The Constitutional History of England From 1760 to 1860

by Charles Duke Yonge

  On one transaction of these years the leaders of the Opposition were found acting in close agreement with the ministers. We have seen how, in the early part of the reign of George III., the House of Commons threw the sheriffs of London into prison, on account of their performance of what they conceived to be their duty as magistrates; and in 1840 it subjected the same officials to the same treatment on a question of the same character-the extent of the privilege of the House of Commons to overrule the authority of the courts of law. The question was in appearance complicated by the institution of several suits at law, and by the fact that the House was not consistent in its conduct, but allowed its servants to plead to the first action, and refused the same permission in the second, when the result of the first trial had proved adverse to them. The case was this: some inspectors of prisons has presented a report to Parliament, in which they alleged that they had found in Newgate a book of disgusting and obscene character, published by a London publisher named Stockdale. The House of Commons had ordered the report to be printed and sold by Messrs. Hansard, the Parliamentary publishers, and Stockdale brought an action against Messrs. Hansard for libel. Chief-justice Denman charged the jury that "the fact of the House of Commons having directed Messrs. Hansard to publish their reports was no justification to them for publishing a Parliamentary report containing a libel;" and Stockdale obtained damages, which were duly paid. Stockdale, encouraged by this success, when, in spite of the result of the late trial, Hansard continued to sell the report, brought a fresh action; but now the House forbade the publishers to plead to it; and, as they obeyed the prohibition, and forbore to plead, the case eventually came before the Sheriff's Court; fresh damages were given, and, in obedience to the writ of the Queen's Bench, the sheriffs seized Hansard's goods, and sold them to satisfy the judgment. Lord John Russell, as leader of the House, moved to bring to the Bar of the House all the parties concerned in the action-the plaintiff, his attorney, the sheriffs, and the under-sheriffs. He was opposed by nearly all the legal members of the House except the crown lawyers, Sir Edward Sugden especially warning the House that "a resolution of the House was of no avail in a court of justice;" while others taunted the House with want of courage in not proceeding against the judges themselves, rather than against their officers, which in this case the sheriffs were.

  There could be no doubt of the importance of the question, since it was no less, as the Attorney-general, Sir J. Campbell, put it, than a question whether Parliament or the courts of law had the superiority; and now Sir Robert Peel, as leader of the Opposition, came to the support of Lord John Russell, declaring his opinion to be, first, that "the House possessed every privilege necessary for the proper and effectual discharge of its functions;" secondly, that "the publication of evidence which had led the House to adopt any course was frequently essential to justify that course to the nation;" and thirdly, that "to judge of the extent of their privileges, and to vindicate them by their own laws, belonged to the House alone." And he pressed strongly on the House that it was "the duty of the House to fight the battle to the last," though he confessed that "it was with pain that he had come to the determination of entering into a contest with the courts of law." On one point the judges agreed with the House of Commons. The House committed the sheriffs; but, when they sued out their habeas corpus, the judges decided that the return of the Sergeant-at-arms that they were committed by the House for breach of privilege was a sufficient return. Stockdale brought fresh actions. But meantime the case was arousing a strong excitement in the country.[257] The singular hardship of the position of the sheriffs excited general sympathy: if they obeyed the House of Commons, which prohibited them from paying over to Stockdale the damages which they had received for him, the Court of Queen's Bench would be bound to attach them for disobedience to its order. If they obeyed the Queen's Bench, the House would imprison them for breach of privilege. And the national feeling is always in favor of the strictly defined authority of the courts of law, rather than of the somewhat indefinite claims of Parliament to interpret, and even to make, privilege. Another consideration, probably, weighed a little with the champions of the House-that their power of imprisonment ended with the session. As matters went on, it was found that even the Attorney and Solicitor-general differed as to the course to be pursued; and eventually Lord John Russell consented to adopt the advice which had been given by a former Attorney-general, Sir F. Pollock, and to bring in a bill to legalize all similar proceedings of Parliament in future, by enacting that a certificate that the publication of any document had been ordered by either House should be a sufficient defence against any action. The introduction of such a bill was in some degree an acknowledgment of defeat; but it can hardly be denied to have been not only a judicious step, but the only one practicable, if the contest between Parliament and the courts of law were not to be everlasting; and it met with general approval. If it was a compromise, it was one that satisfied both parties and both ends. It upheld the authority of the courts of law, and at the same time it practically asserted the reasonableness of the claim advanced by the House of Commons, by giving it for the future the power which it had claimed. Nor were people in this day inclined to be jealous of the privileges of Parliament, so long as they were accurately defined. They felt that it was for the advantage and dignity of the nation that its powers and privileges should be large; what they regarded with distrust was, a claim of power of which no one knew the precise bounds, and which might, therefore, be expanded as the occasion served.

  Notes:

  [Footnote 245: Fifty-two mills and 30,000 persons were thrown out of employment for ten weeks at Ashton in 1830 by the turning out of 3000 "coarse spinners," who could clear at the time from 28s. to 31s. per week. The following passage is extracted from an oath said to have been administered by the combined spinners in Scotland in 1823: "I, A B, do voluntarily swear, in the awful presence of God Almighty, and before these witnesses, that I will execute with zeal and alacrity, as far as in me lies, every task or injunction which the majority of my brethren shall impose upon me in furtherance of our common welfare, as the chastisement of knobs, the assassination of oppressive and tyrannical masters, or the demolition of shops that shall be deemed incorrigible."-Annual Register, 1838, pp. 204-207.]

  [Footnote 246: See page 221.]

  [Footnote 247: The question was examined with great minuteness by Lord Brougham a fortnight after the ministerial explanation. See "Parliamentary Debates," 3d series, xlvii., 1164.]

  [Footnote 248: It is stated on good authority that Lord Melbourne, in private conversation, justified or explained the line he had taken by his consideration for his friends, scores of whom would have had their hopes blighted by his retirement.]

  [Footnote 249: See "Life of the Prince Consort," i., 55.]

  [Footnote 250: "Life of the Prince Consort," i., 57.]

  [Footnote 251: Macaulay's "History of England," i., 386.]

  [Footnote 252: This is the name which the Liberal historian of the time, Miss Martineau, gives it. "The so-called Registration Bill was, in fact, an unannounced new Reform Bill for Ireland."-History of the Peace, book v., c. vi.]

  [Footnote 253: See ante, p. 127.]

  [Footnote 254: In one instance the rebels were aided by a party of citizens of the United States, who, without any sanction from their own government, seized an island on the St. Lawrence belonging to us, and attacked some of the Canadian villages. And this led to the discussion of a question of international combined with constitutional law, which Lord Campbell thus describes: "'Whether, if the subjects or citizens of a foreign state with which we are at peace, without commission or authority from their own or any other government, invade the English territory in a hostile manner, and levy war against the Queen in her realm, we are entitled to treat them as traitors?' The Canadian courts held that we could not, as they had never acknowledged even a temporary allegiance to our sovereign. And of this opinion was Sir William Follett. But, after reading all that is to be fo
und on the subject, I come to the conclusion that they owed allegiance when, as private individuals, they voluntarily crossed the English frontier; that it was no defence for them to say that they then had arms in their hands and intended to murder the Queen's subjects."-Life of Lord Campbell, ii.,119. It certainly would have been no defence; but would it not have taken their conduct from under the definition of treason, and made it an act of piracy?]

  [Footnote 255: See Fox's words, quoted by Lord Stanhope.-Life of Pitt, ii., 90.]

  [Footnote 256: A couple of years after the period which is the boundary of the present work, this Canadian constitution of 1841 was superseded by a measure uniting Canada, Nova Scotia, and New Brunswick in one federal government, with, as the act recites, "a constitution similar in principle to that of the United Kingdom." The act farther provided for the admission of other dependencies of the crown in North America, Newfoundland, Prince Edward Island, British Columbia, and Rupert's Land into the union, and established as the constitution of the whole one scarcely differing from that of 1841, with the exception that both the Houses of the Legislature-called in the act the Senate and the House of Commons-were to be representative bodies, and that powers were conferred on them so absolutely free and independent, that it was thought necessary to add a clause providing that their "privileges, immunities, and powers were never to exceed those at the passing of the act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof."]

  [Footnote 257: Lord Campbell, in his autobiography, puts the transaction, in the phase at which it had now arrived, in a very serious light: "Next came a proceeding which placed me in a most difficult position; and the public never knew the danger which then existed of a convulsion unexampled in our history. The sheriffs sued out a writ of habeas corpus, directed to the Sergeant-at-arms, commanding him to produce before the Court of Queen's Bench the sheriffs of Middlesex, alleged to be illegally in custody, with the cause of their detention. Wilde, the Solicitor-general, was strong for refusing to make any return to the writ, and for setting the Court of Queen's Bench at defiance. Had I concurred in this opinion it would certainty have been acted on. The consequences would have been that the Sergeant-at-arms, even with the mace in his hand, would have been sent to Newgate by the Court of Queen's Bench. The House must have retaliated by committing the judges. The crown would then have had to determine on which side the army should be employed, and for a time we must have lived under a military government" (ii., 129). The noble and learned autobiographer does not explain why it should have been indispensable to employ the army on either side.]

  CHAPTER XII. Sir Robert Peel becomes Prime-minister.-Commercial Reforms.- Free-trade.-Religious Toleration.-Maynooth.-The Queen's University.-Post-office Regulations.-The Opening of Letters.- Naturalization of Aliens.-Recall of Lord Ellenborough.-Reversal of the Vote on the Sugar Duties.-Refusal of the Crown to Sanction a Bill.-The Question of Increase in the Number of Spiritual Peers.-Repeal of the Corn-laws.-Revolution in France, and Agitation on the Continent.-Death of Sir Robert Peel.-Indifference of the Country to Reform.-Repeal of the Navigation Laws.-Resolutions in Favor of Free-trade.-The Great Exhibition of 1851.

  The transactions mentioned in the last chapter were among the last events of Lord Melbourne's ministry. He had for some time been aware of his impending defeat in the House of Commons, and, greatly to his credit, had endeavored to make the return to office easier to his successors by the friendly counsels he had given to the Queen on the subject.[258] A dissolution of Parliament in the summer of 1841 only weakened his party, and in September he resigned, and was succeeded by Sir Robert Peel, who, comparatively short as was his tenure of office,[259] found it long enough to establish for himself a reputation as the greatest financier of Europe since the days of Pitt. It may be worth remarking that, in the "Memoirs of the Prince Consort," it is mentioned that in the course of his administration Peel found reason to change his judgment on the question of which House of Parliament it was the more desirable for the Prime-minister to be a member. Canning had more than once asserted his conviction that the public business would be more satisfactorily conducted when the Prime-minister was a commoner, founding his opinion chiefly on the paramount importance of financial questions, the discussion of which is almost confined to the House of Commons, and conceiving it to be supported by the history of the administration of Pitt, from whom, indeed, he had imbibed the idea; and in former years Peel had more than once expressed his concurrence with that view of the subject. But, from papers which were intrusted to him for the execution of his great work, Sir Theodore Martin learned that Peel had subsequently found reason to come to the opposite conclusion, not from any change in his view of the relative importance of the different departments of administration, but solely because "the amount of work imposed upon the first minister in the House of Commons, in addition to what he had to go through elsewhere, was too great for any human strength. In the House of Lords the Prime-minister would escape the necessity for being in a position to vindicate all the details of administration, and to answer the multiplicity of questions on all sorts of subjects, the putting of which has almost degenerated into a vice. He had, therefore, come to the conclusion that it was there he ought to be."[260] And, indeed, the subjects which demanded the care of the minister, and attracted the attention of Parliament, were constantly increasing in number, variety, and importance to the very end of his administration. Not only were the financial difficulties of the country, the depressed state of agriculture and commerce (the result of a succession of bad harvests), sufficient causes for grave anxiety, but the terrible war, of which mention has already been made, which we had now been carrying on for nearly three years in Afghanistan, and which, before the end of this very year, was about to be signalized by a disaster such as had never before befallen a British army, threatened to kindle the flames of war in Europe also, from the share which the intrigues of Russia had had in fomenting the quarrel; and the same danger was more than once in the course of the next five years imminent, from the irritation with which France regarded us, and which, commencing in Syria, while Lord Melbourne was still at the helm, lost no opportunity of displaying itself, whether in transactions in the remote Pacific Ocean or the old battle-field of the two nations, the Spanish peninsula; and finally, these embarrassing perplexities were crowned by the appalling visitation of famine, which, at the end of the fourth year of the administration, fell upon Ireland with a severity surpassing any similar event in modern history.

  With all these multiform difficulties the new minister grappled with unflinching courage, and with conspicuous success. Peace was preserved abroad, and financial prosperity was restored at home. Into the details of his measures devised for this last-mentioned object, though the leading features of his administration, and those on which his fame chiefly rests, it would be beside the purpose of the present work to enter. It is sufficient to say here that, in the spirit of Pitt's great financial reform of 1787, he revised the whole of the import duties of our commercial tariff, especially reducing the duties on raw material;[261] making up the deficiency so caused by an income tax, which he described as a temporary imposition, since he doubted not that the great increase of lawful trade, which would be the consequence of the reduction of duties, would soon enable the revenue to dispense with a tax to the objections of which he was not blind. In recommending this great change to the House, he laid down as the soundest maxim of financial legislation, in which "all were now agreed, the principle that we should buy in the cheapest market and sell in the dearest," a doctrine which, when more fully carried out, as it was sure to be, led almost inevitably to the great measure for which his administration is most celebrated, the repeal of the Corn-laws. There could be no doubt that, in the most modified application of it, it struck at the root of the principle of protection, which had hitherto been the fundamental principle of our finance, and made a farther extension of it inevitable.r />
  And, as he had been one of the leading members of the ministry which carried Catholic Emancipation, so he now proceeded on the same path of religious toleration; and, in the session of 1844, successfully recommended to the House of Commons a bill which had already been passed by the Lords, repealing a number of penal acts affecting the Roman Catholics, which, though they had long been practically obsolete, still encumbered, and it may be said disgraced, the statute book, and were, so to say, a standing degradation of and insult to the Roman Catholic body. One of them, passed in the reign of William and Mary, still forbade any Roman Catholic to come within ten miles of London, to have either sword or pistol in his house, or to possess a horse worth more than five pounds. Another, enacted under Elizabeth, still made every Roman Catholic who omitted to take certain oaths guilty of high-treason, though no attempt to administer those oaths had been made since the Revolution. Another, of the time of Charles I., deprived any Roman Catholic who should send his son to a foreign school of all protection of the law; he could neither sue nor defend an action. It may fairly be said that the credit of Parliament and of the nation was concerned in the abrogation of laws so ridiculously oppressive, and not the less obnoxious for being practically invalid. And in the same spirit another measure was framed and carried by the Lord Chancellor, whose object was the confirmation of religious endowments belonging to different sects of Protestant Dissenters, and their protection from vexatious and unjust litigation, by making a continued possession of any kind of endowment or property for twenty years a valid title.