The Constitutional History of England From 1760 to 1860

by Charles Duke Yonge

  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:

  [Footnote 73: He had been Lord-chamberlain in Lord Rockingham's administration of 1765. He was now Lord-lieutenant of Ireland.]

  [Footnote 74: In Lord Chatham's or the Duke of Grafton's ministry of 1766, and in the later administration of Lord Rockingham.]

  [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 necessar
y 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.]

  [Footnote 76: "Parliamentary History," xxiii., 163.]

  [Footnote 77: The divisions were: 224 to 208, and 207 to 190.]

  [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.]

  [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.]

  [Footnote 80: Lord J. Russell's "Memorials and Correspondence of C.J. Fox," ii., 90.]

  [Footnote 81: Ibid., p. 118.]

  [Footnote 82: In one division (161 to 137) they had only a majority of twenty-four.]

  [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.]

  [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.]

  [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."]

  [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.]

  [Footnote 87: "Parliamentary History," xxiv., 151-154.]

  [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.]

  [Footnote 89: "Life of Pitt," i., 155.]

  [Footnote 90: "Lives of the Chancellors," c. clix. Lord Thurlow.]

  [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.]

  [Footnote 92: Vol. ii., pp. 229-232.]

  [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.]

  [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."]

  [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.]

  [Footnote 96: "Parliamentary History," xxiv., 383-385-debate of January 20, 1784.]

  [Footnote 97: Ibid, p. 283-January 12.]

  [Footnote 98: Ibid., pp. 251-257.]

  [Footnote 99: "Parliamentary History," xxiv., 478-February 2.]

  [Footnote 100: Ibid., p. 663.]

  [Footnote 101: "Parliamentary History," xxiv., 687, 695, 699.]

  [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.]

  [Footnote 103: 191 to 190.]

  [Footnote 104: From December 19, when Pitt accepted office, to March 24, when the Parliament was dissolved.]

  [Footnote 105: "Memorials and Correspondence of C.J. Fox," by Earl Russell, ii., 229, 248.]

  [Footnote 106: Ibid., p. 280.]

  [Footnote 107: That of April, 1831, after the defeat of the Government on General Gascoyne's amendment]

  [Footnote 108: Lord Macaulay, "Miscellaneous Essays," ii., 330.]

  [Footnote 109: Lord Macaulay, essay on William Pitt.]

  [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.]

  [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 "AEneid" 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.]

  [Footnote 112: Massey's "History of England," iii., 447; confer also Green's "History of the English People," vol. iv.]

  [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."]

  [Footnote 114: Lord Colchester's "Diary," i., 68, mentions that the officiating clergyman was Mr. Burt, of Twickenham, who received L500 for his services. Lord John Russell ("Memorials and Corresponde
nce of Fox," ii., 284-389) agrees in stating that the marriage was performed in the manner prescribed by the Common Prayer-book. Mr. Jesse, in his "Life of George III.," ii., 506, gathering, as the present writer can say from personal knowledge, his information from some papers left behind him by the late J.W. Croker, says: "The ceremony was performed by a Protestant clergyman, though in part, apparently, according to the rites of the Roman Catholic Church." Lord John Russell avoids discussing the question whether the marriage involved the forfeiture of the inheritance of the crown, an avoidance which many will interpret as a proof that in his opinion it did. Mr. Massey's language ("History of England," iii., 327) clearly intimates that he holds the same opinion.]

  [Footnote 115: Russell's "Life of Fox," ii., 187.]

  [Footnote 116: Fox's private correspondence is full of anticipations that the Regent's first act will be to dismiss Pitt, and to make him minister. In a letter of December 15 he even fixes a fortnight as the time by which he expects to be installed; while Lord Loughborough, who was eager to possess himself of the Great Seal-an expectation in which, though well-founded, he would, as it proved, have found himself disappointed-was led by his hopes to give the Prince counsel of so extraordinary a nature that it is said that the ministers, to whose knowledge it had come, were prepared, if any attempt had been made to act upon it, or even openly to avow it, to send the learned lord to the Tower. ("Diary of Lord Colchester," i., 28.) In an elaborate paper which he drew up and read to the Prince at Windsor, he assured his Royal Highness, speaking as a lawyer, that "the administration of government devolved to him of right. He was bound by every duty to assume it, and his character would be lessened in the public estimation, if he took it on any other ground but right, or on any sort of compromise. The authority of Parliament, as the great council of the nation, would be interposed, not to confer but to declare the right. The mode of proceeding should be that in a short time his Royal Highness should signify his intention to act by directing a meeting of the Privy Council, when he should declare his intention to take upon himself the care of the state, and should at the same time signify his desire to have the advice of Parliament, and order it by proclamation to meet early for the despatch of business.... It is of vast importance in the outset that he should appear to act entirely of himself, and, in the conferences he must necessarily have, not to consult, but to listen and direct." The entire paper is given by Lord Campbell ("Lives of the Chancellors," c. clxx.).]