The Constitutional History of England From 1760 to 1860

by Charles Duke Yonge

  The result was, as has been mentioned before, that the Prime-minister recommended the removal of Lord Palmerston from his office, and that he was removed accordingly. And this conclusion of the case seems to show that the statement of the position of the Prime-minister in the cabinet is rather understated by Mr. Gladstone in one of his essays,[280] where he says: "The head of the British government is not a Grand Vizier. He has no powers, properly so called, over his colleagues; on the rare occasions when a cabinet determines its course by the votes of its members, his vote only counts as one of theirs." He admits at the same time that "they are appointed and dismissed by the sovereign on his advice." And surely to have the right of giving this advice is to have the greatest possible power over his colleagues; not power, perhaps, to change their opinions (though it possibly at times has had power to prevent the expression of them), but power to compass their immediate removal from the administration, as was exercised in this instance, and as had been exercised by Pitt with regard to Lord Thurlow. That a difference of opinion, even on an important subject, is not always regarded as a sufficient cause for such a dismissal; that a Prime-minister, especially if conscious of his strength, occasionally consents to retain colleagues who differ from him on some one subject, the same work to which we are partly indebted for our knowledge of the details of this affair-the "Life of the Prince Consort"-furnishes two remarkable instances in which the Prime-minister, then Lord Palmerston himself, submitted to be overruled. We read there that on one occasion, when "Count Persigny sought the active intervention of England by the way of 'moral support' to a demand" which France proposed to address to Austria, "Lord Palmerston and Lord John Russell (then Foreign Secretary) were disposed to accede; but a different view was taken both by her Majesty and by the cabinet, and Count Persigny's request was accordingly declined."[281] On this occasion, it is true, he was yielding to an overwhelming majority of his colleagues (her Majesty's approval must, of course, have been expressed subsequently to their decision). But in another instance we find the same Prime-minister consenting to the introduction of a bill by one of his colleagues, Mr. Gladstone, then Chancellor of the Exchequer, of which he disapproved so highly that, after it had been passed by a very slender majority of the House of Commons,[282] he expressed to the Queen a hope that the closeness of the division "might encourage the House of Lords to throw out the bill when it should come to their House, and that he was bound in duty to say that, if they should do so, they would perform a good public service;" and after they had rejected it by a majority of eighty-nine, he pronounced that "they had done a right and useful thing," reporting to her Majesty, as a corroboration of this opinion, and as a proof that it was largely shared by the public out-of-doors, that "the people in the gallery of the House of Lords are said to have joined in the cheers which broke out when the numbers of the division were announced."[283] And on a third occasion also he bore with the same colleague's opposition to a measure which he and all the rest of the cabinet justly thought of vital importance to the best interests of the country, the fortification of our great seaports, allowing him to object for a time in private, and even to threaten public opposition to it the next year, since he felt assured that his opposition, if carried out, which he doubted, would be wholly ineffectual.[284]

  The personal interest in politics which this laudable habit of judging of everything for herself naturally engendered in the Queen's mind led, however, to the adoption by her Majesty, in more than one instance, of a course at variance not only with all historical precedent, but, with deference be it said, with constitutional principle, sanctioned though it was by more than one ministry. When the First Napoleon, after his elevation to the head of the French government as First Consul, proposed, by an autograph letter to George III., to treat with that sovereign for the conclusion of peace between the two nations, Pitt, to whom his Majesty communicated the letter, had no difficulty in deciding that it would be unseasonable for the King "to depart from the forms long established in Europe for transacting business with foreign states,"[285] and, under his guidance, the cabinet instructed Lord Grenville, as Foreign Secretary, to address the reply to the First Consul's letter to the French Foreign Secretary, M. de Talleyrand.

  But this reign has witnessed several departures from the old and convenient rule. Its violation was not begun by her Majesty, but by the Emperor Nicholas of Russia in the year preceding the Crimean war. He wrote to the Queen herself to discuss some of the points in dispute, and she answered his letter with her own hand.[286] The outbreak of war which soon ensued prevented any continuation of that correspondence; but the close alliance which that war for a time produced between England and France, strengthened as it was by an interchange of visits between the royal and imperial families, which led to the establishment of a strong mutual friendliness and regard, led also to an occasional interchange of letters on some of the gravest questions affecting the policy of the two nations. The correspondence was sanctioned by successive English cabinets, every letter which the Queen either received from, or sent to, any foreign prince on political affairs being invariably communicated by her either to the Prime-minister or to the Foreign Secretary; and they, in one instance, even suggesting to her Majesty to write to Louis Napoleon[287] with an object so delicate as that of influencing the language with which he was about to open his Chambers.

  But we must think the line recommended by Pitt to George III. both more constitutional and more safe. A letter from one sovereign to another on political subjects cannot be divested of the character of a state-paper, and for every state-paper some one must be responsible. The sovereign cannot be, but for every one of his actions the ministers are. And it follows, therefore, that they are thus made responsible for documents of which they have not been the original authors; of which, were it not for the courtesy of the sovereign, they might by possibility be wholly ignorant; and with parts of which, even with the knowledge which that courtesy has afforded them, they may not fully coincide, since they could hardly venture to subject a composition of their royal mistress to a vigorous criticism. Such a correspondence, therefore, places them so far in a false position, and it runs the risk of placing the sovereign himself in one equally false and unpleasant, since, if the opinions expressed or the advice given fail of their effect, the adviser is so far lowered in the eyes of his correspondent and of the world.

  As has been incidentally mentioned, in the spring of 1854 war broke out with Russia, nominally on account of the Sultan's refusal to concede some of the Czar's demands concerning the condition of the Greek Church in Palestine, but more really because, believing the Turkish empire to be in the last stage of decay, he hoped by hastening its destruction to obtain the lion's share of its spoils. And for the first time for two centuries an English and French army stood together in a field of battle as allies. In the field our armies were invariably victorious, inflicting severe defeats on the enemy at Alma and Inkerman, and wresting from them the mighty fortress of Sebastopol, in the Crimea, which hitherto they had believed to be absolutely impregnable. Our fleet was, if possible, still more triumphant, destroying Bomarsund and Sweaborg, in the Baltic, without the Russian ships daring to fire a single gun in their defence, while their Black Sea fleet was even sunk by its own admiral, as the only expedient to save it from capture. And in the spring of 1856 the war was terminated by a treaty of peace, in which, for the first time since the days of Peter the Great, Russia was compelled to submit to a cession of territory. But (it may almost be said) to the credit of the nation these successes, glorious and substantial as they were, made at the time scarcely so great an impression on the people as the hardships which, in the first winter of the war, our troops suffered from the defective organization of our commissariat. Want of shelter and want of food proved more destructive than the Russian cannon; presently our gallant soldiers were reported to be perishing by hundreds for lack of common necessaries; and the news awakened so clamorous a discontent throughout the whole of the United Kingdom as
led to another change of ministry, and Lord Aberdeen was succeeded by Lord Palmerston. While a war on so large a scale was being waged there was but little time to spare for the work of the legislator, though it is not foreign to our subject to relate that in 1855 the last of those taxes which the political economists denounced as taxes on knowledge, the tax on newspapers, was abolished. Originally it had been fourpence; in 1836 Mr. Spring Rice, Chancellor of the Exchequer in Lord Melbourne's ministry, had reduced it to a penny; and now, with a very general acquiescence, it was abolished altogether.

  The entire abolition of a tax is not properly to be called a financial measure, that epithet belonging rather to those which aim at an augmentation of revenue by an increase in the number of contributors to a tax, while lessening the amount paid by each. But the abandonment of the tax in question should rather be regarded as a sacrifice of revenue for the instruction of the people in political knowledge; a price paid to enable and induce the poorer classes to take a well-instructed interest in the affairs of the state and the general condition of the country. And, viewed in this light, the abolition of this tax must be allowed to have been a political measure of great importance, and to have contributed greatly to the end which was aimed at. Till 1836 a daily paper, costing sevenpence, was the luxury of the few; and the sale even of those which had the largest circulation was necessarily limited. But the removal of the tax at once gave birth to a host of penny newspapers, conducted for the most part with great ability, and soon attaining a circulation which reached down to all but the very poorest class; so that the working-man has now an opportunity of seeing the most important questions of the day discussed from every point of view, and of thus acquiring information and forming a judgment on them which the subsequent extension of the franchise makes it more than ever desirable that he should be able to form for himself. Every movement in that direction renders it the more necessary to raise the intelligence of the great mass of the people to a level which may enable them to make a safe and salutary use of the power placed in their hands. And no mode of implanting a wholesome political feeling in the masses can equal candid political discussion: discussion one ruling principle of which shall be to teach that the greatest differences of opinion may be honestly entertained; that, with scarcely an exception, the leading men of each party, those who have any title to the name of statesman, are animated with an honest, patriotic desire to promote the best interests of the nation; and that the elucidation of truth is not aided by unreasoning invective and the undeserved imputation of base motives.

  One of the last topics discussed by Mr. Hallam was the introduction of a bill to limit for the future the prerogative of the crown in a field in which its exercise had previously been unrestrained, the creation of peers;[288] and among the last which we shall have to examine was one of an exactly opposite character, though relating to the same subject, the creation of a life peerage. In the winter of 1855 Sir James Parke, one of the Barons of the Exchequer, was created Lord Wenslydale, by letters-patent which conferred the title limiting it also to the new peer's own life. The professed object of the measure was to strengthen the judicial power of the House of Lords. But it was not denied that the limitation of the peerage conferred on him for his own life (a limitation which made no practical difference to Sir James himself, since he had no children) was intended to raise the question whether the crown could or could not create a life peerage with a seat in the House of Lords. A creation so limited was so novel, or at all events so long disused a proceeding, that it inevitably provoked examination and discussion. And, as it was found that the lawyers in general regarded it as indefensible, at the beginning of the session of 1856 Lord Lyndhurst brought the matter before the House of Lords by a motion for the appointment of a committee of privileges to investigate and report upon it. There were two aspects of the case which naturally came to be considered in the debates on it which ensued: the advantages or disadvantages, in other words, the political expediency, of such a form of letters-patent, and their legal or constitutional propriety. It was, of course, with the latter alone that the committee of privileges had to deal. And this part of the question was examined with great legal and antiquarian learning, though, as was almost inevitable, it was argued as a party question, except, indeed, by the lawyers. They, with the exception of the Chancellor, Lord Cranworth, who had advised the measure, were unanimous in their condemnation of it; the Whig peers, Lord Brougham and Lord Campbell, then Chief-justice, being as positive in their denial of the right so to exercise the prerogative as those on the Opposition side of the House, Lord Lyndhurst or Lord St. Leonards.[289]

  The arguments against the measure were chiefly these: The objectors drew a distinction between what was legal according to the strict letter of the law, and what was constitutional; contending that there might be exercises of the prerogative which could not be affirmed to be illegal, but which no one would deny to be altogether inconsistent with the principles and practice of the constitution, since a great part of the constitution rested on unwritten law, on long-continued usage, Lex et consuetudo Parliamenti. And they affirmed that this measure was so opposed to that usage, that "no instance had occurred within a period of four hundred years in which a commoner had been raised to a seat in the House of Lords by a patent of peerage containing only an estate for life;"[290] one most essential, if not the most essential character of the peerage being that it was an hereditary dignity, and one which combined with its rank an hereditary seat in the House of Lords. That one or two instances of life peerages were to be found in the annals of the Plantagenet kings was not denied, though none exactly similar in character.[291] But Lord Lyndhurst argued that precedents which had occurred "at a time when the constitution of the country was neither understood nor fully formed" were entitled to but little respect; and Lord Derby, limiting the age of valid precedents a little more strictly, "said frankly that he had no respect for any precedent affecting the prerogatives of the crown that dated farther back than the year 1688." And since that time, or indeed since the time of Henry VIII., it was certain that no life peerage had ever been granted, except by Charles II., James II., and George I. and II., to some of their mistresses, instances wholly beside the present case, since, of course, none of those ladies could claim seats in the House of Lords. Indeed, it was believed that both Mr. Pitt, at the time of the Union, and Lord Grey, in 1832, had considered the question, and had both decided against the propriety of advising a creation of life peerages.

  In defence of the measure Lord Granville refused to admit the distinction between what was legal and what was constitutional; if a measure were both legal, that is, warranted by the letter of the law, and also expedient, these two concurrent qualities, he contended, made it constitutional. He denied, also, that any legal prerogatives of the crown could be held to have lapsed through disuse; nullum tempus occurrit Regi; and he challenged any peer to assert that the sovereign had lost the right of refusing his royal assent to a measure passed by the two Houses, merely because no sovereign since William III. had so exercised his royal prerogative. And against the authority of Mr. Pitt and Lord Grey he quoted that of Lord John Russell, who, in 1851, had offered a life peerage to an eminent judge, who, though he had declined the offer, had been influenced in his refusal by no doubt of the right of the crown to make it.

  On the expediency of the measure its opponents had urged that it would effect a remodelling of the House of Peers, a total change of its constitution, by the introduction of a second and distinct class of peerages; and Lord Campbell, with a not unbecoming jealousy for what he regarded as the interests of his brother lawyers, argued that it would "henceforth prevent any lawyer, however eminent he might have been as an advocate, whatever services he might have rendered to the state in the House of Commons, whatever fame or fortune he might have acquired, from aspiring to an hereditary peerage, or to becoming the founder of a family, since, to make a distinction between the Chancellor and the Chief-justice, between one Chancellor or Chief-jus
tice and another, when coming into the Upper House, as to the tenure of their honors, would be intolerable; all must be under the same rule, 'no son of theirs succeeding.'" And Lord Lyndhurst closed his argument by drawing a comparison between the House of Lords and the French Senate: "It was but a few weeks since he had read an official comment in the Moniteur, coming from the highest source, on the inefficiency, the want of patriotism, energy, and the backwardness to fulfil the high destinies to which they were called, that characterized that illustrious body, the Senate of France. He had no disposition to cut down our tribunal to that life interest on which the Senate of France is based, as he believed the hereditary character of the House of Lords to be one from which great and important advantages are derived.... The hereditary principle," he added, "is intwined in every part of our constitution; we in this House enjoy our hereditary rights in common with the crown; we mutually support and assist each other, and we form a barrier and defence to protect both those branches of the constitution against any by whom they may be assailed."

  As Lord Granville had made the expediency of any measure the quality which, combined with legality, was sufficient to establish its constitutional character, he naturally labored this point with especial diligence. He dwelt upon the great importance of strengthening the judicial element in the House, since it was the great ultimate court of appeal. He produced a letter of the great Chancellor, Lord Eldon, which quoted instances in which various administrations had found difficulties in the way of introducing eminent lawyers into the House, because their want of adequate fortune to support the rank had disinclined them to encumber their descendants with an hereditary peerage. He showed also that that difficulty had made so great an impression on their own Chairman of Committees, Lord Redesdale, that on one occasion he had intimated a feeling in favor of allowing "the Law, in the same way as the Church, to be, to a certain extent, represented in the House by the holders of certain offices, who should be admitted to that House as Peers of Parliament during the continuance of holding such office" (to which argument Earl Grey added another, that the instance of bishops, who were but life peers, proved that the holders of life peerages were not considered inferior to hereditary peers).