The Constitutional History of England From 1760 to 1860

by Charles Duke Yonge

  [Footnote 117: Hume's account of this transaction is, that the Duke "desired that it might be recorded in Parliament that this authority was conferred on him from their own free motion, without any application on his part; ... and he required that all the powers of his office should be specified and defined by Parliament."]

  [Footnote 118: "Parliamentary History," xxvii., 803-speech of Mr. Hardinge, one of the Welsh judges, and M.P. for Old Sarum.]

  [Footnote 119: I take this report, or abstract, of Lord Camden's speech from the "Lives of the Chancellors," c. cxlvii.]

  [Footnote 120: "Memorials of Fox," ii., 292.]

  [Footnote 121: The proceedings of the Irish Parliament on this occasion will be mentioned in the next chapter.]

  [Footnote 122: Mr. Hallam (iii., 144, ed. 1832) gives a definition of the term "unconstitutional" which seems rather singular: "By unconstitutional, as distinguished from 'illegal,' I mean a novelty of much importance, tending to endanger the established laws." May not the term rather be regarded as referring to a distinct class of acts-to those at variance with the recognized spirit of the constitution or principles of government, with the preservation of the liberties of the people, as expressed or implied in the various charters, etc., but not forbidden by the express terms of any statute?]

  [Footnote 123: The entry in the "Parliamentary History," November 20, 1788, is: "Both Houses met pursuant to the last prorogation. Later meetings were in consequence of successive adjournments."]

  [Footnote 124: In the Commons by 183 to 33; in the Lords by 119 to 11.]

  CHAPTER V. 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.

  In describing the condition of Ireland and the feelings of its people, in the latter years of the reign of George II., Mr. Hallam has fixed on the year 1753 as that in which the Irish Parliament first began to give vent to aspirations for equality with the English Parliament in audible complaints; and the Irish House of Commons, finding the kingdom in the almost unprecedented condition of having "a surplus revenue after the payment of all charges," took steps to vindicate that equality by a sort of appropriation bill.

  There were, however, three fundamental differences between the Parliaments of the two countries, which, above all others, stood in the way of such equality as the Irish patriots desired: the first, that by a law as old as the time of Henry VII., and called sometimes the Statute of Drogheda, from the name of the town in which it was first promulgated, and sometimes Poynings' Act, from the name of Sir Henry Poynings, the Lord-deputy at the time, no bill could be introduced into the Irish Parliament till it had received the sanction of the King and Privy Council in England; the second, that the Parliament lasted for the entire life of the King who had summoned it-a regulation which caused a seat in the House of Commons to be regarded almost as a possession for life, and consequently enormously increased the influence of the patrons of boroughs, some of whom could return a number of members such as the mightiest borough monger in England could never aspire to equal.[125] The third difference, of scarcely inferior importance, was, that the Parliament only sat in alternate years. But, though these arrangements suited the patrons and the members of the House of Commons, it was not strange that the constituencies, whose power over their representatives was almost extinguished by them, regarded them with less complacency, and, at the general election which was the consequence of the accession of George III., pledges were very generally exacted from the candidates that, if elected, they would endeavor to procure the passing of a septennial act like that which had been the law in England ever since the early years of George I. A bill with that object was introduced in 1761, and reported on not unfavorably as to its principle by the English law advisers to whom the Privy Council referred it. But, as if it had been designed to exemplify in the strongest possible manner the national propensity for making blunders, it contained one clause which rendered it not only impracticable but ridiculous. The clause provided that no member should take his seat or vote till his qualification had been proved before the Speaker in a full house. But the Speaker could not be chosen till the members had established their right of voting, so that the whole was brought to a dead-lock, and the bill, if passed, could never have been carried out.

  In the ministry of 1767, however-that of the Duke of Grafton and Lord Chatham-Lord Halifax was replaced at Dublin Castle by Lord Townsend, who, among his other good qualities, deserves specially honorable mention as the first Lord-lieutenant who made residence in Dublin his rule on principle; for till very lately non-residence had been the rule and residence the exception, a fact which is of itself a melancholy but all-sufficient proof of the absolute indifference to Irish interests shown by all classes of English statesmen. And under his government a bill for shortening Parliaments was passed, though it fixed the possible duration of each Parliament at eight years instead of seven, the variation being made to prevent a general election from being held at the same time in both countries, but, according to common belief, solely in order to keep up a mark of difference between the Irish and English Parliaments. And those who entertained this suspicion fancied they saw a confirmation of it in the retention of the regulation that the Irish Parliament should only sit in alternate years, a practice wholly inconsistent with any proper idea of the duties and privileges of a Parliament such as prevailed on this side of the Channel; since a Parliament whose sessions were thus intermittent could not possibly exercise that degree of supervision over the revenue, either in its collection or its expenditure, which is among its most important duties. And the continued maintenance of this practice must be regarded farther as a proof that the English legislators had not yet learned to consider Ireland as an integral part of the kingdom, entitled in every particular to equal rights with England and Scotland. Indeed, it is impossible for any Englishman to contemplate the history of the treatment of Ireland by the English legislators, whether Kings, ministers, or Parliaments, for more than a century and a half, without equal feelings of shame at the injustice and wonder at the folly of their conduct. Not only was Ireland denied freedom of trade with England (a denial as inconsistent not only with equity but also with common-sense as if Windsor had been refused free trade with London),[126] but Irish manufactures were deliberately checked and suppressed to gratify the jealous selfishness of the English manufacturers. Macaulay, in his zeal for the memory of William III., has not scrupled to apologize for, if not to justify, the measures deliberately sanctioned by that sovereign for the extinction of the Irish woollen manufactures, on the ground that Ireland was not a sister kingdom, but a colony; that "the general rule is, that the English Parliament is competent to legislate for all colonies planted by English subjects, and that no reason existed for considering the case of the colony in Ireland as an exception."[127] There is, perhaps, no passage in his whole work less to his credit. But, if such was the spirit in which an English historian could write of Ireland in the latter half of this present century, it may, perhaps, diminish our wonder at the conduct of our legislators in an earlier generation.

  The penal laws on the subject of religion were also conceived and carried out in a spirit of extraordinary rigor and injustice. By far the larger portion of the Irish population still adhered to the Roman Catholic faith; but, as far as the negative punishment of restrictions and disabilities could go, its profession was visited as one of the most unpardonable of offences. No Roman Catholi
c could hold a commission in the army, nor be called to the Bar, nor practise as an attorney; and when it was found that a desire to devote themselves to the study of the law had led many gentlemen to acknowledge a conversion to Protestantism, a statute was actually passed to require them to prove their sincerity by five years' adherence to their new form of religion before they could be regarded as having washed off the defilement of their old heresy sufficiently to be thought worthy to wear a gown in the Four Courts. No Roman Catholic might keep a school; while a strange refinement of intolerance had added a statute prohibiting parents from sending their children to Roman Catholic Schools in a foreign country.

  And the manner in which the government was carried on was, if possible, worse even than the principle. The almost continual absence of the Lord-lieutenant inevitably left the chief management of the details in the hands of underlings, and the favor of the Castle was only to be acquired by the lowest time-serving, of which those who could influence elections, wealthy and high-born as they for the most part were, were not more innocent than the representatives. No support to government could be looked for from either peer or commoner unless it were purchased by bribes more or less open, which it was equally discreditable to ask and to grant; for one of the worst fruits of the system which had so long reigned throughout the island was the general demoralization of all classes. Mr. Fronde gives George III. himself the credit of being the first person who resolutely desired to see a change of the system, and to "try the experiment whether Ireland might not be managed by open rectitude and real integrity."[128] But his first efforts were baffled by the carelessness or incompetency of the Viceroys, since it was difficult to find any man of ability who would undertake the office. And for some years things went on with very little change, great lords of different ranks having equally no object but that of controlling the Castle and engrossing the patronage of the government, and in not a few instances of also procuring large grants or pensions for themselves, each seeking to build up an individual influence which no Viceroy could ever have withstood, had they been united instead of being separated by mutual jealousies, which enabled him from time to time to play off one against the other.

  But the war with the North American Colonies, which broke out in 1774, by some of its indirect consequences brought about a great change in the affairs of Ireland. The demand for re-enforcements to the armies engaged in America could only be met by denuding the British islands themselves of their necessary garrisons. No part of them was left so undefended as the Irish coast; and, after a time, the captains of some of the American privateers, learning how little resistance they had to fear, ventured into St. George's Channel, penetrated even into the inland waters, and threatened Carrickfergus and Belfast. In matters of domestic policy it was possible to procrastinate, to defer deciding on relaxations of the penal laws or the removal of trade restrictions, but to delay putting the country into a state of defence against an armed enemy for a single moment was not to be thought of; yet the government was powerless. Of the regular army almost every available man was in, or on his way to, America, and the most absolute necessity, therefore, compelled the Irish to consider themselves as left to their own resources for defence. It was as impossible to levy a force of militia as one of regular troops, for the militia could not be embodied without great expense; and the finances of the whole kingdom had been so mismanaged that money was as hard to procure as men. In this emergency several gentlemen proposed to the Lord-lieutenant to raise bodies of volunteers. The government, though reluctant to sanction the movement, could see no alternative, since the presence of an armed force of some kind was indispensable for the safety of the island. The movement grew rapidly; by the summer of 1779 several thousand men were not only under arms, but were being rapidly drilled into a state of efficiency, and had even established such a reputation for strength, that, when in the autumn the same privateers that had been so bold in Belfast Lough the year before reached the Irish coast, in the hope of plundering Limerick or Galway, they found the inhabitants of the district well prepared to receive them, and did not venture to attempt a descent on any part of the island. And, when the Parliament met in October, some of the members, who saw in the success that could not be denied to have attended their exertions an irresistible means of strengthening the rising pretensions of Ireland to an equality of laws and freedom with England, moved votes of thanks in both Houses to the whole body of Volunteers. They were carried by acclamation, and the Volunteers of the metropolis lined the streets between the Parliament House and the Castle when, according to custom, the members of the two Houses marched in procession to present their addresses to the Lord-lieutenant. Such a recognition of the power of this new force stimulated those members who claimed in a special degree the title of Friends of Ireland to greater exertion. A wiser government than that of Lord North would have avoided giving occasion for the existence of a force which the utter absence of any other had made masters of the situation. The Volunteers even boasted that they had been called into existence by English misgovernment. In the words of one of their most eloquent advocates, "England had sown her laws like dragons' teeth, and they had sprung up as armed men."

  Ireland began to feel that she was strong, and, not unnaturally desired to avail herself of that strength, which England now could not question, to put forward demands for concessions which in common fairness could not well be denied. In 1778, when Lord North, in the hope of recovering the allegiance of the North American Colonies, brought forward what he termed his conciliatory propositions, the Irish members began to press their demand that the advantages thus offered to the Americans should be extended to their own countrymen also; that the fact of the Irish not having rebelled should not be made a plea for treating them worse than those who had; and in the front of all their requests was one for the abolition of those unjust and vexatious duties which shackled their trade and manufactures. But the jealousy of the English and Scotch manufacturers was still as bitter, and, unhappily, still as influential, as it had proved in the time of William III. And, to humor the grasping selfishness of Manchester and Glasgow, Lord North met the demands of the Irish with a refusal of which every word of his speech on the propositions to America was the severest condemnation, and which he sought to mitigate by some new regulations in favor of the linen trade, to which the English and Scotch manufacturers made no objection, since they had no linen factories. The Irish, in despair, had recourse to non-importation agreements, of which the Americans had set the example, binding themselves not to import nor to use any articles of English or Scotch manufacture with which they could possibly dispense. And the result was, that Lord North yielded to fear what he had refused to justice, and the next year brought in bills to grant the Irish the commercial equality which they demanded. Some of the most oppressive and vexatious of the penal laws were also relaxed; and some restrictions which the Navigation Act imposed on commerce with the West Indies were repealed. But, strange to say, the English ministers still clung to one grievance of monstrous injustice, and steadily refused to allow judicial appointments to be placed on the same footing as in England, and to make the seat of a judge on the bench depend on his own good conduct, instead of on the caprice of a king or a minister.

  But the manifest reluctance with which the English government had granted this partial relief encouraged the demand for farther concessions. The Irish members, rarely deficient in eloquence or fertility of resource, had been lately re-enforced by a recruit of pre-eminent powers, whom Lord Charlemont had returned for his borough of Moy, Henry Grattan; and, led by him, began to insist that the remaining grievances, to the removal of which the nation had a right, would never be extinguished so long as the supreme power of legislation for the country rested with the English and Scotch Parliament; and that the true remedy was only to be found in the restoration to the Irish Parliament of that independence of which it had been deprived ever since the time of Henry VII. They were encouraged by the visibly increasing weakness of Lord
North's administration. Throughout the year 1781 it was evidently tottering to its fall. And on the 22d of February, 1782, Grattan brought forward in the Irish House of Commons a resolution, intended, if carried, to lay the foundation of a bill, "that a claim of any body of men other than the King, Lords, and Commons of Ireland to bind this kingdom is unconstitutional, illegal, and a grievance." This resolution aimed at the abolition of Poynings' Act. Other resolutions demanded the abolition of the "powers exercised by the Privy Council under color of Poynings' Act," and a farther relaxation of the penal laws. So helpless did the government by this time feel itself, that the Attorney-general, who was its spokesman on this occasion, could not venture to resist the principle of these resolutions, but was contented to elude them for the time by objections taken to some of the details; and Grattan gave notice of another motion to bring the question to a more definite decision, which he fixed for the 16th of April.