The Constitutional History of England From 1760 to 1860

by Charles Duke Yonge

  Stripped of all technicalities, and even of all reference to the manifest possibility of such a circumstance arising as that the Chief-justice, if a member of a cabinet, may have a share in ordering the institution of a prosecution which, as a judge, it may be his lot to try, one consideration which is undeniable is, that a member of a cabinet is of necessity, and by the very nature of his position in it, a party man, and that it is of preeminent importance to the impartiality of the judicial bench, and to the confidence of the people in the purity, integrity, and freedom from political bias of their decisions, that the judges should be exempt from all suspicion of party connection. Lord Campbell even goes the length of saying, what was not urged on either side of either House in these debates, that it was alleged by at least one contemporary writer that Lord Mansfield's position in the cabinet did perceptibly influence some of his views and measures respecting the Press;[157] and, though in both Houses the ministry had a majority on the question of the propriety of the appointment, he records his own opinion[158] that "the argument was all on the losing side;" and that Mr. Fox showed his consciousness that it was so by his "concession that the Chief-justice should absent himself from the cabinet when the expediency of commencing prosecutions for treason or sedition was to be discussed." He adds, also, that "it is said that Lord Ellenborough himself ere long changed his opinion, and, to his intimate friends, expressed deep regret that he had ever been prevailed upon to enter the cabinet."

  But, if the composition of the cabinet of 1806 has in this respect been generally condemned, on the other hand the annals of that ministry, short-lived as it was, are marked by the enactment of one great measure which has been stamped with universal approbation. It may, perhaps, be said that the existence, promotion, discouragement, or suppression of a branch of trade has no title to be regarded as a constitutional question. But the course which the British Parliament, after a long period of hesitation, has adopted respecting, not only the slave-trade, but the employment of slave-labor in any part of the British dominions, is so intimately connected with the great constitutional principle, that every man, whatever be his race or nation or previous condition, whose foot is once planted on British soil, is free from that moment, that it cannot be accounted a digression to mention the subject here. To our statesmen of Queen Anne's time traffic in slaves was so far from being considered discreditable, that the ministry of that reign prided themselves greatly on what was called the Assiento Treaty with Spain, by which they secured for the British merchants and ship-owners the privilege of supplying the West India Islands with several thousand slaves a year. In 1748 the ministers of George II were equally jealous of the credit of renewing it. It had even on one occasion been decided in the Court of Common Pleas that an action of trover could be maintained for a negro, "because negroes are heathens;" though Chief-justice Holt scouted the idea of being bound by a precedent which would put "a human being on the same footing as an ox or an ass," and declared that "in England there was no such thing as a slave." Subsequent decisions, however, of two Lord Chancellors-Lord Talbot and Lord Hardwicke-were not wholly consistent with the doctrine thus laid down by Holt; and the question could not be regarded as finally settled till 1772, when a slave named Somersett was brought over to England from Jamaica by his master, and on his arrival in the Thames claimed his freedom, and under a writ of habeas corpus had his claim allowed by Lord Mansfield. The master's counsel contended that slavery was not a condition unsanctioned by English law, for villeinage was slavery, and no statute had ever abolished villeinage. But the Chief-justice, in the first place, denied that villeinage had ever been slavery such as existed in the West Indies; and, in the second place, he pronounced that, whether it had been or not, it had, at all events, long ceased in England, and could not be revived. "The air of England has long been too pure for a slave, and every man is free who breathes it. Every man who comes into England is entitled to the protection of English law."[159] But this freedom was as yet held to be only co-extensive with these islands. And for sixty years more our West India Islands continued to be cultivated by the labor of slaves, some of whom were the offspring of slaves previously employed, though by far the greater part were imported yearly from the western coast of Africa. The supply from that country seemed inexhaustible. The native chiefs in time of war gladly sold their prisoners to the captains of British vessels; in time of peace they sold them their own subjects; and, if at any time these modes of obtaining slaves slackened, the captains would land at night, and, attacking the villages on the coast sweep off the inhabitants on board their ships, and at once set sail with their booty. The sufferings of these unhappy captives in what was called the "middle passage"-the passage between their native land and the West India Islands-were for a long time unknown or disregarded, till, early in Pitt's first ministry, they attracted the notice of some of our naval officers who were stationed in the West Indies, and who, on their return to England, related the horrors which they had witnessed or heard of-how, between decks too low to admit of a full-grown man standing upright, the wretched victims, chained to the sides of the ships, lay squeezed together in such numbers, though the whole voyage was within the tropics, that, from the overpowering heat and scantiness of food, it was estimated that two-thirds of each cargo died on the passage. Most fortunately for the credit of England, the fearful trade was brought under the notice of a young member of Parliament singularly zealous in the cause of humanity and religion, endowed with untiring industry and powerful eloquence, and connected by the closest ties of personal intimacy with Mr. Pitt. To hear of such a system of organized murder, as the British officers described the slave-trade to be, was quite sufficient to induce Mr. Wilberforce to resolve to devote himself to its suppression. He laid the case in all its horrors before his friend the Prime-minister, a man as ready as himself to grapple with and extinguish all proved abuses; and Pitt at once promised him all the support which he could give. It was no easy task that he had taken on himself. A year or two before, Burke had applied himself to frame some regulations which he hoped might gradually remove the evil; but, little as he was moved by considerations of popularity or daunted by difficulty, he had abandoned the attempt, as one which would meet with a resistance too powerful to be overcome. Wilberforce was not a bolder man than Burke, but he had no other object to divide his attention, and, therefore, to this one he devoted all his faculties and energies, enlisting supporters in every quarter, seeking even the co-operation of the French government, and opening a correspondence with the French Secretary of State, M. Montmorin, a statesman of great capacity, and, what was far rarer in France, of incorruptible honesty. M. Montmorin, however, though alive to the cruelty of the traffic, was unable to promise him any aid, alleging the fears of the French planters that its abolition "would ruin the French islands. He said that it was one of those subjects upon which the interests of men and their sentiments were so much at variance, that it was difficult to learn what was practicable."[160]

  Wilberforce had already found that the English merchants were still less manageable. Pitt had entered so fully into his views, that in 1788 he himself moved and carried a resolution pledging the House of Commons to take the slave-trade into consideration in the next session. And another friend of the cause, Sir W. Dobben, brought in a bill to diminish the horrors of the middle passage by proportioning the number of slaves who might be conveyed in one ship to the tonnage of the vessel. But those concerned in the West India trade rose up in arms against even so moderate a measure, and one so clearly demanded by the most ordinary humanity as this. The Liverpool merchants declared that the absence of restrictions on the slave-trade had been the chief cause of the prosperity and opulence of their town, and obtained leave to be heard by counsel against the bill. But Fox united with Pitt on this subject, and the bill was carried. But this was all the practical success which the efforts of the "Abolitionists," as they began to be called, achieved for many years. And even that was not won without extreme difficulty; Lord Chancell
or Thurlow opposing it with great vehemence in the House of Lords, as the fruit of a "five days' fit of philanthropy which had just sprung up," and pointing to the conduct of the French government, which, as he asserted, had offered premiums to encourage the trade, as an example that we should do well to follow. It was even said that he had contrived to incline the King himself to the same view; to have persuaded him that the trade was indispensable to the prosperity of our manufacturers, and, in the Chancellor's words, "that it was his royal duty to show some humanity to the whites as well as to the negroes." And more than once, when bills to limit or wholly suppress the trade had been passed by the Commons, the same mischievous influence defeated them in the Lords. The last years of Pitt's first administration were too fully occupied with the affairs of Ireland, negotiations with foreign powers, and the great war with France, to enable him to keep pace with his friend's zeal on the subject. But in his second administration, occupied though he was with a recurrence of the same causes, he found time to prepare and issue an Order in Council prohibiting the importation of slaves into our fresh colonial acquisitions, and the employment of British ships to supply the Dutch, French, and Spanish islands.

  And this Order in Council paved the way for the total abolition. One of the earliest proceedings of the new ministry was the introduction by the Attorney-general, Sir Arthur Pigott, of a bill to extend and make it perpetual; to forbid "the importation of African negroes by British ships into the colonies conquered by or ceded to us in war; or into the colonies of any neutral state in the West Indies. For at present every state that had colonies in America or the West Indies, and that was not actually at war with us, availed itself of the opportunity of British shipping to carry on the trade." It was resisted as vehemently as any former measure with the same object, and partly on the new ground that it would in no degree stop the trade or diminish the sufferings of the Africans, but would merely rob our ship-owners of their profits to enrich the Americans. Mr. Rose, the member for Christchurch, who advanced this argument, had been a friend of Pitt; yet, though he quoted an instance of a single vessel having buried one hundred and fifty-two slaves on one voyage, he was not ashamed to deprecate the bill, on the plea that "the manufacturers of Manchester, Stockport, and Paisley would be going about naked and starving, and thus, by attending to a supposed claim for relief from a distant quarter, we should give existence to much more severe distress at home." The bill, however, was carried in both Houses, and received the royal assent. And Fox, who supported it warmly in his speech on the third reading (one of the last speeches which he ever addressed to the House), invited Wilberforce to regard it as a stepping-stone to the total abolition of the trade, and as an encouragement to renew his motion for that object; and, though he could not promise him the support of the government as a government, he "could answer for himself and many of his friends who held the highest and most dignified stations in the other House of Parliament. They still felt the question of the total abolition as one involving the dearest interests of humanity, and as one which, should they be successful in effecting it, would entail more true glory upon their administration, and more honor upon their country, than any other transaction in which they could be engaged."

  Mr. Fox did not live to see the opening of another session; but, when that time came, the position which he had taken up, that the measure of which he had thus promoted the passing was an encouragement to do more, was adopted to its full extent by the chief of his colleagues, Lord Grenville, who, in February, 1807, himself brought forward a motion for the entire abolition of the trade. Though he was Prime-minister, he could not introduce it as a government measure, since two of his colleagues-Lord Sidmouth, the President of the Council, and Mr. Windham, the Secretary of State for the Colonies-opposed it; though the former professed a desire to see the trade abolished, but would have preferred to attain that end by imposing such a tax on every slave imported as should render the trade unprofitable. He had another obstacle also to encounter, in the vehement opposition of some of the princes of the royal family, the Dukes of Clarence and Sussex more especially, who were known to be canvassing against the bill, and were generally understood, in so doing, to be acting in accordance with the views of their elder brothers. But he was confident that by this time the feeling of the whole country was with him on the subject. He was resolved to rest his case on its justice, and therefore consented that the House should hear counsel on the subject, though he resisted their demand to be allowed to call witnesses. Accordingly, counsel were heard for the whole body of West India planters, and for those of one or two separate islands, such as Jamaica and Trinidad; for the Liverpool merchants, and even for the trustees of the Liverpool Docks. But some of their reasonings he even turned against themselves, refusing for a moment to admit "that the profits obtained by robbery could be urged as an argument for the continuance of robbery." He denounced the trade as "the most criminal that any country could be engaged in," and as one that led to other crimes in the treatment of the slaves after they reached the West Indies. He instanced "three most horrible and dreadful murders of slaves" that had been committed in Barbadoes, and quoted the report of Lord Seaforth, governor of the island, who, on investigation, had found that by the law of the colony the punishment affixed to such murders was a fine of eleven pounds. He was opposed by the Duke of Clarence, who directed his remarks chiefly to a defence of the general humanity of the planters; and by Lord Westmoreland, who, in a speech of singular intemperance, denounced the principle of the measure, as one after the passing of which "no property could be rendered safe which could fall within the power of the Legislature." He even made it an argument against the bill that its principle, if carried to its legitimate logical end, must tend to the abolition of slavery as well as of the slave-trade. He objected especially to the assertion in the preamble that the trade was "contrary to justice and humanity," declaring that those words were only inserted in the hope that by them "foreign powers might be humbugged into a concurrence with the abolition," and wound up his harangue by a declaration that, though he should "see the Presbyterian and the prelate, the Methodist and pew-preacher, the Jacobin and the murderer, unite in support of it, he would still raise his voice against it." It must have been more painful to the minister to be opposed by so distinguished an officer as Lord St. Vincent, who resisted the bill chiefly on the ground that "its effect would be to transfer British capital to other countries, which would not be disposed to abandon so productive a trade," and declared that he could only account for Lord Grenville's advocacy of it "by supposing that some Obi man had cast his spell upon him." But the case was too strong for any arguments to prevail which were based solely on the profits of a trade which no one pretended to justify. The bill passed the Lords by a majority of nearly three to one; in the House of Commons, where the opposition was much feebler, by one infinitely larger;[161] and, by a somewhat remarkable coincidence, it received the royal assent on the same day on which Lord Grenville announced to his brother peers that his administration was at an end.

  Even before the abolition had thus become law, the member for Northumberland, Earl Percy, endeavored to give practical effect to Lord Westmoreland's view, that emancipation of the slaves was its inevitable corollary, by moving for leave to bring in a bill for the gradual abolition of slavery in the British settlements of the West Indies. But he was opposed by Lord Howick,[162] though he had been among the earnest advocates of abolition, partly for the sake of the negroes themselves, and partly on the ground that the Legislature had no "right to interfere with the property of the colonists;" little foreseeing that the measure which he now opposed was reserved for his own administration, and that its accomplishment would be one of its chief titles to the respectful recollection of posterity. And, as the House was presently counted out, the discussion would not have been worth recording, were it not for the opportunity which it gave of displaying the practical and moderate wisdom of Wilberforce himself, who joined in the opposition to Lord Percy's motion.
"The enemies of abolition had," he said, "always confounded abolition with emancipation. He and his friends had always distinguished between them; and not only abstained from proposing emancipation, but were ready to reject it when proposed by others. How much soever he looked forward with anxious expectation to the period when the negroes might with safety be liberated, he knew too well the effect which the long continuance of abject slavery produced upon the human mind to think of their immediate emancipation, a measure which at the present moment would be injurious both to them and to the colonies. He and those who acted with him were satisfied with having gained an object which was safely attainable."