one general insurrection. The spirit of resistance was undoubtedly fanned by a party which from the first contemplated a total separation from England as its ultimate result,[[46]] if, indeed, they had not conceived the design even before Grenville had given the first provocation to discontent. But the Colonists were not without advocates in England, even among the members of the government. The Duke of Grafton, while he remained Prime-minister, was eager to withdraw all the duties of which they complained; but he was overruled by the majority of his colleagues. He prevailed, however, so far that Lord Hillsborough, the Secretary of State, was authorized to write a circular-letter to the governors of the different provinces, in which he disowned, in the most distinct language possible, "a design to propose to Parliament to lay any farther taxes upon America for the purpose of raising a revenue," and promised for the next session a repeal of all the taxes except that on tea; and when the Duke retired from the Treasury, and was succeeded by Lord North, that statesman himself brought forward the promised repeal in an elaborate speech,[[47]] in which he explained that the duty on tea, which he alone proposed to retain, had been originally a boon to the Americans rather than an injury, as being accompanied by the removal of a far heavier tax. But he admitted that even that consideration was not the one which influenced him in his opinion that that duty should be maintained, so greatly was the perception that the real object of those who complained of it was, not the redress of a grievance, but the extinction of a right which was an essential part of "the controlling supremacy of England." The fact that the right to tax had been denied made it a positive duty on the part of the English minister to exert that right. "To temporize would be to yield, and the authority of the mother country, if now unsupported, would be relinquished forever." And he avowed his idea of the policy proper to be pursued to be "to retain the right of taxing America, but to give it every relief that might be consistent with the welfare of the mother country." He carried his resolution, though the minority—which on this occasion was led by Mr. Pownall, who had himself been Governor of Massachusetts, and who moved an amendment to include tea in the list of taxes proposed to be repealed—was stronger than usual.[[48]] But the concession failed to conciliate a single Colonist; it had become, as Burke said four years afterward, a matter of feeling,[[49]] and the irritation fed on itself, till, in 1773, a fresh act, empowering the East India Company to export tea to the Colonies direct from their own warehouses without its being subject to any duty in England—which Lord North undoubtedly intended as a boon to the Colonists—only increased the exasperation. The ships which brought the tea to Boston were boarded and seized by a formidable body of rioters disguised as native savages, and the tea was thrown into the sea. The intelligence was received in England with very different feelings by the different parties in the state. The ministers conceived themselves forced to assert the dignity of the crown, and proposed bills to inflict severe punishment on both the City of Boston and the whole Province of Massachusetts. The Opposition insisted on removing the cause of these disturbances by a total repeal of the tea-duty. The minister prevailed by a far larger majority than before, but his success only increased the exasperation in the Colonies; and it was an evil omen for peace that the leaders of the resistance began to search the records of the English Long Parliament "for the revolutionary precedents and forms of the Puritans of that day."[[50]] The next year saw fresh attempts to procure the repeal of the obnoxious tax rejected by the House of Commons; but, before the news of this division reached America, blood had already been shed.[[51]] Civil war began. The next year the Colonies, now united in one solid body, asserted their Independence, taking the title of the United States; and, though the government at home made more than one effort to recall the Colonists to their allegiance, and sent out commissioners of high rank, with large powers of concession; and though in one remarkable instance the mission of Mr. Penn, in the summer of 1775, with the petition to the King known as "the Olive Branch," seemed to show a desire for a maintenance of the union on the part of the Colonial Congress,[[52]] from the moment that the sword was drawn all hope of preserving the connection of the Colonies must have been seen by all reasonable men to be at an end.
It is beside our present purpose to recapitulate the military operations of the war, though they verified another of Burke's warnings, that, supposing all moral difficulties to be got over, the ocean remained—that could not be dried up; and, as long as it continued in its present bed, so long all the causes which weakened authority by distance must continue. In fact, distance from England was one of the main circumstances which decided the contest. The slowness of communication—almost inconceivable to the present generation—rendered impossible that regularity in the transport of re-enforcements and supplies which was indispensable to success; and, added to the strange absence of military skill shown by every one of the British generals, soon placed the eventual issue of the war beyond a doubt. But one measure by which Lord North's government endeavored to provide for the strengthening of the army employed in America was so warmly challenged on constitutional grounds, that, though the fortunate separation of Hanover from Great Britain has prevented the possibility of any recurrence of such a proceeding, it would be improper to pass it over.
In his speech at the opening of the autumnal session of 1775, the King announced to the Houses that, in order to leave a larger portion of the established forces of the kingdom available for service in North America, he "had sent a part of his Electoral troops to the garrisons of Gibraltar and Port Mahon." And the announcement aroused a vehement spirit of opposition, which found vent in the debates of both Houses on the address, and in two substantive motions condemning the measure as a violation of the constitution as established by the Bill of Rights and the Act of Settlement. It was strenuously maintained that both these statutes forbade the raising or keeping on foot a standing army in the kingdom in time of peace, and also the introduction of foreign troops into this kingdom, without the previous consent of Parliament, on any pretence whatever; and that "the fact that Gibraltar and Minorca were detached from these islands did not exclude them from the character of forming a part of the British dominion." And on these grounds Lord Shelburne, who supported Lord Rockingham on an amendment to the address, did not hesitate to denounce this employment of the Hanoverian regiments, as "fundamentally infringing the first principles of our government," and to declare it "high-treason against the constitution." He asked, "if there were a settled plan to subdue the liberties of this country, what surer means could be adopted than those of arming Roman Catholics and introducing foreign troops?"[[53]] and compared the measure under discussion to the case of the Dutch regiments of William III., "which the Parliament wisely refused to allow him to retain." In the House of Commons, the Opposition was led by Sir James Lowther and Governor Johnstone, the latter of whom "appealed to the clause in the Act of Settlement which enacted that no person born of other than English parents should enjoy any office or place of trust, civil or military, within the kingdom;" and argued that to employ foreign officers in the protection of a British fortress was to place them in an "office of great military trust."
The discussion brought to light strange divisions and weakness in the ministry. The ministerial lawyers differed on the grounds on which they relied, the Attorney-general, Thurlow, denying that the expression "this kingdom" in the Bill of Rights included the foreign dependencies of the crown[[54]] (a narrowing of its force which the Chancellor, Lord Bathurst, wholly repudiated), while the argument on which he himself insisted most strongly, that the existence of rebellion in America put end to all conditions which supposed the kingdom to be at peace, could not obtain the support of any one of his colleagues. But a plea urged by an independent member, Lord Denbigh, was regarded by some of the speakers with greater favor; his contention being that neither the Bill of Rights nor the Act of Settlement had been violated, since both those great statutes must be interpreted with reference to the time at which they were framed, and to the recent acts of James II. and William III., the recurrence of which they had been designed to prevent, acts to which the present proceeding bore no resemblance.
A stronger justification, however, might have been found in very recent precedents. In 1745 the ministers had brought over six thousand Dutch troops to re-enforce the army of the Duke of Cumberland, and their act had been subsequently approved by Parliament. And in 1756, at the commencement of the seven years' war, when the loss of Minorca had led to such a distrust of our fleets that a French invasion was very generally apprehended, both Houses presented addresses to George II., begging him to bring over some Hanoverian regiments; and, in the course of the next year, other addresses to thank him for compliance with their entreaty.
Looking at the strict law of the question, few lawyers doubt that the expression "this kingdom" in the Bill of Rights includes the entire dominions of the crown, or that that great statute was undoubtedly intended to protect the privileges of all their inhabitants, whether within the four seas or in foreign settlements. But it also seems that the clause against raising and keeping on foot a standing army without the consent of Parliament was not more violated by keeping a mixed garrison in Gibraltar and Port Mahon than garrisons consisting of native soldiers only; and undoubtedly the keeping of an armed force in both these fortresses had been sanctioned by Parliament. Nor could the colonel of a foreign regiment in garrison under the command of a British governor be fairly said to be in an office of great military trust. So far, therefore, the charge against the ministry may be thought to have failed. But the accusation of having transgressed the clause which prohibits "the introduction of foreign troops into this kingdom without the previous consent of Parliament on any pretence whatever," must, on the other hand, be regarded as proved. And, indeed, Lord North himself may be taken to have shown some consciousness that it was so, since he justified his conduct in omitting to procure that previous consent by the necessity of the case, by the plea that, as Parliament was in vacation, the time which would have been consumed in waiting for its sanction would have neutralized the advantage desired from the employment of the Hanoverians, since the regiments which they were to replace at Gibraltar and Port Mahon could not, after such delay, have reached America in time to be of service; and since he also consented eventually to ask Parliament for an Act of Indemnity, the preamble of which affirmed the existence of doubts as to the legality of the step which had been taken. And the fate of this act afforded a still more striking proof of the divisions in the ministry, since, after Lord North himself had proposed it in the House of Commons, and it had been passed there by a large majority, it was rejected in the House of Lords, where his own colleagues, Lord Gower, Lord Suffolk, and Lord Weymouth, spoke and voted against it as needless, because, in their judgment, no doubt of the state of the law on the subject could exist.
From a statesman-like point of view, the employment of the Hanoverians seems abundantly defensible, if force were still to be employed to bring back the Colonists to their obedience. The circumstance of their being subjects of our sovereign in his other character of Elector of Hanover, clearly distinguished it from the hiring of the Hessian and Brunswick mercenaries, which has been deservedly condemned. And, as the entire number fell short of two thousand,[[55]] Lord Shelburne's expression of fear for the liberties and religion of Englishmen was an absurd exaggeration. Moreover, the warm approval which, less than twenty years before, Parliament had given to the introduction of a far larger body of the same troops into England itself, justified the anticipation that a similar sanction would now be cheerfully given. That sanction—which, indeed, might have been thought to be invited by the announcement of the measure in the King's speech—was undoubtedly requisite. And, if it was, a Bill of Indemnity for having acted without it was equally necessary. But, as has been seen in the last chapter, for an administration, on urgent occasions, to take action on its own responsibility, and then to apply for indemnity, is a course in strict harmony with the practice of the constitution; and if in this instance the ministers are in any respect blamable, their error would seem to have been limited to their abstaining from instantly calling Parliament together to sanction their act, and being contented to wait for the ordinary time of the Houses meeting.
The war, therefore, went on. The assertion of their independence by the Colonies divided, and, so far, weakened, the advocates of their cause in Parliament, one section of whom, led by Lord Chatham, regarded any diminution of our dominion as not only treasonable, but ruinous; on the other hand, it procured them the alliance of France and Spain. But it cannot be said that either of these incidents produced any practical effect on the result of the war. Lord Chatham's refusal to contemplate their independence could not retard its establishment; and the alliance of France and Spain, which brought nothing but disaster to those countries, could not accelerate it by a single moment. For nearly six years the war continued with alternations of success, the victories gained by the British arms being the more numerous, the triumphs of the Americans being incomparably the more important, involving as they did the surrender of two entire armies, the latter of which, that of Lord Cornwallis, in 1781, did, in fact, terminate the war, and with the war the existence of the ministry which had conducted it. A singularly rapid succession of new administrations ensued—so rapid that the negotiations for peace which the first, that of Lord Rockingham, opened, were not formally completed till the third,[[56]] known as the Coalition Ministry, was on the point of dismissal. It would be beside our purpose to enter into the details of the treaty which constituted the United States, as they were now called, a nation by our formal recognition of their independence. Even in that recognition, which was the most important article of the treaty, no constitutional principle was involved, though it affords the only instance in our history which can seem to throw a doubt on our inheritance of that capacity for government which the Roman poet claimed as, in ancient times, the peculiar attribute of his own countrymen. It presents the only instance of a loss of territory peopled by men who came of our blood, and who still spoke our language. It was a stern and severe lesson; and yet, fraught with discredit and disaster as it was, it nevertheless bore fruit in a later age which we may be excused for regarding as an example of the generally predominating influence of sober practical sense in our countrymen, when not led away by the temporary excitement of passion, as shown in our capacity to take home to ourselves and profit by the teachings of experience. The loss of the American Colonies was caused by the submission of the Parliament and nation to men of theory rather than of practice; ideologists, as Napoleon called them; doctrinaires, to use the modern expression; men who, because Parliament had an abstract right of universal legislation, regarded it as a full justification for insisting on its exercise, without giving a thought to the feelings, or prejudices, or habits of those who might be affected by their measures. Abstractedly considered, Lord Chatham and Lord Camden were undoubtedly wrong in denying the power of Parliament to tax the Colonies; but there was better judgment in their counsels, though founded on false premises, than in those of Grenville and Townsend, though theirs was the more correct view of the constitutional power of legislation. The two peers were wrong in their principle; the two Chancellors of the Exchequer were unwise in their application of their principle; and the practical error was the more disastrous one.
It is now generally admitted that the true statesman-like course toward the Colonies was that adopted by Lord Rockingham and his colleagues in 1765—to avoid weakening the supreme power of Parliament by any disavowal of the right to tax but to avoid imperilling the sovereign authority of the King by a novel exertion of it. As much of our common English law is made up of precedent, so, in a still greater degree, are our feelings and ideas of our rights and privileges regulated by precedent. And we lost America because in 1764 and 1767 neither minister nor Parliament took men's feelings and prejudices into account. The loss of the United States, therefore, was a lesson not undeserved; and by our statesmen since that day it has been taken in the right spirit of profiting by its teaching as a guide to their own conduct. Since that day the enterprise of our people has planted our flag in regions far more distant, and has extended the dominion of our sovereign over provinces far more extensive than those which we then lost. And on some of the administrations of the present reign the duty has fallen of framing schemes of government for those new acquisitions, as also for some of those previously possessed. In how different a spirit from that which actuated the early ministers of George III.[[57]] those to whom the task was committed by Queen Victoria applied themselves to their task may be seen in a maxim laid down by the present Lord Grey, when he presided at the Colonial Office (1846-1852), that "the success of free institutions in any country depends far less upon the particular form of those institutions than upon the character of the people on whom they are conferred." But how he and others in the same office carried out that principle must be reserved for a later chapter.
Besides the numerous motions which were brought forward by the Opposition respecting the continuance and conduct of the war, there were several also which were indirectly prompted by it. The Opposition claimed to be on this subject not only the champions of the real interests of the nation, but also its spokesmen, who expressed the opinions and feelings of all the thinking and independent portion of the people. That their efforts were overborne they attributed to the subservience of the Parliament to the ministers, and of the ministers to the crown.[[58]] And consequently several motions were made by members of that party, the object of which was, in one way or another, to diminish what they regarded as the undue influence of the crown. In one instance, and that the most successful, a direct denunciation of that influence was employed, but the earlier and more frequent proposals were directed to the purification of the House of Commons, and to the strengthening of its independence. It is remarkable that of these the two which related to a subject of which the Commons are usually most especially and most rightly jealous, the interference of peers in elections, had the worst fortune. In 1780 complaints were made and substantiated that the Duke of Bolton and the Duke of Chandos (who was also Lord-lieutenant of the county) had exerted themselves actively in the last election for Hampshire. And, in support of motions that these peers "had been guilty of a breach of the privileges of the House, and an infringement of the liberties and privileges of the Commons of Great Britain," a case was adduced in which Queen Anne had dismissed the Bishop of Worcester from the office of Almoner for similar interference. Nor did Lord Nugent, a relative of the Duke of Chandos, deny the facts alleged; on the contrary, he avowed them, and adopted a line of defence which many must have thought an aggravation of the charge, since it asserted that to prevent such interference was impossible, and therefore the House would but waste its time in trying. However, on this occasion the House took the view which he thus suggested to it, postponing all farther consideration of the matter for four months; and the charge the Duke of Bolton was shelved in a somewhat similar manner.
Even had these peers and such practices been censured with the very greatest severity, the censures could have had but a very limited effect. But it was on measures of a wider scope, embracing what began to be called a Reform of Parliament, that the more zealous members of the Opposition placed their chief reliance. As far as our records of the debates can be trusted, Lord Chatham, ten years before, had given the first hint of the desirableness of some alteration of the existing system. On one occasion he denounced the small boroughs as "the rotten part of the constitution," thus originating the epithet by which they in time came to be generally described; but more usually he disavowed all idea of disfranchising them, propounding rather a scheme for diminishing their importance by a large addition to the county members. However, he never took any steps to carry out his views, thinking, perhaps, that it was not in the Upper House that such a subject should be first broached. But he had not been long in the grave, when a formal motion for a reform of a different kind was brought forward by one of the members for the City of London, Alderman Sawbridge,[[59]] who, in May, 1780, applied for leave to bring in "a bill for shortening the duration of Parliaments." His own preference he avowed to be for annual Parliaments; but his suspicion that the House would think such a measure too sweeping had induced him to resolve to content himself with aiming at triennial Parliaments. As leave was refused, the bill proposed to be introduced may, perhaps, be thought disentitled to mention here, were it not that the circumstance that proposals for shortening the duration of Parliaments are still occasionally brought forward seems to warrant an account of a few of the arguments by which those who took the leading parts in the debate which ensued resisted it. The minister, Lord North, declared that the Alderman had misunderstood the views of our ancestors on the subject; as their desire had been, not that Parliament should be elected annually, but that it should sit every year, an end which had now been attained. Fox, on the other hand, while avowing that hitherto he had always opposed similar motions, declared his wish now to see not only triennial but annual Parliaments, as the sole means of lessening the influence of the crown. "If any of his constituents were to ask him to what our present misfortunes were ascribable, he should say the first cause was the influence of the crown; the second, the influence of the crown; and the third, the influence of the crown." But it was replied by Burke, who usually exhausted every question he took in hand, that such a bill would rather tend to augment that influence, since "the crown, by its constant stated power, influence, and revenue, would be able to wear out all opposition at elections; that it would not abate the interest or inclination of ministers to apply that interest to the electors; on the contrary, it would render it more necessary to them, if they desired to have a majority in Parliament, to increase the means of that influence, to redouble their diligence, and to sharpen dexterity in the application. The whole effect of the bill would, therefore, be to remove the application of some part of that influence from the elected to the electors, and farther to strengthen and extend a court interest already great and powerful in boroughs. It must greatly increase the cost of a seat in Parliament; and, if contests were frequent, to many they would become a matter of expense totally ruinous, which no fortunes could bear. The expense of the last general election was estimated at £1,500,000; and he remembered well that several agents for boroughs said to candidates, 'Sir, your election will cost you £3000 if you are independent; but, if the ministry supports you, it may be done for £2000, and even less.'" And he adduced the case of Ireland, where formerly, when "a Parliament sat for the King's life, the ordinary charge for a seat was £1500; but now, when it sat for eight years, four sessions, the charge was £2500 and upward." Such a change as was proposed would cause "triennial corruption, triennial drunkenness, triennial idleness, etc., and invigorate personal hatreds that would never be allowed to soften. It would even make the member himself more corrupt, by increasing his dependence on those who could best support him at elections. It would wreck the fortunes of those who stood on their own private means. It would make the electors more venal, and injure the whole body of the people who, whether they have votes or not, are concerned in elections." Finally, it would greatly impair the proper authority of the House itself. "It would deprive it of all power and dignity; and a House of Commons without power and without dignity, either in itself or its members, is no House of Commons for this constitution."
The applicability of some of his arguments—those founded on the disorders at times of election—has been greatly diminished, if not destroyed, at the present day, by the limitation of the polling to a single day. The disfranchisement of the smaller boroughs has neutralized others; but the expense of a general election is not believed to have diminished, and that alone seems a strong objection to a system which would render them more frequent than they are at present. Mr. Sawbridge could not obtain the support of a third of his hearers.[[60]] But his notions had partisans in the other House who were not discouraged by such a division; and three weeks later the Duke of Richmond brought forward a Reform Bill on so large a scale that, as the "Parliamentary History" records, "it took him an hour and a half to read it," and which contained provisions for annual Parliaments and universal suffrage. But he met with even less favor than the Alderman, and his bill was rejected without a division.
Still the subject was not allowed to rest. Even after Lord North had been replaced by Lord Rockingham, the demand for Parliamentary Reform was continued; the young Mr. Pitt making himself the mouth-piece of the Reformers, and founding a motion which he made in May, 1782, on "the corrupt influence of the crown; an influence which has been pointed at in every period as the fertile source of all our miseries; an influence which has been substituted in the room of wisdom, of activity, of exertion, and of success; an influence which has grown up with our growth and strengthened with our strength, but which, unhappily, has not diminished with our diminution, nor decayed with our decay." He brought forward no specific plan, but denounced the close boroughs, and asked emphatically whether it were "representation" for "some decayed villages, almost destitute of population, to send members to Parliament under the control of the Treasury, or at the bidding of some great lord or commoner." He, however, was defeated, though by the small majority of twenty. And it is remarkable that when, the next year, he revived the subject, developing a more precise scheme—akin to that which his father had suggested, of increasing the number of county members, and including provisions for the disfranchisement of boroughs which had been convicted of systematic corruption—he was beaten by a far larger majority,[[61]] the distinctness of his plan only serving to increase the numbers of his adversaries. A kinsman of Pitt's, Lord Mahon, made an equally futile attempt to diminish the expenses of elections, partly by inflicting very heavy penalties on parties guilty of either giving or receiving bribes,[[62]] and partly by prohibiting candidates from providing conveyances for electors; and more than one bill for disfranchising revenue-officers, as being specially liable to pressure from the government, and to prevent contractors from sitting in Parliament, was brought forward, but was lost, the smallness of the divisions in their favor being not the least remarkable circumstance in the early history of Reform. It was made still more evident that as yet the zeal for Reform was confined to a few, when, two years afterward, Pitt, though now invested with all the power of a Prime-minister, was as unable as when in opposition to carry a Reform Bill, which in more than one point foreshadowed the measure of 1832; proposing, as it did, the disfranchisement of thirty-six small boroughs, which were to be purchased of their proprietors nearly on the principle adopted in the Irish Union Act, and on the other hand the enfranchisement of copyholders; but it differed from Lord Grey's act in that it distributed all the seats thus to be obtained among the counties, with the exception of a small addition to the representatives of London and Westminster. However, his supporters very little exceeded the number who had divided with him in 1783, and Lord North, who led the Opposition in a speech denouncing any change, had a majority of seventy-four. After this second defeat, Pitt abandoned the question, at all events for the time; being convinced, to quote Earl Stanhope's description of his opinion on the subject, "that nothing but the pressure of the strongest popular feeling, such as did not then exist, could induce many members to vote against their own tenure of Parliament, or in fact against themselves."[[63]] What, perhaps, weighed with him more, on deciding to acquiesce in this vote as final, was the perception that as yet the question excited no strong interest out-of-doors; and when, a few years later, some who sought to become leaders of the people endeavored to raise an agitation on the subject, their teachings were too deeply infected with the contagion of the French Revolution to allow a wise ruler to think it consistent with his duty to meet them with anything but the most resolute discouragement.
But, concurrently with the first of these motions for Parliamentary Reform, two more direct attacks on the royal influence, and on what was alleged to be the undue exertion of it, were made in the session of 1780. The first was made by Burke, who brought forward a measure of economical reform, demonstrating, in a speech of extraordinary power, a vast mass of abuses, arising from corrupt waste in almost every department of the state, and in every department of the royal household, without exception, and proposing a most extensive plan of reform, which dealt with royal dignities, such as the Duchy of Lancaster and the other principalities annexed to the crown; with the crown-lands, a great portion of which he proposed to sell; with the offices of the royal household, a sufficient specimen of the abuses on which was furnished by the statement, that the turnspit in the King's kitchen was a member of Parliament; and with many departments of state, such as the Board of Works and the Pay-office, etc. He was studiously cautious in his language, urging, indeed, that his scheme of reform would "extinguish secret corruption almost to the possibility of its existence, and would destroy direct and visible influence equal to the offices of at least fifty members of Parliament," but carefully guarding against any expressions imputing this secret corruption, this influence which it was so desirable to destroy, to the crown. But his supporters were less moderate; and Mr. Thomas Townsend declared that facts which he mentioned "contained the most unquestionable presumptive evidence of the influence of the crown; he meant the diverting of its revenues to purposes which dared not be avowed, in corrupting and influencing the members of both Houses of Parliament;" and he asserted that "the principle and objects of the bill were the reduction of the influence of the crown." The bill was not opposed by the ministers on its principle; but Lord North, even while consenting to its introduction, "did not pledge himself not to oppose it in some or other of its subsequent stages;" and, in fact, his supporters resisted it in almost every detail, some of them utterly denying the right of the House to interfere at all with the expenditure of the civil list; others contesting the propriety of alienating the crown-lands; and a still greater number objecting to the abolition of some of the offices which it was proposed to sweep away, such as that of the "third Secretary of State, or Secretary for the Colonies," that of "Treasurer of the Chamber," and others of a similar character. And, as the minister succeeded in defeating him on several, though by no means all, of these points, Burke at last gave up the bill, Fox warning the House at the same time that it should be renewed session after session, and boasting that even the scanty success which it had met with had been worth the struggle.
The other direct attack was made by Mr. Dunning, who, perhaps, did not then foresee that he himself was destined soon to fill one of the offices which had come under the lash of Burke's sarcasm, and who a few days afterward, in moving that it was necessary to declare "that the influence of the crown had increased, was increasing, and ought to be diminished" rested no small portion of his argument on the treatment that Burke's bill had received. He affirmed that, though Lord North had declared that "the influence of the crown was not too great," the divisions on that bill, and on many other measures which had been under discussion, were irrefragable proofs of the contrary. He quoted Hume and Judge Blackstone as testifying to the existence and steady increase of that influence, and "could affirm of his own knowledge, and pledge his honor to the truth of the assertion, that he knew upward of fifty members in that House who always voted in the train of the noble lord in the blue ribbon,[[64]] but who reprobated and condemned, out of the House, the measures they had supported and voted for in it." Mr. T. Pitt even instanced "the present possession of office by Lord North as an indubitable proof of the enormous influence of the crown."
It was not strange that Lord North opposed a resolution supported by such arguments with all the power of the government, basing his own opposition chiefly on the wisdom "of maintaining the rule long since established by Parliament, never to vote abstract propositions." But he presently saw that he was in a minority, and was forced to be content with adopting and carrying an amendment of Mr. Dundas, one of the members for Edinburgh, who flattered himself that by the insertion of now he converted a general assertion into a temporary declaration, which might at a future time be disavowed as no longer applicable. A majority of eighteen[[65]] affirmed the resolution; and when the mover followed it up by a second, declaring that "it is competent to this House to examine into and to correct abuses in the expenditure of the civil list revenues, as well as in every other branch of the public revenue, whenever it shall seem expedient to the wisdom of this House to do so," though the minister, with what was almost an appeal ad misericordiam, "implored the House not to proceed," he did not venture to take a division, and that resolution also, with one or two others designed to give instant effect to them, were adopted and reported by the committee to the House in a single evening.[[66]] The first resolution did, in fact, embody a complaint, or at least an assertion, which the Rockingham party had constantly made ever since the close of the Marquis's first administration. In a speech which he had made only a few weeks before,[[67]] Lord Rockingham himself had declared that "it was early in the present reign promulgated as a court axiom that the power and influence of the crown alone was sufficient to support any set of men his Majesty might think proper to call to his councils." And Burke, in his "short account" of his administration of 1765, had not only imputed both its formation and its dismissal to the "express request" and "express command of their royal master," but in the sentence, "they discountenanced and, it is to be hoped, forever abolished, the dangerous and unconstitutional practice of removing military officers for their votes in Parliament," condemned with unmistakable plainness some acts of the preceding ministry which were universally understood to have been forced upon it by the King himself. General Conway had been deprived of the colonelcy of his regiment; Lord Rockingham himself, with several other peers, had been dismissed from Lord-lieutenancies, as a punishment for voting against the ministry; such dismissals being a flagrant attempt to put down all freedom of debate in Parliament, which of all its privileges is the one most essential to its usefulness, if not to its very existence. But, as Burke said, the practice had been abandoned, and the first resolution, therefore, as Lord North said, involved no practical result. It is the second resolution that confers a constitutional character and importance on this debate. And it is not too much to say that no vote of greater value had been come to for many years. It might have been considered almost as the assertion of a truism included in the power of granting supplies, to declare that the Parliament has the right and authority to examine into and correct abuses in the expenditure, if it had not been denied by more than one speaker on the ministerial side, though not by the Prime-minister himself. But that denial made the assertion of the right an imperative duty; for certainly the exclusive right of authorizing a levy of money would lose half its value, if unaccompanied by the other right of preventing the waste of the revenue thus raised.
It may likewise be said that another principle of the parliamentary constitution is, by implication, contained in Mr. Dunning's second resolution, and that the words, "it is competent to this House to examine into and to correct abuses in the expenditure," were meant to imply a denial of the competency of the other House to institute, or even to share in, such an examination. Even if that were the object of its framer, it only coincided with the view of the peers themselves, a very considerable majority[[68]] of whom had, a few weeks before, rejected a motion made by Lord Shelburne for the appointment of "a committee of members of both Houses to examine without delay into the public expenditure," principally on the ground urged by the Secretary of State, Lord Stormont, and by several other peers, that "to inquire into, reform, and control the public expenditure" would be an improper interference with the privileges of the Commons; the Chief-justice, Lord Mansfield, even going the length of warning his brother peers that such interference might probably lead the Commons "to dispute in their turn the power of judicature in the last resort exercised by the peers." Lord Camden, on the contrary, affirmed, as a proposition which "no noble lord present would deny, that that House had a right to inquire so far as the disposal of public moneys came under their cognizance as a deliberative body." And in the Lower House itself, Burke, in his speech in favor of his Bill for Economical Reform, went even farther than Lord Camden, and blamed the House of Lords for rejecting Lord Shelburne's motion on such a ground. "They had gone," he said, "farther in self-denial than the utmost jealousy of the Commons could have required. A power of examining accounts, of censuring, correcting, and punishing the Commons had never, that he knew of, thought of denying to the Lords. It was something more than a century ago that the Commons had voted the Lords a useless body. They had now voted themselves so." And it would seem that the Lords themselves, to a certain extent, retracted this, their self-denying vote, when, before the end of the same session, they discussed Burke's Bill for Economical Reform, and passed it, though it was a money-bill, "containing extraneous enactments," and as such contravened one of their own standing orders which had been passed in the beginning of Queen Anne's reign, when the system of "tacking," as it was called, had excited great discontent, which was not confined to themselves. The propriety of rejecting the bill on that ground was vigorously urged by the only two lawyers who took part in the debate, the Chancellor, Lord Thurlow, and Lord Loughborough, whose object was avowedly thus to give a practical proof that the Lords "had not voted themselves useless." But even those who disregarded their advice fully asserted the right of the peers "to exercise their discretion as legislators." We have noticed this matter on a previous occasion. The privilege claimed by the Commons, both as to its origin and its principle, has been carefully examined by Hallam, who has pointed out that in its full exclusiveness it is not older than Charles II., since the Convention Parliament of 1660 "made several alterations in undoubted money-bills, to which the Commons did not object."[[69]] And, though his attachment to Whig principles might have inclined him to take their part in any dispute on the subject, he nevertheless thinks that they have strained both "precedent and constitutional analogy" in their assertion of this privilege, which is "an anomaly that can hardly rest on any other ground of defence than such a series of precedents as establish a constitutional usage." The usage which for two centuries was established in this case by the good-sense of both parties clearly was, that the Lords could never originate a money-bill, nor insert any clause in one increasing or even altering the burden laid by one on the people, but that they were within their right in absolutely rejecting one. But such a right has a tendency to lapse through defect of exercise; and we shall hereafter see that "the disposition to make encroachments," which in this matter Hallam imputes to the Commons, has led them in the present reign to carry their pretensions to a height which at a former period had been practically ignored by the one House, and formally disclaimed by the other.
It may be remarked that Mr. Dunning's success in carrying his first resolution did in itself, to a certain extent, disprove the truth of that resolution, since, if the influence of the crown had been such as he represented it, it must have been sufficient to insure its rejection. But that resolution, and a new statute, of which in a previous session he had been one of the principal promoters, are reckoned by Lord Stanhope as among the chief causes of the disgraceful riots of 1780. In the summer of 1778 he had seconded and supported with great eloquence the repeal of some of the penal statutes against the Roman Catholics which had been passed in the reign of William III. It was the first blow at that system of religious intolerance which for nearly a century had been one of the leading principles, as it had been also the chief disgrace, of the constitution; and it was passed with scarcely any opposition by both Houses. As, however, the statute which it repealed had been enacted before the Scotch Union, the repeal did not extend to Scotland, and it was necessary, therefore, to bring in a separate measure for that kingdom. But the intelligence that such a proceeding was in contemplation excited great wrath among the Scotch Presbyterians, who, in the hope of defeating it, established a Protestant Association for the defence of what they called the Protestant interest, and elected as its president Lord George Gordon, a young nobleman whose acts on more than one occasion gave reason to doubt the soundness of his intellect. Against any relaxation whatever of the restrictions on the Roman Catholics the Association sent up petitions to the House and to the King, couched in language the wildness of which was hardly consistent with the respect due to Parliament or to the sovereign. Apparently in the hope of mitigating its opposition, the Houses the next year passed an act, similar in principle, to relax some of the restrictions still imposed on Protestant dissenting ministers by some of the subscriptions which were required of them. But, as in the reign of Charles II., the Presbyterian hatred of the Roman Catholics was too uncompromising to be appeased in such a manner. And when Lord George found the House of Commons itself acknowledging the danger with which the constitution was threatened by the influence of the crown, he saw in their vote a justification for all his alarms, since he had adopted as one of his most settled opinions the belief that George III. was himself a Papist at heart; and, under the influence of this strange idea, he drew up a petition to Parliament which he invited all the members of the Association to accompany him to present. His summons was received with enthusiasm by his followers. The number who, in obedience to it, mustered in St. George's Fields, which he had appointed as the place of rendezvous, was not reckoned by any one at less than fifty thousand, and some calculations even doubled that estimate. Whatever the number may originally have been, it was speedily swelled by the junction of large bands of the worst characters in the metropolis, who soon began to display their strength by every kind of outrage. They commenced by attacking some of the Roman Catholic chapels, which they burnt; and, their audacity increasing at the sight of their exploits, they proceeded to assault the houses of different members of Parliament who had voted for the measures which had offended them. Because the Chief-justice, Lord Mansfield, had lately presided at a trial where a Roman Catholic had been acquitted, they sacked and burnt his house, and tried to murder himself. The magistrates, afraid of exposing themselves to the fury of such a mob, kept for the most part out of the way; and though the troops had been put under arms, and several regiments from the rural districts had been brought up to London in haste, the military officers were afraid to act without orders. Left to work their pleasure almost without resistance, the rioters attacked the different prisons, burnt Newgate and released all the prisoners, and made more than one attack on the Bank of England, where, however, fortunately the guard was strong enough to repel them. But still no active measures were taken to crush the riot. The belief was general that the soldiers might not act at all, or, at all events, not fire on rioters, till an hour after the Riot Act had been read and the mob had been warned to disperse; and no magistrate could be found to brave its fury by reading it. There seemed no obstacle to prevent the rioters from making themselves masters of the whole capital, had it not been for the firmness of the King himself, who, when all the proper authorities failed, showed himself in fact as well as in name the Chief Magistrate of the kingdom.[[70]] He summoned a Privy Council, and urged the members to adopt instant measures of repression; and, when some of the ministers seemed to waver, he put the question himself to the Attorney-general whether the interpretation put on the Riot Act, which seemed to him inconsistent with common-sense, were justified by the law. Wedderburn unhesitatingly replied that it was not; that "if a mob were committing a felony, as by burning dwelling-houses, and could not be prevented by other means, the military, according to the law of England, might and ought to be immediately ordered to fire upon them, the reading of the Riot Act being wholly unnecessary under such circumstances."[[71]] The King insisted on this opinion being instantly acted on; a proclamation was issued, and orders were sent from the Adjutant-general's office that the soldiers were to act at once without waiting for directions from the civil magistrates. A few hours now sufficed to restore tranquillity. The Chief-justice, in his place in the House of Lords, subsequently declared Wedderburn's opinion, and the orders given in reliance upon it, to be in strict conformity with the common law, laying down, as the principle on which such an interpretation of the law rested, the doctrine that in such a case the military were acting, "not as soldiers, but as citizens; no matter whether their coats were red or brown, they were legally employed in preserving the laws and the constitution;"[[72]] and Wedderburn, who before the end of the year became Chief-justice of the Common Pleas, repeated the doctrine more elaborately in a charge from the Bench. It was a lesson of value to the whole community. It was quite true that the constitution placed the army in a state of dependence on the civil power. But, when that doctrine was so misunderstood as to be supposed to give temporary immunity to outrage, it was most important that such a misconstruction should be corrected, and that it should be universally known that military discipline does not require the soldier to abstain from the performance of the duty incumbent on every citizen, the prevention of crime.
Notes:
[ [!-- Note Anchor 33 --][Footnote 33: It is worth while to preserve the amount, if for no other reason, for the contrast that the expenditure and resources of the kingdom a hundred years ago present to those of the present day. The supply required in 1764 was in round numbers £7,712,000; in 1755, before the war broke out, £4,073,000, and even that included a million for the augmentation of the army and navy. In 1761, when the war was at its height, the sum voted was £19,616,000.]
[ [!-- Note Anchor 34 --][Footnote 34: The report in the "Parliamentary History," xvi., 37, says: "This act (the Stamp Act) passed the Commons almost without debate; two or three members spoke against it, but without force or apparent interest, except a vehement harangue from Colonel Barré (date, March 6, 1765).">[
[ [!-- Note Anchor 35 --][Footnote 35: Lord Stanhope ("History of England," v., 131) quotes a letter of Dr. Franklin to one of his friends in America, in which, after deploring the impossibility of preventing the act from being passed, he expresses a hope that "frugality and industry will go a great way toward indemnifying us." And he complied with Mr. Grenville's request to select a person to act as Distributor of Stamps in Pennsylvania whom he thought likely to be generally acceptable.]
[ [!-- Note Anchor 36 --][Footnote 36: These statements and arguments of Franklin are taken from different parts of his examination before the House of Commons, as preserved in the "Parliamentary History," xvi., 137-160.]
[ [!-- Note Anchor 37 --][Footnote 37: In the Assembly of Virginia, one of the members—Patrick Henry—after declaiming with bitterness against the supposed arbitrary measures of the present reign, exclaimed, "Caesar had his Brutus, Charles I. his Oliver Cromwell, and George III.—" A cry of "Treason!" was uttered. The Speaker called Mr. Henry to order, and declared he would quit the chair unless he were supported by the House in restraining such intemperate speeches.—Adolphus, History of England, i., 188.]
[ [!-- Note Anchor 38 --][Footnote 38: On this point the law has been affirmed by a judge of high reputation to be still what Lord Rockingham and his colleagues asserted. In 1868, on the trial of Governor Eyre for an indictment arising out of disturbances in Jamaica, Judge Blackburne laid it down "that, although the general rule is that the Legislative Assembly has the sole right of imposing taxes in the colony, yet, when the Imperial Legislature chooses to impose taxes, according to the rule of English law they have a right to do it.">[
[ [!-- Note Anchor 39 --][Footnote 39: See his speech on American taxation in April, 1774.]
[ [!-- Note Anchor 40 --][Footnote 40: The chief divisions were: in the Commons, 275 to 167; in the Lords, 105 to 71.]
[ [!-- Note Anchor 41 --][Footnote 41: "History of England," vol. v., c. xlv., p. 218, ed. 1862.]
[ [!-- Note Anchor 42 --][Footnote 42: "Lives of the Chancellors," c. cxliii., life of Lord Camden.]
[ [!-- Note Anchor 43 --][Footnote 43: Every political student will recollect Burke's description of it as "a cabinet so variously inlaid, such a piece of diversified mosaic, such a tessellated pavement without cement—here a bit of black stone, there a bit of white—patriots and courtiers, King's friends and republicans, Whigs and Tories, treacherous friends and open enemies," etc.—Speech on American Taxation.]
[ [!-- Note Anchor 44 --][Footnote 44: In a debate in the year 1776, on some measures adopted for the conduct of the war, the Duke of Grafton said: "In that year (1767), when the extraordinary expenses incurred on account of America were laid before the House of Commons, the House rose as one man and insisted that that country should contribute to the burdens brought on by the military establishment there, and a motion was made for bringing in a bill for that purpose. I strenuously opposed the measure, as big with the consequences it has since, unfortunately, produced. I spoke to my friends upon the occasion, but they all united in the opinion that the tide was too strong to expect either to stem or turn it, so as to prevent whatever might be offered in that shape from passing into a law. Finding that all my efforts would be vain, I was compelled to submit, but was resolved, as far as lay in my power, to prevent the effect; and, while I gave way, to do it in such a manner as would cause the least harm. I accordingly proposed the tea-duty as the most palatable; because, though it answered the main purpose of those with whom taxation was a favorite measure, it was doing America an immediate benefit, for I procured the shilling a pound duty to be taken off, and threepence to be laid on in lieu thereof; so that, in fact, it was ninepence a pound saved to America. However, the attempt was received in America as I expected it would be—it immediately caused disturbances and universal dissatisfaction."—Parliamentary History, xviii., 134.]
[ [!-- Note Anchor 45 --][Footnote 45: This unpopularity had been aggravated by another measure which was among the last acts of Mr. Grenville's ministry. The Mutiny Act in the Colonies was renewed for two years at a time, and, at its renewal in the spring of 1765, a clause was added which required the Colonists to furnish the troops with "fire, candles, vinegar, salt, bedding, utensils for cooking, and liquors, such as beer, cider, and rum." The Assemblies of several States passed resolutions strongly condemning this new imposition; but, as the dissatisfaction did not lead to any overt acts of disturbance, it seems to have been unnoticed in England at the time, or the clause would probably have been repealed by Lord Rockingham; and eventually the Assembly of New York seems to have withdrawn its objections to it, presenting an address to Sir H. Moore, the Governor, in which "they declared their intention of making the required provision for the troops."—Lord E. Fitzmaurice, Life of Lord Shelburne, ii., 61.]
[ [!-- Note Anchor 46 --][Footnote 46: The "Memoirs of Judge Livingstone" record his expression of opinion as early as 1773, that "it was intolerable that a continent like America should be governed by a little island three thousand miles distant." "America," said he, "must and will be independent." And in the "Memoirs of General Lee" we find him speaking to Mr. Patrick Henry, who in 1766 had been one of the most violent of all the denouncers of the English policy (see ante, [p. 63]), of "independence" as "a golden castle in the air which he had long dreamed of.">[
[ [!-- Note Anchor 47 --][Footnote 47: See the whole speech, "Parliamentary History," xvi., 853. Many of the taxes he denounced as so injurious to the British manufacturers, "that it must astonish any reasonable man to think how so preposterous a law could originally obtain existence from a British Legislature.">[
[ [!-- Note Anchor 48 --][Footnote 48: The division was: for the amendment, 142; against it, 204.]
[ [!-- Note Anchor 49 --][Footnote 49: The words of the "preamble," on which Burke dwelt in 1774, were: "Whereas it is expedient that a revenue should be raised in your Majesty's dominions in America for making a more certain and adequate provision for defraying the charge of the administration of justice and support of civil government in such provinces where it shall be found necessary, and toward farther defraying the expenses of defending, protecting, and securing: the said dominions, be it enacted," etc.]
[ [!-- Note Anchor 50 --][Footnote 50: "Memoirs and Correspondence of Jefferson." Quoted by Lord Stanhope, "History of England," vi., 14.]
[ [!-- Note Anchor 51 --][Footnote 51: At Lexington, April 19, 1775.]
[ [!-- Note Anchor 52 --][Footnote 52: Lord Stanhope, however, has reason on his side when he calls the words of this petition "vague and general," though "kindly and respectful;" and when he points to the language of extreme bitterness against England indulged in by Franklin at the very time that this petition was voted. He, however, expresses a belief that even then "the progress of civil war might have been arrested," which seems doubtful. But it is impossible not to agree with his lordship in condemning the refusal by the ministry to take any notice of the petition, on the ground that the Congress was a self-constituted body, with no claim to authority or recognition, and one which had already sanctioned the taking up arms against the King.—History of England, vi., 93, 95, 105.]
[ [!-- Note Anchor 53 --][Footnote 53: It is probable, however, that the greater part of the Hanoverian soldiers were Protestants.]
[ [!-- Note Anchor 54 --][Footnote 54: Lord Campbell, who, in his "Life of Lord Bathurst," asserts that the legality of the measure turns upon the just construction of the Act of Settlement, adduces Thurlow's language on this subject as "a proof that he considered that he had the privilege which has been practised by other Attorney-generals and Chancellors too, in debate, of laying down for law what best suited his purpose at the moment." It does not seem quite certain that the noble and learned biographer has not more than once in these biographies allowed himself a similar license in the description of questions of party politics.]
[ [!-- Note Anchor 55 --][Footnote 55: In the debates on the subject it was stated that the number of Hanoverians quartered in the two fortresses was nineteen hundred, and the number of British troops left in them was two thousand. Moreover, as has been already remarked, though Lord Shelburne spoke of arming Roman Catholics, it is probable that the Hanoverians were mostly Protestants.]
[ [!-- Note Anchor 56 --][Footnote 56: The Preliminary or Provisional Articles, as they were called, of which the Definitive Treaty was but a copy, were signed at Paris, November 30, 1782, during Lord Shelburne's administration. But the Definitive Treaty was not signed till the 3d of September of the following year, under the Coalition Ministry, which was turned out a few weeks afterward.]
[ [!-- Note Anchor 57 --][Footnote 57: We shall see in a [subsequent chapter] that even in this reign of George III. Pitt laid down the true principles of our legislation for the colonies in his bill for the better government of Canada.]
[ [!-- Note Anchor 58 --][Footnote 58: An admirably reasoned passage on the influence of the crown, especially in the reigns of the two first Hanoverian Kings, will be found in Hallam, "Constitutional History," c. xvi., vol. iii., p. 392, ed. 1832.]
[ [!-- Note Anchor 59 --][Footnote 59: The "Parliamentary History" shows that he had brought forward the same motion before 1780; since Lord Nugent, who replied to him, said "the same motion had been made for some years past, and had been silently decided on." From which it seems that it was never discussed at any length till May 8, 1780.]
[ [!-- Note Anchor 60 --][Footnote 60: On the division the numbers were: for the motion, 90; against it, 182.]
[ [!-- Note Anchor 61 --][Footnote 61: The division in 1782 was: 161 to 141; in 1783, 293 to 149.]
[ [!-- Note Anchor 62 --][Footnote 62: How systematic and open bribery was at this time is shown by an account of Sheridan's expenses at Stafford in 1784, of which the first item is—248 burgesses, paid £5 5s. each, £1302.—Moore's Life of Sheridan, i., 405.]
[ [!-- Note Anchor 63 --][Footnote 63: "Life of Pitt," i., 359.]
[ [!-- Note Anchor 64 --][Footnote 64: Lord North was a Knight of the Garter, the only commoner, except Sir R. Walpole, who received that distinction in the last century, and the latest, with the exception of Lord Castlereagh. on whom it has been conferred.]
[ [!-- Note Anchor 65 --][Footnote 65: 233 to 315.]
[ [!-- Note Anchor 66 --][Footnote 66: It is perhaps worth pointing out, as a specimen of the practical manner in which parliamentary business was transacted at that time, that this great debate—in which (the House being in committee) Mr. Dunning himself spoke three times, and Lord North, Mr. T. Pitt, Mr. Fox, the Speaker (Sir F. Norton), the Attorney-general, General Conway, Governor Pownall, the Lord-advocate, and several other members took part—was concluded by twelve o'clock.]
[ [!-- Note Anchor 67 --][Footnote 67: February 8, 1780, on Lord Shelburne's motion for an inquiry into the public expenditure.—Parliamentary History, xx., 1346.]
[ [!-- Note Anchor 68 --][Footnote 68: 101 to 55.]
[ [!-- Note Anchor 69 --][Footnote 69: "Constitutional History," iii., 43.]
[ [!-- Note Anchor 70 --][Footnote 70: His language is said to have been that "there was at all events one Magistrate in the kingdom who would do his duty."—Lord Stanhope, History of England, vii., 48.]
[ [!-- Note Anchor 71 --][Footnote 71: "Lives of the Lord Chancellors," c. clxvii.]
[ [!-- Note Anchor 72 --][Footnote 72: Lord Stanhope's "History of England," vii, 56.]
CHAPTER IV.
Changes of Administration.—The Coalition Ministry.—The Establishment of the Prince of Wales.—Fox's India Bill.—The King Defeats it by the Agency of Lord Temple.—The Ministry is Dismissed, and Succeeded by Mr. Pitt's Administration.—Opposition to the New Ministry in the House of Commons.—Merits of the Contest between the Old and the New Ministry.—Power of Pitt.—Pitt's India Bill.—Bill for the Government of Canada.—The Marriage of the Prince of Wales to Mrs. Fitzherbert.—The King becomes Deranged.—Proposal of a Regency.—Opinions of Various Writers on the Course adopted.—Spread of Revolutionary Societies and Opinions.—Bills for the Repression of Sedition and Treason.—The Alien Act.—The Traitorous Correspondence Act.—Treason and Sedition Bills.—Failure of some Prosecutions under them.
The occurrences of the next year brought the question of the influence of the crown into greater prominence. Lord Rockingham's administration, unfortunately, came to a premature termination by his death at the beginning of July. With a strange arrogance, Fox claimed the right of dictating the choice of his successor to the King, making his pretensions the more unwarrantable by the character of the person whom he desired to nominate, the Duke of Portland, who, though a man of vast property and considerable borough influence, was destitute of ability of any kind, and had not even any of that official experience which in some situations may at times compensate or conceal the want of talent.[[73]] The King preferred Lord Shelburne, a statesman whose capacity was confessedly of a very high order, who had more than once been Secretary of State,[[74]] and who had been recognized as the leader of what was sometimes called the Chatham section of the Whigs, ever since the death of the great Earl. Indeed, if George III. had been guided by his own wishes and judgment alone, he would have placed him at the Treasury, in preference to Lord Rockingham, three months before. But, during the last three months, jealousies had arisen between him and Fox, his colleague in office, who charged him with concealing from him the knowledge of various circumstances, the communication of which he had a right to require. It was more certain that on one or two points connected with the negotiations with the United States there had been divisions between them, and that the majority of the cabinet had agreed with Lord Shelburne. Lord Shelburne, therefore, became Prime-minister,[[75]] and Fox, with some of his friends, resigned; Fox indemnifying himself by a violent philippic against "those men who were now to direct the counsels of the country," and whom he proceeded to describe as "men whom neither promises could bind nor principles of honor could secure; who would abandon fifty principles for the sake of power, and forget fifty promises when they were no longer necessary to their ends; who, he had no doubt, to secure themselves in the power which they had by the labor of others obtained, would strive to strengthen it by any means which corruption could procure."[[76]]
Fox at once went into what even those most disposed to cherish his memory admit to have been a factious opposition. He caballed with the very men to whom he had hitherto been most vehemently opposed for the sole object of expelling Lord Shelburne from office. And when, at the beginning of the session of 1783, the merits of the preliminary articles of peace which had been provisionally concluded with the United States came under discussion, though the peers approved of them, in the House of Commons he defeated the ministers in two separate divisions,[[77]] and thus rendered their retention of office impossible. He had gained this victory by uniting with Lord North and a portion of the Tory party whom, ever since his dismissal from office in 1774, he had been unwearied in denouncing, threatening Lord North himself with impeachment. And he now used it to compel the King to intrust the chief office in the government to the very man whom his Majesty had refused to employ in such an office six months before.
The transactions of the next twelve months exhibit in a striking light more than one part of the practical working of our monarchical and parliamentary constitution, not only in its correspondence with, but, what is more important to notice, in its occasional partial deviations from, strict theory. The theory has sometimes been expressed in the formula, "The King reigns, but does not govern." But, like many another terse apophthegm, it conveys an idea which requires some modification before it can be regarded as an entirely correct representation of the fact; and the King himself, especially if endowed with fair capacity and force of character, imbued with earnest convictions, and animated by a genuine zeal for the honor and welfare of his kingdom, will be likely to dwell more on the possible modifications than on the rigid theory. Even those who insist most on the letter of the theory will not deny that, if the King has not actual power, he has at least great influence; and the line between authority and influence is hard to draw. One of George the Third's earliest ministers had explained to his Majesty that the principle of the constitution was, "that the crown had an undoubted right to choose its ministers, and that it was the duty of subjects to support them, unless there were some very strong and urgent reasons to the contrary."[[78]] And such a doctrine was too much in harmony with the feelings of George III. himself not to be cordially accepted. For George III. was by no means inclined to be a Roi fainéant. No sovereign was ever penetrated with a more conscientious desire to do his duty to his people. Conscious, perhaps, that his capacity was rather solid than brilliant, he gave unremitting attention to the affairs of the nation in every department of the government; and, perhaps not very unnaturally, conceived that his doing so justified him, as far as he might be able, in putting a constraint on his ministers to carry out his views. Thus, he had notoriously induced Lord North to persevere in the late civil war in America long after that minister had seen the hopelessness of the contest; and it was, probably, only the knowledge of the strength of his feelings on that subject, and of his warm attachment to that minister, that caused the Parliament so long to withstand all the eloquence of the advocates of peace, and the still stronger arguments of circumstances. He might fairly think that he had now greater reason to adhere to his own judgment; for Fox's recommendation of the Duke of Portland in preference to Lord Shelburne was an act not only of unwarrantable presumption, but of inconceivable folly, since there was no comparison between the qualifications of the two men; and the coalition by which, six months afterward, he had, as it were, revenged himself for the rebuff, and had driven Lord Shelburne from office, was, as the King well knew, and as even Fox's own friends did not conceal from themselves, almost universally condemned out-of-doors.[[79]] To this combination, therefore, his Majesty tried every expedient to escape from yielding. And when Pitt's well-considered and judicious refusal of the government left him no alternative but that of submission to Fox's dictation, it would hardly have been very unnatural if his disposition and attitude toward a ministry which had thus forced itself upon him had been those attributed to him by Lord John Russell, of "an enemy constantly on the watch against it."[[80]] But for some time that was not the impression of the ministers themselves. In July, when they had been in office more than three months, Fox admitted that he had never behaved toward them as if he were displeased with them, and that he had no project of substituting any other administration for the present one.[[81]] And his temperate treatment of them was the more remarkable, because a flagrant blunder of Burke (who filled the post of Paymaster), in reinstating some clerks who had been dismissed by his predecessor for dishonesty, had manifestly weakened the ministry in the House of Commons;[[82]] while in another case, in which the King had clearly in no slight degree a personal right to have his opinion consulted and his wishes accepted by them as the guide for their conduct, the establishment to be arranged for the Prince of Wales, whose twenty-first birthday was approaching, Fox persuaded the Parliament to settle on the young Prince an allowance of so large an amount that some even of his own colleagues disliked it as extravagant;[[83]] while the King himself reasonably disapproved both of the amount and of the mode of giving it, the amount being large beyond all precedent, and the fact of its being given by Parliament rendering the Prince entirely independent of his parental control, of which his conduct had given abundant proof that he stood greatly in need.
That he presently changed his line of behavior toward them was caused by their introduction of a bill which he regarded as aimed in no small degree at his own prerogative and independence—the celebrated India Bill, by which, in the November session, Fox proposed to abrogate all the charters which different sovereigns had granted to the East India Company, to abolish all vested rights of either the Company or individuals, and to confer on a board of seven persons, to be named by Parliament, the entire administration of all the territories in any way occupied by the Company. It was at once objected to by the Opposition in the House of Commons, now led by Mr. Pitt, as a measure thoroughly unconstitutional, on the twofold ground that such an abrogation of formally granted charters, and such an extinction of vested rights, was absolutely without precedent; and also that one real, if concealed, object of the bill was to confer on the ministers who had framed and introduced it so vast an amount of patronage as would render them absolute masters of the House of Commons, and indirectly, therefore, of the King himself, who would be practically disabled from ever dismissing them. That such a revocation of ancient charters, and such an immovable establishment of an administration, were inconsistent with the principles of the constitution, was not a position taken up by Pitt in the heat of debate, but was his deliberate opinion, as may be fairly inferred from his assertion of it in a private letter[[84]] to his friend the Duke of Rutland. It may, however, be doubted whether the epithet "unconstitutional" could be properly applied to the bill on either ground. There is, indeed, a certain vagueness in the meaning, or at all events in the frequent use of this adjective. Sometimes it is used to imply a violation of the provisions of the Great Charter, or of its later development, the Bill of Rights; sometimes to impute some imagined departure from the principles which guided the framers of those enactments. But in neither sense does it seem applicable to this bill. To designate the infringement or revocation of a charter by such a description would be to affirm the existence of a right in the sovereign to invest a charter, from whatever motive it may originally have been granted, with such a character of inviolability or perpetuity that no Parliament should, on ever such strong grounds of public good, have the power of interfering with it. And to attribute such a power to the crown appears less consistent with the limitations affixed to the royal prerogative by the constitution, than to regard all trusts created by the crown as subject to parliamentary revision in the interests of the entire nation. On the second ground the description seems even less applicable. An arrangement of patronage is a mere matter of detail, not of principle. For the minister to propose such an arrangement as should secure for himself and his party a perpetual monopoly of power and office might be grasping and arrogant; for Parliament (and Parliament consists of the sovereign and the peers, as well as of the House of Commons) to assent to such an arrangement might be short-sighted and impolitic; but it is not clear that either the minister in proposing such an enactment, or the Parliament in adopting it, would be violating either the letter or the spirit of the constitution. Every member of the Governing Board was to be appointed by the Parliament itself; and, though unquestionably Fox would have the nomination, and though he could reckon on the support of the majority in the House of Commons for those whom he might select, still it was a strictly constitutional machinery that he was putting in motion.
A measure, however, may be very objectionable without being unconstitutional, and such a view of the India Bill the progress of the debates in the House of Commons disposed the King to take of it. In the House of Peers Lord Thurlow described the bill as one to take the crown off his head and place it on that of Mr. Fox; and, even without adopting that description to its full extent, the King might easily regard the bill as a very unscrupulous attempt to curtail his legitimate authority and influence. He became most anxious to prevent the bill from being presented to him for his royal assent. And it was presently represented to him that the knowledge of his desire would probably induce the Lords to reject it. Among the peers who had attacked the bill on its first introduction into their House was Earl Temple, whose father had taken so prominent a part in the negotiations for the formation of a new ministry in 1765, and who had himself been Lord-lieutenant of Ireland under Lord Shelburne's administration. But he had not thought it prudent to divide the House against its first reading, and felt great doubts as to his success in a division on the second, unless he could fortify his opposition by some arguments as yet untried. He had no difficulty in finding a willing and effective coadjutor. Since the retirement of Lord Bute from court, no peer had made himself so personally acceptable to the King as Lord Thurlow, who had been Lord Chancellor during the last four years of Lord North's administration, and, in consequence, as it was generally understood, of the earnest request of George III., had been allowed to retain the seals by Lord Rockingham, and afterward by Lord Shelburne. What special attraction drew the King toward him, unless it were some idea of his honesty and attachment to the King himself—on both of which points subsequent events proved his Majesty to be wholly mistaken—it is not very easy to divine; but his interest with the King at this time was notorious, and equally notorious was the deep resentment which he cherished against Fox and Lord North, of whom, as he alleged, the former had proscribed and the latter had betrayed him. To him, therefore, Lord Temple now applied for advice as to the best mode of working on the King's mind, and, with his assistance, drew up a memorial on the character of the India Bill, on its inevitable fruits if it should pass (which it described as an extinction of "more than half of the royal power, and a consequent disabling of his Majesty for the rest of his reign"), and on the most effectual plan for defeating it; for which end it was suggested that his Majesty should authorize some one to make some of the Lords "acquainted with his wishes" that the bill should be rejected.[[85]]
George III. eagerly adopted the suggestion, and drew up a brief note, which he intrusted to Lord Temple himself, and which stated that "his Majesty allowed Earl Temple to say that whoever voted for the India Bill was not only not his friend, but would be considered by him as his enemy. And, if these words were not strong enough, Earl Temple might whatever words he might deem stronger and more to the purpose."[[86]]
Lord Temple lost no time in availing himself of the permission thus granted him; and, as it was by no means his object to keep the transaction secret, his conduct was made the subject of severe comment by the Prime-minister himself the next time that the bill was mentioned in the Upper House. The Duke of Portland, indeed, professed to have learned it only from common report, and to hope that the report was unfounded, since, were it true, "he should be wanting in the duty he owed to the public as a minister if he did not take the opportunity of proposing a measure upon it to their lordships that would prove that they felt the same jealousy, the same detestation, the same desire to mark and stigmatize every attempt to violate the constitution as he did." Lord Temple, in reply, abstained from introducing any mention of the King's opinions or wishes, but avowed plainly that he had used his privilege as a peer to solicit an interview with his Majesty, and that at that interview "he had given his advice. What that advice had been he would not then say; it was lodged in the breast of his Majesty, nor would he declare the purport of it without the royal consent, or till he saw a proper occasion. But, though he would not declare affirmatively what his advice to his sovereign was, he would tell their lordships negatively what it was not. It was not friendly to the principle and objects of the bill."[[87]] The debate lasted till near midnight. Of the speakers, a great majority declared against the bill; and, on the division, it was rejected by a majority of nineteen.[[88]] This took place on the 15th of December. On the 18th, as the ministers had not resigned—not regarding a single defeat in the Upper House as a necessary cause for such a step—the King sent messengers to them to demand their resignation, and the next day it was publicly announced in the House of Commons that Pitt had accepted the office of Prime-minister.
But Fox, who had anticipated the dismissal of himself and his colleagues, was by no means inclined to acquiesce in it, or to yield without a struggle; and on the 17th one of his partisans in the House of Commons, Mr. Baker, one of the members for Hertfordshire, brought forward some resolutions on the subject of the late division in the House of Lords. He professed to rest them solely on rumors, but he urged that "it was the duty of that House to express its abhorrence even of that rumor," since by such an action as was alleged "that responsibility of ministers which was the life of the constitution would be taken away, and with it the principal check that the public had upon the crown." And he urged "the members of that House, as the guardians of the constitution, to stand forward and preserve it from ruin, to maintain that equilibrium between the three branches of the Legislature, and that independence without which the constitution could no longer exist," and with this view to resolve "that to report any opinion, or pretended opinion, of his Majesty upon any bill or other proceeding depending in either House of Parliament, with a view to influence the votes of the members, is a high crime and misdemeanor, derogatory to the honor of the crown, a breach of the fundamental privileges of Parliament, and subversive of the constitution of the country." It was opposed by Pitt, chiefly on the ground that Mr. Baker only based the necessity for such a resolution on common report, which he, fairly enough, denied to be a sufficient justification of it; and partly on the undoubted and "inalienable right of peers, either individually or collectively, to advise his Majesty, whenever they thought the situation of public affairs made such a step an essential part of their duty." But it was supported by Lord North as "necessary on constitutional principles," since the acts so generally reported and believed "affected the freedom of debate;" and by Fox, who declared that the action which was reported, if true, "struck at the great bulwark of our liberties, and went to the absolute annihilation, not of our chartered rights only, but of those radical and fundamental ones which are paramount to all charters, which were consigned to our care by the sovereign disposition of Nature, which we cannot relinquish without violating the most sacred of all obligations, to which we are entitled, not as members of society, but as individuals and as men; the right of adhering steadily and uniformly to the great and supreme laws of conscience and duty; of preferring, at all hazards and without equivocation, those general and substantial interests which members have sworn to prefer; of acquitting themselves honorably to their constituents, to their friends, to their own minds, and to that public whose trustees they were, and for whom they acted." He avowed his conviction that rumor in this instance spoke truth, and, affirming that "the responsibility of ministers is the only pledge and security the people of England possesses against the infinite abuses so natural to the exercise of royal powers," argued that, if "this great bulwark of the constitution were once removed, the people would become in every respect the slaves and property of despotism. This must be the necessary consequence of secret influence." He argued that the sole distinction between an absolute and a limited monarchy was that the sovereign in one is a despot, and may do as he pleases, but that in the other he is himself subjected to the laws, and consequently is not at liberty to advise with any one in public affairs who is not responsible for that advice, and that the constitution has clearly directed his negative to operate under the same wise restrictions. Mr. Baker's resolution was carried by a large majority; but, as we have seen, did not deter the King from dismissing the ministry.
The conduct of George III. in this transaction has been discussed by writers of both parties with such candor that the Tory historian, Lord Stanhope, while evidently desirous to defend it by implication, passes a slight censure on it in the phrase that "the course pursued by the King was most unusual, and most extreme, and most undesirable to establish as a precedent;"[[89]] while, on the other hand, so rigid a Whig as Lord Campbell urges in his favor "that if it be ever excusable in a King of England to cabal against his ministers, George III. may well be defended for the course he now took, for they had been forced upon him by a factious intrigue, and public opinion was decidedly in his favor."[[90]] But to those who regard not the excuse which previous provocation may be conceived in some degree to furnish to human infirmity, but only the strict theory and principle of the constitution on which the doctrine of the responsibility of the ministers and the consequent irresponsibility of the sovereign rests, Lord Campbell's conditional justification for the communication made through Lord Temple will hardly appear admissible. We cannot be sure how far Mr. Grenville's "Diary" is to be trusted for transactions in which he was not personally concerned, or for conversations at which he was not present; but in giving an account[[91]] of some of the occurrences of the spring of 1766, while Lord Rockingham was Prime-minister, we find him relating a conversation between the King and Lord Mansfield on the ministerial measure for conciliating the American Colonies by the repeal of the Stamp Act, combined, however, with an assertion of the right to tax. "He (Lord Mansfield) took notice of the King's name having been bandied about in a very improper manner; to which the King assented, saying he had been very much displeased at it, as thinking it unconstitutional to have his name mentioned as a means to sway any man's opinion in any business which was before Parliament; and that all those who approached him knew that to be his sentiment. Lord Mansfield said he differed from his Majesty in that opinion, for that, though it would be unconstitutional to endeavor by his Majesty's name to carry questions in Parliament, yet where the lawful rights of the King and Parliament were to be asserted and maintained, he thought the making his Majesty's opinion in support of those rights to be known was very fit and becoming." The line here alleged to have been drawn by the great Chief-justice, between proclaiming the King's opinion in support of rights, but withholding it in the case of measures, is, perhaps, too fine to be perceptible by ordinary intellects. But however the King may have understood the judge, it is clear that the doctrine thus asserted does not justify, but condemns, such an act as the communication of the King's opinion and wishes in the case under consideration. If it "would be unconstitutional to endeavor by his Majesty's name to carry questions in Parliament," it must be at least equally so to use his name to defeat them. And the case is infinitely stronger, if the measure to be defeated be one which has been introduced by his ministers. For there can be no doubt whatever that, so long as they are his ministers, they are entitled to his full and complete support on every question; alike in their general policy and on each separate measure. When he can no longer give them that support, which the very act of conferring their offices on them promised them, his only legitimate and becoming course is to dismiss them from their offices, and to abide the judgment of Parliament and the nation on that act. Thus William IV. acted in the autumn of 1834; and thus George III. himself acted at the end of the month of which we are speaking. But to retain them in their offices, and to employ an unofficial declaration of his dissent from them to defeat their policy, is neither consistent with the straightforward conduct due from one gentleman to another, nor with the principle on which the system of administration, such as prevails in this country, is founded.
As has been already mentioned, the King at once dismissed the Coalition Ministry. Mr. Pitt accepted the conduct of affairs, and by so doing accepted the responsibility for all the acts of the King which had conduced to his appointment. Lord John Russell, who in his "Memorials and Correspondence of Fox" has related and examined the whole transaction at considerable though not superfluous length, while blaming the prudence, and in some points the propriety, of Fox's conduct, at the same time severely censures Pitt as "committing a great fault in accepting office as the price of an unworthy intrigue," and affirms that "he and his colleagues who accepted office upon the success of this intrigue placed themselves in an unconstitutional position."[[92]] This seems to be a charge which can hardly be borne out. In dismissing his former ministry, the King was clearly acting within his right; and, if so, Pitt was equally within his in undertaking the government. The truer doctrine would seem to be, that, in so undertaking it, he assumed the entire responsibility for the dismissal of his predecessors,[[93]] and left it to the people at large, by the votes of their representatives, to decide whether that dismissal were justified, and whether, as its inevitable consequence, his acceptance of office were also justified or not. The entire series of transactions, from the meeting of Parliament in November, 1783, to its dissolution in the following March, may be constitutionally regarded as an appeal by the King from the existing House of Commons to the entire nation, as represented by the constituencies; and their verdict, as is well known, ratified in the most emphatic manner all that had been done. And we may assert this without implying that, if the single act of empowering Lord Temple to influence the peers by the declaration of the King's private feeling had been submitted by itself to the electors, they would have justified that. The stirring excitement of the three months' contest between the great rivals led them to pronounce upon the transaction as a whole, and to leave unnoticed what seemed for the moment to be the minor issues—the moves, if we may borrow a metaphor from the chess-table, which opened the game; and it may be observed that, though, on the 17th of December, Pitt resisted Mr. Baker's resolution with his utmost energy, in the numerous debates which ensued he carefully avoided all allusion to Lord Temple's conduct, or to the measure which had led to the dismissal of his predecessors, farther than was necessary for the explanation of the principles of his own India Bill. It may even be surmised that, if he had been inclined to recognize Lord Temple's interference as warrantable, the breach between that peer and himself, which occurred before the end of the week, would not have taken place, since it seems nearly certain that the cause of that breach was a refusal on the part of Pitt to recommend his cousin for promotion in the peerage, a step which, at such a moment, would have had the appearance of an approval of his most recent deed,[[94]] but which he could hardly have refused, if it had been done with his privity. The battle, as need hardly be told, was first fought among the representatives of the people in the House of Commons; for there was only one occasion on which the opinion of the Lords was invited, when they declared in favor of Pitt by a decisive majority.[[95]] But in the Lower House the contest was carried on for more than two months with extraordinary activity and ability, by a series of resolutions and motions brought forward by the partisans of the coalition, and contested by the youthful minister. In one respect the war was waged on very unequal terms, Pitt, who had been but three years in Parliament, and whose official experience could as yet only be counted by months, having to contend almost single-handed against the combined experience and eloquence of Lord North, Fox, and Burke. Fortunately, however, for him, their own mismanagement soon turned the advantage to his side. They were too angry and too confident to be skilful, or even ordinarily cautious. The leaders on both sides made professions in one respect similar; they both alike denied that a desire of office influenced either their conduct or their language (a denial for which Pitt's refusal of the Treasury, a year before, gained him more credit than could be expected by Fox after his coalition with Lord North), and both alike professed to be struggling for the constitution alone, for some fundamental principle which each charged his antagonist with violating; Fox on one occasion even going so far as, in some degree, to involve the King himself in his censures, declaring not only that "the struggle was, in fact, one between Pitt himself and the constitution," but that it was also one "between liberty and the influence of the crown," and "between prerogative and the constitution;" and that "Pitt had been brought into power by means absolutely subversive of the constitution."[[96]] But no act of which he thus accused the minister or the King showed such a disregard of the fundamental principle of the constitution of Parliament as was exhibited by Fox himself when, in the very first debate after the Christmas recess, he called in question that most undoubted prerogative of the crown to dissolve the Parliament, and, drawing a distinction which had certainly never been heard of before, declared that, though the King had an incontestable right to dissolve the Parliament after the close of a session, "many great lawyers" doubted whether he had such a right in the middle of a session, a dissolution at such a period being "a penal" one. Professing to believe that an immediate dissolution was intended, he even threatened to propose to the House of Commons "measures to guard against a step so inimical to the true interests of the country," and made a more direct attack than ever on the King himself, by the assertion of a probability that, even if Pitt did not contemplate a dissolution, his royal master might employ "secret influence" to overrule him, and might dissolve in spite of him,[[97]] an imputation which Lord North, with a strange departure from his customary good-humor, condescended to endorse.[[98]] There could be no doubt that both the doubt and the menace were of themselves distinct attacks on the constitution; and they were, moreover, singularly impolitic and inconsistent with others of the speaker's arguments, since, if the nation at large approved of his views and conduct, a dissolution—which would have placed the decision in its hands—would have been the very thing he should most have desired. On another evening, though he admitted as a principle that the sovereign had the prerogative of choosing his ministers, he not only sought to narrow the effect of that admission by the assertion that "to exercise that prerogative in opposition to the House of Commons would be a measure as unsafe as unjustifiable,"[[99]] but to confine the right of deciding the title of the ministers to confidence to the existing House of Commons. He accused Pitt of "courting the affection of the people, and on this foundation wishing to support himself in opposition to the repeated resolutions of the House passed in the last three weeks." Had he confined himself to urging the necessity of the ministers and the House of Commons being in harmony, even though such a mention of the House of Commons by itself were to a certain extent an ignoring of the weight of the other branches of the Legislature, he would have only been advancing a doctrine which is practically established at the present day, since there has been certainly more than one instance in which a ministry has retired which enjoyed the confidence of both the sovereign and the House of Lords, because it was not supported by a majority in the House of Commons. But when he proceeded to make it a charge against the minister that he trusted to the good-will of the people to enable him to disregard the verdict of the House of Commons, he forgot that it was only as representing the people that the House had any right to pronounce a verdict; and that, if it were true that the judgment of the people was more favorable to the minister than that of the House of Commons, the difference which thus existed was a condemnation of the existing House, and an irresistible reason for calling on the constituencies to elect another.
Pitt, therefore, had no slight advantage in defending himself against so rash an assailant. "He did not shrink," he said, "from avowing himself the friend of the King's just prerogative," and in doing so he maintained that he had a title to be regarded as the champion of the people not less than of the crown. "Prerogative had been justly called a part of the rights of the people, and he was sure it was a part of their rights which they were never more inclined to defend, of which they were never more jealous, than at that hour."[[100]] And he contended that Fox's objections to a dissolution betrayed a consciousness that he had not the confidence of the nation. At last, when the contest had lasted nearly two months, Fox took the matter into his own hands, and, no longer putting his partisans in the front of the battle, on the 1st of March he himself moved for an address to the King, the most essential clause of which "submitted to his Majesty's royal consideration that the continuance of an administration which did not possess the confidence of the representatives of the people must be injurious to the public service." ... And, therefore, that "his Majesty's faithful Commons did find themselves obliged again to beseech his Majesty that he would be graciously pleased to lay the foundation of a strong and stable government by the previous removal of his present ministers." In the speech with which he introduced this address he put himself forward as especially the champion of the House of Commons. He charged the Prime-minister with an express design "to reduce the House to insignificance, to render it a mere appendage to the court, an appurtenance to the administration." He asserted the existence of a systematic "design to degrade the House, after which there was not another step necessary to complete the catastrophe of the constitution." And on this occasion he distinguished the feelings of the King from those which influenced the minister, affirming his confidence "that the King's heart had no share in the present business."[[101]]
Pitt, on the other hand, in reply, affirmed that he was called on by duty "to defend the rights of the other branches of the Legislature; the just and constitutional prerogative of the sovereign," upon which the Opposition was seeking to encroach, without even having shown a single reason to justify such invasion. He freely admitted that, if the House of Commons or either of the other branches of the Legislature "disapproved of an administration on proper grounds, it would not be well for that administration to retain office." But in the present instance he contended that "no ground for disapprobation had been shown." The existing administration "had, in fact, by an unaccountable obstinacy and untowardness of circumstances, been deprived of all opportunity" of showing its capacity or its intentions. "If any accusations should be made and proved against it, if any charges should be substantiated, it would, indeed be proper for the ministers to resign; and if, in such a case he were afterward to continue in office, he would suffer himself to be stigmatized as the champion of prerogative, and the unconstitutional supporter of the usurpation of the crown. But till this period arrived, he should reckon it his duty to adhere to the principles of the constitution, as delivered to us by our ancestors; to defend them against innovation and encroachment, and to maintain them with firmness." "The constitution of this country," he presently added, "is its glory; but in what a nice adjustment does its excellence consist! Equally free from the distractions of democracy and the tyranny of monarchy, its happiness is to be found in its mixture of parts. It was this mixed government which the prudence of our ancestors devised, and which it will be our wisdom to support. They experienced all the vicissitudes and distractions of a republic; they felt all the vassalage and despotism of a simple monarchy. They abandoned both; and, by blending each together, extracted a system which has been the envy and admiration of the world. This system it is the object of the present address to defeat and destroy. It is the intention of this address to arrogate a power which does not belong to the House of Commons; to place a negative on the exercise of the prerogative, and to destroy the balance of power in the government as it was settled at the Revolution."
Fox had urged that our history afforded no example of a ministry retaining office after the House of Commons had passed a resolution condemning it. Pitt, in reply, urged that our history equally failed to furnish any instance of a ministry having been called on to retire without any misconduct being alleged against them. And the result of the division showed that his arguments and his firmness were producing an impression on the House, for, though he was again defeated, the majority against him (only twelve) was far smaller than on any previous division.[[102]] A week later, this feeling in his favor was shown still more decidedly, when Fox, on moving for a fresh address, or, as he termed it, a representation to the King that the House had received his Majesty's reply to their address "with surprise and affliction," he could only carry it by a single vote.[[103]] And this division closed the struggle. Fox made no farther effort. Before the end of the month the Parliament was dissolved, and the general election which ensued sent to the House a majority to support the ministers which Pitt was fairly warranted in claiming as the full justification of the course which he had pursued.
On a review of the whole of this extraordinary transaction, or series of transactions, it is impossible to avoid regarding the issue of the struggle as an all-important element in the case, and a test almost decisive of the correctness of conduct of the rival leaders. We may leave out of the question the action of the King in his communication to Lord Temple, which, although sanctioned by the great legal authority of Lord Thurlow, we are, for reasons already given, compelled to regard as unconstitutional, but for which Mr. Pitt was only technically responsible; having, indeed, made himself so by his subsequent acceptance of office, but having had no previous suspicion of the royal intentions. Similarly, we may dismiss from our consideration the merits or demerits of Fox's India Bill, the designs which were imputed to its framers, or the consequences which, whether intended or not by them, were predicted as certain to flow from it. And we may confine ourselves to the question whether, in the great Parliamentary struggle which ensued, and which lasted for more than three months,[[104]] the doctrines advanced by Mr. Fox, and the conduct pursued by him, were more or less in accordance with the admitted rules and principles of the constitution.
These doctrines may be reduced to two: the first a declaration that no minister is justified in retaining office any longer than he is sustained in it by the favorable judgment of the representatives of the people. Taken by itself, this, but for one consideration, might be pronounced the superfluous assertion of a truism; superfluous, because it is obvious that a House of Commons hostile to a minister can compel his resignation by obstructing all his measures. And Pitt himself recognized this as fully as Fox, though we may hardly agree with him that the Opposition was bound to allow him time to develop his policy, and to bring forward his various measures, before it pronounced an opinion adverse to them. In 1835, when Sir R. Peel first met Parliament after his acceptance of office, consequent on the King's dismissal of Lord Melbourne's ministry, the Opposition encountered and defeated him twice in the first week of the session—on the choice of a Speaker, and on the address, though the latter had been framed with the most skilful care to avoid any necessity for objection; but no attempt was made by him to call in question the perfect right of Lord J. Russell and his followers in the House to choose their own time and field of battle. But there is one farther consideration, that the authority belonging to the judgment of the House of Commons depends on that judgment being not solely its own, but the judgment also of the constituencies which have returned it, and whose mouth-piece it is; and also that the House is not immortal, but is liable to be sent back to those constituencies, to see whether they will ratify the judgment which their representatives have expressed; whether, in other words, their judgment be the judgment of the nation also. This farther consideration was, in fact, Pitt's plea for resisting the majorities which, through January and February, so repeatedly pronounced against him. And in determining to appeal to the constituencies, as the court of ultimate resort, he was clearly within the lines of the constitution.
It follows that Fox, in protesting against a dissolution, in threatening even to take steps to prevent it, was acting in self-evident violation of all constitutional principle and precedent. He was denying one of the most universally acknowledged of the royal prerogatives. The distinction which he endeavored to draw between a dissolution at the close of a session and one in the middle of it, had manifestly no validity in law or in common-sense. The minister had a clear right to appeal from the House of Commons to the people, and one equally clear to choose his own time for making that appeal. The appeal was made, the judgment of the nation was pronounced, and its pronouncement may be, and indeed must be, accepted as a sufficient justification, in a constitutional point of view, of Pitt's conduct both in accepting and retaining office. If he retained it for three months, in opposition to the voice of the existing House of Commons, he could certainly allege that he was retaining it in accordance with the deliberate judgment of the nation.
And this is the verdict of a modern statesman, a very careful student of the theory of our Parliamentary constitution, and one whom party connection would notoriously have inclined to defend the line taken by Mr. Fox, had it been possible to do so. Indeed, he may be said to show his bias in that statesman's favor when he affirms that he would have been right in moving a resolution of censure on Pitt for "his acceptance of office," which he presently calls the result of "the success of a court intrigue,"[[105]] and, without a particle of evidence to justify the imputation, affirms to "have been prepared beforehand with much art and combination." But amicus Fox, sed magis arnica veritas; and though he thus passes censure on Pitt, where the facts on which he bases it are at least unproved, on those points as to which the facts are clear and certain he condemns Fox altogether, affirming that his "attempt to show that the crown had not the prerogative of dissolving Parliament in the middle of a session had neither law nor precedent in its support."[[106]] And he proceeds to lay down, with great clearness and accuracy, "the practice as well as the theory of our mixed government," which is, that "when two of the powers of the state cannot" agree, and the business of the state is stopped, the only appeal is to the people at large. Thus, when in the reign of Queen Anne the House of Lords and the House of Commons fulminated resolutions at each other, a dissolution cleared the air and restored serenity. If no case had occurred since the Revolution of a quarrel between the crown and the House of Commons, the cause is to be sought in the prudence with which every sovereign who had reigned since that event had wielded his constitutional authority. If George III. had been wanting in that prudence, it did not follow that he was debarred from the right of appealing to the people. Any other doctrine would invest the House of Commons, elected for the ordinary business of the state, with a supreme power over every branch of it. This supreme power must rest somewhere; according to our constitution it rests in the common assent of the realm, signified by the persons duly qualified to elect the members of the House of Commons; and Lord Russell, in thus expounding his ideas on this subject, was undoubtedly expressing the view that ever since the transactions of which we have been speaking has been taken of the point chiefly in dispute. Since that day there has been more than one instance of Parliament being dissolved in the middle of a session; but, though the prudence of the different ministers who advised such dissolutions may, perhaps, have been questioned—nay, though in one memorable instance it was undoubtedly a penal dissolution in the fullest sense of the word[[107]]—no one has ever accused the sovereign's advisers of seducing him into an unconstitutional exercise of his prerogative.
Pitt was now Prime-minister, with a degree of power in Parliament and of popularity out-of-doors that no former minister, not even his own father, had ever enjoyed. As such, by the confession of one who was certainly no friendly critic,[[108]] "he became the greatest master of Parliamentary government that has ever existed." His administration may be regarded as a fresh starting-point in the history of the country, as the inauguration of the principle of steady amendment, improvement, and progress, in place of the maxims which had guided all his predecessors since the Revolution, of regarding every thing as permanently settled by the arrangements made at that time, and their own duty, consequently, as binding them to keep everything in its existing condition. But, of all the ministers recorded in our annals, there is not one so greatly in advance of his time as Pitt; and from the very outset of his ministerial career he applied himself, not only to the removal or correction of admitted abuses or defects, but, in cases where the fault, being in our general system of policy, had been less conspicuous, to the establishment of new principles of action which have been the rules of all succeeding statesmen. He was not, indeed, the first raiser of the question of Parliamentary Reform, but he was the first to produce an elaborate scheme with that object, parts of which, such as the suppression of the smaller boroughs and the enfranchisement of places which had gradually become more important, have been leading features of every subsequent bill on the subject. He was the first to propose the removal of those political disabilities under which the Roman Catholics labored, which no one before him had regarded as consistent with the safety of the state, and to which he sacrificed office. He was the first to conceive the idea of developing our national industries and resources by commercial treaties with other nations, even choosing for his essay-piece a treaty with a country with which our relations for nearly five hundred years had been almost uninterruptedly hostile, and which Fox, in the heat of his opposition, objected even to consider in any other light than that of an enemy. He laid the foundation for all subsequent legislation connected with our colonies in his Bill for the Government of Canada; and he established a system for the government of our Indian dependencies on so statesman-like a principle, that all subsequent administrations concurred in upholding it, till subsequent events compelled the abolition of all the share in the government of the country previously possessed by the Company.
A great writer of the past generation,[[109]] who in some respects has done full justice to his genius and political virtue, has, however (partly, it can hardly be doubted, from regarding himself as a follower of his great rival, Fox), contrasted his capacity as a War-minister with that of his father, drawing a comparison on this point very disadvantageous to the son. We need not stop to examine how far the praises which he bestows on Lord Chatham's talents as a planner of military operations are deserved; but it may very fairly be contended that the disparaging views of Pitt's military policy which he has advanced are founded solely on what is in this as well as in many other instances a most delusive criterion, success. It is true, unquestionably, that in the campaigns of 1793-4-5 against the French revolutionists, while he took upon this country the entire burden of the naval war, on land he contented himself with playing a secondary part, and employing a comparatively small force (which, however, doubled that which his father had sent to Minden),[[110]] for the success of the military operations trusting chiefly to the far stronger Austrian and Prussian divisions, under the command of Prince Coburg and the Duke of Brunswick, to which the British regiments were but auxiliaries. It is true, also, that the result of their operations was unfortunate, and that the German generals proved wholly unable to contend with the fiery and more skilful impetuosity of Jourdan and Pichégru. But the question is not whether Pitt's confidence in the prowess of his allies was misplaced, but whether he had not abundant reason to justify him in entertaining it. And, to judge fairly on this point, we must recollect the reputation which for the last forty years the Austrian and Prussian armies had enjoyed. The result of the seven years' war had established the renown of the Prussians, and the Duke of Brunswick was understood to be a favorite pupil of the Great Frederic. The same war had shown that the Austrians were not very unequal to the Prussians; while the reputation of the French troops had fallen to the lowest ebb, the most memorable event in their annals during the same war being the rout of Rosbach, when 60,000 of them fled before Frederic and 22,000. At the breaking out of the Revolution, it might be said that De Bouille was the only French general of the slightest reputation, and since the sad journey to Varennes he had been an exile from his country. And, though again in 1803 Pitt once more trusted for success on land to Continental alliances, not only does he deserve admiration for the diplomatic talent with which he united Austria, Prussia, and Russia against France, but it can hardly be doubted that confederacy would have been triumphant, had not the incompetent vanity of Alexander ruined all its prospects by his rash disregard at Austerlitz of the experienced warnings of his own staff.[[111]]
The new form of government which he established for India, and to which allusion has been made, has lost the greater part of its importance in the eyes of the present generation, from the more-recent abolition of the political authority of the East India Company, though of some of the principles which he avowed he had taken for his guides it is worth while to preserve the record; with such clearness, as well as statesman-like wisdom, do they affirm the objects which every one should keep in view who applies himself to legislation for distant dependencies where the privileges and interests of foreign fellow-subjects are to be regarded with as jealous a solicitude as those of our own countrymen. These objects may be briefly described as being the reconciling the vested and chartered interests of the Company with the legitimate authority of the King's government; for, though Pitt admitted that "state necessity" might occasionally be allowed as a valid reason for the abrogation of a charter, he affirmed that nothing short of such absolute necessity could excuse such a measure, and he relied on the previous history of the Company to prove the fallacy of an observation that had sometimes been made, that commercial companies could not govern empires. There were three interests to be considered: that of the native Indians, that of the Company, and that of this country; and the problem to be solved was, "how to do the most good to India and to the East India Company with the least injury to our constitution." Some of his remarks contained unavoidable allusions to Fox's bill of the previous year, since some of the provisions of his bill were entirely opposite to those which Fox had framed, the most material point of difference being the character of the Board of Control which he proposed to establish. Fox, as has been seen, had proposed to make the commissioners to be appointed under his bill irremovable for several years, whatever changes might take place in the home government; an arrangement which the opposers of the bill suspected of being designed to prevent any change in the home government from taking place. Pitt, on the other hand, laid down as one of his leading principles that "the board could not be permanent, that it must be subordinate to the administration of the day, and that permanency would be in itself a deviation from the principles of the constitution, and would involve the board in contradictions to the executive government that could not fail to be attended with great public inconvenience. An institution to control the government of India must be either totally independent of the government of this country or subordinate to it." "The board was to consist of none but privy councillors," and instead of the vast amount of patronage which was to have been created by the bill of 1783, this board was "to create no increase of officers nor to impose any new burdens." ... "The first and leading ideas would be, to limit the subsisting patronage;" ... and so little was Pitt covetous to engross that which did and must continue to subsist, that he left even "the officers of the government of Bengal to the nomination of the Court of Directors, subject only to the negative of the crown; and the Court of Directors was also to have the nomination of the officers of all the subordinate governments, except only of the commander-in-chief, who, for various reasons, must remain to be appointed by the crown." Another very important part of the arrangement was, that "gradation and succession were to be the general rule of promotion," a regulation which of itself would be "a forcible check upon patronage, and tend greatly to its reduction." The governor of Bengal was to be the governor-general of the whole country, the governors of Madras and Bombay being subordinate to him; and each governor was to be assisted by a council of three members, of whom the commander of the forces was to be one.
The spirit in which a law or a government is administered is commonly of greater practical importance than the words in which the regulation or the system is framed or defined; and Pitt, therefore, concluded his speech by laying down a few "clear and simple principles as those from which alone a good government could arise. The first and principal object would be to take care to prevent the government from being ambitious and bent on conquest. Commerce was our object, and, with a view to its extension, a pacific system should prevail, and a system of defence and conciliation. The government there ought, therefore, in an especial manner, to avoid wars, or entering into alliances likely to create wars." It was not to forget "to pay a due regard to self-defence, or to guard against sudden hostilities from neighboring powers, and, whenever there was reason to apprehend attack, to be in a state of preparation. This was indispensably necessary; but whenever such circumstances occurred, the executive government in India was not to content itself with acting there as the circumstances of the case might require; it was also to send immediate advice home of what had happened, of what measures had been taken in consequence, and what farther measures were intended to be pursued; and a tribunal was to be established to take cognizance of such matters." The system of taking presents from the natives was to be absolutely prohibited, a regulation which he hoped would "tend effectually to check private corruption;" and, lastly, it was proposed to establish a court of criminal judicature for the trial in England of certain classes of delinquents after their return from India. The Judges of the court were to be men of the highest character; they were to be chosen by ballot, some being taken from the bench of judges, some from each House of Parliament. And they were "not to be tied down to strict rules of evidence, but to be upon their oaths to give their judgments conscientiously, and to pronounce such judgment as the common law would warrant." Such a tribunal he admitted to be an innovation; but, "unless some new process were instituted, offences shocking to humanity, opposite to justice, and contrary to every principle of religion and morality, must continue to prevail, unchecked, uncontrolled, and unrestrained, and the necessity of the case outweighed the risk and the hazard of the innovation."
These were the general outlines of the constitution which in 1784 the Parliament established for India, and the skill with which it was adapted to the very peculiar character of the settlements to be governed is sufficiently proved by the fact that it was maintained with very little alteration equally by Whig and Tory administrations for three-quarters of a century, till the great convulsion of the Mutiny compelled an entire alteration in the system, and the abolition of the governing powers of the Company, as we shall have occasion to relate in a subsequent chapter. The principles which Pitt had laid down as the guiding maxims for the governors; the avoidance of ambitious views of conquest, the preservation of peace, and the limitation of the aims of the government to the encouragement and extension of commerce, were not equally adhered to. Undoubtedly, in some instances, the wars in which, even during Pitt's too short lifetime, the Indian government was engaged, came under his description of wars which were justifiable on the ground of self-defence—wars undertaken for the preservation of what had been previously won or purchased, rather than for the acquisition of new territories at the expense of chiefs who had given us no provocation. But for others, though professedly undertaken with a view only of anticipating hostile intentions, the development of which might possibly be reserved for a distant future, it is not easy to find a similar justification; and it may be feared that in more than one case governors-general, conscious of great abilities, have been too much inclined to adopt the pernicious maxim of Louis XIV., that the aggrandizement and extension of his dominions is the noblest object which a ruler of nations can have in view. Yet, though unable on strictly moral grounds to justify all the warlike enterprises which make up so large a part of our subsequent Indian history, it is impossible, probably, for even the most rigid moralist to avoid some feelings of national pride in the genius of our countrymen, who in the short space of a single century have built up an empire of a magnitude unequalled even by the Caesars, and have governed and still are governing it in so wise and beneficent a spirit, and with such a display of administrative capacity, that our rule is recognized as a blessing by the great majority of the nations themselves, as a protection from ceaseless intestine war, from rapine, and that worst of tyrannies, anarchy, which was their normal condition before Clive established our supremacy at Plassy, and into which they would surely and speedily fall back, if our controlling authority were to be withdrawn.
India was not the only British settlement for which the growth of our empire compelled Pitt to devise a constitution. The year which saw his birth had also seen the conquest of Canada from the French; and in 1774 a system of government for the new province had been established which it is sufficient here to describe as one, which differed but little from a pure despotism, the administration being vested in a governor and Legislative Council, every member of which was to be nominated by the crown. But the working of this act had from the first proved very unsatisfactory, and had become more so as the population increased by the influx of fresh settlers from Great Britain, and also from the United States, here many of those who in the recent civil war had adhered the connection with the mother country had been exposed to constant malice and ill-treatment, and had preferred crossing the border and obtaining lands in Canada to returning to England. Pitt recognized the evil, and undertook to remedy it and in 1791 he introduced a bill to establish a constitution for Canada, which a recent historian describes as "remarkable, as recognizing for the first time the wise and generous principle of independent colonial institutions, which has since been fully developed in every dependency of the British crown capable of local self-government."[[112]] One peculiar difficulty in framing such a constitution arose from the circumstance of the old French colonists, who greatly outnumbered the settlers of British blood, being attached to the Roman Catholic religion; while the British settlers were nearly, or perhaps all, Protestant, though of different denominations. The difficulty was, indeed, lessened by the circumstance that the French dwelt in Quebec and the district between that city and the mouth of the St. Lawrence, and that the English had for the most part betaken themselves to the more inland region. And this local separation of the two races the minister now took for his guide in the arrangement which he devised. The most important feature in it was the division of the province into two parts, as Upper and Lower Canada, and the establishment of a distinct local Legislature for each division, a House of Assembly being created in each, and a Council, so as, in Pitt's words, "to give both divisions the full advantages of the British constitution." The Assemblies were to have the power of taxation (so that there was no room left for such perverse legislation by a British Parliament as had lately cost its sovereign the United States). The act of habeas corpus was extended to the province (a privilege which no one of French blood had ever enjoyed before); the tenure of land was to be the socage[[113]] tenure so long and happily established in England. Complete religious toleration was established, and a certain proportion of land was allotted in Upper Canada, as a provision for a Protestant clergy, and the foundation of an ecclesiastical establishment. So great was Pitt's desire to complete the resemblance between the colony and Great Britain, that he even contemplated the creation of an aristocracy, by the introduction of a provision enabling the King to grant hereditary colonial titles, the possession of which should include hereditary seats in the provincial Council. The two latter clauses were opposed by Fox, and the latter of them, though sanctioned by Parliament, was never carried out in practice. But Fox, bitter as he was at this time in his general opposition to the government, agreed cordially in the general principles of the bill, avowing his conviction that "the only method of retaining distant colonies with advantage is to enable them to govern themselves," so that each party in the British Parliament is entitled to a share of the credit for this pattern of all subsequent colonial constitutions—Pitt for the original genius for organization which his contrivance of all the complicated details of the measure displayed, and Fox for his frank adoption of the general principle inculcated by his rival, even while differing as to some of the minor details of the measure. During these years the country was increasing in prosperity, and the minister was daily rising in credit; more powerful and more popular than the most successful or the most brilliant of his predecessors. But during these same years two great constitutional difficulties had arisen, one of which, indeed, the deep sense which both parties felt of the danger of investigating it shelved almost as soon as it was seen; but the other of which, besides the importance which it derived from the degree in which it involved the principle of the supreme authority of Parliament, and brought under discussion even that which regulates the succession to the crown, imperilled the existence of the ministry, and threatened a total change in both the domestic and foreign policy of the nation.
The Prince of Wales, who had come of age in the summer of 1783, had at once begun to make himself notorious for the violence of his opposition to his father's ministers, carrying the openness of his hostility so far as, during the Westminster election to drive about the streets with a carriage and all his servants profusely decorated with Fox's colors; and, still more discreditably, by most unmeasured profligacy of all kinds. The consequence was that he soon became deeply involved in debt, so deeply that, in 1787, a member of Fox's party gave notice of his intention to move that the Parliament should pay his debts and increase his income. Pitt, without specifying his reasons, avowed that he should feel it his duty to oppose any grant of such a character; but another member of Parliament, Mr. Rolle, one of the members for Devonshire, being trammelled by no such feeling of responsibility, expressed a similar resolution in language which contained an allusion perfectly understood on both sides of the House. He said that "the question thus proposed to be brought forward went immediately to affect our constitution in Church and State." And every one knew that he was referring to a report which had recently become general, that the Prince was married to a Roman Catholic lady of the name of Fitzherbert. No direct notice was taken of this allusion at the moment, Fox himself, who had the chief share of the Prince's confidence, being accidentally absent; but a day or two afterward he referred to Rolle's speech with great indignation, declaring that it referred to a "low, malicious calumny" which had no foundation whatever, and "was only fit to impose on the lowest order of persons." Being pressed as to the precise force of his assertion, and being asked whether it meant more than that under the existing laws, such as the Royal Marriage Act, there had been no marriage, because there could have been no legal marriage, he declared that he meant no such evasion, but that no marriage ceremony, legal or illegal, had ever taken place; and farther, that in saying this he was speaking on the direct authority of the Prince himself. No more degrading act stains the annals of British royalty. For the fact was true—the very next evening Fox learned the deceit which the Prince had practised on him from a gentleman who had been one of the witnesses to the marriage, which had been solemnized by a Protestant clergyman fifteen months before.[[114]] And his indignation was such that for some time afterward he abstained from all interference in the Prince's affairs; while the language held by the Prince's other confidant, Mr. Sheridan, was so evasive as to betray a consciousness that whatever had occurred would not bear the light of day; so that there were very few to whom the truth or falsehood of the report was a subject of interest who felt any uncertainty on the subject.
It may, probably, be regarded as fortunate for the peace of the kingdom that the Prince, who eventually became King George IV., left behind him no issue from his marriage with the Princess, the failure of heirs of his body thus removing any temptation to raise the question whether he had not himself forfeited all right to succeed to the throne by his previous marriage to a Roman Catholic. A clause of the Bill of Rights provides that any member of the royal family who should marry a Roman Catholic (with the exception of the issue of princesses who may be the wives of foreign princes) shall by that marriage be rendered incapable of inheriting the crown of England. And though the Royal Marriage Act (which, as we have seen, had been recently passed) had enacted that no marriage of any member of the royal family contracted without the consent of the reigning sovereign should be valid, it by no means follows that an invalidity so created would exempt the contractor of a marriage with a Roman Catholic, which as an honorable man he must be supposed to have intended to make valid, from the penalties enacted by the Bill of Rights. It is a point on which the most eminent lawyers of the present day are by no means agreed. The spirit of the clause in that bill undoubtedly was, that no apparent or presumptive heirs to the crown should form a matrimonial connection with any one who should own allegiance to a foreign power, and that spirit was manifestly disregarded if a prince married a Roman Catholic lady, even though a subsequent law had enacted a conditional invalidity of such a marriage. We may find an analogy to such a case in instances where a man has abducted a minor, and induced her to contract a marriage with himself. The lady may not have been reluctant; but the marriage has been annulled, and the husband has been criminally prosecuted, the nullity of the marriage not availing to save him from conviction and punishment. A bigamous marriage is invalid, but the bigamist is punished. And, apart from any purely legal consideration, it may be thought that public policy forbids such a construction of law as would make the illegality or invalidity of an act (and all illegal acts must be more or less invalid) such a protection to the wrong-doer as would screen him from punishment.
Whatever may be the judgment formed on the legal aspect and merits of the case, the conduct of the Prince could not fail to give the great body of the people, justly jealous at all times of their national adherence to truthfulness and honesty, a most unfavorable impression of his character. As has been already mentioned, Fox was so indignant at having been made the instrument to assure the Parliament and the nation of a falsehood, that he for a time broke off all communication with him.[[115]] Yet a singular caprice of fortune, or, it would be more proper to say, a melancholy visitation of Providence, before the end of the following year led Fox to carry his championship of the same Prince who had so abused his confidence to the length of pronouncing the most extravagant eulogies on his principles, and on his right to the confidence and respect of the nation at large. In the autumn of 1788 the King fell into a state of bad health, which in no long time affected his mind, and, by the middle of November, had so deranged his faculties as to render him incapable of attending to his royal duties, or, in fact, transacting any business whatever. Parliament was not sitting, but its re-assembling had been fixed for the 4th of December, and before that day arrived the King's illness had assumed so alarming a character, and it appeared so unsafe to calculate on his immediate recovery, that the minister summoned a Privy Council, the summons being addressed to the members of the Opposition as well as to his own followers, to receive the opinions of the physicians in attendance on his Majesty, as a necessary foundation for the measures which he conceived it to be his duty to propose to Parliament. Those opinions were, that it was almost certain that the disease would not be permanent, though no one could undertake to fix its duration with the least appearance of probability. And, as the royal authority could not be left in abeyance, as it were, for an uncertain period, it was indispensable to appoint a Regent to conduct the affairs of the kingdom till the King should, happily, be once more in a condition to resume his functions.
In considering the line of conduct adopted in this emergency by Pitt and his great rival Fox, Pitt has one manifest advantage on his side, that it is impossible to attribute the course which he took to any personal motive, or any desire for the retention of official power; while it is equally impossible to doubt that Fox was in no slight degree,[[116]] and that Lord Loughborough, the prince's chief adviser on points of law, was wholly influenced by the hope of supplanting the ministry. Pitt had never the least doubt that on the establishment of the Regency he should be dismissed, and was prepared to return to the Bar. But his knowledge of the preference which the Prince entertained for his rival did not lead him to hesitate for a single moment as to the propriety of placing him in a situation to exercise that preference. On the reassembling of Parliament, he at once took what he conceived to be the proper parliamentary course of proceeding; at his suggestion committees in both Houses were appointed to take a formal examination of the royal physicians; and, when those committees had reported that the King was for the present incapable of discharging his royal functions, though likely at some future period to be able to resume them, he moved the House of Commons to appoint another committee, to search for "precedents of such proceedings as might have been taken in the case of the personal exercise of the royal authority being prevented or interrupted by infancy, sickness, or infirmity, with a view to provide for the same." Such a search for precedents was no novelty, and may be thought to have been especially proper in such a case as this, since history recorded the appointment of several regencies, one under circumstances strikingly resembling those now existing, when, in 1454, Henry VI. had fallen into a state of imbecility, and the Parliament appointed the Duke of York Protector[[117]] of the kingdom.
But Fox instantly opposed it with extreme vehemence, declaring that the appointment of such a committee would be a pure waste of time. It was notorious, he affirmed, that no precedent existed which could have any bearing on the present case, since there was in existence a person such as had never been found on any previous occasion, an heir-apparent of full age and capacity to exercise the royal authority; and he declared it to be his deliberate opinion that the Prince of Wales had "as clear and express a right to assume the reins of government, and to exercise all the powers of sovereignty, during the illness and incapacity of the sovereign, as if that sovereign were actually deceased." Such an assertion of indefeasible right was so totally at variance with the Whig doctrines which Pitt, equally with Fox, regarded as the true principles of the constitution, that Pitt at once perceived the advantage which it gave him, by enabling him to stand forward as the supporter of the supreme authority of Parliament, which Fox had by implication denied. He instantly replied that to assert an inherent indefeasible right in the Prince of Wales, or any one else, independently of the decision of the two Houses, fell little short of treason to the constitution; but, at the same time, to prevent any one pretending to misconceive his intentions, he allowed it to be seen with sufficient plainness that, when once the right of Parliament to appoint the Regent had been established, he should agree in the propriety of conferring that office on the Prince of Wales. The committee was appointed; but, even before it could report the result of its investigations, the doctrine advanced by Fox had been the subject of discussion in the House of Lords, where Lord Camden, who had presided over the meeting of the Privy Council a few days before, on moving for the appointment of a similar committee of peers, had taken occasion to declare that, if Fox had made such an assertion as rumor imputed to him, it was one which had no foundation in "the common law of the kingdom." He had never read nor heard of such a doctrine. Its assertors might raise expectations not easily laid, and might involve the country in confusion. And he contended, as Pitt had done in the Commons, that its assertion was a strong argument in favor of the appointment of a committee, that it might be at once seen whether it were warranted by any precedent whatever. The reports of the two committees bore out Fox's statement, that no precedent entirely applicable to the case before them had ever occurred. But by this time Fox had learned that the argument which he had founded on it was in the highest degree unpalatable both to Parliament and to the nation; and for a moment he sought to modify it by an explanation that, though he had claimed for the Prince "the naked right, he had not by that expression intended to maintain that that right could be reduced into possession without the consent of Parliament;" an explanation not very reconcilable to common sense, since, if a right were inherent and indefeasible, Parliament could not, without absolute tyranny, refuse to sanction its exercise; and, in fact, his coadjutor, Sheridan, on the very same evening, re-asserted his original doctrine in, if possible, still more explicit terms, warning the minister "of the danger of provoking the Prince to assert his right," while a still greater man (Burke) declared that "the minister had taken up an attitude on the question tantamount to that of setting himself up as a competitor to the Prince." Such inconsiderate violence gave a great advantage to Pitt, one of whose most useful characteristics as a debater was a readiness and presence of mind that nothing could discompose. He repelled such menaces and imputations with an equally lofty scorn, and, after a few necessary preliminaries, brought forward a series of resolutions, one of which declared the fact of the sovereign's illness, and consequent incapacity; a second affirmed it to be the right and duty of the two Houses of Parliament to provide the means for supplying the defect in the royal authority; and a third imposed on the Houses the task of deciding on the mode in which the royal assent necessary to give their resolutions the authority of law should be signified. It was impossible to object to the first; but the second was stubbornly contested by the Opposition, the chiefs of the Coalition Ministry once more fighting side by side; though Lord North contented himself with arguing that the affirmation of the right and duty of Parliament was a needless raising of a disputable point, and moving, therefore, that the committee should report progress, as the recognized mode of shelving it. Fox, however, carried away by the heat of debate, returned to the assertion of the doctrine of absolute right, overlooking his subsequent modification of it, and again gave Pitt the advantage, by condescending to impugn his motives for proposing the resolution, as being inspired, not by a zeal for the constitution, but by a consciousness that he did not deserve the confidence of the Prince, and, therefore, anticipated his instant dismissal by the Regent. The re-affirmation of the Prince's inherent right was, indeed, necessary to Fox as the foundation for the objections which he took to other parts of Pitt's scheme. For the minister, while admitting to its full extent the irresistible claim which the Prince of Wales possessed to the preference of Parliament for the Regency, proposed at the same time to impose certain limitations on his exercise of the authority, so long as there was a reasonable hope of his royal father's recovery. He was not to have the power to create peerages, nor to alienate the property of the crown, nor to grant offices in reversion; and, as the Queen was to have the care of his Majesty's person, she also was to have the appointment of all the offices in the royal household. Fox, on the other hand, objected with extreme earnestness to the impropriety of imposing any limitations whatever on the power of the Regent; and then the question whether the Prince was to derive his right to the Regency from the authority of Parliament, or from his natural position and inalienable preceding right as his father's heir, became one of practical importance. If the Parliament had the right to confer authority, it had clearly the right to limit the authority it conferred. If the Prince had an indefeasible right to the Regency, independently of the will of Parliament, then Parliament could have no pretence to limit or restrain the exercise of an authority which in no degree flowed from itself. Fox, indeed, took another objection to the imposing of limitations to the authority to be intrusted to the Regent, contending that this would be to create a power unknown to the constitution—a person in the situation of King without regal power. But, not to mention precedents drawn from the reigns of Edward III., Richard II., and Henry VI., in the twenty-fourth year of the very last reign, George II., on the death of his son, the father of the present King, had enjoined the Parliament to provide for the government, in the case of his own death, while the heir was still a minor, recommending to them the appointment of the Princess Dowager of Wales as Regent, "with such powers and limitations as might appear expedient." And, in conformity with his desire, the Parliament had appointed the Princess Regent, with a Council of Regency to assist her; and had enacted that "several portions of the regal power" should be withheld from the Regent, if she could not obtain the consent of the Council thus appointed.[[118]]
This part of the case was so plain, that when, after the different resolutions proposed by Pitt had been adopted in both Houses, Fox insisted that, instead of proceeding by a bill to create a Regency, and to appoint the Prince of Wales Regent, the only course which could be adopted with propriety would be to present an address to the Prince, to entreat him to assume the government, he failed to induce the House to agree with him; and finally, as if he were determined to find a battle-field in every clause, he made a vigorous resistance to the expedient by which Pitt proposed that the formal royal assent which was necessary to make the bill law should be given. Fox, on one occasion, had gone the length of denying that the two Houses had any right to be regarded as a Parliament while the King, an essential part of Parliament, was incapacitated. But such an objection could have had no force, even in the mind of him who raised it, since the proceedings of the two Convention Parliaments of 1660 and 1689 labored under a similar defect; and yet their acts had been recognized as valid, and ratified by subsequent Parliaments. And now, in reference to the expedient proposed by the minister, that the two Houses should empower and authorize the Lord Chancellor to affix the Great Seal to the bill, Burke, with great, but for him not unusual, violence, denounced both the proposal and the Chancellor, declaring that such a step would be the setting up of a phantom of sovereignty, a puppet, an idol, an idiot, to which he disclaimed all allegiance. A more perilous amendment was one proposed to another clause by Mr. Rolle, enacting that if the Regent should marry a Roman Catholic his authority should cease. Since the Bill of Rights, as we have seen, forbade a sovereign to marry a Roman Catholic without incurring the forfeiture of his crown, it was evidently reasonable that the same restriction should be imposed on every Regent; but it was hard at the moment altogether to dissociate such a clause from the discussions of the preceding year; and Mr. Rolle endeavored to give the clause a more pointed meaning by an amendment to enact that the forfeiture should be incurred by the mere celebration of any marriage ceremony, whether the marriage thus performed were legal and valid or not. His amendment, however, was unanimously rejected. The bill was passed without alteration by the House of Commons; the Prince, while protesting in an elaborate and most able letter, drawn up for him by Burke, against the restrictions imposed by the bill, nevertheless consented to sacrifice his own judgment to the general good of the kingdom, and to accept the authority, limited as it was. And by the middle of February the bill was sent up to the House of Lords. There Lord Camden had charge of it, and his position as a former Chancellor gave irresistible weight to his opinion that the mode proposed to give the final sanction to the bill was strictly in accordance with the spirit and practice of the constitution. The point with which he dealt was the previous one, how Parliament, which was to pass the bill, was to be opened, for, "circumstanced as it was, Parliament could not at present take a single step." The law, as he put it, declared that the King must be present, either in person or by a representative. When he could not attend personally, the legal and constitutional process was to issue letters-patent under the Great Seal. In the present dilemma, therefore, he recommended that the two Houses should direct letters-patent to be issued under the Great Seal, authorizing commissioners to open Parliament in the name of his Majesty. He "must use the liberty to say that those who treated this proposal with ridicule were ignorant of the laws of their country. A fiction it might be termed, but it was a fiction admirably calculated to preserve the constitution, and, by adopting its forms, to preserve its substance." The authority of the Great Seal he explained to be such that, "even if the Lord Chancellor, by caprice, put it to any commission, it could not afterward be questioned;" and he adduced a precedent of a very similar character to the course now proposed, which occurred "at the commencement of the reign of Henry VI., when, the sovereign being an infant of nine months old, the Great Seal was placed in his hand, and it was supposed to be given to him by the Master of the Rolls, whereupon many commissions were sealed by it, and the government was carried on under its authority." That precedent, he reminded the peers, had been followed as recently as the year 1754, when, during an illness of George II., Lord Chancellor Hardwicke affixed the Great Seal to a commission for opening a session of Parliament. And, finally, he concluded by moving, "That it is expedient and necessary that letters-patent for opening the Parliament should pass under the Great Seal."[[119]] The motion was carried, and Parliament was opened in accordance with it; and, if it had been necessary, the same expedient would have sufficed to give the requisite assent to the Regency Bill, a necessity which was escaped by the fortunate recovery of the royal patient, which was announced by his medical advisers a day or two before that fixed for the third reading of the bill in the House of Lords.
Though the question was thus left undetermined for the moment, it was revived twenty-two years afterward, when the same sovereign was attacked by a recurrence of the same disease, and the existing ministry, then presided over by Mr. Perceval, brought forward a Regency Bill almost identical with that which on this occasion had been framed by Mr. Pitt; and the Opposition, led by Lord Grey and Sir Samuel Romilly, raised as nearly as possible the same objections to it which were now urged by Fox and his adherents. The ministerial measure was, however, again supported by considerable majorities; so that the course proposed by Mr. Pitt on this occasion may be said to have received the sanction of two Parliaments assembled and sitting under widely different circumstances; and may, therefore, be taken as having established the rule which will be adopted if such an emergency should, unfortunately, arise hereafter. And indeed, though the propriety of Pitt's proposals has, as was natural, been discussed by every historical and political writer who has dealt with the history of that time, there has been a general concurrence of opinion in favor of that statesman's measure. Lord John Russell, while giving a document, entitled "Materials for a Pamphlet," in which he recognizes the handwriting of Lord Loughborough, and which "contains the grounds of the opinion advanced by him, and adopted by Mr. Fox, that, from the moment the two Houses of Parliament declared the King unable to exercise his royal authority, a right to exercise that authority attached to the Prince of Wales," does not suppress his own opinion of the "erroneousness of this or any other doctrine that attributes to any individual or any constituted authority existing in the state a strict or legal right to claim or to dispose of the royal authority while the King is alive, but incapable of exercising it."[[120]]
The only writer, as far as I am aware, who advocates the opposite view is Lord Campbell, who, after quoting the speech of Lord Camden, from which extracts have been made, comments on it, and on the whole transaction, in the following terms: "From the course then adopted and carried through, I presume it is now to be considered part of our constitution that if ever, during the natural life of the sovereign, he is unable by mental disease personally to exercise the royal functions, the deficiency is to be supplied by the two Houses of Parliament, who, in their discretion, will probably elect the heir-apparent Regent, under such restrictions as they may please to propose, but who may prefer the head of the ruling faction, and at once vest in him all the prerogatives of the crown. On the two occasions referred to in the reign of George III., the next heir being at enmity with the King and his ministers, this was considered the loyal and courtly doctrine; and, from its apparent advancement of the rights of Parliament, there was no difficulty in casting odium on those who opposed it. But I must avow that my deliberate opinion coincides with that of Burke, Fox, and Erskine, who pronounced it to be unsupported by any precedent, and to be in accordance with the principles of the Polish, not the English, monarchy. The two Houses of Parliament would be the proper tribunal to pronounce that the sovereign is unable to act; but then, as if he were naturally as well as civilly dead, the next heir ought of right to assume the government as Regent, ever ready to lay it down on the sovereign's restoration to reason, in the same way as our Lady Victoria would have returned to a private station if, after her accession, there had appeared posthumous issue of William IV. by his queen. It is easy to point out possible abuses by the next heir as Regent, to the prejudice of the living sovereign; but there may be greater abuses of the power of election imputed to the two Houses, whereby a change of dynasty might be effected. I conceive, therefore, that the Irish Parliament[[121]] in 1789 acted more constitutionally in acknowledging the right of the next heir, in scouting the fiction of a commission or royal assent from the insane sovereign, and in addressing the Prince of Wales to take on himself the government as Regent."
Though the sneers at the possibility of Parliament preferring "the head of the ruling faction" to the heir-apparent be hardly consistent with the impartial candor which is one of the most imperative duties of an historical critic, and though the allusion to the principles of the Polish monarchy be not very intelligible, yet no one will refuse to attach due weight to the deliberate opinion of one who won for himself so high a professional reputation as Lord Campbell. But, with all respect to his legal rank, we may venture to doubt whether he has not laid down as law, speaking as a literary man and an historian, a doctrine which he would not have entertained as a judge. For, if we consider the common law of the kingdom, it is certain that, in the case of subjects, if a man becomes deranged, his next heir does not at once enter on his property "as if he were naturally as well as civilly dead." And if, as in such cases is notoriously the practice, the Court of Chancery appoints a guardian of the lunatic's property, analogy would seem to require that the Houses of Parliament, as the only body which can possibly claim authority in such a matter, should exercise a similar power in providing for the proper management of the government to that which the law court would exercise in providing for the proper management of an estate; and that, therefore, the principles of constitutional[[122]] statesmanship, which is deeply interested in upholding the predominant authority of Parliament, must justify the assertion of the ministers that the two Houses had the entire and sole right to make regulations for the government of the kingdom during the incapacity of the sovereign; and that the next heir, even when a son of full age, can have no more right to succeed to his father's royal authority in his lifetime than, if that father were a subject, he would have to succeed to his estate.
The opposite doctrine would seem to impugn the legality of the whole series of transactions which placed William and Mary on the throne. The admission of an indefeasible right of the heir-apparent would have borne a perilous resemblance to a recognition of that divine right, every pretension to which the Revolution of 1688 had extinguished. If, again, as Fox and his followers at one time endeavored to argue, the Houses in 1789 had no right to the name or power of a Parliament, because the King had no part in their meetings, the convention that sat a century before (as, indeed, was admitted) was certainly far less entitled to that name or power, for it had not only never been called into existence by a King, but was assembled in direct defiance of the King. Similarly, it is admitted that the body which invited Charles II. to return and resume his authority was equally destitute of the validity which could only be given by a royal summons. Yet both these bodies had performed actions of greater importance than that which was looked for from this Parliament. The one had abolished the existing and usurping government, and restored to his kingdom a King who had been long an exile. The other had, as it were, passed sentence on the existing sovereign, on grounds which confessedly will not bear a strict examination, and had conferred the crown on a prince who had no hereditary claim to the title. The justification of both acts was necessity. Salus regni suprema Lex. And the necessity was clearly more urgent in the present case than in either of the preceding instances. For, unless the Parliament interfered to create an authority, there was absolutely none in existence which was capable of acting. It should also be remembered that this Parliament of 1789, though not opened for the session by the King, had been originally elected in obedience to his order, and had been prorogued by his proclamation to the day of meeting;[[123]] and, though the opening of a session by a speech from the throne is the usual form for the commencement of its proceedings, it may be doubted whether it be so indispensable a part of them that none of their acts are valid without it.
The breaking out of the French Revolution, and the degree in which, in spite of all its atrocities and horrors, the revolutionary spirit for a time infected a large party in England, prevented Pitt from reviving the plan of Reform which he had framed with such care and genius for organization, and in which, though defeated in Parliament, both before and after he became minister, he had hitherto continued to cherish the hope of eventually succeeding. But when clubs and societies, where the most revolutionary and seditious doctrines were openly broached, were springing up in London and other large towns, and unscrupulous demagogues by speeches and pamphlets were busily disseminating theories which tended to the subversion of all legitimate authority, he not unnaturally thought it no longer seasonable to invite a discussion of schemes which would be supported in many quarters only, to quote his own words, "as a stepping-stone to ulterior objects, which they dared not avow till their power of carrying them into effect should be by this first acquisition secured." But the alarm which the spread of revolutionary ideas excited in his mind was displayed, not only passively in this abstention from the advocacy of measures the expediency of which must at all times in some degree depend on the tone of their introduction, but also in active measures of repression, some of which were not, indeed, unwarranted by precedent, but others of which can hardly be denied to have been serious inroads on the constitution, infringements of the freedom of opinion and discussion to which all Englishmen are entitled, and one of which was, to say the least, a very perilous extension of a law already sufficiently severe, the statute of treason. If the French had been content with the overthrow of their own government and institutions, much as we should have lamented the indiscriminate rashness and abhorred the atrocities with which their design was carried out, we should still have adhered to the unquestionable maxim, that no nation is justified in interfering in the internal affairs of another. But the Jacobin and Girondin demagogues, who had now the undisputed sway in Paris, did not limit their views to their own country, but openly declared themselves the enemies of all established governments in every country; and the Convention passed a formal resolution in which they proffered "fraternity and assistance" to every people which might be inclined to rise against their governments. Their resolutions were officially communicated to the sympathizing societies in England, and emissaries were secretly encouraged to cross the Channel in the hope of gaining converts. Nor were their exertions barren. Two men were convicted in Scotland of a plot to seize Edinburgh Castle, to massacre the garrison, to imprison the judges, and to rise in arms to compel the government to a change of policy. In London the King was fired at on his way to open Parliament, and on his return his carriage was attacked by a furious mob, and was only protected from serious injury by a troop of the Life Guards. Such outrages proved the existence of a new danger, against which no previous government had ever been called on to provide, and such as, in the opinion of the cabinet, could only be met by novel measures of precaution.
The first was directed against the foreign propagators of revolution. The resolutions of the Convention had been promulgated in November, 1792; and at the meeting of Parliament in December, Lord Grenville, as Foreign Secretary of State, introduced in the House of Lords an alien bill, to enable the government to deal in a summary manner with any foreign visitors whose conduct or character might seem to call for its interference. It provided that all foreigners who had arrived in the kingdom since the preceding January should give in a statement of their names and residences; that any one who should arrive in future should furnish an account of his name, his station in life, and his object in visiting England; that the King, by proclamation, order in Council, or sign-manual, might direct all foreigners to reside in such districts as might be thought suitable; that no one might quit the residence in which he first settled without a passport; and that the Secretary of State might order any suspected foreigner to quit the kingdom instantly.
The act was to be in operation for twelve months, and Lord Grenville, in introducing it, though he admitted it to be a measure of "rather a novel nature," explained at the same time that it was so far from being new in the powers which it gave, that Magna Charta distinctly recognized "the power and right of the crown to prevent foreigners from entering or residing within the realm." All that was really new was the defining of the manner in which that power should be exercised, since it had been so rarely needed that doubts might exist as to the proper mode of putting it in action. The bill, which was adopted in both Houses by large majorities, is remarkable, among other circumstances, from the fact that its discussion furnished the first instance of a public display of the difference between the two sections of the Opposition, subsequently described by Burke in one of his most celebrated pamphlets as the Old and New Whigs; those whom he called the Old Whigs (the Duke of Portland, Sir Gilbert Elliott, Mr. Windham, not to mention Burke himself) earnestly supporting it, while Lord Lansdowne, Mr. Fox, Mr. Sheridan, and Mr. Grey resisted it with equal zeal. Lord Lansdowne took the ground that it was a suspension of the Habeas Corpus Act; while Fox and Grey denounced it, in more general terms, as a measure "utterly irreconcilable with the principles of the constitution," Mr. Grey apparently referring chiefly to the power given by the bill to the Secretary of State to send any foreigners from the country, which he described as "making the bill a measure of oppression, giving power for the exercise of which no man was responsible." Sir Gilbert Elliott's answer was singularly ingenious. He did not deny that the bill conferred additional power on the crown, though not more than was justified by existing circumstances; but he maintained that the right of giving extraordinary powers to the crown on occasions was so far from being inconsistent with the principles of the constitution, that to grant extraordinary powers in extraordinary emergencies was a part of it essential to the character of a free government. If such powers were at all times possessed by the crown, its authority would be too great for a free government to co-exist with it; but if such could not be at times conferred on the crown, its authority would be too small for its own safety or that of the people.
The arguments of the ministers were, no doubt, greatly recommended, both to the Parliament and the people in general, by the notoriety of the fact that foreign agents were in many of our large towns busily, and not unsuccessfully, engaged in propagating what were known as Jacobin doctrines. But, even without that aid, it was clear that every government must, for the common good of all, be at times of extraordinary emergency invested with the power of suspending laws made for ordinary circumstances. And what would be an intolerable evil, if the supreme magistrate took upon himself to exercise it, ceases to be one when the right to exercise it is conferred by the nation itself in Parliament. If the bill did, as was argued, suspend the Habeas Corpus Act, that statute had been enacted by Parliament, and therefore for Parliament, in a case of necessity, to suspend its operation was clearly within the spirit of the constitution.
The bills affecting our own fellow-subjects were still more warmly contested. One was known as the Traitorous Correspondence Bill, which, according to Lord Campbell, was suggested by Lord Loughborough, who had lately become Lord Chancellor. The old law of high-treason, enacted in the reign of Edward III., had been in effect greatly mitigated by later statutes, which had made acts to which that character was imputed more difficult of proof, by a stricter definition of what was admissible evidence, and other safeguards; and the practice of the courts had by degrees practically reduced the list of treasons enumerated in the old law, indictments for many of the offences contained in it forbearing to assert that the persons accused had incurred the penalty of high-treason. But this new bill greatly enlarged the catalogue. It made it high-treason to hold any correspondence with the French, or to enter into any agreement to supply them with commodities of any kind, even such as were not munitions of war, but articles of ordinary merchandise, or to invest any money in the French Funds; and it enacted farther that any person who, by "any writing, preaching, or malicious and advised speaking," should encourage such designs as the old statute of Edward made treasonable, should be liable to the penalties of high-treason.
Another bill was designed to check the growing custom of holding public meetings, by providing that no meeting, the object of which was to consider any petition to the King or Parliament, or to deliberate on any alleged grievance, should be held without those who convened it, and who must be householders, giving previous notice of it by public advertisement; and empowering any two justices of the peace, at their own discretion, to declare any such meeting an unlawful assembly, and to disperse it by force, if, from the subjects discussed, the language held, or any special circumstances, they should regard it as dangerous.
Fox, and those who still adhered to him, resisted almost every clause of these different bills. They maintained that one of the most fundamental maxims of law "in every country calling itself free was, that property was in the highest degree entitled to the protection of the law; and, if so, that the right of disposing of it or investing it in any manner must be considered under the same protection;" that any interference "with ordinary commercial transactions was equally repugnant to the spirit of the constitution;" and, taking a practical view of the question, they warned the minister that such rigorous enactments imposing such extreme penalties would defeat their own end; for "it was a general and true maxim, that excess of punishment for a crime brings impunity along with it; and that no jury would ever find a verdict which would doom a fellow-creature to death for selling a yard of cloth and sending it to France." They protested, too, against inflicting on words, whether written or spoken, penalties which had hitherto been confined to overt acts. And the clauses conferring power on magistrates to prevent or disperse public meetings encountered still more vehement opposition; Fox insisting, with great eloquence, that "public meetings for the discussion of public subjects were not only lawful, but agreeable to the very essence of the constitution; that, indeed, to them, under that constitution, most of the liberties which Englishmen now enjoyed were particularly owing." The people, he maintained, had a right to discuss their grievances. "They had an inalienable right to complain by petition, and to remonstrate to either House of Parliament, or to the King; and to make two magistrates, who might be strong partisans, irresponsible judges whether anything said or done at a meeting had a tendency to encourage sedition, was to say that a free constitution was no longer suitable to us." Pitt justified these measures, partly on the ground of the special and unprecedented danger of the times, as proved by the late attempt on the King's life, and partly by the open avowal of republican doctrines made at the meetings of different societies; partly, also, on the temporary character of the measures, since in each bill a period was fixed after which its operation should expire. And he argued, farther, that, as many of the actions specified in these bills as seditious or treasonable were by many lawyers considered capable of being reached by statutes already existing, though not universally understood, it was "humane, not cruel, to remove doubts, and to prevent men from being ensnared by the ambiguity of old laws."
And in May, 1794, he brought in another bill, founded on the report of a secret committee which, in compliance with a royal message, the House of Commons had appointed to investigate the proceedings and objects of certain societies which were known to exist in different parts of the kingdom. In obedience to a Secretary of State's warrant, founded on sworn informations, their books and papers had been seized, and, having been sealed up, were now laid before the House, with the report of the committee that they proved that several of the societies which they named had, ever since the end of the year 1791, been uniformly pursuing a settled design for the subversion of the constitution; one society, in particular, having approved a plan for assembling a Convention, in imitation of the French Assembly sitting under that title, in order to overturn the established government, and to wrest from the Parliament the power which the constitution placed in its hands.
To prevent the dissemination of such principles, and to defeat such schemes, Pitt now asked leave to bring in a bill to empower his Majesty—acting, of course, through the Secretary of State—to secure and detain such persons as he should suspect of conspiring against the King's person and government. He admitted that the power which he thus proposed to confer amounted to a suspension of the Habeas Corpus Act in every part of the United Kingdom; nor did he deny that it was an unusually strong measure, but he contended that it was one justified by absolute necessity, by the manifest danger of such a conspiracy as the committee had affirmed to exist to the tranquillity of the nation and the safety of the government.
Fox, it may almost be said as a matter of course, opposed the introduction of any such measure; but his opposition was hardly marked by his usual force of argument. He was hampered by the impossibility of denying either the existence of the societies which the committee and the minister had mentioned, or the dangerous character of some of their designs; but he objected to the measures of repression which were proposed, partly on the absence of all attempts at concealment on the part of the promoters of these societies, partly on the contemptible character of the Convention which it was designed to summon, and the impossibility that such an assembly should have the slightest influence. He even made their avowed hostility to the constitution a plea for a panegyric on that constitution, and on the loyal attachment to it evinced by the vast majority of the people; and from that he proceeded to found a fresh argument against the proposed measure, contending that it made a fatal inroad on that very constitution which was so highly valued by the whole nation. He described it as a measure "of infinitely greater mischief than that which it proposed to remedy, since it would give the executive authority absolute power over the personal liberty of every individual in the kingdom." He did not deny that a similar measure had been enacted under William III., again in 1715, and again in 1745; but he contended that "the present peril bore no resemblance to the dangers of those times. This measure went to overturn the very corner-stone of the constitution, and if it passed, there was an end of the constitution of England." The bill was passed in both Houses by very large majorities.[[124]] It was originally enacted for six months only, but was from time to time renewed till the end of the century.
If we take a general survey of all these measures together, as parts of one great defensive scheme for the preservation of the public tranquillity and the general safety of the empire, it may, probably, be thought that, though undoubtedly suspensions of the constitution, they are not open to the charge of being unconstitutional, since they were enacted, not only for the welfare of the people, but with their consent and concurrence, legitimately signified by their representatives in Parliament. It is scarcely consistent with sound reason to contend that the habeas corpus, which had been enacted by Parliament, could not be suspended by the authority which had enacted it; that the constitution, which exists for the benefit of the people, could not be suspended by the people; or to deny, if it was in appearance transgressed by these enactments, that it was yet transgressed by strictly constitutional acts, by the decision of the Parliament, to whose power the constitution prescribes no limits.
But it is not sufficient that in this point of view these measures may have been defensible. In judging of their statesmanship, it is almost equally to be considered whether they were expedient and politic, whether the emergency or necessity were such as to justify such rigorous methods of repression. It was fairly open to doubt whether some of them, and especially the Traitorous Correspondence and the Seditious Meetings Bills, did not treat as treasonable acts which did not go beyond sedition, and whether so to treat them were not to invest them with an importance which did not belong to them. And on this part of the question the general judgment has, we think, been unfavorable to the government; and it has been commonly allowed that the Chancellor, whose advice on legal subjects the Prime-minister naturally took for his guide, gave him impolitic counsel. In fact, it is well known that these two acts, to a great extent, failed in their object through their excessive severity, several juries having refused to convict persons who were prosecuted for treason, who would certainly not have escaped had they only been indicted for sedition; and it is deserving of remark that these two bills were not regarded with favor by the King himself, if the anecdote—which seems to rest on undeniable authority—be true, that he expressed satisfaction at the acquittal of some prisoners, on the ground that almost any evil would be more tolerable than that of putting men to death "for constructive treason." It must therefore, probably, be affirmed that these two acts, the Treason Act and the Seditious Meetings Act, went beyond the necessity of the case; that they were not only violations of the constitution—which, when the measures are temporary, as these were, are not always indefensible—but that they were superfluous, unjust, and impolitic; superfluous, when they proposed to deal with acts already visitable with punishment by the ancient laws of the kingdom; unjust, when they created new classes of offences; and impolitic, as exciting that kind of disapproval of the acts of government which in many minds has a tendency to excite a spirit of discontent with and resistance to legitimate authority. And, indeed, it must be inferred that such was the light in which these measures were regarded by a statesman who in his general policy was proud to acknowledge himself Mr. Pitt's pupil, as he was also the most skilful and successful of his more immediate successors. Twenty-five years afterward the distress caused by the reaction inevitably consequent on the termination of twenty years of war produced a political excitement scarcely inferior to that with which Pitt had now to deal, and seditious societies and meetings scarcely less formidable; but, as we shall see, Lord Liverpool, taking warning, perhaps, from the mistake into which Mr. Pitt was led on this occasion, though compelled to bring forward new and stern measures of repression, and even to suspend the Habeas Corpus Act for a time, kept strictly within the lines of constitutional precedent, and was careful to avoid confounding sedition with treason.
Notes:
[ [!-- Note Anchor 73 --][Footnote 73: He had been Lord-chamberlain in Lord Rockingham's administration of 1765. He was now Lord-lieutenant of Ireland.]
[ [!-- Note Anchor 74 --][Footnote 74: In Lord Chatham's or the Duke of Grafton's ministry of 1766, and in the later administration of Lord Rockingham.]
[ [!-- Note Anchor 75 --][Footnote 75: It may be convenient to take this opportunity of pointing out that, in this administration, Lord Shelburne altered the old, most unreasonable, and inconvenient arrangement by which the departments of the two Secretaries of State were distinguished by the latitude, and called Northern and Southern. By a new division, one took charge of the home affairs, the other of the foreign affairs. And in 1794 a third Secretary was added for War, who, by a very singular arrangement, which continued till very recently, had charge also of the colonies. But, in the year 1855, the Colonial-office was intrusted to a separate minister; and in 1858 a fifth Secretary of State, that for India, was added, on the transfer of the government of that country from the East India Company to the Crown. When there were only two Secretaries of State, the rule was that one should sit in each House. At present it is not necessary that more than one should be a peer, though it is more usual for two to be members of the Upper House. And it is usual also for the Under-secretaries to be members of the House to which the Chief-secretaries do not belong, though this rule is not invariably observed.]
[ [!-- Note Anchor 76 --][Footnote 76: "Parliamentary History," xxiii., 163.]
[ [!-- Note Anchor 77 --][Footnote 77: The divisions were: 224 to 208, and 207 to 190.]
[ [!-- Note Anchor 78 --][Footnote 78: Lord Stanhope, quoting from an unpublished "Life of Lord Barrington," compiled by the Bishop of Durham (meaning, I suppose, Bishop Shute Barrington).—History of England, v., 174.]
[ [!-- Note Anchor 79 --][Footnote 79: Even with the first flush of triumph, the night after the second defeat of Lord Shelburne in the House of Commons, Fox's great friend, Mr. Fitzpatrick, writes to his brother, Lord Ossory: "To the administration it is cila mors, but not victoria loeta to us. The apparent juncture with Lord North is universally cried out against."—Lord J. Russell's Memorials and Correspondence of C.J. Fox, ii., 18.]
[ [!-- Note Anchor 80 --][Footnote 80: Lord J. Russell's "Memorials and Correspondence of C.J. Fox," ii., 90.]
[ [!-- Note Anchor 81 --][Footnote 81: Ibid., p. 118.]
[ [!-- Note Anchor 82 --][Footnote 82: In one division (161 to 137) they had only a majority of twenty-four.]
[ [!-- Note Anchor 83 --][Footnote 83: In a letter to Lord Northington (Lord-lieutenant of Ireland), dated July 17, Fox himself mentions that not one of his colleagues, except the Duke of Portland and Lord Keppel (First Lord of the Admiralty), approved of it.—Memoirs of Fox, ii., 116.]
[ [!-- Note Anchor 84 --][Footnote 84: November 22 he writes to the Duke of Rutland: "The bill ... is, I really think, the boldest and most unconstitutional measure ever attempted, transferring at one stroke, in spite of all charters and compacts, the immense patronage and influence of the East to Charles Fox, in or out of office."—Stanhope's Life of Pitt, i., 140.]
[ [!-- Note Anchor 85 --][Footnote 85: The whole paper is given by the Duke of Buckingham, "Courts and Cabinets of George III," i., 288, and quoted by Lord Russell in his "Memorials and Correspondence of C. J. Fox," ii., 251. It is endorsed, "Delivered by Lord Thurlow, December 1, 1783. Nugent Temple.">[
[ [!-- Note Anchor 86 --][Footnote 86: "Life of Pitt," i., 148. Lord Stanhope does not pledge himself to these being "the exact words of this commission, but as to its purport and meaning there is no doubt." They are, however, the exact words quoted by Fox in his speech in support of Mr. Baker's resolutions on the 17th.—Parliamentary History, xxiv., 207.]
[ [!-- Note Anchor 87 --][Footnote 87: "Parliamentary History," xxiv., 151-154.]
[ [!-- Note Anchor 88 --][Footnote 88: 95 to 76. "Strange to say, one of the cabinet ministers, Lord Stormont, president of the council, formed part of the final majority against the bill."—Life of Pitt, ii., 154.]
[ [!-- Note Anchor 89 --][Footnote 89: "Life of Pitt," i., 155.]
[ [!-- Note Anchor 90 --][Footnote 90: "Lives of the Chancellors," c. clix. Lord Thurlow.]
[ [!-- Note Anchor 91 --][Footnote 91: "The Grenville Papers," iii., 374. It may, however, be remarked, as tending to throw some doubt on Mr. Grenville's statement, that Lord Campbell asserts that "Lord Mansfield, without entering into systematic opposition, had been much alienated from the court during Lord Rockingham's first administration."—Lives of the Chief-justices, ii., 468.]
[ [!-- Note Anchor 92 --][Footnote 92: Vol. ii., pp. 229-232.]
[ [!-- Note Anchor 93 --][Footnote 93: It will be seen hereafter that this doctrine was admitted in the fullest degree by Sir Robert Peel in the winter of 1884, when he admitted that his acceptance of office made him alone responsible for the dismissal of Lord Melbourne, though, in fact, he was taken entirely by surprise by the King's act, being in Italy at the time.]
[ [!-- Note Anchor 94 --][Footnote 94: Lord John Russell, in his "Memorials of Fox" (ii., 253), affirms that "Lord Temple's act was probably known to Pitt;" but Lord Macaulay, in his "Essay on Pitt" (p. 326), fully acquits Pitt of such knowledge, saying that "he could declare, with perfect truth, that, if unconstitutional machinations had been employed, he was no party to them.">[
[ [!-- Note Anchor 95 --][Footnote 95: On Lord Effingham's motion, in condemnation of some of the proceedings of the Commons, which was carried February 4, 1784, by 100 to 53.]
[ [!-- Note Anchor 96 --][Footnote 96: "Parliamentary History," xxiv., 383-385—debate of January 20, 1784.]
[ [!-- Note Anchor 97 --][Footnote 97: Ibid, p. 283—January 12.]
[ [!-- Note Anchor 98 --][Footnote 98: Ibid., pp. 251-257.]
[ [!-- Note Anchor 99 --][Footnote 99: "Parliamentary History," xxiv., 478—February 2.]
[ [!-- Note Anchor 100 --][Footnote 100: Ibid., p. 663.]
[ [!-- Note Anchor 101 --][Footnote 101: "Parliamentary History," xxiv., 687, 695, 699.]
[ [!-- Note Anchor 102 --][Footnote 102: The numbers were 201 to 189. The week before, on Mr. Powys's motion for a united and efficient administration, the majority had been 20—197 to 177. On a motion made by Mr. Coke, February 3, the majority had been 24—211 to 187. At the beginning of the struggle the majorities had been far larger—232 to 143 on Fox's motion for a committee on the state of the nation, January 12.]
[ [!-- Note Anchor 103 --][Footnote 103: 191 to 190.]
[ [!-- Note Anchor 104 --][Footnote 104: From December 19, when Pitt accepted office, to March 24, when the Parliament was dissolved.]
[ [!-- Note Anchor 105 --][Footnote 105: "Memorials and Correspondence of C.J. Fox," by Earl Russell, ii., 229, 248.]
[ [!-- Note Anchor 106 --][Footnote 106: Ibid., p. 280.]
[ [!-- Note Anchor 107 --][Footnote 107: That of April, 1831, after the defeat of the Government on General Gascoyne's amendment]
[ [!-- Note Anchor 108 --][Footnote 108: Lord Macaulay, "Miscellaneous Essays," ii., 330.]
[ [!-- Note Anchor 109 --][Footnote 109: Lord Macaulay, essay on William Pitt.]
[ [!-- Note Anchor 110 --][Footnote 110: Alison ("History of Europe," xiii., 971) states the English force in the Netherlands in 1794 at 85,000 men. Lord Stanhope calls the English at Minden 10,000 or 12,000.]
[ [!-- Note Anchor 111 --][Footnote 111: An eminent living writer (Mr. Leeky, "History of England," ii., 474) quotes with apparent approval another comparison between the father and son, made by Grattan, in the following words: "The father was not, perhaps, so good a debater as his son, but was a much better orator, a greater scholar, and a far greater man." The first two phrases in this eulogy may, perhaps, balance one another; though, when Mr. Lecky admits that "Lord Chatham's taste was far from pure, and that there was much in his speeches that was florid and meretricious, and not a little that would have appeared absurd bombast but for the amazing power of his delivery," he makes a serious deduction from his claim to the best style of eloquence which no one ever made from the speeches of his son. But Grattan's assertion that the man who, as his sister said of him, knew but two books, the "Æneid" and the "Faerie Queene," was superior in scholarship to one who, with the exception of his rival, Fox, had probably no equal for knowledge of the great authors of antiquity in either House of Parliament, is little short of a palpable absurdity. We may, however, suspect that Grattan's estimate of the two men was in some degree colored by his personal feelings. With Lord Chatham he had never been in antagonism. On one great subject, the dispute with America, he had been his follower and ally, advocating in the Irish House of Commons the same course which Chatham upheld in the English House of Peers. But to Pitt he had been almost constantly opposed. By Pitt he and his party, whether in the English, or, so long as it lasted, in the Irish Parliament, had been repeatedly defeated. The Union, of which he had been the indefatigable opponent, and to which he was never entirely reconciled, had been carried in his despite; and it was hardly unnatural that the recollection of his long and unsuccessful warfare should in some degree bias his judgment, and prompt him to an undeserved disparagement of the minister by whose wisdom and firmness he had been so often overborne.]
[ [!-- Note Anchor 112 --][Footnote 112: Massey's "History of England," iii., 447; confer also Green's "History of the English People," vol. iv.]
[ [!-- Note Anchor 113 --][Footnote 113: Hallam ("Middle Ages," ii., 386, 481), extolling the condition of "the free socage tenants, or English yeomanry, as the class whose independence has stamped with peculiar features both our constitution and our national character," gives two derivations for the name; one "the Saxon soe, which signifies a franchise, especially one of jurisdiction;" and the other, that adopted by Bracton, and which he himself prefers, "the French word soc, a ploughshare.">[