The Constitutional History of England From 1760 to 1860

by Charles Duke Yonge

  Lord Melbourne resumed office, and, being strengthened by the manifest inability of the opposite party to command the confidence of the House of Commons, began to apply himself with vigor to the carrying out of several measures of internal reform, some of which involved not only the property but the long-established rights of very considerable bodies, and, as so doing, have an importance in a constitutional point of view, besides that arising from their immediate effects. Peel had been equally alive to the desirableness, so cogent as almost to amount to a moral necessity, of introducing reforms into more than one old institution, such as should bring them more into harmony with the spirit of the age, remodelling or terminating some arrangements which were manifest abuses, and others which, though, if dispassionately examined and properly understood, they, perhaps, were not really grievances, yet in their operation caused such discontent and heart-burnings that they were as mischievous as many others far more indefensible in theory. And, short-lived as his administration had been, he had found time to frame and introduce an extensive measure of Church reform, not only dealing with the question of tithes, the levy and collection of which in some of their details had long been made subjects of bitter complaints by the farmers, but including also provision for the creation of two new bishoprics, those of Ripon and Manchester. No part of his measure was more imperatively called for by the present circumstances of the nation, or of greater importance in its future operation. There had been no increase in the number of bishops since the reign of Elizabeth; but since her time not only had the population of the entire kingdom been quadrupled, but some districts which had then been very scantily peopled had become exceedingly populous. These districts had hitherto been almost destitute of Episcopal supervision, which now was thus to be supplied to them. But the new legislation did more. It might be expected that the growth of the population would continue, and would in time require a farther and corresponding increase of the Episcopate; and the erection of these new dioceses was, therefore, not only the supplying of a present want, but the foundation of a system for increasing the efficiency of the Church which should be capable of gradual progressive expansion, as the growth of the population in various districts might be found to require additional facilities for supervision. And the judgment with which the new arrangement met the requirements of the community may be regarded as proved by the circumstance that now, after the lapse of nearly half a century, it is maintained in active operation, and is admitted by all parties not only to be of the greatest practical benefit, but also to have a moral effect scarcely less valuable in the degree in which it has stimulated the application of private munificence to the great work of Church extension.

  But before Lord Grey quitted office his government had also called the attention of Parliament to the necessity of a large municipal reform, which, indeed, it seemed to them that the Reform Bill had bound them, in all consistency, to introduce. In the speech with which the King had closed the session of 1833, he had informed the Houses that he had "directed commissions to be issued for investigating the state of the municipal corporations throughout the United Kingdom, the result of whose inquiries would enable them to mature some measure which might seem best fitted to place the internal government of corporate cities and towns upon a solid foundation in respect of their finances, their judicature, and their police." He reminded them that they had recently passed acts "for giving constitutions upon sound principles to the royal and parliamentary boroughs of Scotland," and warned them that "their attention would hereafter be called to the expediency of extending similar advantages to the unincorporated towns in England which had now acquired the right of returning members to Parliament." The commission of which his Majesty thus spoke had now presented its report, strongly condemnatory of the existing system in almost every point of view; of the constitution and mode of election of the existing corporations, and of their government of the towns over which they presided. It declared that "even where they existed in their least imperfect form, and were most rightfully administered, they were inadequate to the wants of the present state of society." But they charged them also with positive offences of no venial kind. "They had perverted their powers to political ends, sacrificing local interests to party purposes. They had diverted from their legitimate use revenues which ought to have been applied for the public advantage, wasting them in many instances for the benefit of individuals; sometimes even employing for purposes of corruption funds originally intended for charitable uses." And they asserted that this too common misconduct of these bodies had engendered "among a great majority of the inhabitants of the incorporated towns a general and just dissatisfaction with their municipal institutions, a distrust of the self-elected municipal councils, and of the municipal magistracy, tainting with suspicion the local administration of justice." And therefore they "felt it their duty to represent to his Majesty that the existing municipal corporations of England and Wales neither possessed nor deserved the confidence and respect of his Majesty's subjects; and that a thorough reform must be effected before they could become what they ought to be, useful and efficient instruments of local government."

  It would be superfluous here to repeat the story of the rise of the boroughs, whose gradual acquisition of charters, with privileges and powers of various degrees, has been sufficiently investigated by Hallam.[237] What the Parliament had now to deal with was the way in which the system worked in the nineteenth century; and here it must be confessed that the report of the commissioners, severe as it was, did in no degree exaggerate the prevailing evils. The corporations had gradually become self-elected oligarchies of the worst kind. It must be admitted that, in perverting their authority to political purposes, they might plead the excuse that they were but following the example set them by the ministers of William III., who introduced into their bill for restoring the corporations which James II. had suppressed clauses manifestly intended to preserve the ascendency of the Whig party, "by keeping the Church or Tory faction out of"[238] them. But no such palliation (if, indeed, that had any right to be called a palliation) could be alleged for their abuse of the trusts committed to them; abuse which, if committed by single individuals, would have been branded, and perhaps punished, as malversation and fraud of the deepest dye. A sufficient specimen of the kind and extent of their misdeeds in one branch of their duties was afforded by a single paragraph of Lord John Russell's speech, in which he affirmed that, in some of the reports of their management of charitable estates committed to their care, it was proved that "the property, instead of being employed for the general benefit of the town, had been consumed for the partial benefit of a few individuals, and not unfrequently in the feastings and entertainments in which the mayor and other corporators had been in the habit of indulging. In some not very large boroughs these expenses had amounted to L500 and L600 a year; and the enjoyment had been confined to freemen of only one party." And the perpetuity of this mismanagement was in most instances secured by the members of the corporation themselves electing their new colleagues on the occasion of any vacancy.

  To put an end to this discreditable state of affairs, the government had prepared a very sweeping scheme of reform, though that it was not too sweeping was proved by the approval with which not only its principle but most of its details were received by the greater part of the Opposition; the leading principle being, to quote the words of the minister in introducing the bill, "that there should be one uniform government instituted, applicable to all; one uniform franchise for the purpose of election; and a like description of officers in each, with the exception of some of the larger places, in which there would be a recorder, or some other such magistrate. The first thing to be amended was the mode of election to the corporation, which was now to be intrusted to all such rate-payers in each borough as had paid poor-rates for three years, and resided within seven miles of the place." Lord John Russell had considered, he said, "whether this franchise should be limited to those paying a certain amount of rates; to the ten-pound ho
useholders, for instance, to whom the parliamentary franchise was confined;" but he decided on proposing to extend it to all rate-payers, because, according to the established principle, to the known and recognized principle of the constitution, it is right that those who contribute their money should have a voice in the election of the persons by whom the money is expended. The old modes of acquiring the freedom of a corporation, such as birth, apprenticeship, etc., were to be abolished, as also were all exclusive rights of trade, vested rights, however, being preserved. The next point to be decided was the composition of the corporation which these rate-payers were to elect, and the ministerial proposal was that each corporation should consist of a mayor, aldermen, and councillors, possessing a certain amount of property as a qualification, and varying in number according to the population of the borough; the larger towns being also divided into wards, with a certain number of common-councilmen and aldermen to be chosen in each ward. The mayor was to be a yearly officer; of the aldermen and councillors a certain number were to retire each year, being, however, capable of re-election. The mayor was to be elected by the councils, and was to be a magistrate during his year of office. And the body thus constituted was to have the entire government of the borough; of its police, its charities, and generally, and most especially, of the raising and expenditure of its funds,[239] which had been too often dealt with in a manner not only wasteful, but profligate. Cases had been brought forward in which "corporations had been incurring debts year by year, while the members were actually dividing among themselves the proceeds of the loans they raised." The revenue derived from charitable estates had been "no less scandalously mismanaged." And the bill provided for the appointment of finance committees, trustees, auditors, and a regular publication of all the accounts, as the only efficient remedy and preventive of such abuses. The whole police of the town and administration of justice was also to be completely under the control of the council; and for the appointment of magistrates the council was to have the power of recommending to the crown those whom they thought fit to receive the commission of the peace; and in the large towns it should have power also to provide a salary for stipendiary magistrates. Another clause provided that towns which could not as yet be included in the bill, since they had never been incorporated, might obtain charters of incorporation by petition to the Privy Council.

  Such were the general provisions of this great measure of reform; a bill similar in principle having already been enacted for Scotland, and another being shortly after passed, with such variations of detail as the differences in the circumstances of the country required, for Ireland. Some of the clauses, especially those which preserved the vested rights of freemen and their families, and which required a certain amount of property or rating qualifications in the town councillors, were not originally included in the bill, but were inserted as amendments in the House of Lords; and it may be remarked that the result of the discussion in that House afforded a proof of the sagacity of those peers who, though conscientiously opposed to the Reform Bill, preferred allowing it to pass by their own retirement from the final divisions to driving the minister to carry his point by a creation of peers, since the avoidance of such an addition to their numbers as had been threatened enabled them now to force the adoption of these amendments on a reluctant minister. And it seems difficult to deny that the first was required by justice, and that the second was most desirable in the interests of the measure itself. Without it the town councillors, from among whom the mayor was to be chosen, might have been selected from the poorest, the least educated, and least independent class of the rate-payers. In some boroughs, or in some wards of many boroughs, it may be regarded as certain that they would have been so chosen; and such an admixture of unfit persons would have tended to bring some degree of discredit on the whole council, while to the successful inauguration of a new system the establishment of a general feeling of respect for it and confidence in it was of primary importance. The danger, too, of so ill-judged a selection would have been greatest in the larger boroughs, those being, at the same time, the very places in which the occasional difficulty of maintaining order and tranquillity made it even more necessary than in smaller towns that the council should enjoy the esteem and confidence of their fellow-citizens.

  The principle that every man who contributed to the rates had a right to claim a voice in the election of those who were to expend them, which the minister laid down as the justification of the clause conferring the municipal franchise on all the rate-payers, was strongly contested by Sir Robert Peel, though neither he nor those of his party in the Upper House proposed any alteration of the bill in this respect; but he pointed out that, though Lord John affirmed it to be the known and recognized principle of the constitution, he had not acted on it in the Reform Bill; and it is certainly open to question whether the adoption of some limitation would not have been an improvement on the present measure. The doctrine established in this instance by Lord John gave a preponderance at every municipal election to mere numbers, since the poorest class is everywhere the most numerous, and its admission led almost inevitably to a reduction of the parliamentary franchise at some future day, though certainly at this time, and for many years afterward, Lord John was far from contemplating any alteration of the Reform Bill, but, on the contrary, took every opportunity of proclaiming his adherence to it as a final solution of the question.

  But though in this particular it is possible that the bill might have been improved, it must be allowed to have been a measure very creditable to its framers. Few reforms have been conceived in a more judicious and more moderate spirit; few have been so carefully limited to the removal of real and proved abuses, and the prevention of their recurrence, while avoiding any concessions to the insidious demands of revolutionists, or the ill-regulated fancies of metaphysical theorists. It was a reform strictly in accordance with some of the most important principles of the constitution, as they have been gradually developed by the practical experience of successive generations. It combined with felicitous skill representative with local government; it secured uniformity in working, and that peculiarly English principle of publicity, without which the best-devised system cannot long be preserved from degeneracy.

  The Church reforms in England and Ireland, which were carried out about the same time, cannot be said to have involved any constitutional principle, though one of them greatly extended the principle of religious toleration and indulgence to the Dissenters of various sects. No alteration had been made in the Marriage Act of 1754, which declared it indispensable to the validity of a marriage that it should be performed in a church and by a clergyman of the Established Church. And it was not strange that this should be felt as a grievance by those who were not in communion with that Church. But some of the Dissenting sects had an additional cause of discontent in the words of the marriage service, which gave a religious character to the ceremony, while they regarded it as a civil contract. In his short administration Sir Robert Peel had recognized the validity of the arguments against the unmodified maintenance of the existing law, and had framed a measure calculated, in his view, to give the Dissenters the relief their title to which could not be denied. But his bill had been extinguished by his retirement. And Lord John Russell now availed himself of the machinery of another measure, which he introduced at the same time, to make the relief somewhat wider and more effective.

  Hitherto there was no record of births and marriages beyond that which was preserved in the registers of different parishes, which in former years had in many instances been carelessly and inaccurately kept. But at the beginning of 1836, the ministers, justly urging that it was important, in a national point of view, both with regard to the security of titles to property, and to that knowledge of the state of population the value of which was recognized by the establishment of the practice of taking a decennial census, that there should be a general register of all such occurrences, introduced a bill to establish a registry and registrar in every Poor-law un
ion, with a farther registry for each county, and a chief or still more general one in London for the whole kingdom, subject to the authority of the Poor-law Commissioners. And by a second bill they farther proposed that the registries to be thus established should be offices at which those who desired to do so might contract purely civil marriages. Previous clauses in it provided that members of any sect of Protestant Dissenters might be married in their own chapels, and by ministers of their own persuasion. After enactments removing all the civil disabilities under which Nonconformists had labored for one hundred and fifty years had been placed on the statute-book, it was clearly inconsistent in the highest degree to retain still more offensive and unreasonable religious disabilities, and to deny to them the right of being married by their own ministers, according to the rites most agreeable to their consciences or prejudices. And though some of the details of the ministerial measure were objected to and slightly altered in its passage through Parliament, the general principle was admitted by the warmest friends and most recognized champions of the Established Church, who wisely felt that a bulwark which is too ill-placed or too unsubstantial to be defended, is often a treacherous source of weakness rather than strength, and that a temperate recognition of the validity of claims founded on justice was the best protection against others which had no such foundation, and that measures such as these adopted in a spirit of generous conciliation could only strengthen the Church by taking at least one weapon from the hands of its enemies.

  Another of the measures relating to the Church, of which Peel had prepared a sketch, had for its object the removal of a grievance of which the members of the Church itself had long been complaining, the mode of the collection of tithe. It would be superfluous here to endeavor to trace the origin of tithes, or the purposes beyond the sustentation of the clergymen to which they were originally applied.[240] They had undoubtedly been established in England some time before the Conquest, and the principle that the land should support the National Church was admitted by a large majority of the population; it may probably be said with something nearly approaching unanimity on the part of those who really paid it, namely, the land-owners. The objection to the tithe system was founded rather on the way in which it worked, operating, as Lord John Russell described it, as "a discouragement to industry; a penalty on agricultural skill; a heavy mulct on those who expended the most capital and displayed the greatest skill in the cultivation of the land." The present mode of levying the tithes forced the clergy to forbearance at the expense of what they deemed to be their rights, or led them to enforce them at the expense of the influence which they ought to possess with their parishioners, compelling them to lose either their income by their indulgence, or their proper weight and popularity in the parish by the exaction of what the law gave them for "the support of themselves and their families." And this dilemma was felt so keenly by the clergy themselves, that it had become a very general feeling with them that, "if any sort of commutation could be devised, they would be delighted to be delivered from this objectionable mode of payment." Indeed, Sir Robert Peel, whose measure of the preceding year had been chiefly directed to the encouragement of voluntary commutations, had stated to the House that there were already two thousand parishes in the kingdom in which a commutation between the clergyman and his parishioners had been agreed upon, and established as a durable settlement by separate acts of Parliament. Indeed, arrangements of this kind existed very generally; the parishes in which the tithe was taken in kind being comparatively few, and the plan usually adopted being for the occupier of land to pay the incumbent a fixed annual sum bearing a certain proportion to his rent. But arrangements which were optional were, of course, liable to be rescinded; and Peel desired to establish a system which should be universal and permanent. And with this view he had designed the appointment of a temporary commission, one member of which should be nominated by the Primate, as the representative of the Church, under whose supervision the tithes of every parish in the kingdom should be commuted into a rent-charge, regulated partly by the composition which had hitherto been paid, and partly by the average price of grain-wheat, barley, and oats. It was no new idea, since as far back as 1791 Pitt had proposed a general commutation of tithes for a corn rent, and had submitted a plan with that object to the Primate, though circumstances of which we have no accurate knowledge prevented him from proceeding with it.[241] Objections[242] were taken to this last part of the arrangement, chiefly because it would render perpetual the terms of existing compositions, the extreme augmentation of them which was provided for in the bill being only ten per cent., while it was notorious that the majority of incumbents had shown such liberality in these matters that the compositions rarely amounted to two-thirds of the sum to which they were legally entitled. And it was hardly denied that the measure did involve some sacrifice of the extreme legal rights of the clergy; but it was urged and generally felt by the most judicious friends of the Church that the peace and harmony which might be expected to be the fruit of the measure was worth some sacrifice, and the bill was passed with very general approval; a bill on similar principles, with such variations as were required by the differences between the two countries, being also passed for Ireland.