The Constitutional History of England From 1760 to 1860

by Charles Duke Yonge

  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 th
e candidates they brought in. The members of the club were under an oath and bond of L500 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 L3000, adding a promise to build 600 tons of shipping in the town. A second (a Mr. Rumbold) was willing to give every freeman L35; 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 L3000 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:

  [Footnote 1: "Constitutional History," vol. iii., p. 380; ed. 3, 1832. The first edition was published in 1827.]

  [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.]

  [Footnote 3: Parliament was dissolved March 19. Lord Bute succeeded Lord Holdernesse March 25.]

  [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.]

  [Footnote 5: Parliament was prorogued April 19, and The North Briton (No. 45) was published April 23.]

  [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 qua ministers, that is, qua 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 counse
l 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.