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THE
CONSTITUTIONAL HISTORY OF ENGLAND
SINCE THE ACCESSION OF GEORGE III.
BV
Sir THOMAS ERSKINE MAY, K.C.B. (Lord Farnborough)
Edited and Continued to igii by Francis Holland
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THE
CONSTITUTIONAL HISTORY OF ENGLAND
SINCE THE ACCESSION OF GEORGE THE THIRD ^
BY THE RIGHT HON.
Sir THOMAS ERSKINE MAY, K.C.B., D.C.L.
(LORD FARN BOROUGH)
EDITED AND CONTINUED TO iqii BY
FRANCIS HOLLAND
IN THREE VOLUMES Vol. II. I 760- I 860
LONGMANS, GREEN AND CO.
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1912
All fights reserved
J-I\J
BIBLIOGRAPHICAL NOTE.
Volume I. — First printed in 8vo, January, 1861. Second Edition, May, 1863.
Volume II. — First printed in 8vo, February, 1863. Second Edition, March, 1865.
Third Edition in Three Volumes, Crown Svo. — First printed September, 1871. Reprinted — May, 1873; April, 1875; July, 1878; June, 1882; December, 1886 ; May, 1889 ; June, 1891 ; July, 1896 ; September, 1901 ; May, 1906, and December, 1909.
New Edition in Three Volumes, Svo. — Edited and Continued to 191 1 by Francis Holland. January, 1912.
CONTENTS
OF
THE SECOND VOLUME.
CHAPTER IX. The Press, and Liberty of Opinion.
PAQB
Freedom of opinion the greatest of liberties I
The last to be recognised i
Censorship of the press .......... 2
The first newspapers 2
The press under the Stuarts and the Commonwealth 3
After the Restoration 3
Expiration of the Licensing Bill 4
The press in the reign of Anne 5
In the reigns of George I. and II. . ....... 6
The press on the accession of George III 7
Wilkes and the " North Briton " 7
Ex-officio informations .......... 10
Junius's letters and the law of libel 10
Juries denied the right to judge of the offence of libel .... 11
Case of the Dean of St. Asaph 14
Stockdale's trial 15
Mr. Fox's Act to amend the law of libel 17
Progress of free discussion in the press 18
Public meetings and associations ........ 20
The silk-weavers' riots, 1765 20
Meetings and associations, 1768-70 21
Public meetings, 1779-80 22
Political associations considered 23
Protestant associations, their bigotry and violence 24
Lord George Gordon's riots, 1780 24
Military action in absence of a magistrate 26
The Slave Trade Association, 1787 : its means of agitation, and causes of
success 27
Progress of public opinion, 1760-92 ........ 28
Democratic publications, 1792 28
Democratic associations . . . 30
Exaggerated alarm of democracy 32
vi CONTENTS
PAGE
Repressive policy, 1792 33
Proclamation against seditious writings 34
Prosecutions for sedition 35
Societies for suppressing sedition 36
Democracy in Scotland 37
Trials of Muir, Palmer, and others 38
These trials noticed in Parliament 42
Trials for sedition in England, 1794 43
Reports of secret committees 44
State trials, 1794, of Watt and Downie • • 45
And of Hardy, Home Tooke, and others 47
Attack upon the king, 1795 53
The Treasonable Practices Bill 54
The Seditious Meetings Bill 55
Public opposition to these bills 58
Mr. Reeves's pamphlet 59
Regulation of newspapers, 1789-98 * . .60
Bill to suppress corresponding societies, 1799 62
Repressive measures completed : their effects 62
Trials of Mr. Wakefield and the "Courier," 1799 63
Trials of Jean Peltier, 1803 64
Trials of Cobbett and the Messrs. Hunt, 1 804- 1 1 65
Progress of free discussion reviewed 67
CHAPTER X.
The Press, and Liberty of Opinion, continued.
Repressive policy of the regency 69
Disturbed state of the country, 1815- 16 70
Outrage on the prince regent, 1817 70
Repressive measures 71
Trials of Watson and others, 1817 72
Lord Sidmouth's circular to the magistrates 73
Powers exercised against the press 74
Trials of Hone, 1817 75
Agitation in the manufacturing districts, 1819 76
The Manchester meeting 78
The Six Acts, 1819 81
The Cato Street Conspiracy, 1820 84
Trials of Hunt and Sir C. Wolseley 84
The contest between authority and liberty of opinion reviewed ... 85
Final domination of public opinion over authority 85
The Constitutional Society and the press, 1821 87
The CathoHc Association 88
Suppressed by Parliament, 1825 90
But continued in another form 90
Final suppression of the association, 1829 92
Progress of public opinion in the reign of George IV 93
Later prosecutions of the press, 1830 94
CONTENTS vii
PAOB
Complete freedom of the press established 95
Fiscal laws affecting the press -95
Repeal of " Taxes on knowledge " ........ 97
General freedom of opinion .......... 98
Agitation for Parliamentary Reform, 1830-32 ...... 98
Political unions and excited meetings ........ 99
Riots on rejection of the second Reform Bill lOo
Dangerous excitement during the Reform crisis 103
Causes of the popular triumph 104
Agitation for repeal of the Union : causes of its failure .... 104
Mr. O'Connell submits to the law, 183 1 105
His trial, 1844 ............ 108
The Orange lodges suppressed ......... iii
The Anti-Slavery Association 112
Trades' Unions and Dorchester labourers ....... 112
The Chartists, 1837-48 : inevitable failure of their agitation . . . 114
Chartist meeting, loth April, 1848 116
The Anti-Corn Law League: its organisation, and causes of success . . n8
Political agitation reviewed 121
Altered relations of Government to the people 122
CHAPTER XL
Liberty of the Subject.
Liberty of the subject the earliest of political rights . . . . . 124
General warrants, 1763 124
Arrest of Wilkes and the printers 125
Actions brought by them 126
Search-warrant for papers : case of Entinck v. Carrington .... 128
General warrants condemned by the courts, and in Parliament . . . 129
Early cases of the suspension of the Habeas Corpus Act .... 130
Habeas Corpus Act suspended, 1794 131
Act of Indemnity, 1801 133
Habeas Corpus Act suspended, 1817 134
Bill of Indemnity 134
Suspension of the Habeas Corpus Act in Ireland 136
Impressment for the army 137
Impressment for the navy 137
Revenue laws ............ 140
Imprisonment of Crown debtors 140
Imprisonment for contempt of court 141
Arrest on mesne process 143
Imprisonment for debt 144
Relief to insolvent debtors 145
Slavery in England : the negro case, 177 1 147
Negroes in Scotland 148
Slavery of colliers and salters in Scotland . 148
Abolition of colonial slavery 149
Employment of spies and informers 149
viii CONTENTS
PAOB
Relations of the executive with informers 15a
Opening letters at the post office 153
Petition of Mazzini and others, 1844 154
Protection of foreigners in England 156
Alien Acts I57
The Naturalisation Act, 1844 i59
Right of asylum never impaired 159
Napoleon's demands refused, 1802 159
Principles on which aliens are protected 161
The Orsini conspiracy, 1858 161
The Conspiracy to Murder Bill 162
Extradition treaties 162
CHAPTER XII. The Church and Reliqious Liberty.
Relations of the Church to political history 163
The Reformation 164
Toleration formerly unknown 164
Civil disabilities imposed by Elizabeth 165
Doctrinal moderation of the Reformation 166
Rigorous enforcement of conformity 167
Close relations of the Reformed Church with the State .... 168
The Reformation in Scotland 169
The Reformation in Ireland 170
The Church policy of James 1 170
The Church and religion under Charles I. and the Commonwealth . 171
Persecution of Nonconformists under Charles II. 173
The Catholics also repressed 174
The Toleration Act of William III 175
Catholics under William III 176
The Church policy of Anne and George I. and II 177
State of the Church and religion on the accession of George III. . . 178
Influence of Wesley and Whitefield 180
Relaxation of the penal code commenced 182
General character of the penal code 183
Subscription to the Thirty-nine Articles 184
Relief granted to dissenting ministers and schoolmasters, 1779 . . . 185
Prevalent opinions concerning Catholics 186
The Catholic Relief Act of 1778 187
The Protestant riots 188
Motions for the repeal of the Corporation and Test Acts, 1787-90 . 190
The Catholic Relief Bill, 1791 194
Effect of the Test Act in Scotland 195
Restraints on Scotch Episcopalians repealed 196
Mr. Fox's bill for repeal of laws affecting Unitarians, 1792 .... 196
Relief granted to the Irish Catholics, 1792-93 197
And to the Scotch Catholics ig8
Claims of relief to Quakers 198
CONTENTS ix
PAGE
Union with Ireland in connection with Catholic disabilities . . . 200
Concessions forbidden by George III. 203
The Catholic question in abeyance 203
Motions on the Catholic claims in 1805 203
The Whig Ministry of 1806 and the Catholic question .... 207
The Army and Navy Service Bill 207
Anti-Catholic sentiments of the Portland Ministry 209
Catholic agitation, 1808-11 210
CHAPTER XIII.
The Church and Religious Liberty, continued.
The regency in connection with religious liberty 212
Freedom of worship to Catholic soldiers 213
Dissenters relieved from oaths imposed by the Toleration Act . , .214
The Catholic question in 1812 214
And in 1813 217
Relief of Catholic officers in army and navy, 1813 and 1817 . . . 218
Catholic claims, 1815-22 219
Roman Catholic Peers Bill, 1822 221
Position of the Catholic question in 1823 223
Bills for amendment of the marriage laws affecting Roman Catholics and
dissenters 224
Agitation in Ireland, 1823-25 226
The Irish franchise, 1825 227
The Wellington Ministry 227
Repeal of the Corporation and Test Acts, 1828 228
The Catholic claims in 1828 231
The Clare election 232
Necessity of Catholic relief acknowledged by the Ministry .... 233
The king consents to the measure 234
Mr. Peel loses his seat at Oxford 235
The Catholic Relief Act, 1829 235
Elective franchise in Ireland 238
Mr. O'Connell and the Clare election . . 239
Catholic emancipation too long deferred 240
Quakers and others admitted to the Commons on affirmation . . . 241
Jewish disabilities 241
Mr. Grant's motions for relief to the Jews , 242
Jews admitted to corporations 244
Baron L. N. de Rothschild returned for London 245
Claims to be sworn 245
Case of Mr. Alderman Salomons 246
Attempt to admit Jews by a declaration, 1857 247
The Jewish Relief Act, 1858 247
X CONTENTS
CHAPTER XIV.
The Church and Religious Liberty, continued.
PACE
Marriage laws affecting Roman Catholics and dissenters .... 249
Dissenters' Marriage Bills, 1834-35 250
Register of births, marriages and deaths 251
Dissenters' Marriage Act, 1836 252
Dissenters' burials 252
Admission of dissenters to universities 253
Dissenters' Chapels Act 256
Final repeal of penalties on religious worship 257
The law of church rates 257
Earlier schemes for settling the church-rate question 259
The first Braintree case 260
The second Braintree case 260
Bills for the abolition of church rates, and present position of the question 262
State of the Church of England towards the latter part of the last century 263
Effect of sudden increase to population 264
Causes adverse to the clergy in presence of dissent ..... 265
The regeneration of the Church 266
Church building and extension 267
Ecclesiastical revenues 268
Tithe commutation in England 269
Progress of dissent 272
Statistics of places of worship 273
Relations of the Church to dissent 273
And to Parliament 274
The Papal aggression, 1850 275
The Ecclesiastical Titles Bill, 1851 279
Schisms in the Church of England 281
The patronage question 281
The Veto Act, 1834 284
The Auchterarder and Strathbogie cases 285
The General Assembly address the queen 289
And petition Parliament 291
The secession ............ 291
The Free Church of Scotland 292
The Patronage Act, 1843 293
Religious disunion in Scotland 294
The Church in Ireland 294
Resistance to payment of tithes 294
The Church Temporalities (Ireland) Act, 1833 297
The appropriation question 298
The Irish Church commission 299
Sir Robert Peel's Ministry overthrown on the appropriation question, 1835 301
Revenues and statistics of the Irish Church 302
Abandonment of the appropriation question 303
Commutation of tithes in Ireland 303
National education in Ireland 303
Maynooth College ........... 304
The Queen's Colleges 306
CONTENTS xi
CHAPTER XV. Local Government.
PAGE
Local government the basis of constitutional freedom .... 307
The parish and the vestry 307
History of English corporations ......... 309
Loss of popular rights .......... 309
Abuses of close corporations 310
Monopoly of electoral rights 312
The Municipal Corporations Act, 1835 312
Corporation of the City of London 314
Reform of corporate abuses in Scotland 315.
Corporations in Ireland .......... 317
Their abuses: total exclusion of Catholics 317
The Corporations (Ireland) Bills, 1835-39 318
The Irish Corporations Act, 1840 . . 320
Local Improvement and Police Acts 320
Courts of Quarter Sessions 321
Distinctive character of counties and towns 322
CHAPTER XVI. Ireland before the Union.
Progress of liberty in Ireland 323
The Irish Parliament before the Union 323
The executive government .......... 325
Protestant ascendency 325
Subordination of the Irish Parliament to the Government and Parliament
of England 326
Commercial restrictions 327
New era opened under George III 328
The Irish Parliament asserts its independence 328
Condition of the people 330
Partial removal of commercial restrictions, 1778-79 . . . . . 330
The rise of the volunteers 331
They demand legislative independence, 1780 332
The Convention of Dungannon 333
Legislative and judicial independence granted, 1782 335
Difficulties of Irish independence 335
Agitation for Parliamentary Reform 336
Mr. Pitt's commercial measures, 1785 337
Liberal measures of 1792-93 338
The United Irishmen, 1791 339
Feuds between Protestants and Catholics 340
The rebellion of 1798 341
The Union concerted 342
Means by which it was accomplished 344
Results of the Union 346
And of the Catholic Relief Act and Parliamentary Reform .... 347
Freedom and equality of Ireland 348
xii CONTENTS
CHAPTER XVII.
British Colonies and Dependencies.
PAGE
The rights and liberties of English colonists 350
Ordinary form of colonial constitutions 351
Supremacy of England over the colonies 352
Commercial restrictions imposed by England 352
Arguments on taxation of colonies for Imperial purposes .... 354
The American Stamp Act, 1765 356
Mr. Townshend's colonial taxes, 1767 358
Repealed, except the tea duties 359
The attack on the tea ships at Boston 360
Boston Port Act, 1774 360
Constitution of Massachusetts suspended 360
Revolt of the American colonies 361
Crown colonies 362
Canada and other North American colonies 362
Australian colonies 363
Transportation 364
Colonial administration after the American war 365
Colonial patronage 365
Effects of free trade upon the political relation of England and her colonies 367
Contumacy of Jamaica repressed, 1838 368
Insurrection in Canada : union of the two provinces 368
Responsible government introduced into Canada and other colonies . . 369
Conflicting interests of England and the colonies 371
Colonial democracy 371
Military defence of the colonies 374
Administration of dependencies unfitted for self-government . . 376
India under the East India Company 376
Mr. Fox's India Bill, 1783 377
Mr. Pitt's India Bill, 1784 379
Later measures 379
India transferred to the Crown, 1858 380
Subsequent Indian administration 380
Freedom and good government of the British Empire .... 381
CHAPTER XVIII. Progress of General Legislation.
Improved spirit of modern legislation 382
Revision of official emoluments 383
Defects and abuses in the law 383
Law reforms already effected 385
The spirit and temper of the judges 386
Merciless character of the criminal code . > 387
Its revision 390
Other amendments of the criminal law 391
Improvement of prisons and prison discipline 393
CONTENTS xiii
PAOB
Reformatories 394
Establishment of police in England 395
The old and the new poor laws in England 395
In Scotland and Ireland 397
Care and protection of lunatics 398
Protection to women and children in factories and mines .... 399
Measures for the improvement of the workmg classes .... 400
Popular education ........... 400
Former commercial policy 402
Free trade 403
Modern financial policy : its value to the community 404
Increase of national expenditure since 1850 405
Democracy discouraged and content promoted by good government . . 406
Pressure of legislation since the Reform Act 407
Foreign relations of England affected by her freedom 408
Conclusion . 408
CHAPTER IX.
Freedom of opinion the greatest of liberties, and last acquired — The press under the censorship, and afterwards — Its contests with Go- vernment early in the reign of George III. — Wilkes and Junius — Rights of juries — Mr. Fox's Libel Act — Public meetings, associa- tions, and political agitation — Progress of free discussion, 1760- 1792 — Reaction caused by French Revolution and English demo- cracy— Repressive policy, 1792-1799 — The press until the Regency.
We now approach the greatest of all our liberties — liberty of Freedom of opinion. We have to investigate the development of political °P'"|°"*^/ discussion — to follow its contests with power, to observe it liberties, repressed and discouraged, but gradually prevailing over laws and rulers, until the enlightened judgment of a free people has become the law by which the State is governed.
Freedom in the governed to complain of wrongs, and Free discus- readiness in rulers to redress them, constitute the ideal of ai^'^erty to be free State. Philosophers and statesmen of all ages have as- recognised, serted the claims of liberty of opinion.^ But the very causes
^ Oijre iK Tov kSct/jlov rhv %KiOV, otire fK rrjs iraiSeias &pT€Ov r)]v ira^(>r}ariat/. — Socrates, Stobaei Florilegium. Ed. Gaisford, i. 328. Translated thus by Gilbert Wakefield : " The sun might as easily be spared from the universe, as free speech from the liberal institutions of society".
0ii5e>' tiy eiri ro7s i\ev0fpois iJ-el^ov arvxVH-"' "''<''' TTepfffOai ttjs na^^rialas. — Demosthenes, ibid., 233 ; translated by the same eminent scholar : " No greater .fliasiT
calamity could come upon a people than the privation of free speech ".
Tov\ev0epov 8' inelvo et tis OeKei 7r6\fi Xpt)(fT6v Ti fiov\ev/j.' eis /lecrop <f>epeiv, ^xav.
This is true liberty, when free-born men, Having to advise the public, may speak free.
— Euripides.
" For this is not the liberty which we can hope, that no grievance ever should arise in the commonwealth, — that let no man in the world expect : but when complaints are freely heard, deeply considered, and speedily reformed, then is the utmost bound of civil liberty attained that wise men look for." — Milton's Areopagitica, Works, iv. 396: Ed. 1851.
*' Give me the liberty to know, to utter, and to argue, freely according to conscience, above all liberties." — Ibid., 442.
VOL. n. I
2 THE CONSTITUTIONAL HISTORY OF ENGLAND
which have filled enlightened thinkers with admiration for this liberty, have provoked the intolerance of rulers. It was nobly said by Erskine, that "other liberties are held under Govern- ments, but the liberty of opinion keeps Governments them- selves in due subjection to their duties. This has produced the martyrdom of truth in every age ; and the world has been only purged from ignorance with the innocent blood of those who have enlightened it." ^ The Church has persecuted free- dom of thought in religion : the State has repressed it in politics. Everywhere authority has resented discussion, as hostile to its own sovereign rights. Hence, in States otherwise free, liberty of opinion has been the last political privilege which the people have acquired. Censorship When the art of printing had developed thought, and
of the press, multiplied the means of discussion, the press was subjected, throughout Europe, to a rigorous censorship. First, the Church attempted to prescribe the bounds of human thought and knowledge ; and next, the State assumed the same presumpt- uous office. No writings were suffered to be published without the imprimatur of the licenser ; and the printing of unlicensed works was visited with the severest punishments.
After the Reformation in England the Crown assumed the right, which the Church had previously exercised, of prohibiting the printing of all works ** but such as should be first seen and allowed ". The censorship of the press became part of the prerogative; and printing was further restrained by patents and monopolies. Queen Elizabeth interdicted printing save in London, Oxford, and Cambridge.^ Tracts, flying- But the minds of men had been too deeply stirred to sub- ncwspapers. "^'^ ^° ignorance and lethargy. They thirsted after knowledge ; and it reached them through the subtle agency of the press. The theological controversies of the sixteenth century, and the political conflicts of the seventeenth, gave birth to new forms of literature. The heavy folio, written for the learned, was succeeded by the tract and flying-sheet, to be read by the multitude. At length, the printed sheet, continued periodic- ally, assumed the shape of a news-letter or newspaper.
The first example of a newspaper is to be found in the
^ Erskine's speech for Paine. » State Tr„ i, i?03,
LIBERTY OF OPINION 3
reign of James I.^ — a period most inauspicious for the press. The press Political discussion was silenced by the licenser, the Starg"^"^* * Chamber, the dungeon, the pillory, mutilation, and branding. Nothing marked more deeply the tyrannical spirit of the two first Stuarts than their barbarous persecutions of authors, printers, and the importers of prohibited books : nothing illus- trated more signally the love of freedom than the heroic courage and constancy with which those persecutions were borne.
The fall of the Star Chamber^ augured well for the liberty The common- of the press ; and the great struggle which ensued, let loose the ^^^""• fervid thoughts and passions of society in political discussion. Tracts and newspapers entered hotly into the contest between the court and the Parliament.^ The Parliament, however, while it used the press as an instrument of party, did not affect a spirit of toleration. It passed severe orders and ordinances in restraint of printing;* and would have silenced all royalist and prelatical writers. In war none of the enemy's weapons were likely to be respected ; yet John Milton, looking beyond the narrow bounds of party to the great interests of truth, ventured to brand its suppression by the licenser, as the slaying of "an immortality rather than a life".^
The Restoration brought renewed trials upon the press. The press The Licensing Act placed the entire control of printing in the Restoration. Government.^ In the narrow spirit of Elizabeth, printing was confined to London, York, and the Universities, and the
^ The Weekly Newes, 23rd May, 1622, printed for Nicholas Bourne and Thomas Archer. The English Mercurie, 1588, in the British Museum, once believed to be the first English newspaper, has since been proved a fabrication. — Letter to Mr. Panizzi by T. Watts of the British Museum, 1839 ; Disraeli's Curiosities of Literature, 14th Ed., i. 173 ; Hunt's Fourth Estate, i. 33.
^February, 1641.
' Upwards of 30,000 political pamphlets and newspapers were issued from the press between 1640 and the Restoration. They were collected by Mr. Thomasson, and are now in the British Museum, bound up in 2,000 volumes. — KnighVs Old Printer and Modern Press, 199 ; Disraeli's Cur. of Literature,
»• 175-
* Orders, 14th June, 1642 ; 26th Aug., 1642 ; Husband's Ord., 591 ; Ordin- ance, June, 1643 ; Pari. Hist., iii. 131 ; Ordinance, 30th Sept., 1647 ; Pari. Hist., iii. 780 ; Rushworth, ii. 957, etc. ; Further Ordinances, 1649 and 1652 ; Scobell, i. 44, 134 ; ii. 88, 230.
' Areopagitica ; a Speech for Liberty of Unlicensed Printing, Wqrks, iv, 400: Ed. 1851.
« 13 &]i4 Chas. n. c. 33,
I *
4 THE CONSTITUTIONAL HISTORY OF ENGLAND
number of master printers was limited to twenty. The severe provisions of this Act were used with terrible vindictiveness. Authors and printers of obnoxious works were hung, quartered, and mutilated, exposed in the pillory and flogged, or fined and imprisoned, according to the temper of their judges:^ their productions were burned by the common hangman. Freedom of opinion was under interdict : even news could not be pub- lished without license. Nay, when the Licensing Act had been suffered to expire for a while, the twelve judges, under Chief Justice Scroggs, declared it to be criminal, at common law, to publish any public news, whether true or false, without the king's license.^ Nor was this monstrous opinion judicially condemned until the better times of that constitutional judge, Lord Camden.^ A monopoly in news being created, the public were left to seek intelligence in the official summary of the " London Gazette". The press, debased and enslaved, took re- fuge in the licentious ribaldry of that age.* James II. and his infamous judges carried the Licensing Act into effect with bar- barous severity. But the Revolution brought indulgence even Expiration to the Jacobite press ; and when the Commons, a few years of Licensing i^ter, refused to renew the Licensing Act,^ a censorship of the
press was for ever renounced by the law of England. Theory of Henceforth the freedom of the press was theoretically
free press established. Every writing could be freely published : but at recognised. jo j \.
the peril of a rigorous execution of the libel laws. The ad- ministration of justice was indeed improved Scroggs and Jeffreys were no more : but the law of libel was undefined ; and the traditions of the Star Chamber had been accepted as the rule of Westminster Hall. To speak ill of the Government was a crime. Censure of Ministers was a reflection upon the king himself.^ Hence the first aim and use of free discussion was prohibited by law. But no sooner had the press escaped from the grasp of the licenser, than it began to give promise
1 St. Tr., vi. 514. The sentence upon John Twyn, a poor printer, was one of revolting brutality, ihid.^ 659; Keach's case, pillory, ihid., 710; Cases of Harris, Smith, Curtis, Carr, and Cellier, ihid., vii. 926-1043, iiii, 1183.
3 Carr's Case, 1680, ibid., 929.
3 Entinck v. Carrington, ihid., xix. 1071.
* See Macaulay's Hist., i. 365, for a good account of the newspapers of this period.
* Ihid., iii. 656 ; iv. 540.
' See the law as laid down by Ch. J. Holt, St Tr., xiv. 1103.
LIBERTY OF OPINION 5
of its future energies. Newspapers were multiplied : news and gossip freely circulated among the people,^
With the reign of Anne opened a new era in the history The press in of the press. Newspapers then assumed their present form, ^nnT^ ° combining intelligence with political discussion ; '^ and began to be published daily. ^ This reign was also marked by the higher intellectual character of its periodical literature, which engaged the first talents of that Augustan age — Addison and Steele, Swift and Bolingbroke. The popular taste for news and political argument was becoming universal : all men were politicians, and every party had its chosen writers. The in- fluence of the press was widely extended : but in becoming an instrument of party it comprised its character, and long re- tarded the recognition of its freedom. Party rancour too often betrayed itself in outrageous license and calumny. And the The press an war which rulers had hitherto waged against the press was '"^j.^"^™^" ° now taken up by parties. Writers in the service of rival factions had to brave the vengeance of their political foes, whom they stung with sarcasm and lampoon. They could expect no mercy from the courts, or from Parliament. Every one was a libeller who outraged the sentiments of the domi- nant party. The Commons, far from vindicating public liberty, rivalled the Star Chamber in their zeal against libels. Now they had "a sermon to condemn and a parson to roast" ;* now a member to expel : ^ now a journalist to punish, or a pamph- let to burn." Society was no less intolerant. In the late reign, Dyer, having been reprimanded by the Speaker, was cudgelled by Lord Mohun in a coffee house ; '' and in this reign, Tutchin, who had braved the Commons and the attorney-general, was waylaid in the streets, and actually beaten to death.^ So
^ Macaulay's Hist., iv. 604. 2 Hallam's Const. Hist., ii. 331, 460.
3 Disraeli's Cur. of Literature, i. 178; Nichols' Lit. Anecd., iv. 80. The Daily Courant was the first daily paper in 1709. — Hunt's Fourth Estate, i. 175.
* Dr. Sacheverell, 1709 ; Bolingbroke Works, iii. 9 ; Preface to Bishop of St. Asaph's Four Sermons, burned 1712 ; Pari. Hist., vi. 1151.
•> Steele, in 1713. See Sir R. Walpole's admirable speech ; Pari. Hist., vi. 1268 ; Coxe's Walpole, i. 72.
" Dr. Drake and others, 1702 ; Pari. Hist., vi. 19 ; Dr. Coward, 1704 ; ibid., 331 ; David Edwards, 1706 ; ibid., 512 ; Swift's Public Spirit of the Whigs, 1713 (Lords) ; Pari. Hist., vi. 1261.
'' 1694 ; Kennet's Hist., iii. 666 ; Hunt's Fourth Estate, i. 164.
^St. Tr., xiv. 1199; Hunt, i. 173.
6 THE CONSTTTUTIONAL HISTORY OF ENGLAND
strong was the feeling against the press, that proposals were
even made for reviving the Licensing Act. It was too late to
resort to such a policy : but a new restraint was devised in
First stamp the form of a stamp duty on newspapers and advertisements,^
duty, 1712. avowedly for the purpose of repressing libels. This policy,
being found effectual in limiting the circulation of cheap
papers,^ was improved upon in the two following reigns,^ and
continued in high esteem until our own time.*
The press in The press of the two first Georges made no marked advances
the reigns of j^ influence or character. An age adorned by Pope, Johnson,
II. " ' and Goldsmith, by Hume and Robertson, by Sterne, Gray,
Fielding, and Smollett, claims no mean place in the history of
letters. But its political literature had no such pretensions.
Falling far below the intellectual standard of the previous reign,
it continued to express the passions and malignity of parties.
Writers were hired by statesmen to decry the measures and
blacken the characters of their rivals ; and, instead of seeking
to instruct the people, devoted their talents to the personal
service of their employers, and the narrowest interest of faction.
Exercising unworthily a mean craft, they brought literature
itself into disrepute.*
The press, being ever the tool of party, continued to be exposed to its vengeance : ® but, except when Jacobite papers, more than usually disloyal, openly prayed for the restoration of
^ 10 Anne, c. ig, § loi, 118 ; Resolutions, 2nd June, 1712 ; Pari. Hist., vi. 1141 ; Queen's Speech, April, 1713 ; ihid., 1173.
^ " Do you know that Grub Street is dead and buried during the last week." —Swift's Journ. to Stella, 7th Aug., 17 12.
" His works were hawked in every street. But seldom rose above a sheet : Of late, indeed, the paper stamp Did very much his genius cramp ; And since he could not spend his fire He now intended to retire."
— Swift's Poems, iii. 44, Pickering's Edition. 3 II Geo. I. c. 8; 30 Geo. II. c. 19.
* See infra, p. 97.
* Speaking in 1740, Mr. Pulteney termed the Ministerial writers " a herd of wretches, whom neither information can enlighten, nor affluence elevate ". " If their patrons would read their writings, their salaries would quickly be withdrawn : for a few pages would convince them that they can neither attack nor defend, neither raise any man's reputation by their panegyric, nor destroy it by their de- famation."— Pari. Hist., xi. 882. See also some excellent passages in Forster's Life of Goldsmith, 71 : Ed. 1848.
* Pari. Hist., viii. 1166; ix. 867.
LIBERTY OF OPINION 7
the Stuarts,^ the press generally enjoyed a fairer toleration. Sir Robert Walpole, good-humoured, insensitive, liberal — and no great reader — was indifferent to the attacks of the press, and avowed his contempt for political writers of all parties. 2 And other Ministers, more easily provoked, found a readier ven- geance in the gall of their ov/n bitter scribes than in the tedious processes of the law.
Such was the condition of the press on the accession of Press on George III. However debased by the servile uses of party, Qeo^m" ^ and the low esteem of its writers,^ its political influence was not the less acknowledged. With an increasing body of readers interested in public affairs, and swayed by party feelings and popular impulses, it could not fail to become a powerful friend, or formidable foe, to Ministers. "A late nobleman, who had been a member of several administrations," said Smollett, "ob- served to me, that one good writer was of more importance to the Government than twenty place-men in the House of Com- mons."* Its influence, as an auxiliary in party warfare, had been proved. It was now to rise above party, and to become a great popular power — the representative of public opinion. The new reign suddenly developed a freedom of discussion hitherto unknown ; and within a few years, the people learned to exercise a powerful control over their rulers by an active and undaunted press, by public meetings, and, lastly, by political concert and association.
The Government was soon at issue with the press. Lord Wilkes and Bute was the first to illustrate its power. Overwhelmed by a Briton ". storm of obloquy and ridicule, he bowed down before it and fled. He did not attempt to stem it by the terror of the law. Vainly did his own hired writers endeavour to shelter him : *
* Mist's Journ., 27th May, 1721 ; Pari. Hist., vii. 804 ; Trial of Mathews, 1719; St. Tr.,xv. 1323.
"^ On the 2nd Dec, 1740, he said : " Nor do I often read the papers of either party, except when I am informed by some who have more inclination to such studies than myself, that they have risen by some accident above their common level ". Again : " I have never discovered any reason to exalt the authors who write against the administration, to a higher degree of reputation than their oppo- nents ".—Pari. Hist., xi. 882.
^Walpole'sMem., iii. 115, 164; Forster's Life of Goldsmith, 387.
* Ibid., 665. In 1738, Mr. Danvers said : " The sentiments of one of these scribblers have more weight with the multitude than the opinion of the best politician in the kingdom". — Pari. Hist., x. 448.
^ Dodington's Diary, 245, 419, etc. ; History of a Late Minority, 77.
8 THE CONSTITUTIONAL HISTORY OF ENGLAND
"North Briton," No. 45.
Proceedings
against
Wilkes.
vainly did the king uphold his favourite. The unpopular Min- ister was swept away : but the storm continued. Foremost among his assailants had been the " North Briton," conducted by Wilkes, who was not disposed to spare the new Minister, Mr. Grenville, or the court. It had hitherto been the custom for journalists to cast a thin veil over sarcasms and abuse directed against public men ; ^ but the " North Briton " assailed them openly and by name.^ The affected concealment of names, indeed, was compatible neither with the freedom nor the fair- ness of the press. In shrinking from the penalties of the law, a writer also evaded the responsibilities of truth. Truth is ever associated with openness. The free use of names was therefore essential to the development of a sound political literature. But as yet the old vices of journalism prevailed ; and to coarse invective and slander was added the unaccus- tomed insult of a name openly branded by the libeller.
On the 23rd of April, 1763, appeared the memorable No. 45 of the "North Briton," commenting upon the king's speech at the prorogation, and upon the unpopular peace recently concluded,^ It was at once stigmatised by the court as an audacious libel, and a studied insult to the king himself ; and it has since been represented in the same light by historians not heated by the controversies of that time.* But however bitter and offensive, it unquestionably assailed the Minister rather than the king. Recognising, again and again, the con- stitutional maxim of Ministerial responsibility, it treated the royal speech as the composition of the Minister.^
The court were in no mood to brook the license of the press. Why had great lords been humbled, parties broken up, and the Commons managed by the paymaster, if the king was to be defied by a libeller ? ^ It was resolved that he should be
' Even the Annual Register, during the first few years of this reign, in nar- rating domestic events, generally avoided the use of names, or gave merely the initials of Ministers and others : e.g. " Mr. P.," " D. of N.," " E. of B.," 1762, p. 46 ; " Mr. F.," •• Mr. Gr.," p. 62 ; '« Lord H." and " Lord E-r-t," 1763, p. 40;
" M. of R.," 1765, p. 44 ; " Marquis of R ^" and " Mr. G ," 1769, p. 50;
" The K ," 1770, p. 59, etc., etc.
' " The highest names, whether of statesmen or magistrates, were printed at length, and the insinuations went still higher." — WalpoU's Mem., i. 179.
* Pari. Hist., xv. 1331, n.
* Adolphus* Hist., i. 116; Hughes' Hist., L 312.
* Lord Mahon's Hist, v. 45; Massey's Hist., i. 157.
" Dodington's Diary, 245, 419, etc. ; Hist, of a late Minority, 77.
LIBERTY OF OPINION 9
punished — not like common libellers, by the attorney-general, but by all the powers of the State. Prerogative was strained by the issue of a general warrant for the discovery of the authors and printers : ^ privilege was perverted for the sake of vengeance and persecution ; 2 and an information for libel was filed against Wilkes in the Court of King's Bench. Had the court con- tented themselves with the last proceeding, they would have had the libeller at their feet. A verdict was obtained against Wilkes for printing and publishing a seditious and scandalous libel. At the same time the jury found his " Essay on Woman " to be an " obscene and impious libel " ? But the other measures taken to crush Wilkes were so repugnant to justice and decency, that these verdicts were resented by the people as part of his persecutions. The Court of King's Bench shared the odium attached to the Government, which Wilkes spared no pains to aggravate. He complained that Lord Mansfield had permitted the informations against him to be irregularly amended on the eve of his trial : he inveighed against the means by which a copy of his "Essay on Woman" had been obtained by the bribery of his servant ; and by questions arising out of his out- lawry, he contrived to harass the court, and keep his case be- fore the public for the next six years.* The people were taught to be suspicious of the administration of justice in cases of libel ; and, assuredly, the proceedings of the Gov- ernment and the doctrines of the courts alike justified their suspicions.
The printers of the " North Briton " suffered as well as the Printers of author ; and the Government, having secured these convictions, ^^\^^^^ proceeded with unrelenting rigour against other printers.^ No 1764. grand jury stood between the attorney-general and the defend- ants ; and the courts, in the administration of the law, were ready instruments of the Government. Whether this severity tended
^ Infra, p. 124. ^g^e supra, vol. i. p. 310.
3 Burrow's Reports, iv. 2527 ; St. Tr., xix. 1075.
* Ibid., 1 136.
5 Horace Walpole affirms that 200 informations were filed, a larger number than had been prosecuted in the whole thirty-three years of the last reign. — Walp. Mem., ii. 15, 67. But many of these must have been abandoned, for in 1791 the attorney-general stated that in the last thirty-one years there had been seventy prosecutions for libel, and about fifty convictions : twelve had received severe sen- tences ; and in five cases the pillory had formed part of the punishment. — Pari. Hist., xxix. 551.
10 TMR CONSTITUTIONAL HISTORY OF ENGLAND
Ex-officio informations. Mr. Calvert's motion, 4th March, 1765.
Junius.
Character of Junius.
Junius's letter to the king.
to check the publication of libels or not, it aroused the sym- pathies of the people on the side of the sufferers. Williams, who had reprinted the " North Briton," being sentenced to the pillory, drove therein a coach marked "45". Near the pillory the mob erected a gallows, on which they hung the obnoxious symbols of a boot and a Scotch bonnet ; and a col- lection was made for the culprit, which amounted to ;^200.^
Meanwhile ex-officio informations had become so numerous as to attract observation in Parliament ; where Mr. Nicholson Calvert moved for a bill to discontinue them. He referred the origin of the practice to the Star Chamber, complained of per- sons being put upon their trial without the previous finding of a grand jury, and argued that the practice was opposed to the entire policy of our laws. His motion, however, was brought forward in opposition to the advice of his friends,^ and being coldly seconded by Mr. Serjeant Hewitt, was lost on a division, by a large majority.^
The excitement which Wilkes and his injudicious oppressors had aroused had not yet subsided, when a more powerful writer arrested public attention.* Junius was by far the most remark- able public writer of his time,^ He was clear, terse, and logi- cal in statement — learned, ingenious, and subtle in disputation — eloquent in appeals to popular passion — polished, and tren- chant as steel, in sarcasm — terrible in invective. Ever striving to wound the feelings, and sully the reputation of others, he was even more conspicuous for rancour and envenomed bitter- ness than for wit. With the malignant spirit of a libeller — without scruple or regard for truth — he assailed the private character no less than the actions of public men. In the "Morning Advertiser" of the 19th of December, 1769, ap- peared Junius's celebrated letter to the king.* Inflammatory and seditious, it could not be overlooked ; and as the author was unknown, informations were immediately filed against the printers and publishers of the letter. But before they were
^ Walp. Mem., ii. 80; Walp. Letters, iv. 49.
»Walp. Mem., ii. 84. ^Ayes, 204; Noes, 78; Pari. Hist., xvi. 40.
*Walp. Mem., iii. 164; Lord Brougham's Works, iii. 425 et seq.
' Burke, speaking of his letter to the king, said : " It was the rancour and venom with which I was struck. In these respects the ' North Briton ' is as much inferior to him, as in strength, wit, and judgment." — Pari. Hist., xvi. 1154.
• Letter No. xxxv., Woodfall's Ed., ii. 62.
LIBERTY OF OPINION 11
brought to trial, Almon, the bookseller, was tried for selling the "London Museum," in which the libel was reprinted.^ His connection with the publication proved to be so slight that he escaped with a nominal punishment. Two doctrines, how- ever, were maintained in this case, which excepted libels from the general principles of the criminal law. By the first, a publisher was held criminally answerable for the acts of his Publisher servants, unless proved to be neither privy nor assenting to thef."rj'"f'^y publication of a libel. So long as exculpatory evidence was acts of his admitted, this doctrine was defensible : but judges afterwards ^^^^"^^' refused to admit such evidence, holding that the publication of a libel by a publisher's servant was proof of his criminality. And this monstrous rule of law prevailed until 1843, when it was condemned by Lord Campbell's Libel Act.^
The second doctrine was wholly subversive of the rights of Right of juries in cases of libel. Already, on the trial of the printers ^"^ *°,. of the "North Briton," Lord Mansfield had laid it down that offences of it was the province of the court alone to judge of the criminal- * denied, ity of a libel. This doctrine, however questionable, was not without authority ; ^ and was now enforced with startling clearness by his lordship. The only material issue for the jury to try, was whether the paper was libellous or not ; and this was emphatically declared to be entirely beyond their jurisdiction.* Trial by jury was the sole security for freedom of the press ; and it was found to have no place in the law of England.
Again, on the trial of Woodfall, his lordship told the jury Woodfall's that, "as for the intention, the malice, the sedition, or anyj"^g^^' other harder words which might be given in informations for libels, public or private, they were merely formal words, mere words of course, mere inferences of law — with which the jury were not to concern themselves". The jury, however, learn- ing that the offence which they were trying was to be with- drawn from their cognisance, adroitly hit the palpable blot of such a doctrine, by finding Woodfall " guilty of printing and
^ Walp. Mem., iv. 160; Notes to the St. Tr., xx. 821 ; Pari. Hist., xvi. 1153, 1 1 56.
* 6 & 7 Vict. c. 96, § 7 ; Hans. Deb., 3rd Ser., Ivi. 395, etc.
2 Lord Raymond in Franklin's Case, 1731 ; Ch. Justice Lee in Owen's Case, 1752. — St. Tr., xvii. 1243 ; xviii. 1203 ; Pari. Hist., xvi. 1275.
* Burr., 2686 ; St. Tr., xx. 803.
12 THE CONSTITUTIONAL HISTORY OF ENGLAND
20th Nov., 1770.
Miller's trial, 1 8th July, 1770.
Disapproval of Lord Mansfield's doctrines.
Debates in Parliament. Captain Phipps' motion, 27th Nov., 1770.
publishing only". In vain was it contended, on the part of the Crown, that this verdict should be amended, and entered as a general verdict of guilty. The court held the verdict to be uncertain, and that there must be a new trial. ^ Miller, the printer and publisher of the " Evening Post," was next tried at Guildhall. To avert such a verdict as that in Woodfall's case, Lord Mansfield, in language still stronger and more distinct, laid it down that the jury must not concern them- selves with the character of the paper charged as criminal, but merely with the fact of its publication, and the meaning of some few words not in the least doubtful. In other words, the prisoner was tried for his offence by the judge, and not by the jury. In this case, however, the jury boldly took the matter into their own hands, and returned a verdict of not guilty.'^
Other printers were also tried for the publication of this same letter of Junius, and acquitted. Lord Mansfield had, in fact, overshot the mark ; and his dangerous doctrines recoiled upon himself.^ Such startling restrictions upon the natural rights of a jury excited general alarm and disapprobation.* They were impugned in several able letters and pamphlets ; and, above all, in the terrible letter of Junius to Lord Mansfield himself.^ It was clear that they were fatal to the liberty of the press. Writers, prosecuted by an officer of the Crown, without the investigation of a grand jury, and denied even a trial by their peers, were placed beyond the pale of the law.
These trials also became the subject of animadversion in Parliament. On a motion of Captain Constantine Phipps, for a bill to restrain ex-officio informations, grave opinions were expressed upon the invasion of the rights of juries, and the criminal responsibility of a publisher for the acts of his ser- vants. Lord Mansfield's doctrines were questioned by Mr. Cornwall, Mr. Serjeant Glynn, Mr. Burke, Mr. Dunning, and Sir W. Meredith;*' and defended by Mr. Attorney-General De Grey, and Mr. Solicitor-General Thurlow.^
Lord Chatham, in the House of Lords, assailed Lord
1 St. Tr., XX. 895. « Ihid., 870.
3 Walp. Mem., iv. 160, 168. * See Lord Chatham's Corr., iv. 50.
*i4th Nov., 1770; Letter No. 41, Woodfall's Ed., ii. 159.
« Mr. Wedderbum also spoke against ex-officio informations.
■^ Pari. Hist., xvi. 1127, 1175 (two reports).
LIBERTY OF OPINION 13
Mansfield for his directions to juries in the recent libel cases. Lord Lord Mansfield justified them, and Lord Camden desired that ^jj pg^. ' they should be fully stated, in order that the House might 1770- judge of their legality. ^
This debate was followed, in the Commons, by a motion Mr. Serjeant of Mr. Serjeant Glynn for a committee, to inquire into the j^^^^^^j^^ g^j^ administration of criminal justice, particularly in cases relating Dec, 1770. to the liberty of the press, and the constitutional power and duty of juries. The same controverted questions were again discussed ; but the feeling of the House being still adverse, the motion was lost by a majority of 108.^ In this debate, Mr. Charles Fox gave little promise of his future exertions to im- prove the law of libel. He asked, where was the proof, " that juries are deprived of their constitutional rights?" "The abettors of the motion," he said, " refer us to their own libel- lous remonstrances, and to those infamous lampoons and satires which they have taken care to write and circulate."
The day after this debate. Lord Mansfield desired that the Lord Lords might be summoned on the loth of December, as he ^1^^^^^^^ ^^^^ had a communication to make to their lordships. On that day, judgment in however, instead of submitting a motion, or making a state- ^^ ^ ^ ment to the House, he merely informed their lordships that he had left with the Clerk of the House a copy of the judgment of the Court of King's Bench in Woodfall's case, which their lordships might read, and take copies of, if they pleased. This, however, was enough to invite discussion ; and on the following day, Lord Camden accepted this paper as a challenge directed personally to himself " He has thrown down the glove," he said, "and I take it up. In direct contradiction to him, I maintain that his doctrine is not the law of England." He then proposed six questions to Lord Mansfield upon the subject. His Lordship, in great distress and confusion, said, "he would not answer interrogatories," but that the matter should be discussed.^ No time, however, was fixed for this
^ Pari. Hist., xvi. 1302.
2 Ayes, 76; Noes, 184; ihid., 1211; Cavendish Deb., ii. 80; Walp. Mem., iv. 211.
^ Pari, Hist,, xvi. 1321 ; Preface to Woodfall's Junius, i. 49 ; Letter No. 82, Junius, Woodfall's Ed,, iii. 295 ; Walpole's Mem., iv. 220 ; Lord Campbell's Lives of the Chancellors, v, 295,
14 THE CONSTITUTIONAL HISTORY OF ENGLAND
Mr. Dowdcs- well's motion 7th March, 1771.
Mr. Erskine supports the rights of juries.
Case of Dean of St. Asaph.
15th Nov.,
discussion ; and notwithstanding the warmth of the combatants, it was not resumed.
So grave a constitutional wrong, however, could not be suffered without further remonstrances. Mr, Dowdeswell moved for a bill to settle doubts concerning the rights of jurors in prosecutions for libels, which formed the basis of that brought in, twenty years later, by Mr. Fox.^ The motion was seconded by Sir G. Savile, and supported by Mr. Burke, in a masterly speech, in which he showed, that if the criminality of a libel were properly excluded from the cognisance of a jury, then should the malice in charges of murder, and the felonious intent in charges of stealing, be equally removed from their jurisdiction, and confided to the judge. If such a doctrine were permitted to encroach upon our laws, juries would "become a dead letter in our constitution ". The motion was defeated on a question of adjournment.^ All the Whig leaders were sensible of the danger of leaving public writers at the mercy of the courts ; and Lord Rockingham, writing to Mr. Dowdeswell, said, " he who would really assist in re-establishing and con- firming the right in juries to judge of both law and fact, would be the best friend to posterity ".^ This work, however, was not yet to be accomplished for many years ; and the law of libel continued to be administered by the courts, according to the doctrine which Parliament had hitherto shrunk from con- demning.
But the rights of juries continued to be inflexibly main- tained in the courts by the eloquence and noble courage of Mr. Erskine. The exertions of that consummate advocate in defence of the Dean of St. Asaph are memorable in forensic history.* At various stages of the proceedings in this case, he vindicated the right of the jury to judge of the criminality of the libel ; and in arguing for a new trial, delivered a speech, which Mr. Fox repeatedly declared to be " the finest argument in the English language".^ He maintained "that the de-
' Rockingham Mem., ii. 198.
^218 to 72; Pari. Hist., xvii. 43; Burke's Works, x. 109; Ed. i8i2.
^ Rockingham Mem., ii. 200.
* In 1778. He had only been called to the bar on the last day of the pre- ceding term. — St. Tr., xxi. i ; Erskine's Speeches, i. 4 ; Edinburgh Review, vol, xvi. 103.
*NotctoSt,Tr., «w-97i-
LIBERTY OF OPINION IS
fendant had had, in fact, no trial ; having been found guilty without any investigation of his guilt, and without any power left to the jury to take cognisance of his innocence ". And by the most closely connected chain of reasoning, by authorities, and by cases, he proved that the anomalous doctrine against which he was contending was at variance with the laws of England. The new trial was refused ; and so little did Lord Mansfield anticipate the approaching condemnation of his doc- trine, that he sneered at the "jealousy of leaving the law to the court," as " puerile rant and declamation ". Such, how- ever, was not the opinion of the first statesmen of his own time, nor of posterity.
Mr. Erskine then moved in arrest of judgment. He had known throughout that no part of the publication, as charged in the indictment, was criminal : but had insisted upon main- taining the great public rights which he had so gloriously de- fended He now pointed out the innocence of the publication in point of law : the court were unanimously of opinion that the indictment was defective ; and the dean was at length dis- charged from his prosecution. ^
The trial of Stockdale, in 1789, afforded Mr. Erskine Stockdale's another opportunity of asserting the liberty of the press, in the"**^* '^^' most eloquent speech ever delivered in a British court of justice. Stockdale was prosecuted by the Attorney-General, at the instance of the House of Commons,^ for publishing a defence of Warren Hastings, written by the Rev. Mr. Logan. This pamphlet was charged in the information as a scandalous and seditious libel, intended to vilify the House of Commons as corrupt and unjust in its impeachment of Warren Hastings. After urging special grounds of defence, Mr. Erskine con- tended, with consummate skill and force of argument, that the defendant was not to be judged by isolated passages, selected and put together in the information, but by the entire context of the publication, and its general character and objects. If these were fair and proper, the defendant must be acquitted. That question he put to the jury as one which " cannot, in com- mon sense, be anything resembling a question of law, but is a
'St. Tr., xxi. 847-1046 ; Erskine's Speeches, i, 386 ; Lord Campbell's Chief Justices, ii. 540.
*Parl. Hist., xxvii. i, 7.
1 6 THE CONSTITUTIONAL HISTORY OF ENGLAND
pure question of fact ". Lord Kenyon, who tried the cause, did not controvert this doctrine, and the jury fairly comparing the whole pamphlet with the information, returned a verdict of not guilty,^ Thus Mr. Erskine succeeded in establishing the important doctrine that full and free discussion was lawful, that a man was not to be punished for a few unguarded ex- pressions, but was entitled to a fair construction of his general purpose and animus in writing, of which the jury were to judge. This was the last trial for libel which occurred before Mr. Fox's Libel Bill. Mr. Erskine had done all that eloquence, courage, and forensic skill could do for the liberty of the press and the rights of juries. Mr. Fox's It now only remained for the legislature to accomplish
2oth'l£"' ^^^^ ^^^ \i^&'Ci too long postponed. In May, 1791, Mr. Fox 1791. made noble amends for his flippant speech upon the libel laws
twenty years before. Admitting that his views had then been mistaken, he now exposed the dangerous anomaly of the law in a speech of great argumentative power and learning. Mr. Erskine's defence of the Dean of St. Asaph he pronounced to be "so eloquent, so luminous, and so convincing, that it wanted but in opposition to it, not a man, but a giant ". If the doc- trine of the courts was right in cases of libel, it would be right in cases of treason. He might himself be tried for writing a paper charged to be an overt act of treason. In the fact of publication the jury would find a verdict of guilty ; and if no motion were made in arrest of judgment, the court would say, " let him be hanged and quartered ". A man would thus lose his life without the judgment of his peers. He was worthily seconded ^ by Mr. Erskine, whose name will ever be associated with that important measure. His arguments need not be re- capitulated. But one statement, illustrative of the law, must not be omitted. After showing that the judges had usurped the unquestionable privilege of the jury to decide upon the guilt or innocence of the accused, he stated, " that if, upon a motion in arrest of judgment, the innocence of the defendant's intention was argued before the court, the answer would be and was given uniformly, that the verdict of guilty had concluded
1 St. Tr., xxii. 287 ; Erskine's Speeches, ii. 205.
'•The motion was one of form, " that the Grand Committee for Courts of Justice do sit on Tuesday next ".
LIBERTY OF OPINION 17
the criminality of the intention, though the consideration of that question had been, by the judge's authority, wholly with- drawn from the jury at the trial ".
The opinion of the Commons had now undergone so com- plete a change upon this question, that Mr. Fox's views found scarcely any opponents. The Attorney-General supported him, and suggested that a bill should be at once brought in for declaring the law, to which Mr, Fox readily assented. Mr, Pitt thought it necessary " to regulate the practice of the courts in the trial of libels, and render it conformable to the spirit of the constitution". The bill was brought in without a dis- sentient voice, and passed rapidly through the House of Commons.^
In the Lords, however, its further progress was opposed by Lord Thurlow, on account of its importance, and the late period of the session. Lord Camden supported it, as a de- claration of what he had ever maintained to be the true prin- ciples of the law of England. The bill was put off for a month, without a division : but two protests were entered against its postponement.^
In the following session Mr. Fox's bill was again unani- Libel Bill, mously passed by the Commons. In the Lords it met with ^^[l"w j^ renewed opposition from Lord Thurlow, at whose instance the 179a. second reading was postponed, until the opinions of the judges could be obtained upon certain questions,^ Seven questions Opinion of were submitted to the judges,^ and on the nth of May their ^''^jj'^fi^*.^' answers were returned. Had anything been wanting to prove nth May.' the danger of those principles of law which it was now sought to condemn, it would have been supplied from the unanimous answers of the judges. These principles, it seemed, were not confined to libel : but the criminality or innocence of any act was "the result of the judgment which the law pronounces upon that act, and must, therefore, be, in all cases and under all circumstances, matter of law, and not matter of fact". They even maintained — as Mr, Fox had argued — that the criminality or innocence of letters or papers set forth as overt acts of treason was matter of law, and not of fact ; yet shrink- ing from so alarming a conclusion, they added that they had
1 Pari. Hist., xxix, 551-602. "^ Ibid., 726-742.
3 Ibid., 1036. * Ibid., 1293.
VOL. IL 2
i8 THE CONSTITUTIONAL HISTORY OF ENGLAND
offered no opinion " which will have the effect of taking matter of law out of the general issue, or out of a general verdict ".^ Lord Camden combated the doctrines of the judges, and re- peated his own matured and reiterated opinion of the law. The bill was now speedily passed ; with a protest, signed by Lord Thurlow and five other lords, predicting "the confusion and destruction of the law of England ".^ Results of And thus, to the immortal honour of Mr. Fox, Mr. Erskine,
the Libel Act. Lqj-cJ Camden, and the legislature, was passed the famous Libel Bill of 1792,^ in opposition to all the judges and chief legal authorities of the time. Being in the form of a declaratory law, it was in effect a reversal of the decisions of the judges by the High Court of Parliament. Its success was undoubted for all the purposes for which it was designed. While it main- tained the rights of juries, and secured to the subject a fair trial by his peers, it introduced no uncertainty in the law, nor dangerous indulgence to criminals. On the contrary, it was acknowledged that Government was better protected from unjust attacks when juries were no longer sensitive to privi- leges withheld, and jealous of the bench which was usurping them.* General pro- Since the beginning of this reign the press had made great discussion^n advances in freedom, influence, and consideration. The right the press. to criticise public affairs, to question the acts of the Govern- ment, and the proceedings of the legislature, had been estab- lished. Ministers had been taught, by the constant failure of prosecutions,^ to trust to public opinion for the vindication of their measures, rather than to the errors of the law for the silencing of libellers. Wilkes and Junius had at once stimu-
^ Pari. Hist, xxix. 1361.
'^ Ibid., xix. 1404, 1534-1538; Ann. 'Reg., 1792, p. 353; Chron. 69; Lord Campbell's Lives of the Chancellors, v. 346. It was followed by a similar law passed by the Parliament of Ireland.
' 32 Geo. III. c. 60. Lord Macaulay says : " Fox and Pitt are fairly entitled to divide the high honour of having added to our statute book the inestimable law which places the liberty of the press under the protection of juries ". This is cited and accepted by Lord Sunhope in his Life of Pitt, ii. 148 : but why such prominence to Pitt, and exclusion of Erskine ?
* Lord Erskine's Speeches, i. 382, n. ; Lord Campbell's Lives of the Chan- cellors, V. 350.
» On the 27th Nov., 1770, the Attorney-General De Grey '• declared solemnly that he had hardly been able to bring a single offender to justice ". — Pari. Hist., xvi. 1 138.
LIBERTY OF OPINION 19
lated the activity of the press and the popular interest in public affairs. Reporters and printers having overcome the resistance of Parliament to the publication of debates,^ the press was brought into closer relations with the State. Its func- tions were elevated, and its responsibilities increased. States- men now had audience of the people. They could justify their own acts to the world. The falsehoods and misrepresentations of the press were exposed. Rulers and their critics were brought face to face before the tribunal of public opinion. The sphere of the press was widely extended. Not writers only, but the first minds of the age — men ablest in council and debate — were daily contributing to the instruction of their countrymen. Newspapers promptly met the new require- ments of their position. Several were established during this period, whose high reputation and influence have survived to our own time ; ^ and by fullness and rapidity of intelligence, frequency of publication, and literary ability, proved themselves worthy of their honourable mission to instruct the people.
Nor is it unworthy of remark that art had come to the aid Caricatures, of letters in political controversy. Since the days of Walpole, caricatures had occasionally pourtrayed Ministers in grotesque forms, and with comic incidents : but during this period, cari- caturists had begun to exercise no little influence upon popu- lar feeling. The broad humour and bold pencil of Gillray had contributed to foment the excitement against Mr, Fox and Lord North ; and this skilful limner elevated caricature to the rank of a new art. The people were familiarised with the persons and characters of public men : crowds gathered round the printsellers' windows ; and as they passed on, laughing good-humou redly, felt little awe or reverence for rulers whom the caricaturist had made ridiculous. The press had found a powerful ally, which, first used in the interests of party, be- came a further element of popular force. ^
Meanwhile, other means had been devised — more powerful Public meet- ings and as-
1 Supra, vol. i. p. 330 et seq. sociations.
2 Viz. The Morning Chronicle, 1769 (extinct in 1862); The Morning Post, 1772 ; The Morning Herald, 1780 (extinct in 1869) ; The Times, founded in 1788, holds an undisputed position as the first newspaper in the world. — Hunt's Fourth Estate, ii. 99-189.
3 Wright's England under the House of Hanover, i. 136, 403 ; ii. 74-83, etc. ; Twiss's Life Eldon, i. 162 ; Lord Stanhope's Life of Pitt, i. 239.
2 *
20 THE CONSTITUTIONAL HISTORY OF ENGLAND
than the press — for directing public opinion, and exercising influence over the Government and the legislature. Public meetings had been assembled, political associations organised, and " agitation " — as it has since been termed — reduced to a system. In all ages and countries, and under every form of Government, the people have been accustomed, in periods of excitement, to exercise a direct influence over their rulers. Sometimes by tumults and rebellions, sometimes by clamours and discontent, they have made known their grievances, and struggled for redress.^ In England, popular feelings had too often exploded in civil wars and revolutions ; and, in more settled times, the people had successfully overborne the Govern- ment and the legislature. No Minister, however powerful, could be wholly deaf to their clamours. In 1733, Sir Robert Walpole had been forced to withdraw his excise scheme. ^ In 1754, Parliament had been compelled to repeal a recent act of just toleration in deference to popular prejudices.*
In the beginning of this reign, the populace had combined with the press in hooting Lord Bute out of the king's service ; and for many years afterwards popular excitement was kept alive by the ill-advised measures of the Court and Parliament. It was a period of discontent and turbulence.
The silk- In 1765, the Spitalfields' si Ik- weavers, exasperated by the
rejection of a bill for the protection of their trade by the House of Lords, paraded in front of St. James' Palace with
15th May. black flags, surrounded the Houses of Parliament at West- minster, and questioned the peers as they came out concern- ing their votes. They assailed the Duke of Bedford, at whose instance the bill had been thrown out ; and having been dis-
17th May. persed by cavalry in Palace Yard, they proceeded to attack Bedford House, whence they were repulsed by the guards,* It was an irregular and riotous attempt to overawe the de- liberations of Parliament. It was tumult of the old type,
1 ** Pour la populace, ce n'est jamais par envie d'attaquer qu'elle se souUve, mais par impatience de soufFrir." — Mem. de Sully, i. 133.
^ Pari. Hist., viii. 1306; ix. 7 ; Coxe's Walpole, i. 372 ; Lord Hervey's Mem., i. 185 et seq.
3 Naturalisation of Jews, 1754.
* Ann. Reg., 1765, p. 41 ; Grenville Papers, iii. 168-172 ; Walp. Mem., ii. 155 et seq. ; Rockingham Mem., i. 200, 207 ; Adolphus' Hist., i. 177 ; Lord Mahon's Hist., v. 152.
weavers riots, 1765.
LIBERTY OF OPINION 21
opposed alike to law and rational liberty : but it was not the less successful. Encouraged by the master manufacturers, and exerted in a cause then in high favour with statesmen, it was allowed to prevail. Lord Halifax promised to satisfy the weavers ; ^ and in the next year, to their great joy, a bill was passed restraining the importation of foreign silks. ^
But the general discontents of the time shortly developed Popular ex- other popular demonstrations far more formidable, which were ^Lg ' destined to form a new era in constitutional government. In 1768, the excitement of the populace in the cause of Wilkes led to riots and a conflict with the military. But the tumultu- ous violence of mobs was succeeded by a deeper and more constitutional agitation. The violation of the rights of the electors of Middlesex by the Commons,^ united, in support of Wilkes, the first statesmen of the time, the Parliamentary Opposition, the wronged electors, the magistrates and citizens of London, a large body of the middle classes, the press, and the populace. Enthusiastic meetings of freeholders were assembled Public meet- to support their champion, with whom the freeholders of other go^fation^^' counties made common cause. The throne was approached by 1768-70. addresses and remonstrances. Junius thundered forth his fear- ful invectives. Political agitation was rife in various forms : but its most memorable feature was that of public meetings, which at this period began to take their place among the institutions of the country.* No less than seventeen counties held meetings to support the electors of Middlesex. ^ Never had so general a demonstration of public sentiment been made in such a form. It was a new phase in the develop- ment of public opinion. This movement was succeeded by the formation of a "society for supporting the Bill of Rights".
Ten years later, public meetings assumed more importance Public meet- ings, 1779-80.
^ He wrote to Lord Hillsborough to assure the master-weavers that the bill should pass both Houses. — Rockingham Mem., i. 200-207.
2 6 Geo. III. c. 28. '^ Supra, vol. i. p. 317.
* Ann. Reg., 1770, pp. 58, 60. On the 31st October, 1770, a large meeting of the electors of Westminster was held in Westminster Hall, when Mr. Wilkes counselled them to instruct their members to impeach Lord North. — Adolphus' Hist., i. 451 ; Ann. Reg., 1770, p. 159; Chron., 206; Lord Rockingham's Mem., ii. 93 ; Cooke's Hist, of Party, iii. 187.
'Ann. Reg., 1770, p. 58.
2 2 THE CONSTITUTIONAL HISTORY OF ENGLAND
and a wider organisation. The freeholders of Yorkshire and twenty-three other counties, and the inhabitants of many cities, were assembled, by their sheriffs and chief magistrates, to discuss economical and Parliamentary reform. These meetings were attended by the leading men of each neigh- bourhood ; and speeches were made, and resolutions and peti- tions agreed to, with a view to influence Parliament, and attract public support to the cause. A great meeting was held in Westminster Hall, with Mr. Fox in the chair, which was attended by the Duke of Portland, and many of the most eminent members of the Opposition. Nor were these meetings spontaneous in each locality. They were encouraged by active correspondence, association, and concerted movements Poiiiical throughout the country.^ Committees of correspondence and associations, association were appointed by the several counties, who kept alive the agitation ; and delegates were sent to London to give it concentration. This practice of delegation was severely criticised in Parliament. Its representative principle was condemned as a derogation from the rights of the legislature : no county delegates could be recognised, but knights of the shire returned by the sheriff". Mainly on this ground, the Commons refused to consider a petition of thirty-two delegates who signed themselves as freeholders only.^ The future in- fluence of such an organisation over the deliberations of Parliament was foreseen : but it could not be prevented. Delegates were a natural incident to association. Far from arrogating to themselves the power of the Commons, they ap- proached that body as humble petitioners for redress. They represented a cause — not the people. So long as it was lawful for men to associate, to meet, to discuss, to correspond, and to act in concert for political objects, they could select delegates to represent their opinions. If their aims were lawful and their conduct orderly, no means which they deemed necessary for giving effect to free discussion were unconstitutional ; and this system — subject, however, to certain restraints ^ — has
1 Supra, vol. i. p. 350; Ann. Reg., 1780, p. 85 ; Pari. Hist, xx. 1378 ; Wyvill's Political Papers, i. i et seq. ; Wraxall's Mem., iii. 292, etc. ; Rockingham Mem., ii. 391-403 ; Lord J. Russell's Life of Fox, i. 222 ; Walpole's Journ., ii. 389-441.
^I3th Nov., 1780; 2nd April and 8th May, 1781 ; Pari. Hist., xxi. 844, xxii. 95. 138.
=' Infra, p. 72.
LIBERTY OF OPINION 23
generally found a place in later political organisations. Other political societies and clubs were now established ; ^ and the principle of association was brought into active operation, with all its agencies. At this time Mr. Pitt, the future enemy of political combinations, encouraged associations to forward the cause of Parliamentary reform, took counsel with their dele- gates, and enrolled himself a member of the society for consti- tutional information.^
Here were further agencies for working upon the public Political mind, and bridging the popular will to bear upon affairs of considered. State. Association for political purposes, and large assem- blages of men, henceforth became the most powerful and im- pressive form of agitation. Marked by reality and vital power, they were demonstrations at once of moral conviction and numerical force. They combined discussion with action. However forcibly the press might persuade and convince, it moved men singly in their homes and business : but here were men assembled to bear witness to their earnestness : the scattered forces of public opinion were collected and made known : a cause was popularised by the sympathies and accla- mations of the multitude. The people confronted their rulers bodily, as at the hustings.^
Again, association invested a cause with permanent in- terest. Political excitement may subside in a day : but a cause adopted by a body of earnest and active men is not suffered to languish. It is kept alive by meetings, deputations, correspondence, resolutions, petitions, tracts, advertisements. It is never suffered to be forgotten : until it has triumphed, the world has no peace.
Public meetings and associations were now destined to exercise a momentous influence on the State. Their force was great and perilous. In a good cause, directed by wise and
^ Adolphus' Hist., iii. 233.
' See resolutions agreed to at a meeting of members and delegates at the Thatched House Tavern, i8th May, 1782, in Mr. Pitt's own writing. — St. Tr., xxii. 492; also Mr. Pitt's evidence on the Trial of Home Tooke. — Ibid., xxv. 381.
2 " L'association poss&de plus de puissance que la presse." ..." Les moyens d'ex^cution se combinent, les opinions se d^ploient avec cette force, et cette chaleur, que ne peut jamais attendre la pensee ^crite." — De Tocqueville, Democr, en Amerique, i. 277,
24 THE CONSTITUTIONAL HISTORY OF ENGLAND
honourable men, they were designed to confer signal benefits upon their country and mankind. In a bad cause, and under the guidance of rash and mischievous leaders, they were ready instruments of tumult and sedition. The union of moral and physical force may convince, but it may also practise intimida- tion : arguments may give place to threats, and fiery words to deeds of lawless violence.^ Our history abounds with examples of the uses and perils of political agitation. Protestant The dangers of such agitation were exemplified at this
X7^&)'°"'' ^^'^ time, in their worst form, by the Protestant associations. In 1778, the legislature having conceded to the Catholics of England a small measure of indulgence, a body of Protestant zealots in Scotland associated to resist its extension to that country. So rapidly had the principle of association developed itself, that no less than eighty-five societies, or corresponding committees, were established in communication with Edinburgh. The fanaticism of the people was appealed to by speeches, pamphlets, handbills, and sermons, until the pious fury of the populace exploded in disgraceful riots. Yet was this wretched agitation too successful. The Catholics of Scotland waived their just rights for the sake of peace ; and Parliament sub- mitted its own judgment to the arbitrament of Scottish mobs,^ Ix)rd George This agitation next extended to England. A Protestant Pr^Midcnt. association was formed in London, with which numerous local societies, committees, and clubs in various parts of the kingdom were affiliated. Of this extensive confederation, in both countries. Lord George Gordon was elected president. The Protestants of Scotland had overawed the legislature : might not the Protestants of England advance their cause by intimi- Mceting at dation ? The experiment was now to be tried. On the 29th H^^^2'^th"' of May, 1780, Lord George Gordon called a meeting of the May, 1780. Protestant Association, at Coachmakers' Hall, where a petition to the Commons was agreed to, praying for the repeal of the late Catholic Relief Act. Lord George, in haranguing this meeting, said that, " if they meant to spend their time in mock debate, and idle opposition, they might get another leader " ;
* " On ne peut se dissimuler que la liberty illimit^e d'association, en matiire politique, ne soit, de toutes les libertds, la derniire qu'un peuple puisse supporter. Si elle ne la fait pas tomber dans I'anarchie, elle la lui fait, pour ainsi dire, toucher 4 chaque instant." — De Tocqueville, Democr,, i. 231.
»/H/ra, Chap. XII,
LIBERTY OF OPINION 25
and declared that he would not present their petition unless attended by 20,000 of his fellow-citizens. For that purpose, on the 2nd of June, a large body of petitioners and others, distinguished by blue cockades, assembled in St. George's Disorders at Fields, whence they proceeded by different routes to West- Westminster, minster, and took possession of Palace Yard before the two Houses had yet met. As the peers drove down to the meet- ing of their House, several were assailed and pelted. Lord Boston was dragged from his coach, and escaped with difficulty from the mob. At the House of Commons, the mob forced their way into the lobby and passages, up to the very door of the House itself. They assaulted and molested many members, obliged them to wear blue cockades, and shout " no popery ! "
Though full notice had been given of such an irregular Houses of assemblage, no preparations had been made for maintaining ?"]g^^*"' the public peace and securing Parliament from intimidation. The Lords were in danger of their lives ; yet six constables only could be found to protect them. The Commons were invested : but their doorkeepers alone resisted the intrusion of the mob. While this tumult was raging. Lord George Gordon proceeded to present the Protestant petition, and moved that it should be immediately considered in committee. Such a proposal could not be submitted to in presence of a hooting mob ; and an amendment was moved to postpone the con- sideration of the petition till another day. A debate ensued, during which disorders were continued in the lobby and in Palace Yard. Sometimes the House was interrupted by vio- lent knocks at the door, and the rioters seemed on the point of bursting in. Members were preparing for defence, or to cut their way out with their swords. Meanwhile, the author of these disorders went several times into the lobby, and to the top of the gallery stairs, where he harangued the people, telling them that their petition was likely to meet with small favour, and naming the members who opposed it. Nor did he desist from this outrageous conduct until Colonel Murray, a relative of his own, threatened him with his sword on the entrance of the first rioter. When a division was called, the serjeant re- ported that he could not clear the lobby ; and the proceedings of the House were suspended for a considerable time. At
26 THE CONSTITUTIONAL HISTORY OF ENGLAND
length, a detachment of military having arrived, the mob dis- persed, the division was taken, and the House adjourned.^ Riots in The scenc at Westminster had been sufficiently disgraceful :
London. y^^^ j^ ^^^ merely the prelude to riots and incendiarism, by which London was desolated for a week. On the 6th of June, the Protestant petition was to be considered. Measures had been taken to protect the legislature from further outrage : but Lord Stormont's carriage was attacked, and broken to pieces ; Mr. Burke was for some time in the hands of the mob ; and an attempt was made upon Lord North's official residence, in Downing Street. The Commons agreed to resolutions in vindication of their privileges, and pledging themselves to consider the petition when the tumults should subside.'
Meanwhile, the outrages of the mob were encouraged by the supineness and timidity of the Government and magistracy, until the whole metropolis was threatened with conflagration. The chapels of Catholic ambassadors were burned, prisons broken open, the houses of magistrates and statesmen de- stroyed ; the residence of the venerable Mansfield, with his books and priceless manuscripts, was reduced to ashes. Even the Bank of England was threatened. The streets swarmed with drunken incendiaries. At length the devastation was stayed by the bold decision of the king. " There shall, at least, be one magistrate in the kingdom," said he, "who will do his duty ; " and by his command a proclamation was im- mediately issued, announcing that the king's officers were in- structed to repress the riots ; and the military received orders to act without waiting for directions from the civil magistrate. The military were prompt in action ; and the rioters were dis- persed with bloodshed and slaughter.^ Military The legality of military interference, in the absence of a
absoiceVf^a "Magistrate, became afterwards the subject of discussion. It magistrate, was laid down by Lord Mansfield, that the insurgents, having been engaged in overt acts of treason, felony, and riot, it was the duty of every subject of his Majesty — and not less of soldiers than of citizens — to resist them. On this ground was
» Ann. Reg., 1780, igo et seq. ; Pari. Hist., xxi. 654-686 ; St. Tr., xxi. 486. «Parl. Hist., xxi. 661.
^Ann. Reg., 1780, 265 et seq. Nearly 300 lives were known to have been lost ; and 173 wounded persons were received into the hospitals.
LIBERTY OF OPINION a?
the proclamation justified, and the action of the military pro- nounced to be warranted by law. His authority was accepted as conclusive. It was acknowledged that the executive, in times of tumult, must be armed with necessary power : but with how little discretion had it been used ? Its timely ex- ercise might have averted the anarchy and outrages of many days — perhaps without bloodshed. Its tardy and violent action, at the last, had added to the evils of insurrection a sanguinary conflict with the people.^
Such was the sad issue of a distempered agitation in an unworthy cause, and conducted with intimidation and violence. The foolish and guilty leader of the movement escaped a con- viction for high treason, to die, some years afterwards, in Newgate, a victim to the cruel administration of the law of libel ; ^ and many of the rioters expiated their crimes on the scaffold.
A few years later another association was formed, to for- Slave-trade ward a cause of noble philanthropy — the abolition of the slave Association, trade. It was almost beyond the range of politics. It had no constitutional change to seek : no interest to promote : no prejudice to gratify : not even the national welfare to advance. Its clients were a despised race, in a distant clime — an inferior type of the human family — for whom natures of a higher mould felt repugnance rather than sympathy. Benevolence and Christian charity were its only incentives. On the other hand, the slave trade was supported by some of the most powerful classes in the country — merchants, shipowners, planters. Before it could be proscribed, vested interests must be overborne, ignorance enlightened, prejudices and indiffer- ence overcome, public opinion converted. And to this great work did Granville Sharpe, Wilberforce, Clarkson, and other noble spirits devote their lives. Never was cause supported by greater earnestness and activity. The organisation of the society comprehended all classes and religious denominations. Evidence was collected from every source to lay bare the cruelties and iniquity of the traffic. Illustration and argument
1 Debates of Lords and Commons, igth June, 1780 ; Pari. Hist., xxi. 690-701 ;
Debate on Mr. Sheridan's motion (Westminster Police), 5th March, 1781 ; ibid.,
1305-
2 St. Tr., xxii. 175-236; Ann. Reg., 1793, Chron. 3.
28 THE CONSTITUTIONAL HISTORY OF ENGLAND
were inexhaustible. Men of feeling and sensibility appealed, with deep emotion, to the religious feelings and benevolence of the people. If extravagance and bad taste sometimes courted ridicule, the high purpose, just sentiments, and elo- quence of the leaders of this movement won respect and ad- miration. Tracts found their way into every house : pulpits and platforms resounded with the wrongs of the negro : peti- tions were multiplied : Ministers and Parliament moved to inquiry and action. Such a mission was not to be soon accomplished. The cause could not be won by sudden en- thusiasm, still less by intimidation : but conviction was to be wrought in the mind and conscience of the nation. And this was done. Parliament was soon prevailed upon to attempt the mitigation of the worst evils which had been brought to light ; and in little more than twenty years, the slave trade was utterly condemned and prohibited.^ A good cause pre- vailed, not by violence and passion, not by demonstrations of popular force, but by reason, earnestness, and the best feelings of mankind. Progress of At no former period had liberty of opinion made advances
P"?''!*^ 760- ^^ signal as during the first thirty years of this reign. Never 92. had the voice of the people been heard so often, and so loudly,
in the inner councils of the State. Public opinion was begin- ning to supply the defects of a narrow representation. But evil days were now approaching, when liberties so lately won were about to be suspended. Wild and fanatical democracy, on the one hand, transgressing the bounds of rational liberty ; and a too sensitive apprehension of its dangers, on the other, were introducing a period of reaction, unfavourable to popular rights. Democratic In 1792, the deepening shadows of the French Revolution
1792.*^^°"^' ^^^ inspired the great body of the people with sentiments of fear and repugnance ; while a small, but noisy and turbulent, party, in advocating universal suffrage and annual Parliaments, were proclaiming their admiration of French principles, and sympathy with the Jacobins of Paris. Currency was given to their opinions in democratic tracts, handbills, and newspapers, conceived in the spirit of sedition. Some of these papers were
' Clarkson's Hist, of the Slave Trade, i. 288, etc. ; Wilberforce's Life, i. 139-173. etc
LIBERTY OF OPINION 29
the work of authors expressing, as at other times, their own individual sentiments : but many were disseminated, at a low price, by democratic associations, in correspondence with France.^ One of the most popular and dangerous of these publications was Paine's second part of the "Rights of Man".
Instead of singling out any obnoxious work for a separate Proclamation, prosecution, the Government issued, on the 21st of May, 1792, j^gj. ^^' a proclamation warning the people against wicked and seditious writings, industriously dispersed amongst them, commanding magistrates to discover the authors, printers, and promulgators of such writings, and sheriffs and others to take care to prevent tumults and disorders. This proclamation, having been laid before Parliament, was strongly denounced by Mr. Grey, Mr. Fox, and other members of the Opposition, who alleged that it was calculated to excite groundless jealousies and alarms,''' the Government already having sufficient powers, under the law, to repress license or disaffection.
Both Houses, however, concurred in an Address to the king, approving of the objects of the proclamation, and ex- pressing indignation at any attempts to weaken the sentiments of the people in favour of the established form of government.^
Thomas Paine was soon afterwards brought to trial. He Trial of was defended by Mr. Erskine, whom neither the displeasure painT^iSth of the king and the Prince of Wales, nor the solicitations of Dec, 1792. his friends, nor public clamours, had deterred from performing his duty as an advocate.^ To vindicate such a book, on its own merits, was not to be attempted : but Mr. Erskine con- tended that, according to the laws of England, a writer is at liberty to address the reason of the nation upon the constitu- tion and government, and is criminal only if he seeks to excite them to disobey the law, or calumniates living magistrates. He maintained " that opinion is free, and that conduct alone is amenable to the law". He himself condemned Mr. Paine's opinions : but his client was not to be punished because the
1 Ann. Reg., 1792, p. 365 ; Hist, of the Two Acts, Introd., xxxvii. ; Adolphus' Hist., V, 67 ; Tomline's Life of Pitt, iii. 272.
^ See also supra, vol. i. p. 419.
"Pari. Hist., xxix. 1476-1534 ; Tomline's Life of Pitt, iii. 347; Lord Mal- mesbury's Corr., ii. 441. There had been similar proclamations in the reigns of Queen Anne and George L
* St. Tr., xxvi. 715 ; Lord Campbell's Lives of the Chancellors, vi. 455.
30 THE CONSTITUTIONAL HISTORY OF ENGLAND
Alarm of the Government and magis- tracy.
Democratic associations.
The Revolu- tion Society.
Society for Constitu- tional Inform ation.
jury disapproved of them as opinions, unless their character and intention were criminal. And he showed from the writ- ings of Locke, Milton, Burke, Paley, and other speculative writers, to what an extent abstract opinions upon our constitu- tion had been expressed, without being objected to as libellous. The obnoxious writer was found guilty : i but the general principles expounded by his advocate, to which his contem- poraries turned a deaf ear, have long been accepted as the basis on which liberty of opinion is established.
Meanwhile, the fears of democracy, of the press, and of speculative opinions, were further aggravated by the pro- gress of events in France, and the extravagance of English democrats.
Several societies, which had been formed for other objects, now avowed their sympathy and fellowship with the revolu- tionary party in France, addressed the National Convention, corresponded with political clubs and public men in Paris ; and imitated the sentiments, the language, and the cant then in vogue across the channel.^ Of these the most conspicuous were the " Revolution Society," the " Society for Constitutional Information," and the " London Corresponding Society ". The Revolution Society had been formed long since, to com- memorate the English Revolution ol 1688, and not that of France, a century later. It met annually, on the 4th of Nov- ember, when its principal toasts were the memory of King William, trial by jury, and the liberty of the press. On the 4th of November, 1788, the centenary of the Revolution had been commemorated throughout the country by men of all parties ; and the Revolution Society had been attended by a Secretary of State and other distinguished persons.^ But the excitement of the times quickened it with a new life ; and historical sentiment was lost in political agitation. The ex- ample of France almost effaced the memory of William.* The Society for Constitutional Information had been formed in 1 780, to instruct the people in their political rights, and to
' St. Tr., xxii. 357. 2 ^nn. Reg., 1792, part ii. 128-170, 344.
' History of the Two Acts, Introd., xxxv.
* Abstract of the History and Proceedings of the Revolution Society, 1789; Sermon by Dr. Price, vnth Appendix, 1789 ; •' The Correspondence of the Rev- olution Society in London," etc., 1792; Ann. Reg., 1792, part i. 165, 311, 366; part ii. 135 ; App. to Chron. 128 et seq. ; Adolphus' Hist., iv. 543, v. 211.
LIBERTY OF OPINION 31
forward the cause of Parliamentary reform. Among its early members were the Duke of Richmond, Mr. Fox, Mr, Pitt him- self, and Mr. Sheridan. These soon left the society : but Mr. Wyvill, Major Cartwright, Mr. Home Tooke, and a few more zealous politicians, continued to support it, advocating univer- sal suffrage, and distributing obscure tracts. It was scarcely known to the public : its funds were low ; and it was only saved from a natural death by the French Revolution.^
The London Corresponding Society — composed chiefly of London Cor- working men — was founded in the midst of the excitement g^^^°^"^ caused by events in France. It sought to remedy all the grievances of society, real or imaginary, to correct all politi- cal abuses, and particularly to obtain universal suffrage and annual Parliaments. These objects were to be secured by the joint action of affiliated societies throughout the country. The scheme embraced a wide correspondence, not only with other political associations in England, but with the National Con- vention of France and the Jacobins of Paris. The leaders were obscure and, for the most part, illiterate men ; and the proceedings of the society were more conspicuous for extrava- gance and folly than for violence. Arguments for universal suffrage were combined with abstract speculations, and con- ventional phrases, borrowed from France, wholly foreign to the sentiments of Englishmen and the genius of English liberty. Their members were "citizens," the king was "chief magistrate". ^
These societies, animated by a common sentiment, engaged in active correspondence ; and published numerous resolutions and addresses of a democratic, and sometimes of a seditious character. Their wild and visionary schemes — however cap- tivating to a lower class of politicians — served only to discredit and endanger liberty. They were repudiated by the " Society of the Friends of the People," ^ and by all the earnest but temperate reformers of that time : they shocked the sober,
^ Stephens' Life of Home Tooke, i. 435, ii. 144 ; Hist, of the Two Acts, Introd., xxxvii. ; Wyvill's Pol. Papers, ii. 537; Adolphus' Hist., v. 212; Lord Stanhope's Life of Pitt, ii. 65.
2 Ann. Reg., 1792, p. 366; 1793, p. 165 ; App. to Chron. 75 ; 1794, p. 129; Adolphus' Hist., v. 212 ; Tomline's Life of Pitt, iii. 272, 321 ; Lord J. Russell's Life of Fox, ii. 284 ; Belsham's Hist., viii. 495, 499.
3 See supra, vol. i. p. 270 ; Lord J. Russell's Life of Fox, ii. 293.
32 THE CONSTITUTIONAL HISTORY OF ENGLAND
alarmed the timid, and provoked — if they did not justify — the severities of the Government.
In ordinary times, the insignificance of these societies would have excited contempt rather than alarm : but as clubs and demagogues, originally not more formidable, had obtained a terrible ascendency in France, they aroused apprehensions out of proportion to their real danger. In presence of a poli- tical earthquake, without a parallel in the history of the world, every symptom of revolution was too readily magnified. Exaggerated There IS HO longer room for doubt that the alarm of this alarms. period was exaggerated and excessive. Evidence was not
forthcoming to prove it just and well-founded. The societies, however mischievous, had a small following : they were not encouraged by any men of influence : the middle classes re- pudiated them : society at large condemned them. None of the causes which had precipitated the revolution in France were in existence here. None of the evils of an absolute Government provoked popular resentment. We had no lettres de cachet^ or Bastille : no privileged aristocracy : no impassable gulf between nobles and the commonalty : no ostracism of opinion. We had a free constitution, of which Englishmen were proud — a settled society — with just gradations of rank, bound together by all the ties of a well-ordered commonwealth ; and our liberties, long since secured, were still growing with the greatness and enlightenment of the people. In France there was no bond between the Government and its subjects but authority : in England, power rested on the broad basis of liberty. So stanch was the loyalty of the country, that where one person was tainted with sedition, thousands were prepared to defend the law and constitution with their lives. The people, as zealous in the cause of good order as their rulers, were proof against the seductions of a few pitiful demo- crats. Instead of sympathising with the French Revolution, they were shocked at its bloody excesses, and recoiled with horror from its social and religious extravagances. The core of English society was sound. Who that had lately witnessed the affectionate loyalty of the whole people, on the recovery of the king from his affliction, could suspect them of repub- licanism ?
Yet their very loyalty was now adverse to the public
I
LIBERTY OF OPINION 33
liberties. It showed itself in dread and hatred of democracy. Repressive Repression and severity were popular, and sure of cordial sup- ^° '^^' ^^^^* port. The influential classes, more alarmed than the Govern- ment, eagerly fomented the prevailing spirit of reaction. They had long been jealous of the growing influence of the press and popular opinion. Their own power had been disturbed by the political agitation of the last thirty years, and was further threatened by Parliamentary reform. But the time had now come for recovering their ascendency. The demo- cratic spirit of the people was betraying itself; and must be crushed out in the cause of order. The dangers of Parlia- mentary reform were illustrated by clamours for universal suffrage, annual Parliaments, and the rights of man ; and re- formers of all degrees were to be scouted as revolutionary.
The calm and lofty spirit of Mr. Pitt was little prone to apprehension. He had discountenanced Mr. Burke's early re- probation of the French Revolution : he had recently declared his confidence in the peace and prosperity of his country ; and had been slow to foresee the political dangers of events in France. But he now yielded to the pressure of Mr. Burke and an increasing party in Parliament ; and while he quieted their apprehensions, he secured for himself a vast addition of moral and material support. Enlarging his own party, and breaking up the Opposition, he at the same time won public confidence.
It was a crisis of unexampled difficulty, needing the utmost vigilance and firmness. Ministers, charged with the mainten- ance of order, could not neglect any security which the peril of the time demanded. They were secure of support in punish- ing sedition and treason : the guilty few would meet with no sympathy among a loyal people. But, counselled by their new Chancellor and convert. Lord Loughborough, and the law officers of the Crown, the Government gave too ready a credence to the reports of their agents ; and invested the doings of a small knot of democrats — chiefly working men — with the dignity of a wide-spread conspiracy to overturn the constitu- tion. Ruling over a free State, they learned to dread the people, in the spirit of tyrants. Instead of relying upon the sober judgment of the country, they appealed to its fears; and in repressing seditious practices, they were prepared to VOL, II. 3
34 THE CONSTITUTIONAL HISTORY OF ENGLAND
sacrifice liberty of opinion. Their policy, dictated by the circumstances of a time of strange and untried danger, was approved by the prevailing sentiment of their contemporaries : but has not been justified, in an age of greater freedom, by the maturer judgment of posterity. Proclamation, The next step taken by the Government was calculated to i8t Dec., excite a panic. On the 1st of December, 1792, a proclama- tion was issued, stating that so dangerous a spirit of tumult and disorder had been excited by evil-disposed persons, acting in concert with persons in foreign parts, that it was necessary to call out and embody the militia. And Parliament, which then stood prorogued until the 3rd of January, was directed to meet on the 1 3 th of December. King's The king's speech, on the opening of Parliament, repeated
speech, 13th ^^ statements of the proclamation ; and adverted to designs, in concert with persons in foreign countries, to attempt " the destruction of our happy constitution, and the subversion of all order and Government".^ These statements were warmly combated by Mr. Fox, who termed them "an intolerable calumny upon the people of Great Britain," and argued that the executive Government were about to assume control, not only over the acts of the people, but over their very thoughts. Instead of silencing discussion, he counselled a forward- ness to redress every grievance. Other speakers also protested against the exaggerated views of the state of the country which the administration had encouraged. They exhorted Ministers to have confidence in the loyalty and sound judgment of the people ; and, instead of fomenting apprehensions, to set an ex- ample of calmness and sobriety. But in both Houses addresses were voted,^ giving the sanction of Parliament to the senti- ments expressed from the throne.* The majority did not hesitate to permit popular privileges to be sacrificed to the prevailing panic. Mr. Sheri- But as yet no evidence of the alleged dangers had been
Sth*S!°"' produced ; and on the 28th of February, Mr. Sheridan pro- 1793. posed an inquiry, in a committee of the whole House. He
denied the existence of seditious practices ; and imputed to
1 Comm. Journ., xlviii. 4 ; Pari. Hist, xxx. 6 ; Fox's Speeches, iv. 445.
' In the Commons by a majority of 290 to 50.
' Pari. Hist., xxx. 1-80; Ann. Reg., 1793, pp. 244-249.
LIBERTY OF OPINION 35
the Government a desire to create a panic, in order to inflame the public mind against France, with which war was now de- clared ; and to divert attention from Parliamentary reform. The debate elicited no further evidence of sedition : but the motion was negatived without a division.^
Meanwhile, prosecutions of the press abounded, especially against publishers of Paine's works.^ Seditious speaking was also vigilantly repressed, A few examples will illustrate the rigorous administration of the laws. John Frost, a respectable Trial of , ' attorney, who had been associated with the Duke of Richmond 17°^*' ^*"'*^^' and Mr. Pitt, a few years before, in promoting Parliamentary reform, was prosecuted for seditious words spoken in conversa- tion, after dinner, at a coffee-house. His words, reprehensible in themselves, were not aggravated by evidence of malice or seditious intent. They could scarcely be termed advised speaking ; yet was he found guilty, and sentenced to six months' imprisonment, to stand in the pillory at Charing Cross, and to be struck off the roll of attorneys.^ Mr. Winterbotham, Mr. Winter- a Baptist minister, was tried for uttering seditious words in botham, 1793. two sermons. The evidence brought against him was distinctly contradicted by several witnesses ; and in the second case, so weak was the evidence for the Crown, and so conclusive his defence, that the judge directed an acquittal ; yet in both cases the jury returned verdicts of guilty. The luckless minister was sentenced to four years' imprisonment, to pay two fines of ;^ioo, and to give security for his good behaviour.'' Thomas case of
Briellat was tried for the use of seditious words in conversa- Thomas
I !• 1 1 • 11.1 TT • Bnellat, 1793.
tions at a public-house and m a butcher s shop. Here agam
the evidence for the prosecution was contradicted by witnesses
for the defence : but no credit being given to the latter, the
jury returned a verdict of guilty ; and Briellat was sentenced
to twelve months' imprisonment, and to pay a fine of ;^ioo.^
The trial of Dr. Hudson, for seditious words spoken at Dr. Hudson
the London Coffee-House, affords another illustration of the Qth Dec,
1793-
* Pari. Hist., xxx. 523.
^B.g. Daniel Isaac Eaton, Daniel Holt, and others; St. Tr., xxii. 574-822 ; ibid., xxiii. 214, etc. The Attorney-General stated, on the 13th December, 1792, that he had on his file 200 informations lor seditious libels. — Adolphus' Hist., V. 524. See also Currie's Life, i. 185 ; Roscoe's Life, i. 124 ; Holcroft's Mem., ii. 151.
» St. Tr., xxii. 522. * Ibid., 823, 875. ^ j^;^,^ ^iq,
3*
36 THE CONSTITUTIONAL HISTORY OF ENGLAND
Trials at
Quarter
Sessions.
Voluntary societies for repressing sedition.
alarmed and watchful spirit of the people. Dr. Hudson had addressed toasts and sentiments to his friend Mr. Pigott, who was dining with him in the same box. Other guests in the cofifee-house overheard them, and interfered with threats and violence. Both the friends were given in charge to a con- stable : but Dr. Hudson was alone brought to trial.^ He was found guilty, and sentenced to two years' imprisonment, and to pay a fine of ;{^200.2
Nor were such prosecutions confined to the higher tribu- nals. The magistrates, invited to vigilance by the king's pro- clamation, and fully sharing the general alarm, were satisfied with scant evidence of sedition ; and if they erred in their zeal were sure of being upheld by higher authorities.^ And thus every incautious disputant was at the mercy of panic- stricken witnesses, officious constables, and country justices.
Another agency was evoked by the spirit of the times, dan- gerous to the liberty of the press, and to the security of domestic life. Voluntary societies were established in London and throughout the country, for the purpose of aiding the executive Government in the discovery and punishment of seditious writings or language. Of these the parent was the " Society for the protection of liberty and property against republi- cans and levellers". These societies, supported by large sub- scriptions, were busy in collecting evidence of seditious designs, often consisting of anonymous letters, often of the reports of informers, liberally rewarded for their activity. They be- came, as it were, public prosecutors, supplying the Government with proofs of supposed offences, and quickening its zeal in the prosecution of offenders. Every unguarded word at the club, the market-place, or the tavern, was reported to these credulous alarmists, and noted as evidence of disaffection.
Such associations were repugnant to the policy of our laws, by which the Crown is charged with the office of bringing
* The bill of indictment against Pigott was rejected by the grand jury.
'St. Tr., xxii. loig.
'^ A yeoman in his cups being exhorted by a constable, as drunk as himself,
to keep the peace in the king's name, muttered, " D you and the king too " :
for which the loyal Quarter Sessions of Kent sentenced him to a year's imprison- ment. A complaint being made of this sentence to Lord Chancellor Lough- borough, he said, " that to save the country from revolution, the authority of all tribunals, high and low, must be upheld ", — Lord Campbell's Lives of the Chancel' lors, vi, 265.
LIBERTY OF OPINION 37
offenders to justice, while the people, represented by juries, are to judge, without favour or prejudice, of their guilt or inno- cence. But here the people were invited to make common cause with the Crown against offenders, to collect the evidence, and prejudge the guilt. How then could members of these societies assist in the pure administration of justice, as jurymen and justices of the peace? In the country especially was justice liable to be warped. Local cases of sedition were tried at the Quarter Sessions, by magistrates who were leaders of these societies, and by jurors who, if not also members, were the tenants or neighbours of the gentlemen on the bench. Prosecutor, judge, and jury being all leagued against the ac- cused, in a time of panic, how could any man demand with confidence to be tried by his peers ? ^
Meanwhile, the authorities in Scotland were more alarmed Apprehen- by the French Revolution than the English Government ; and democracy their apprehensions were increased by the proceedings of in Scotland, several societies for democratic reform, and by the assembling in Edinburgh of a " convention of delegates of the associated friends of the people," from various parts of England and Scotland. The mission of these delegates was to discuss annual Parliaments and universal suffrage : but the excite- ment of the times led them to an extravagance of language, and proceedings which had characterised other associations.^ The Government resolved to confront democracy and overawe sedition : but in this period of panic, even justice was at fault ; and the law was administered with a severity discreditable to the courts, and to the public sentiments of that country. Some of the persons implicated in obnoxious publications withdrew from the jurisdiction of the courts ; ^ while those who remained found little justice or mercy.*
Thomas Muir, a young advocate of high talents and at- Trial of Muir, tainments, having exposed himself to suspicion by his activity ^°r!^^" in promoting the proscribed cause of Parliamentary reform, and as a member of the convention of delegates, was brought
^ Proceedings of the Friends of the liberty of the Press, Jan., 1793 ; Erskine's Speeches, iv. 411.
2 Ann. Reg., 1794, p. 129; St. Tr., xxiii. 385 et seq., 398.
s James Tytler, St. Tr., xxiii. 2; John Elder and William Stewart, ibid., 25 ; James Smith and John Mennons, ibid., 34 ; James T. Callender, ibid., 84.
■* See Trial of Walter Berry and James Robertson, St. Tr., xxiii. 79.
38 THE CONSTITUTIONAL HISTORY OF ENGLAND
to trial before the High Court of Justiciary at Edinburgh, for sedition. Every incident of this trial marked the unfairness and cruel spirit of his judges.
In deciding upon the relevancy of the indictment, they dilated upon the enormity of the offences charged, which, in their judgment, amounted almost to high treason, upon the excellence of our constitution,^ and the terrors of the French Revolution. It was plain that any attempt to amend our institutions was, in their eyes, a crime. All the jurymen, selected by the sheriff and picked by the presiding judge,'-* were members of an association at Goldsmiths' Hall, who had erased Muir's name from their books as an enemy to the constitution. He objected that such men had already prejudged his cause, but was told he might as well object to his judges, who had sworn to maintain the constitution ! The witnesses for the Crown failed to prove any seditious speeches, while they all bore testimony to the earnestness with which he had coun- selled order and obedience to the law. Throughout the trial he was browbeaten and threatened by the judges. A con- temptible witness against him was " caressed by the prosecutor and complimented by the court," while a witness of his own was hurriedly committed for concealing the truth, without hearing Muir on his behalf, who was told that "he had no right or title to interfere in the business ". In the spirit of a bygone age of judicature, the Lord Advocate denounced Muir as a demon of sedition and mischief. He even urged it as a proof of guilt that a letter had been found among his papers addressed to Mr. Fyshe Palmer, who was about to be tried for sedition !
Muir defended himself in a speech worthy of the talents and courage which were to be crushed by this prosecution. Little did they avail him. He knew that he was addressing men by whom his cause had been prejudged : but he appealed worthily to the public and to posterity ; and affirmed that he was tried, in truth, for promoting Parliamentary reform. The
1 The Lord Justice Clerk (Lord Braxfield) termed it •' the happiest, the best, and the most noble constitution in the world, and I do not believe it possible to make a better ". — St. Tr., xxiii. 132.
^Jbid., xix. II, M. ; Cockburn's Mem., 87.
I
LIBERTY OF OPINION 39
Lord Justice Clerk, Braxfield,^ confirmed this assertion by charging the jury that to preach the necessity of reform, at a time of excitement, was seditious. This learned judge also harangued the jury upon Parliamentary reform. " The landed interest alone had a right to be represented," he said ; " as for the rabble, who have nothing but personal property, what hold has the nation of them?" Need it be told that the jury returned a verdict of guilty? And now the judges renewed their reflections upon the enormity of the prisoner's crimes. Lord Henderland noticed the applause with which Muir's noble defence had been received by the audience — which could not but admire his spirit and eloquence — as a proof of the seditious feelings of the people ; and though his lordship allowed that this incident should not aggravate Muir's punish- ment, he proceeded to pass a sentence of transportation for fourteen years. Lord Swinton could scarcely distinguish Muir's crime from high treason, and said, with a ferocity unworthy of a Christian judge, " if punishment adequate to the crime of sedition were to be sought for, it could not be found in our law, now that torture is happily abolished ". He concurred in the sentence of transportation, referring to the Roman law where seditious criminals "««/ in furcam tolluntur, aut bestiis obj'iciuntur, aut in insulam deportantur ". " We have chosen the mildest of these punishments," said his lordship ! Lord Abercromby and the Lord Justice Clerk thought the defen- dant fortunate in having escaped with his life — the penalty of treason ; and the latter, referring to the applause with which Muir had been greeted, admitted that the circumstance had no little weight with him in considering the punishment.^
What was this but an avowal that public opinion was to be repressed and punished in the person of Muir, who was now within the grasp of the law? And thus, without even the
^ Robert McQueen of Braxfield — Lord Braxfield, "was the Jeffreys of Scot- land". "Let them bring me more prisoners, and I will find them law," was said to have been his language to the Government. — Lord Cockburn's Mem., ii6.
-St. Tr., xxiii. 118-238; Lord Campbell's Lives of the Chancellors, vi. 261. In reference to this trial, Lord Cockburn says, " if, instead of being a Supreme Court of Justice, sitting for the trial of guilt or innocence, it had been an ancient commission appointed by the Crown to procure convictions, little of its judicial manner would have required to be changed". — Memorials, 100.
40 THE CONSTITUTIONAL HISTORY OF ENGLAND
outward show of a fair trial, Muir stood sentenced to a punish- ment of unwarrantable, if not illegal, severity.^ The Rev. T. A few days after this trial, the Rev. T. Fyshe Palmer^ wASept'""* ^^ *"^^ ^°*' sedition before the Circuit Court of Justiciary at X793' Perth. He was charged with circulating an address from " A
society of the friends of liberty to their fellow-citizens ". How- ever strong the language of this paper ,^ its sole object was to secure a reform of the House of Commons, to whose corruption and dependence were attributed all the evils which it denounced. His trial was conducted with less intemperance than that of Muir, but scarcely with more fairness. In deciding upon the relevancy of the indictment, the judges entertained no doubt that the paper was seditious, which they proved mainly by combating the truth of the propositions contained in it. The witnesses for the Crown, who gave their evidence with much reluctance, proved that Palmer was not the author of the address : but had corrected it, and softened many of its ex- pressions. That he was concerned in its printing and circula- tion was clearly proved.
The judicial views of sedition may be estimated from part of Lord Abercromby's summing up. " Gentlemen," said he, " the right of universal suffrage, the subjects of this country never enjoyed ; and were they to enjoy it, they would not long enjoy either liberty or a free constitution. You will, therefore, consider whether telling the people that they have a just right to what would unquestionably be tantamount to a total subversion of this constitution, is such a writing as any person is entitled to compose, to print, and to publish."
' There is little doubt that the law of Scotland did not authorise the sentence of transportation for sedition, but of banishment only. This was afiSmied over and over again. In 1797 Mr. Fox said he was satisfied, " not merely on the authority of the most learned men of that country, but on the information he had himself been able to acquire, that no such law did exist in Scotland, and that those who acted upon it, will one day be brought to a severe retribution for their conduct ". — Pari. Hist., xxxiii. 616.
It seems also that the Act 25 Geo. III. c. 46, for removing offenders, in Scotland, to places of temporary confinement, had expired in 1788 ; and that " Muir and Palmer were nevertheless removed from Scotland and transported to Botany Bay, though there was no statute then in force to warrant it ". — Lord Colchester's Diary, i. 50.
^ Mr. Palmer had taken orders in the Church of England, but afterwards be- came an Unitarian Minister.
' " That portion of liberty you once enjoyed is fast setting, we fear, in the darkness of despotism and tyranny," was the strongest sentence.
LIBERTY OF OPINION 41
When such opinions were declared from the bench, who can wonder if complaints were heard that the law punished as sedition the advocacy of Parliamentary reform? Palmer was found guilty and sentenced to seven years' transportation — not without intimations from Lord Abercromby and Lord Esk- grove that his crime so nearly amounted to treason, that he had narrowly escaped its punishment.-'
After these trials, the Government resolved to put down the Trial of Convention of the Friends of the People in Edinburgh, whose skirvTng 6th proceedings had become marked by greater extravagance.^ and 7th Jan., Its leaders were arrested, and its papers seized. In January, ^ 1794, William Skirving, the secretary, was tried for sedition, as being concerned in the publication of the address to the people, for which Palmer had already been convicted, and in other proceedings of the convention. He was found guilty and sen- tenced to fourteen years' transportation. On hearing his sen- tence, Skirving said : " My Lords, I know that what has been done these two days will be rejudged ; that is my comfort, and all my hope ".^ That his guilt was assumed and prejudged, neither prosecutor nor judge attempted to disguise. The solicitor-general, in his opening speech, said : " The very name of British convention carries sedition along with it". — "And the British convention associated for what ? For the purpose of obtaining universal suffrage : in other words, for the pur- pose of subverting the Government of Great Britain." And when Skirving, like Muir, objected to the jurors, as members of the Goldsmiths' Hall Association, Lord Eskgrove said, " by making this objection, the panel is avowing that it was their purpose to overturn the Government",
Maurice Margarot * and Joseph Gerrald,^ who had been Margaret and sent by the London Corresponding Society to the Convention ^iTMardf"'
1794-
^ St. Tr., xxiii. 237.
^ It was now called the British Convention of Delegates, etc. Its members were citizens : its place of meeting was called Liberty Hall : it appointed secret committees, and spoke mysteriously of a convention of emergency.
^Ibid., 391-602. Hume's Criminal Commentaries were compiled "in a great measure for the purpose of vindicating the proceedings of the Criminal Court in these cases of sedition " ; but " there is scarcely one of his favourite points that the legislature, with the cordial assent of the public and of lawyers, has not put down". — Lord Cockburn's Mem., 164; and see his art in Edinb. Rev. No. 167, art. 7.
* St. Tr., xxiii. 603. » Ibid., 805.
42 THE CONSTITUTIONAL HISTORY OF ENGLAND
These trials noticed in Parliament, 31st Jan., 1794, 24th Feb., loth March.
25th March. 15th April.
of the Friends of the People at Edinburgh, were tried for seditious speeches and other proceedings in connection with that convention ; and on being found guilty, were sentenced to fourteen years' transportation.^
The circumstances attending these trials, and the extreme severity of the sentences, could not fail to raise animadversions in Parliament. The case of Mr. Muir was brought before the Lords by Earl Stanhope ; ^ and that of Mr. Fyshe Palmer be- fore the Commons, on a petition from himself, presented by Mr. Sheridan.^
The cases of Muir and Palmer were afterwards more fully laid before the House of Commons by Mr. Adam. He con- tended, in an able speech, that the offences with which they had been charged were no more than leasing-making, accord- ing to the law of Scotland,* for which no such punishment as transportation could be inflicted. He also called attention to many of the circumstances connected with these trials, in order to show their unfairness ; and moved for a copy of the record of Muir's trial. The trials and sentences were defended by the Lord Advocate, Mr. Windham, and Mr. Pitt ; and strongly censured by Mr. Sheridan, Mr. Whitbread, Mr. Grey, and Mr. Fox. The latter denounced, with eloquent indigna- tion, some of the extravagant expressions which had proceeded from the Bench, and exclaimed, '* God help the people who have such judges!" The motion was refused by a large majority.^
These cases were again incidentally brought into discussion, upon a motion of Mr. Adam respecting the criminal law of Scotland." They were also discussed in the House of Lords, upon a motion of Lord Lauderdale, but without any results."
^ Mr. Fox said of Gerrald, in 1797, " his elegant and useful attainments made him dear to the circles of literature and taste. Bred to enjoyments, in which his accomplishments fitted him to participate, and endowed with talents that ren- dered him valuable to his country, • . . the punishment to such a man was certain death, and accordingly he sank under the sentence, the victim of virtuous, wounded sensibility." — Pari, Hist., xxxiii. 617.
^ Ibid., XXX. 1298. ^Ibid,, 1449.
* Scots Act of Q. Anne, 1703, c. 4.
' Ayes, 32 ; Noes, 171 ; Pari. Hist., xxx. i486. ® Ibid., xxxi. 54.
'/Wd.,.263. For an account of the sufferings of Muir and Palmer on board of the hulks, see St. Tr., xxiii. 377, n. Palmer, Gerrald, and Skirving died abroad; Muir escaped to Europe, and died in Paris, in 1799. — Ann. Regt, I797i Chron., p. 14, and 1799, Chron., p. 9.
LIBERTY OF OPINION 43
The prisoners were without redress, but their sufferings Sympathy for excited a strong popular sympathy, especially in Scotland. ^"^^ prisoners. " These trials," says Lord Cockburn, " sank deep, not merely into the popular mind, but into the minds of all men who thought. It was by these proceedings, more than by any other wrong, that the spirit of discontent justified itself throughout the rest of that age," ^ This strong sense of injustice rankled in the minds of a whole generation of Scotchmen, and after fifty years found expression in the Martyrs' Memorial on Calton Hill.^
Meanwhile, some of the cases of sedition tried by the other cases of
courts in England brought ridicule upon the administration g'^'*'°"'"
of justice. Daniel Isaac Eaton was tried for publishing a„ .,t •' r to Daniel Isaac
contemptible pamphlet entitled "Politics for the people, or Eaton, 24th Hog's Wash," in which the king was supposed to be typified ^^^■' ^'^^^' under the character of a game cock. It was a ridiculous pro- secution, characteristic of the times : the culprit escaped, and the lawyers were laughed at.^
Another prosecution, of more formidable pretensions, was Thomas brought to an issue in April, 1794. Thomas Walker, an JJ^^jJ^"^g°gj. eminent merchant of Manchester, and six other persons, were and others, charged with a conspiracy to overthrow the constitution and ^" ' ^^^'^' Government, and to aid the French in the invasion of these shores. This charge expressed all the fears with which the Government were harassed, and its issue exposed their ex- travagance. The entire charge was founded upon the evidence of a disreputable witness, Thomas Dunn, whose falsehoods were so transparent that a verdict of acquittal was immediately taken, and the witness was committed for his perjury. The arms that were to have overturned the Government and con- stitution of the country proved to be mere children's toys, and some firearms which Mr. Walker had obtained to defend his own house against a church and king mob, by whom it had been assailed.'' That such a case could have appeared to the officers of the Crown worthy of a public trial, is evidence of the heated imagination of the time, which discovered con- spiracies and treason in all the actions of men.
It was not until late in the session of 1794 that the
^ Lord Cockburn's Mem., 102 ; Belsham's Hist., ix. 77-80.
2 Erected 1844. s St, Tr,, xxiii. 1014. * Ihid., 1055.
44 THE CONSTITUTIONAL HISTORY OF ENGLAND
King's mes- sage respect- ing seditious practices, 1 2th May, 1794-
x6th May.
Lords' com- mittee, 17th, 19th, 2ISt.
Second Re- port of Secret Committee (Commons), 6th June.
Ministers laid before Parliament any evidence of seditious practices. But in May, 1794, some of the leading members of the democratic societies having been arrested, and their papers seized, a message from the king was delivered to both Houses, stating that he had directed the books of certain cor- responding societies to be laid before them.^ In the Commons, these papers were referred to a secret committee, which first reported upon the proceedings of the Society for Constitutional Information, and the London Corresponding Society ; and pro- nounced its opinion that measures were being taken for as- sembling a general convention "to supersede the House of Commons in its representative capacity, and to assume to itself all the functions and powers of a national legislature ".'^ It was also stated that measures had recently been taken for providing arms, to be distributed amongst the members of the societies. No sooner had the report been read, than Mr. Pitt, after recapitulating the evidence upon which it was founded, moved for a bill to suspend the Habeas Corpus Act, which was rapidly passed through both Houses.^
A secret committee of the Lords reported that " a traitorous conspiracy had been formed for the subversion of the established laws and constitution, and the introduction of that system of anarchy and confusion which has fatally prevailed in France".* And the committee of the Commons, in a second report, re- vealed evidence of the secret manufacture of arms in connec- tion with the societies, of other designs dangerous to the public peace, and of proceedings ominously formed upon the French model.^ A second report was also issued, on the following day, from the committee of the Lords.*' They were followed by loyal Addresses from both Houses, expressing their indignation at these seditious practices, and the deter- mination to support the constitution and peace of the country.^ The warmest friends of free discussion had no sympathy with sedition, or the dark plots of political fanatics : but, relying upon the loyalty and good conduct of the people, and the soundness of the constitution, they steadily contended that these dangers were exaggerated, and might be safely left to the ordinary administration of the law.
^ Pari. Hist., xxxi. 471. * Pari. Hist., xxxi. 574.
» Ihid., 495. 3 See Chap. XI.
» Ibid., 688. « Ibid. ' Ibid., 909-931.
LIBERTY OF OPINION 45
Notwithstanding the dangers disclosed in these reports, Trials for prosecutions for seditious libel, both in England and Ireland, ^^~lg°"^ were singularly infelicitous. The convictions secured were few compared with the acquittals ; and the evidence was so often drawn from spies and informers, that a storm of un- popularity was raised against the Government. Classes, heartily on the side of order, began to be alarmed for the public liberties. They were willing that libellers should be punished : but protested against the privacy of domestic life being invaded by spies, who trafficked upon the excitement of the times. ^
Crimes more serious than seditious writings were now to State trials, be repressed. Traitorous societies, conspiring to subvert the ^^9"^* laws and constitution, were to be assailed, and their leaders brought to justice. If they had been guilty of treason, all good subjects prayed that they might be convicted : but thoughtful men, accustomed to free discussion and association for political purposes, dreaded lest the rights and liberties of the people should be sacrificed to the public apprehensions.
In 1 794, Robert Watt and David Downie were tried, in Trials of Scotland, for high treason. They were accused of a conspiracy ^°d Da^*** to call a convention, with a view to usurp legislative power, Downie for to procure arms, and resist the royal authority. That their ^'^g^^j*°"* designs were dangerous and criminal was sufficiently proved, Sept., 1794. and was afterwards confessed by Watt. A general convention was to be assembled, comprising representatives from England, Scotland, and Ireland, and supported by an armed insurrec- tion. The troops were to be seduced or overpowered, the public offices and banks secured, and the king compelled to dismiss his Ministers and dissolve Parliament. These alarm- ing projects were discussed by seven obscure individuals in Edinburgh, of whom Watt, a spy, was the leader, and David Downie, a mechanic, the treasurer. Two of the seven soon withdrew from the conferences of the conspirators ; and four became witnesses for the Crown. Forty-seven pikes had been made, but none had been distributed. Seditious writing and speaking, and a criminal conspiracy, were too evidently estab- lished : but it was only by straining the dangerous doctrines of constructive treason that the prisoners could be convicted ' Adolphus' Hist,, vi. 45, 46.
46 THE CONSTITUTIONAL HISTORY OF ENGLAND
of that graver crime. They were tried separately, and both being found guilty received sentence of death. ^ Watt was executed : but Downie, having been recommended to mercy by the jury, received a pardon.^ It was the first conviction yet obtained for any of those traitorous designs for the reality of which Parliament had been induced to vouch. The pop-gun While awaiting more serious events, the public were ex- 1704. '''' cited by the discovery of a regicide plot. The conspirators were members of the much-dreaded Corresponding Society, and had concerted a plan for assassinating the king. Their murderous instrument was a tube, or air-gun, through which a poisoned arrow was to be shot ! No wonder that this foul conspiracy at once received the name of the " Pop-Gun Plot ! " A sense of the ridiculous prevailed over the fears and loyalty of the people.^ But before the ridicule excited by the dis- covery of such a plot had subsided, trials of a far graver char- acter were approaching, in which not only the lives of the accused, but the credit of the executive, the wisdom of Parliament, and the liberties of the people were at stake. State trials, Parliament had declared in May * " that a traitorous and
'''^^ detestable conspiracy had been formed for subverting the
existing laws and constitution, and for introducing the system of anarchy and confusion which has so lately prevailed in 6thOct.,i7g4. France ". In October, a special commission was issued for the trial of the leaders of this conspiracy. The grand jury returned a true bill against Thomas Hardy, John Home Tooke, John Thelwall, and nine other prisoners, for high treason. These persons were members of the London Corresponding Society, and of the Society for Constitutional Information, which had
1 St. Tr., xxiii. 1167; ibid.^ xxiv. 11. Not long before the commission of those acts which cost him his life, Watt had been giving information to Mr. Secretary Dundas of dangerous plots which never existed : and suspicions were entertained that if his criminal suggestions had been adopted by others, and a real plot put in movement, he would have been the first to expose it and to claim a reward for his disclosures. If such was his design the " biter was bit," as he fell a sacrifice to the evidence of his confederates. — St. Tr., xxiii. 1325 ; Bel- sham's Hist., ix. 227.
* Speech of Mr. Curwen in defence of Downie, St. Tr., xxiv. 150 ; Speech of Mr. Erskine in defence of Hardy, ibid., 964, etc.
^Crossfield, the chief conspirator, being abroad, the other traitors were not brought to trial for nearly two years, when Crossfield and his confederates were all acquitted. — St. Tr., xxvi. i.
'' Preamble to Habeas Corpus Suspension Act, 34 Geo. HI. c. 54.
LIBERTY OF OPINION 47
formed the subject of the reports of secret committees, and had inspired the Government with so much apprehension. It had been the avowed object of both these societies to obtain Parliamentary reform : but the prisoners were charged with conspiring to break the public peace, to excite rebellion, to depose the king and put him to death, and alter the legislature and government of the country, to summon a convention of the people for effecting these traitorous designs, to write and issue letters and addresses in order to assemble such a con- vention ; and to provide arms for the purpose of resisting the king's authority.
Never, since the revolution, had prisoners been placed at so great a disadvantage in defending themselves from charges of treason. They were accused of the very crimes which Parliament had declared to be rife throughout the country ; and in addressing the grand jury. Chief Justice Eyre had re- ferred to the recent act as evidence of a wide-spread conspiracy to subvert the Government.
The first prisoner brought to trial was a simple mechanic, Trial of Thomas Hardy, a shoemaker by trade, and Secretary of the q"^^' ^^'^ London Corresponding Society. Day after day, evidence was produced by the Crown, first to establish the existence and character of this conspiracy ; and secondly to prove that the prisoner was concerned in it. This evidence having already convinced Parliament of a dangerous conspiracy, the jury were naturally predisposed to accept it as conclusive ; and a con- spiracy being established, the prisoner, as a member of the societies concerned in it, could scarcely escape from the meshes of the general evidence. Instead of being tried for his own acts or language only, he was to be held responsible for all the proceedings of these societies. If they had plotted a re- volution, he must be adjudged a traitor ; and if he should be found guilty, what members of these societies would be safe.
The evidence produced in this trial proved, indeed, that there had been strong excitement, intemperate language, im- practicable projects of reform, an extensive correspondence and popular organisation. Many things had been said and done by persons connected with these societies which prob- ably amounted to sedition : but nothing approaching either the dignity or the wickedness of treason. Their chief offencQ
48 THE CONSTITUTIONAL HISTORY OF ENGLAND
consisted in their efforts to assemble a general convention of the people, ostensibly for obtaining Parliamentary reform, but in reality, it was said, for subverting the Government. If their avowed object was the true one, clearly no offence had been committed. Such combinations had already been formed, and were acknowledged to be lawful. Mr. Pitt him- self, the Duke of Richmond, and some of the first men in the State had been concerned in them. If the prisoner had other designs — concealed and unlawful — it was for the prosecution to prove their existence by overt acts of treason. Many of the Crown witnesses, themselves members of the societies, de- clared their innocence of all traitorous designs ; while other witnesses gained little credit when exposed as spies and in- formers.
It was only by pushing the doctrines of constructive treason to the most dangerous extremes, that such a crime could even be inferred. Against these perilous doctrines Mr. Erskine had already successfully protested in the case of Lord George Gordon ; and now again he exposed and refuted them, in a speech which, as Mr. Home Tooke justly said, "will live for ever ".^ The shortcomings of the evidence, and the consum- mate skill and eloquence of the counsel for the defence, secured the acquittal of the prisoner.^
Notwithstanding their discomfiture, the advisers of the Crown resolved to proceed with the trial of Mr. John Home Tooke, an accomplished scholar and wit, and no mean dis- putant. His defence was easier than that of Hardy. It had previously been doubtful how far the fairness and independence of a jury could be relied upon. Why should they be above the influences and prejudices which seemed to prevail every- where ? In his defence of Home Tooke, Mr. Erskine could not resist adverting to his anxieties in the previous trial, when even the " protecting Commons had been the accusers of his client,
' The conclusion of his speech was received with acclamations by the spec- tators who thronged the court, and by the multitudes surrounding it. Fearful that their numbers and real should have the appearance of overawing the judges and jury, and interfering with the administration of justice, Mr. Erskine went out and addressed the crowd, beseeching them to disperse. '• In a few minutes there was scarcely a person to be seen near the Court." — liotes to Erskine's Speeches, iii. 502.
' Sl Tr., xxiv. 19 ; Erskine's Speeches, iii. 53 ; Lord Campbell's Lives of the Chancellors, vi. 471.
LIBERTY OF OPINION 49
and had acted as a solicitor to prepare the very briefs for the prosecution ". But now that juries could be trusted, as in ordinary times, the case was clear ; and Home Tooke was acquitted.^
The groundless alarm of the Government, founded upon the unfaithful reports of spies, was well exemplified in the case of Home Tooke. He had received a letter from Mr. Joyce, containing the ominous words, " Can you be ready by Thurs- day ? " The question was believed to refer to some rising, or other alarming act of treason : but it turned out that it related only to " a list of the titles, offices, and pensions bestowed by Mr. Pitt upon Mr. Pitt, his relations, friends, and dependents ".^ And again, Mr. Tooke, seeing Mr. Gay, an enterprising tra- veller, present at a meeting of the Constitutional Society, had humorously observed that he " was disposed to go to greater lengths than any of us would choose to follow him " ; an ob- servation which was faithfully reported by a spy, as evidence of dangerous designs.'
Messrs. Bonney, Joyce, Kyd, and Holcroft were next Other arraigned, but the attorney-general, having twice failed in ob- d[gchMeed taining a conviction upon the evidence at his command, con- istDec., 1794. sented to their acquittal and discharge.* But Thelwall, against Thelwall. whom the prosecution had some additional evidence personal to himself, was tried and acquitted. After this last failure, no further trials were adventured upon. The other prisoners, for whose trial the special commission had been issued, were dis- charged, as well as several prisoners in the country, who had been implicated in the proceedings of the obnoxious societies.
Most fortunate was the result of these trials. Had the Fortunate prisoners been found guilty, and suffered death, a sense of in-Jh^g^jfi justice would have aroused the people to dangerous exaspera- tion. The right of free discussion and association would have been branded as treason : public liberty would have been crushed ; and no man would have been safe from the venge- ance of the Government. But now it was acknowledged that if the executive had been too easily alarmed, and Parliament too readily persuaded of the existence of danger, the adminis- tration of justice had not been tampered with ; and that, even
^ St Tr., XXV. 745. 2 Mr. Erskine's Speech, ibid., 309.
3 Ihid. ,310. * Ib%d.y 746.
VOL. II. 4
so THE CONSTITUTIONAL HISTOR V OF ENGLAND
in the midst of panic, an English jury would see right done between the Crown and the meanest of its subjects.^ And while the people were made sensible of their freedom, Ministers were checked for a time in their perilous career. Nor were these trials, however impolitic, without their uses. On the one hand, the alarmists were less credulous of dangers to the State : on the other, the folly, the rashness, the ignorance, and criminality of many of the persons connected with political associations were exposed. Debates in On the meeting of Parliament, in December, the failure of
'^nUi^r^ls these prosecutions at once became the subject of discussion. 30th Dec, Even on the formal reading of the Clandestine Outlawries Bill, 1794- jyjj. Sheridan urged the immediate repeal of the Act for the
suspension of the Habeas Corpus, While he and other mem- bers of the Opposition contended that the trials had discredited the evidence of dangerous plots. Ministers declined to accept any such conclusion. The solicitor-general maintained that the only effect of the late verdicts was, that the persons ac- quitted could not be again tried for the same offence, and added, that if the juries had been as well informed as himself, they would have arrived at a different conclusion ! These ex- pressions, for which he was rebuked and ridiculed by Mr. Fox, were soon improved upon by Mr. Windham. The latter wished the Opposition "joy of the innocence of an acquitted felon " — words which, on being called to order, he was obliged to explain away.'^ 5th Jan., 1795. A few days afterwards, Mr. Sheridan moved for the repeal of the Habeas Corpus Suspension Act, in a speech abounding in wit, sarcasm, and personalities. The debate elicited a speech from Mr. Erskine, in which he proved, in the clearest manner, that the acquittal of the prisoners had been founded upon the entire disbelief of the jury in any traitorous con- spiracy— such as had been alleged to exist. His arguments were combated by Mr. Serjeant Adair, who, in endeavouring to prove that the House had been right, and the juries in error,
' Mr. Speaker Addington, writing after these events, said : " It is of more consequence to maintain the credit of a mild and unprejudiced administration of justice than even to convict a Jacobin ". — Pelleui's Life of Lord Sidmouth, i. 132. See also Belsham's Hist, ix. 244; Cartwright's Life, i. 210; Holcroft's Mem., ii. 180.
* Pari. Hist., xxxi. 994-1061.
LIBERTY OF OPINION 5'
was naturally rewarded with the applause of his audience. His speech called forth this happy retort of Mr. Fox. The learned gentleman, he said, " appealed from the jury to the House. And here let me adore the trial by jury. When this speech was made to another jury — a speech which has been to-night received with such plaudits that we seemed ready ire pedibus in sententiavi — it was received with a cold ' not guilty '." The Minister maintained a haughty silence: but being ap- pealed to, said that it would probably be necessary to continue the Act. Mr. Sheridan's motion was supported by no more than forty-one votes.^
The debate was soon followed by the introduction of the Suspension Continuance Bill. The Government, not having any further ^^^^^^^^^^ evidence of public danger, relied upon the facts already dis- continued, closed in Parliament and in the courts. Upon these they ^^^^' insisted, with as much confidence as if there had been no trials ; while, on the other side, the late verdicts were taken as a con- clusive refutation of all proofs hitherto offered by the executive. These arguments were pressed too far on either side. Proofs of treason had failed: proofs of seditious activity abounded. To condemn men to death on such evidence was one thing : to provide securities for the public peace was another : but it was clear that the public danger had been magnified, and its character misapprehended. The bill was speedily passed by both Houses.'^
While many prisoners charged with sedition had been Trial of
released after the State trials, Henry Redhead Yorke wasP^"/y^^^-
1 r , • • 1 , TT r head Yorke
excepted from this mdulgence. He was a young man of con- for conspir-
siderable talent, just twenty-two years old ; and had entered ^^^'^^rd July, into politics when a mere boy, with more zeal than discretion. In April, 1794, he had assembled a meeting at Castle Hill, Sheffield, whom he addressed, in strong and inflammatory language, upon the corruptions of the House of Commons, and the necessity for Parliamentary reform. The proceedings at this meeting were subsequently printed and published : but it was not proved that Mr. Yorke was concerned in the publica- tion, nor that it contained an accurate report of his speech. Not long afterwards he was arrested on a charge of high
* Ayes, 41 ; Noes, 185 ; Pari. Hist., xxxi. 1062. ^Ibid., 1144-1194, 1280-1293.
4*
52 THE CONSTITUTIONAL HISTORY OF ENGLAND
treason. After a long imprisonment, this charge was aban> doned : but in July, 1795, he was at length brought to trial at the York Assizes, on a charge of conspiracy to defame the House of Commons, and excite a spirit of disaffection and sedition amongst the people. He spoke ably in his own de- fence ; and Mr. Justice Rooke, before whom he was tried, admitted in his charge to the jury that the language of the prisoner — presuming it to be correctly reported — would have been innocent at another time and under other circumstances : but that addressed to a large meeting, at a period of excite- ment, it was dangerous to the public peace. The jury being of the same opinion, found a verdict of guilty ; and the de- fendant was sentenced to a fine of ;^200, and two years' im- prisonment in Dorchester gaol,^ Distress and The year 1 795 was one of suffering, excitement, uneasiness, riots, 1795. ^j^^ disturbance : "the time was out of joint". The pressure of the war upon industry, aggravated by two bad harvests, was already beginning to be felt. Want of employment and scarcity of food, as usual, provoked political discontent ; and the events of the last three years had made a wide breach be- tween the Government and the people.'^ Until then, the growth of freedom had been rapid : many constitutional abuses had already been corrected ; and the people, trained to free thought and discussion, had been encouraged by the first men of the age — by Chatham, Fox, Grey, and the younger Pitt himself — to hope for a wider representation as the consummation of their liberties. But how had the Government lately responded to these popular influences? By prosecutions of the press, by the punishment of political discussion as a crime, by the proscription of Parliamentary reformers, as men guilty of sedi- tion and treason, and by startling restraints upon public liberty. Deeply disturbed and discontented was the public mind. Bread riots, and excited meetings in favour of Parlia- mentary reform, disclosed the mixed feelings of the populace. These discontents were inflamed by the mischievous activity of the London Corresponding Society,' emboldened by its
' St. Tr., XXV. 1003.
* Ann. Reg., 1796, p. 7 ; Hist, of the Two Acts, Inuoduction. ' See their addresses to the nation and the king, 39th June, 1795, in support of universal suffrage and annual Parliaments. — Hi%t. of the Two Acts, 90-97.
LIBERTY OF OPINION S3
triumphs over the Government, and by demagogues begotten by the agitation of the times. On the 26th of October a vast meeting was assembled by the London Corresponding Society at Copenhagen House, at which 1 50,000 persons were said to have been present. An address to the nation was agreed to, in which, among other stirring appeals, it was said, " We have lives, and are ready to devote them, either separately or collectively, for the salvation of the country". This was followed by a remonstrance to the king, urging Parliamentary reform, the removal of Ministers, and a speedy peace. Several resolutions were also passed describing the sufferings of the people, the load of taxation, and the necessity of universal suffrage and annual Parliaments. The latter topic had been the constant theme of all their proceedings; and however strong their language, no other object had ever been avowed. The meeting dispersed without the least disorder.^
Popular excitement was at its height when the king was Attack upon about to open Parliament in person. On the 29th of October, Jj^^ '''"I* *5*^ the Park and streets were thronged with an excited multitude, through which the royal procession was to pass on its way to Westminster. Instead of the cordial acclamations with which the king had generally been received, he was now assailed with groans and hisses, and cries of " Give us bread " — " No Pitt " — "No war" — "No famine". His state carriage was pelted, and one missile, apparently from an air-gun, passed through the window. In all his dominions there was no man of higher courage than the king himself. He bore these attacks upon his person with unflinching firmness ; and proceeded to deliver his speech from the throne without a trace of agitation. On his return to St. James's, these outrages were renewed, the glass panels and windows of the carriage were broken to pieces ; ^ and after the king had alighted, the carriage itself was nearly demolished by the mob. His Majesty, in passing from St. James's to Buckingham House in his private carriage, was again beset by the tumultuous crowd ; and was only
» Hist, of the Two Acts, 98-108.
*•' When a stone was thrown at one of his glasses in returning home, the king said, ' That is a stone — you see the differ^nge fronri a bullet '." — Lord Cgl- (hfster's Diary, i. 3,
54 THE CONSTITUTIONAL HISTORY OF ENGLAND
rescued from further molestation by the timely arrival of some horse-guards, who had been dismissed from duty.^ Proclama- These disgraceful outrages, reprobated by good men of all
tions and classes, were made the occasion of further encroachments upon the political privileges of the people. Both Houses immedi- ately concurred in an Address to his Majesty, expressing their abhorrence of the late events. This was succeeded by two 3i8t Oct., proclamations — one offering rewards for the apprehension of *^^^' the authors and abettors of these outrages ; and the other ad-
verting to recent meetings near the metropolis, followed by 4th Nov. the attack upon the king ; and calling upon the magistrates and all good subjects to aid in preventing such meetings, and in apprehending persons who should deliver inflammatory speeches or distribute seditious papers. Both these proclama- Treasonable tions were laid before Parliament, and Lord Grenville intro- 4^ Nov^ duced into the House of Lords a bill founded upon them, for the " Preservation of his Majesty's person and Government 6th Nov. against treasonable practices and attempts".
This bill introduced a new law of treason, at variance with the principles of the existing law, the operation of which had gravely dissatisfied the Government in the recent State trials. The proof of overt acts of treason was now to be dis- pensed with ; and any person compassing and devising the death, bodily harm, or restraint of the king, or his deposition, or the levying of war upon him, in order to compel him to change his measures or counsels, or who should express such designs by any printing, writing, preaching, or malicious and advised speaking, should suffer the penalties of high treason,^ Any person who by writing, printing, preaching, or speaking should incite the people to hatred or contempt of his Majesty, or the established Government and constitution of the realm, would be liable to the penalties of a high misdemeanour ; and on a second conviction, to banishment or transportation. The Act was to remain in force during the life of the king, and till the end of the next session after his decease.
It was at once perceived that the measure was an alarming
'Ann. Reg., 1796, p. 9; History of the Two Acts, 1796, 4-21 ; Lord Col- chester's Diary, i. 2.
"' The provision concerning preaching and advised speaking was afterwards pniitted,
LIBERTY OF OPINION 55
encroachment upon freedom of opinion. Its opponents saw in it a statutory prohibition to discuss Parliamentary Reform. The most flagrant abuses of the Government and Constitution were henceforth to be sacred from exposure. To speak of them at all would excite hatred and contempt; and silence was therefore to be imposed by law. Nor were the arguments by which this measure was supported such as to qualify its obnoxious provisions. So grave a statesman as Lord Gren- ville claimed credit for it as being copied from Acts passed in the reigns of Queen Elizabeth and Charles II. — "approved times," as his Lordship ventured to affirm.^ Dr. Horsley, Bishop of Rochester, "did not know what the mass of the people in any country had to do with the laws, but to obey them". This constitutional maxim he repeated on another day, and was so impressed with its excellence that he ex- claimed, " My Lords, it is a maxim which I ever will maintain — I will maintain it to the death — I will maintain it under the axe of the guillotine".^ And notwithstanding the obloquy which this sentiment occasioned, it was, in truth, the principle and essence of the bill which he was supporting.
Within a week the bill was passed through all its stages — 13th Nov., there being only seven dissentient peers — and sent to the^^^^" House of Commons.^
But before it reached that House, the Commons had been Seditious occupied by the discussion of another measure equally alarming. MeetingsBili, On the loth November, the king's proclamations were con- sidered, when Mr. Pitt founded upon them a bill to prevent seditious meetings. Following the same reasoning as these proclamations, he attributed the outrages upon his Majesty, on the opening of Parliament, to seditious meetings, by which the disaffection of the people had been inflamed. He proposed that no meeting of more than fifty persons (except county and borough meetings duly called) should be held for considering
^ Pari. Hist., xxxii. 245; Lord Colchester's Diary, i. 5.
2 Pari. Hist., xxxii. 268. His explanations in no degree modified the extreme danger of this outrageous doctrine. He admitted that where there were laws bearing upon the particular interests of certain persons or bodies of men, such persons might meet and discuss them. In no other cases had the people any- thing to do with the laws, i.e. they had no right to an opinion upon any question of public policy ! See supra, vol. i. p. 349.
^Ibid., xxxii. 244-272; Lord Colchester's Diary, i. 5, 6.
56 THE CONSTITUTIONAL HISTORY OF ENGLAND
petitions or addresses for alteration of matters in Church or State, or for discussing any grievance, without previous notice to a magistrate, who should attend to prevent any proposition or discourse tending to bring into hatred or contempt the sovereign, or the Government and Constitution. The magis- trate would be empowered to apprehend any person making such proposition or discourse. To resist him would be felony, punishable with death. If he deemed the proceedings tumul- tuous, he might disperse the meeting ; and was indemnified if any one was killed in its dispersion. To restrain debating societies and political lectures, he proposed to introduce pro- visions for the licensing and supervision of lecture-rooms by magistrates.
When this measure had been propounded, Mr. Fox's indig- nation burst forth. That the outrage upon the king had been caused by public meetings he denounced as a flimsy pretext ; and denied that there was any ground for such a measure. " Say at once," he exclaimed, " that a free constitution is no longer suited to us ; say at once, in a manly manner, that on a review of the state of the world, a free constitution is not fit for you ; conduct yourselves at once as the senators of Den- mark did, lay down your freedom and acknowledge and ac- cept of despotism. But do not mock the understandings and feelings of mankind by telling the world that you are free."
He showed that the bill revived the very principles of the Licensing Acts. They had sought to restrain the printing of opinions of which the Government disapproved : this proposed to check the free utterance of opinions upon public affairs. Instead of leaving discussion free, and reserving the powers of the law for the punishment of offences, it was again proposed, after an interval of a hundred years, to license the thoughts of men, and to let none go forth without the official dicatur. With the views of a statesman in advance of his age. he argued, "We have seen and heard of revolutions in other States. Were they owing to the freedom of popular opinions ? Were they owing to the facility of popular meetings ? No, sir, they were owing to the reverse of these ; and therefore, I say, if we wish to avoid the danger of such revolutions, we should put ourselves in a state as different from them as possible." Forty-
LIBERTY OF OPINION 57
two members only could be found to resist the introduction of this bill.i
Each succeeding stage of the bill occasioned renewed dis- 27th Nov., cussions upon its principles.^ But when its details were about ^^^^' to be considered in committee, Mr. Fox, Mr. Erskine, Mr. Grey, Mr. Lambton, Mr. Whitbread, and the other opponents of the measure, rose from their seats and withdrew from the House. ^ Mr. Sheridan alone remained, not, as he said, to pro- pose any amendments to the bill — for none but the omission of every clause would make it acceptable — but merely to watch its progress through the committee.* The seceders returned 3rd Dec on the third reading, and renewed their opposition to the bill ; but it was passed by a vast majority.^
Meanwhile, the Treasonable Practices Bill having been Treasonable brought from the Lords, had also encountered a resolute op- jn"^ the"com-''* position. The irritation of debate provoked expressions on mons, i6th both sides tending to increase the public excitement. Mr. ^^* Fox said that if *' Ministers were determined, by means of the corrupt influence they possessed in the two Houses of Parlia- ment, to pass the bills, in direct opposition to the declared sense of a great majority of the nation ; and should they be put in force with all their rigorous provisions, if his opinion were asked by the people, as to their obedience, he should tell them that it was no longer a question of moral obligation and duty, but of prudence". He expressed this strong opinion advisedly, and repeated and justified it again and again, with the encouragement of Mr. Sheridan, Mr. Grey, Mr. Whitbread, and other earnest opponents of the bills.® On the other side, this menace was met by a statement of Mr. Windham, " that Ministers were determined to exert a rigour beyond the law as exercised in ordinary times and under ordinary circum- stances " ?
^ Ayes, 244 ; Noes, 42 ; Pari. Hist, xxxii. 272-300 ; Lord Colchester's Diary, i. 6.
2 Pari. Hist., xxxii. 300-364, 387-422.
^Ibid. ; Lord Colchester's Diary, i. 11.
* Pari. Hist., xxxii. 422. 'Ayes, 266 ; Noes, 51 ; ibid., 422-470.
^ Ibid., 383, 385, 386, 392, 451-460; Lord Colchester's Diary, i. g. Nov. 24th : " Grey to-night explained his position of resistance to the theoretical, which in the preceding night he had stated to be practically applicable to the present occasion ". — Ibid., i. 10. And see Lord Malmesbury's Diary, iii. 247,
7 Par}. Hist., xxxii, 386,
58 THE CONSTITUTIONAL HISTORY OF ENGLAND
The bills passed. Op- position out of doors.
The Whig Club.
Meeting at Copenhagen House, 1 2th Nov.
After repeated discussions in both Houses, the bills were eventually passed. i During their progress, however, large classes of the people, whose liberties were threatened, had loudly remonstrated against them. The higher classes gener- ally supported the Government in these and all other repressive measures. In their terror of democracy, they had unconsciously ceased to respect the time-honoured doctrines of constitutional liberty. They saw only the dangers of popular license ; and scarcely heeded the privileges which their ancestors had prized. But on the other side were ranged many eminent men, who still fearlessly asserted the rights of the people, and were sup- ported by numerous popular demonstrations.
On the loth November, the Whig Club held an extra- ordinary meeting, which was attended by the first noblemen and gentlemen of that party. It was there agreed, that before the right of discussion and meeting had been abrogated, the utmost exertions should be used to oppose these dangerous measures. Resolutions were accordingly passed, expressing abhorrence of the attack upon the king, and deploring that it should have been made the pretext for bills striking at the liberty of the press, the freedom of public discussion, and the right to petition Parliament for redress of grievances ; and ad- vising that meetings should be immediately held and petitions presented against measures which infringed the rights of the people.^ The London Corresponding Society published an address to the nation, indignantly denying that the excesses of an aggrieved and uninformed populace could be charged upon them, or the late meeting at Copenhagen House, pro- fessing the strictest legality in pursuit of Parliamentary reform, and denouncing the Minister as seeking pretences " to make fresh invasion upon our liberties, and establish despotism on the ruins of popular association ".^
The same society assembled a prodigious meeting at Copen- hagen House, which agreed to an address, petition, and remon- strance to the king, and petitions to both Houses of Parliament, denouncing these " tremendous bills, which threatened to over- throw the constitutional throne of the House of Brunswick, and to establish the despotism of the exiled Stuarts ".* A few days
1 36 Geo. III. c. 7, 8. 3 Ibid,, 39.
' Hist, of the Two Acts, 120. *lbid., 125.134.
LIBERTY OF OPINION 59
afterwards a great meeting was held in Palace Yard, with Mr. Meeting in Fox in the chair, which voted an Address to the king and a P^'^" ^^rA. petition to the House of Commons against the bills.^ Mr. Fox there denounced the bills "as a daring attempt upon your liberties — an attempt to subvert the constitution of Eng- land, The Bill of Rights is proposed to be finally repealed, that you shall be deprived of the right of petitioning." And the people were urged by the Duke of Bedford to petition while that right remained to them.
Numerous meetings were also held in London, Edinburgh, Other meet- Glasgow, York, and in various parts of the country, to petition '"^^" against the bills. At the same time, other meetings were held at the Crown and Anchor, and elsewhere, in support of Minis- ters, which declared their belief that the seditious excesses of the people demanded these stringent measures as a protection to society.-^
The debates upon the Treason and Sedition Bills had been Mr. Reeves's enlivened by an episode, in which the Opposition found theP*'"^ ^** means of retaliating upon the Government and its supporters. A pamphlet, of ultra-monarchical principles, was published, en- titled " Thoughts on the English Government ". One passage represented the king as the ancient stock of the constitution, and the Lords and Commons as merely branches, which might be " lopped off" without any fatal injury to the constitution itself. It was a speculative essay, which, at any other time, would merely have excited a smile : but it was discovered to be the work of Mr. Reeves, chairman of the " Society for pro- tecting liberty and property from Republicans and Levellers" — better known as the "Crown and Anchor Association".* The work was published in a cheap form, and extensively cir- culated amongst the numerous societies of which Mr. Reeves was the moving spirit ; and its sentiments were in accordance with those which had been urged by the more indiscreet
^ Hist, of the Two Acts, 232-236, 239 ; Adolphus' Hist., vi. 370; Lord Col- chester's Diary, i, 7. This meeting had been convened to assemble in West- minster Hall ; but as the Courts were sitting, it adjourned to Palace Yard.
2 Hist, of the Two Acts, 135, 165, 244, 306-361, 389-392, 466 et seq. ; Bel- sham's Hist., X. 10-23.
. •'' Mr. Reeves was the author of the learned " History of the Law of Eng- land," well known to posterity, by whom his pamphlet would have been forgotten but for these proceedings.
6o THE CONSTITUTIONAL HISTORY OF ENGLAND
supporters of repressive measures. Hence the Opposition were provoked to take notice of it. Having often condemned the Government for repressing speculative opinions, it would have been more consistent with their principles to answer than to punish the pamphleteer : but the opportunity was too tempt- ing to be lost. The author was obnoxious, and had committed himself: Ministers could scarcely venture to defend his doc- trines ; and thus a diversion favourable to the minority was at last feasible. Mr. Sheridan, desirous, he said, of setting a good example, did not wish the author to be prosecuted : but proposed that he should be reprimanded at the bar, and his book burned in New Palace Yard by the common hangman. Ministers, however, preferred a prosecution to another case of privilege. The attorney-general was therefore directed to pro- secute Mr. Reeves; and, on his trial, the jury, while they con- demned his doctrines, acquitted the author,^ Mr. Fox's In 1797, Mr. Fox moved for the repeal of the Treason and
°«a TVe°s"n Sedition Acts, in a speech abounding in political wisdom, and Sedition The truth of many of his sentiments has since received remark- M»y* 170^ ^^'^ confirmation, " In proportion as opinions are open," he said, "they are innocent and harmless. Opinions become dangerous to a State only when persecution makes it neces- sary for the people to communicate their ideas under the bond of secrecy." And, again, with reference to the restraints imposed upon public meetings : " What a mockery," he ex- claimed, " to tell the people that they shall have a right to applaud, a right to rejoice, a right to meet when they are happy : but not a right to condemn, not a right to deplore their misfortunes, not a right to suggest a remedy ! " And it was finely said by him, " Liberty is order ; Liberty is strength " — words which would serve as a motto for the British constitu- tion. His motion, however, found no more than fifty-two sup- porters.'* Regulation of During this period of excitement, the regulation of news- 178^8^"^' F«P^^s often occupied the attention of the legislature. The stamp and advertisement duties were increased : more strin-
^ Pari. Hist., xxxii. 608, 627, 651, 662. In the Lords, notice was also taken of the pamphlet, but no proceedings taken against it, — Ihid,, 681 ; St, Tr., xxvi, 529 ; Lord Colchester's Diary, i. 8.
^ Pari, Hist,, xxxiii. 613.
LIBERTY OF OPINION 6i
gent provisions made against unstamped publications ; and securities taken for ensuring the responsibility of printers.^ By all these laws it was sought to restrain the multiplication of cheap political papers among the poorer classes ; and to subject the press, generally, to a more effectual control. But more serious matters were still engaging the attention of Government.
The London Corresponding Society and other similar Correspond- societies continued their baneful activity. Their rancour against j'Iq-.^'^*'^^' the Government knew no bounds. Mr. Pitt and his colleagues were denounced as tyrants and enemies of the human race. Hitherto their proceedings had been generally open : they had courted publicity, paraded their numbers, and prided themselves upon their appeals to the people. But the Acts of 1795 having restrained their popular meetings, and put a check upon their speeches and printed addresses, they resorted to a new organ- isation in evasion of the law. Secrecy was now the scheme of their association. Secret societies, committees, and officers were multiplied throughout the country, by whom an active correspondence was maintained : the members were bound together by oaths : inflammatory papers were clandestinely printed and circulated : seditious handbills secretly posted on the walls. Association degenerated into conspiracy. Their designs were congenial to the darkness in which they were planned. A general convention was projected ; and societies of United Englishmen, and United Scotsmen, established an intercourse with the United Irishmen. Correspondence with France continued : but it no longer related to the rights of men, and national fraternity. It was undertaken in concert with the United Irishmen, who were encouraging a French in- vasion.2 In this basest of all treasons some of the English societies were concerned. They were further compromised by seditious attempts to foment discontent in the army and navy, and by the recent mutiny in the fleet. ^ But whatever their plots, or crimes, their secrecy alone made them dangerous. They were tracked to their hiding places by the agents of the
1 29 Geo. III. c. 50; 34 Geo. III. c. 72 ; 37 Geo. III. c. go; 38 Geo. III. c. 78 ; Pari. Hist., xxxiii. 1415, 1482.
2 See Chap. XVI.
* An Act had been passed in 1797 to punish this particular crime, 37 Geo. III. c. 70.
62 THE CONSTITUTIONAL HISTORY OF ENGLAND
Government ; and in 1 799, when the rebellion had broken out in Ireland, papers disclosing these proceedings were laid before the House of Commons. A secret committee related, in great detail, the history of these societies ; and Mr. Pitt brought in a bill to repress them. Correspond- It was not sought to punish the authors of past excesses,
'"K Societies j^yj. ^.q prevent future mischiefs. The societies of United April, 1799. Englishmen, Scotsmen, and Irishmen, and the London Corre- sponding Society, were suppressed by name ; and all other societies were declared unlawful of which the members were required to take any oath not required by law, or which had any members or committees not known to the society at large, and not entered in their books, or which were composed of distinct divisions or branches. The measure did not stop here. Debating clubs and reading-rooms, not licensed, were to be treated as disorderly houses. All printing presses and type foundries were to be registered. Printers were to print their names on every book or paper, and register the names of their employers. Restraints were even imposed upon the lending of books and newspapers for hire. This rigorous measure en- countered little resistance. Repression had been fully accepted as the policy of the State ; and the Opposition had retired from a hopeless contest with power. Nor for societies conducted on such principles, and with such objects, could there be any defence. The provisions concerning the press introduced new rigours in the execution of the law, which at another time would have been resisted : but a portion of the press had, by outrages on decency and order, disconcerted the stanchest friends of free discussion.' Repressive The series of repressive measures was now complete. We
measures cannot review them without sadness. Liberty had suffered
completed, ^
i-]qg. from the license and excesses of one party, and the fears and
arbitrary temper of the other. The Government and large classes of the people had been brought into painful conflict. The severities of rulers, and the sullen exasperation of the people had shaken that mutual confidence which is the first attribute of a free State. The popular constitution of England was suspended. Yet was it a period of trial and transition, in
' Reports of Committees on Sealed Papers, 1799; Pari. Hist, xxxiv. 579, 1000 ; Debates, ibid., 984, etc. ; 39 Geo. III. c. 79.
LIBERTY OF OPINION 63
which public liberty, repressed for a time, suffered no perma- nent injury. Subdued in one age, it was to arise with new vigour in another.
Political agitation, in its accustomed forms of public meet- Administra- ings and association, was now checked for several years,^ ^'^^HbeUaws^ freedom of discussion in the press continued to be restrained 1799-1811. by merciless persecution. But the activity of the press was not abated. It was often at issue with the Government ; and the records of our courts present too many examples of the license of the one and the rigours of the other. Who can read without pain the trials of Mr. Gilbert Wakefield and his pub- The Rev. lishers in 1799? On one side, we see an eminent scholar wakefield, dissuading the people, in an inflammatory pamphlet, from re- pelling an invasion of our shores : on the other, we find pub- lishers held criminally responsible for the publication of a libel, though ignorant of its contents ; and the misguided author punished with two years' imprisonment in Dorchester gaol ^ — a punishment which proved little short of a sentence of death.^ Who can peruse without indignation the trial of the conductors of the " Courier," in the same year, for a libel upon the Em- peror of Russia,"* in which the pusillanimous doctrine was laid down from the Bench, that public writers were to be punished, not for their guilt, but from fear of the displeasure of foreign powers.*
* In Scotland, " as a body to be deferred to, no public existed". — Cockburn^s Mem,, 88. See also ibid., 282, 302, 376.
* St. Tr., xxvii. 679; Erskine's Speeches, v. 213; Lord Campbell's Chan- cellors, vi. 517.
^ ;^5,ooo was subscribed for him, but he died a fortnight after his release. Mr. Fox, writing ist March, 1799, to Mr. Gilbert Wakefield, says : " The liberty of the press I consider as virtually destroyed by the proceedings against Johnson and Jordan ; and what has happened to you I cannot but lament, therefore, the more, as the sufferings of a man whom I esteem, in a cause that is no more ". — Fox Mem., iv. 337. And again on 9th June; "Nothing could exceed the con- cern I felt at the extreme severity (for such it appears to me) of the sentence pronounced against you ". — Ibid., 339.
''This libel was as follows : —
" The Emperor of Russia is rendering himself obnoxious to his subjects by various acts of tyranny, and ridiculous in the eyes of Europe by his inconsistency. He has now passed an edict prohibiting the exportation of timber, deals, etc. In consequence of this ill-timed law, upwards of one hundred sail of vessels are likely to return to this kingdom without freights."
"Lord Kenyon said: "When these papers went to Russia and held up this great sovereign as being a tyrant and ridiculous over Europe, it might tend to his calling for satisfaction as a national affront, ii it passed unreprobated by
64 THE CONSTITUTIONAL HISTORY OF ENGLAND
The First From such a case, it is refreshing to turn to worthier prin-
the"Eneli^h ^iplcs of freedom and independence of foreign dictation. Press, 1802. However often liberty may have been invaded, it has ever formed the basis of our laws. When the First Consul, during the peace of Amiens, demanded that liberty of the press in England should be placed under restraints not recognised by the constitution, he was thus answered by the British Govern- ment : —
" His Majesty neither can nor will, in consequence of any representation or menace from a foreign power, make any concession which may be in the smallest degree dangerous to the liberty of the press, as secured by the constitution of this country. This liberty is justly dear to every British subject : the constitution admits of no previous restraints upon publica- tions of any description : but there exist judicatures wholly independent of the executive, capable of taking cognisance of such publications as the law deems to be criminal ; and which are bound to inflict the punishment the delinquents may de- serve. These judicatures may investigate and punish not only libels against the Government andmagistracy of this kingdom, but, as has been repeatedly experienced, of publications de- famatory of those in whose hands the administration of foreign Governments is placed. Our Government neither has, nor wants, any other protection than what the laws of the country afford ; and though they are willing and ready to give to every foreign Government all the protection against offences of this nature, which the principle of their laws and constitu- tion will admit, they never can consent to new-model their laws, or to change their constitution, to gratify the wishes of any foreign power."^ Trial of Jean ^"^ without any departure from the law of England, the Peltier, 21st libeller of a foreign power could be arraigned ; ^ and this cor- '' respondence was followed by the memorable trial of Jean
Peltier.^ Mr. Mackintosh, in his eloquence and masterly de-
our Government and our courts of justice". — Trial of Vint, Ross, and Perry ; St. Tr., xxvii. 627 ; Starkie's Law of Libel, ii. 217.
* Lord Hawkesbury to Mr. Merry, 28th Aug., 1802 ; Pari. Hist., xxxvi. 1273.
' R. V. D'Eon, 1764 ; Starkie's Law of Libel, ii. 216 ; R. v. Lord George Gordon, 1787 ; St. Tr., xxii. 175 ; Vint, Ross, and Perry, 1799, supra, p. 63.
^ Letter from M. Otto to Lord Hawkesbury, 25th July, 1802 ; Pari. Hist., xxxvi. 1267.
LIBERTY OF OPINION 65
fence of the defendant/ dreaded this prosecution " as the first of a long series of conflicts between the greatest power in the world and the only free press remaining in Europe " ; and maintained, by admirable arguments and illustrations, the im- policy of restraining the free discussion of questions of foreign policy, and the character and conduct of foreign princes, as affecting the interests of this country. The genius of his advocate did not save Peltier from a verdict of guilty : but as hostilities with France were soon renewed, he was not called up for judgment.^ Meanwhile the First Consul had continued to express his irritation at the English newspapers, between which and the newspapers of France a warm controversy was raging ; and finding that they could not be repressed by law, he desired that the Government should at least restrain those newspapers which were supposed to be under its influence. But here again he was met by explanations concerning the in- dependence of English editors, which he found it difficult to comprehend ; ^ and no sooner was war declared, than all the newspapers joined in a chorus of vituperation against Napoleon Bonaparte, without any fears of the attorney-general.
In following the history of the press, we now approach William names familiar in our own time. William Cobbett, having 5'°*]''^* g^ outraged the republican feelings of America by his loyalty, now provoked the loyal sentiments of England by his radical- ism. His strong good sense, his vigorous English style, and the bold independence of his opinions, soon obtained for his " Political Register " a wide popularity. But the unmeasured terms in which he assailed the conduct and measures of the Government exposed him to frequent prosecutions. In 1804, he suffered for the publication of two letters from an Irish judge, ridiculing Lord Hardwicke, Lord Redesdale, and the Irish executive.* Ridicule being held to be no less an offence than graver obloquy, Cobbett was fined ; and Mr. Justice
' The Attorney-General (Spencer Perceval) spoke of it as " one of the most splendid displays of eloquence he ever had occasion to hear " ; and Lord Ellen- borough termed it "eloquence almost unparalleled".
* St. Tr., xxviii. 529.
^ Lord Whitworth to Lord Hawkesbury, 27th Jan., and 2i8t Feb., 1803.
* There was far more of ridicule than invective. Lord Hardwicke was termed " a very eminent sheep-feeder from Cambridgeshire " with " a wooden head " ; and Lord Redesdale " a very able and strong-built chancery pleader from Lin- coln's Inn".
VOL. n. 5
66 THE CONSTITUTIONAL HISTORY OF ENGLAND
His libel on the German legion, 1809.
Messrs. John and Leigh Hunt, 24th Feb., 1811.
The " Stam- ford News," 13th March, 1811.
Johnson, the author of the libels, retired from the bench with a pension.^
In 1809, another libel brought upon Cobbett a severer punishment. Some soldiers in a regiment of militia having been flogged, under a guard of the German legion, Cobbett seized the occasion for inveighing at once against foreign mercenaries and military flogging. He was indicted for a libel upon the German legion ; and being found guilty, was sentenced to two years' imprisonment, a fine of £1 ,000, and to give security for ;^3,ooo, to keep the peace for seven years. The printer of the Register, and two persons who had sold it, were also punished for the publication of this libel. The ex- treme severity of Cobbett's sentence excited a general sympathy in his favour, and indignation at the administration of the libel laws.2
Another similar case illustrates the grave perils of the law of libel. In 181 1, Messrs. John and Leigh Hunt were prose- cuted for the re-publication of a spirited article against military flogging from the " Stamford News ". They were defended by the vigour and eloquence of Mr. Brougham, and were acquitted.^
Yet a few days afterwards, John Drakard, the printer of the "Stamford News," though defended by the same able advocate, was convicted at Lincoln for the publication of this very article.* Lord Ellenborough had laid it down that " it is competent for all the subjects of his Majesty, freely but tem- perately to discuss, through the medium of the press, every question connected with public policy ". But on the trial of Drakard, Baron Wood expressed opinions fatal to the liberty of the press. " It is said that we have a right to discuss the acts of our legislature. This would be a large permission in- deed. Is there, gentlemen, to be a power in the people to counteract the acts of the Parliament ; and is the libeller to come and make the people dissatisfied with the Government
1 St. Tr., xxix. I, 54, 422, 437; Hans. Deb., ist Ser., v. 119.
* Sydney Smith, in a letter to Lady Holland, nth Feb., 1810, said : " Who would have mutinied for Cobbett's libel ? or who would have risen up against the German soldiers ? and how easily might he have been answered ? He de- served some punishment ; but to shut a man up in gaol for two years for such an offence is most atrocious." — Sydney Smith's Mem., ii. 86.
» St. Tr., xxxi. 367. * Ibid., 495.
LIBERTY OF OPINION 67
under which he lives? This is not to be permitted to any man — it is unconstitutional and seditious." ^ Such doctrines were already repugnant to the law : but a conviction obtained by their assertion from the bench, proves by how frail a thread the liberty of the press was then upheld.
The last three years before the regency were marked by Last three unusual activity, as well as rigour, in the administration of the thrregency. libel laws. Informations were multiplied ; and the attorney- general was armed with a new power of holding the accused to bail.^
It is now time again to review the progress of the press Progress of during this long period of trial and repression. Every excess ^ ^'^^^* and indiscretion had been severely visited : controversial license had often been confounded with malignant libel : but the severities of the law had not subdued the influence of the press. Its freedom was often invaded : but its conductors were ever ready to vindicate their rights with a noble courage and persistence. Its character was constantly improving. The rapidity with which intelligence of all the incidents of the war was collected — in anticipation of official sources — increased the public appetite for news : its powerful criticisms upon military operations, and foreign and domestic policy, raised its reputa- tion for judgment and capacity. Higher intellects, attracted to its service, were able to guide and instruct public opinion. Sunday newspapers were beginning to occupy a place in the periodical press — destined to future eminence — and attempts to repress them, on the grounds of religion and morality, had failed.^ But in the press, as in society, there were many grades ; and a considerable class of newspapers were still wanting in the sobriety, and honesty of purpose necessary to maintain the permanent influence of political literature. They
^St. Tr., xxxi. 535.
2 From 1808 to i8ii, forty-two informations were filed, of which twenty-six were brought to trial. — Lords' Deb. on Lord Holland's motion, 4th March, i8ii Hans. Deb., ist Ser., xix. 140 ; Commons' Deb. on Lord Folkestone's motion, 28th March, 1811, ibid., 548; Ann. Reg., 1811, p. 142; Romilly's Life, ii. 380 ; Horner's Life, ii. 139.
^ In 1799, Lord Belgrave, in concert with Mr. Wilberforce, brought in a bill for that purpose, which was lost on the second reading. Its loss was attributed by its promoters to the fact that three out of the four Sunday newspapers sup- ported the Government. — Pari. Hist., xxxiv. 1006; Life of Wilberforce, ii. 424.
5*
68 THE CONSTITUTIONAL HISTORY OF ENGLAND
were intemperate and too often slanderous.^ A lower class of papers, clandestinely circulated in evasion of the stamp laws, went far to justify reproaches upon the religion and decency of the press. The ruling classes had long been at war with the press ; and its vices kept alive their jealousies and prejudice. They looked upon it as a noxious weed, to be rooted out, rather than a plant of rare excellence, to be trained to a higher cultivation. Holding public writers in low esteem — as instru- ments of party rancour — they failed to recognise their trans- cendent services to truth and knowledge. ^
But all parties, whether regarding the press with jealousy or favour, were ready to acknowledge its extraordinary influence in affairs of State. " Give me," said Mr. Sheridan, " but the liberty of the press, and I will give the Minister a venal House of Peers — I will give him a corrupt and servile House of Com- mons— I will give him the full swing of the patronage of office — I will give him the whole host of Ministerial influence — I will give him all the power that place can confer upon him to purchase submission, and overawe resistance ; and yet, armed with the liberty of the press, I will go forth to meet him un- dismayed : I will attack the mighty fabric he has reared with that mightier engine : I will shake down from its height cor- ruption, and lay it beneath the ruins of the abuses it was meant to shelter".^
^In his defence of John and Leigh Hunt, in 1811, Mr. Brougham gave a highly coloured sketch of the licentiousness of the press : " There is not only no personage so important or exalted — for of that I do not complain — but no person so humble, harmless, and retired, as to escape the defamation which is daily and hourly poured forth by the venal crew, to gratify the idle curiosity, or still less excusable malignity ; to mark out, for the indulgence of that propensity, individuals retiring into the privacy of domestic life ; to hunt them down and drag them forth as a laughing stock to the vulgar, has become, in our days, with some men, the road even to popularity ; but with multitudes the means of earn- ing a base subsistence". — St. Tr., xxxi. 380.
2 In 1808, the benchers of Lincoln's Inn passed a bye-law, excluding all persons who had written for hire, in the daily papers, from being called to the bar. The other Inns of Court refused to accede to such a proposition. On the 23rd March, 1809, Mr, Sheridan presented a petition complaining of this bye- law, which was generally condemned in debate, and it was soon afterwards rescinded by the benchers. — Lord Colchester's Diary, ii. 240. In 1810, Mr. Windham spoke of the reporters as having amongst them "bankrupts, lottery- office keepers, footmen, and decayed tradesmen ". And he understood the con- ductors of the press to be '* a set of men who would give in to the corrupt misrepreseutation of opposite sides". — Hans, Deb., ist Ser., xv. 330.
»6th Feb., 1810, ibid., 341.
CHAPTER X.
Repressive policy of the regency — Measures of 1817 — The Manchester meeting, 18 19 — The Six Acts — Advancing power of public opinion — The Catholic Association — Freedom of the press assured — Pol- itical unions, and the Reform agitation — Repeal agitation — Orange lodges — Trades' unions — The Chartists — The Anti-Corn- Law League — General review of political agitation.
The regency was a period memorable for the discontents and Lord turbulence of the people, and for the severity with which they Secretary of were repressed. The working classes were suffering from the State, 1812. grievous burthens of the protracted war, from the high prices of food, from restraints upon trade, and diminished employ- ment. Want engendered discontent ; and ignorant and suffer- ing men were misled into disorder, tumult, and violence. In June, 1 81 2, Lord Sidmouth was appointed Secretary of State. Never was statesman more amiable and humane : but falling upon evil times, and committed to the policy of his generation, his rule was stern and absolute.
The mischievous and criminal outrages of the " Luddites," The Ludd- and the measures of repression adopted by the Government, '*^^' ^^^^' must be viewed wholly apart from the history of freedom of opinion. Bands of famished operatives in the manufacturing districts, believing their distresses to be due to the encroach- ment of machinery upon their labour, associated for its destruction. Bound together by secret oaths, their designs were carried out with intimidation, outrage, incendiarism, and murder. 1 Life and property were alike insecure; and it was the plain duty of the Government to protect them, and punish the wrong-doers. Attempts, indeed, were made to confound the ignorance and turbulence of a particular class, suffering
^ A full account of these lawless excesses will be found in the State Trials, xxxi. 959 ; Ann. Reg., 1812, pp. 54-66, etc. The Reports of the Secret Committees, 14th July, 1812, are extremely meagre; Hans. Deb., ist Ser., xxiii. 951, 1029.
69
70 THE CONSTITUTIONAL HISTORY OF ENGLAND
Riots, 1815, 1816.
Outrage on Prince Regent, 283i Jan., 1817.
under a specific grievance, with a general spirit of sedition. It was not enough that the frame-breakers were without work and starving ; that they were blind to the causes of their dis- tress ; and that the objects of their fury were near at hand : but they were also accused of disaffection to the State. ^ In truth, however, their combinations were devoid of any political aims; and the measures taken to repress them were free from just imputations of interference with the constitutional rights of the subject. They were limited to the particular evil, and provided merely for the discovery of concealed arms in the disturbed districts, the dispersion of tumultuous assemblies, and the en- largement of the jurisdiction of magistrates, so as to prevent the escape of offenders.'^
In 1 81 5, the unpopular Corn Bill — expressly designed to raise the price of food — was not passed without riots in the metropolis.^ In the following year there were bread riots and tumultuous assemblages of workmen at Nottingham, Man- chester, Birmingham, and Merthyr Tydvil. London itself was the scene of serious disturbances.^ All these were repressed by the executive Government, with the ordinary means placed at its disposal.
But in 1 81 7, the excesses of mischievous and misguided men led, as on former occasions, to restraints upon the public liberties. On the opening of Parliament some bullets, stones, or other missiles, struck the state carriage of the prince regent, on his return from the House of Lords. ^ This outrage was followed by a message from the prince regent, communicating to both Houses papers containing evidence of seditious prac- tices. These were referred to secret committees, which re- ported that dangerous associations had been formed in different parts of the country, and other seditious practices carried on which the existing laws were inadequate to prevent Attempts had been made to seduce soldiers ; arms and banners had been
1 Hans. Deb., ist Ser., xxiii. 962, gg6, etc. ; Pellcw's Life of Lord Sidmouth, iii. 79-96.
» 52 Geo, in. c. 162.
3 Ann. Reg., 1815, p. 140 ; Pellew's Life of Lord Sidmouth, iii. 125.
*Ibid., 143-162; Bamford's Passages in the Life of a Radical, i. 7, etc. ; Ann. Reg., 1816, p. 95.
• Evidence of Lord James Murray ; Hans. Deb., ist Ser. , xxxv. 34 ; Ann. Reg., 1817, p. 3.
LIBERTY OF OPINION 71
provided, secret oaths taken, insurrection plotted, seditious and blasphemous publications circulated. The gaols were to be broken open, and the prisoners set free : the Bank of England and the Tower were to be stormed : the Government sub- verted : property plundered and divided. Hampden clubs were plotting revolution : Spenceans were preparing to hunt down the owners of the soil, and the " rapacious fundholders "}
The natural consequence of these alarming disclosures was Repressive a revival of the repressive policy of the latter years of the last ^^^^ures century, to which this period affords a singular parallel. The Act of 1795, for the protection of the king from treasonable attempts, was now extended to the prince regent ; and another Act renewed, to restrain the seduction of soldiers and sailors from their allegiance. To such measures none could object : but there were others, directed by the same policy and con- siderations as those which on former occasions, had imposed restraints upon public liberty. Again, the criminal excesses of a small class were accepted as evidence of wide-spread disaffec- tion. In suffering and social discontent were detected the seeds of revolution ; and to remedies for partial evils were added jealous restrictions upon popular rights. It was proposed to extend the Acts of 1795 and 1799, against corresponding societies, to other political clubs and associations whether affili- ated or not : to suppress the Spencean clubs, to regulate meet- ings of more than fifty persons, to license debating societies ; and lastly, to suspend the Habeas Corpus Act. 2 These mea- sures, especially the latter, were not passed without remon- strance and opposition. It was maintained that the dangers were exaggerated, that the existing laws were sufficient to repress sedition, and that no encroachment should be suffered on the general liberties of the people, for the sake of reaching a few miscreants whom all good citizens abhorred. While the inadequacy of the means of the conspirators to carry out their fearful designs was ridiculed, it was urged that the executive were already able to cope with sedition, to put down secret
1 Reports of Secret Committees, Lords and Commons; Hans. Deb., ist Ser,, XXXV. 411, 438.
2 Speeches of Lord Sidmouth in the House of Lords, and Lord Castlereagh in the House of Commons; Hans. Deb., 1st Sen, xxxv. 551, 590; Pellew's Life of Lord Sidmouth, iii, 172 ; Acts 57 Geo. HL c. 3, 6, 7, ig.
72 THE CONSTITUTIONAL HISTORY OF ENGLAND
Trials of Watson and others, 1817.
Derbyshire insurrec- tion, 1817.
and other unlawful societies, and to restrain the circulation of blasphemous and seditious libels. But so great was the power of the Government, and so general the repugnance of society to the mischievous agitation which it was proposed to repress, that these measures were rapidly passed through both Houses, without any formidable opposition,^
The restraints upon public liberty expired in the follow- ing year : but other provisions, designed to ensure Parliament against intimidation and insult, were allowed a permanent place in our constitutional law. Public meetings were prohibited within a mile of Westminster Hall during the sitting of Par- liament or the courts ; and to arrest the evil of conventions assuming to dictate to the legislature, restraints were imposed on the appointment and co-operation of delegates from different societies. 2
The State prosecutions for treason were as infelicitous as those of 1794, which had been undertaken under similar cir- cumstances. James Watson, Arthur Thistlewood, James Wat- son the younger, Thomas Preston, and John Hooper, were indicted for high treason, arising out of a riotous meeting in Spa Fields, which they had called together, and other riotous and seditious proceedings for which none will deny that they deserved condign punishment. They were entitled to no sympathy as patriots or reformers ; and the wickedness of their acts was only to be equalled by their folly. But the Government, not warned by the experience of 1794, indicted them, not for sedition and riot, of which they were unques- tionably guilty, but for treason ; and so allowed them to escape with impunity.^
In the month of June disturbances, approaching the char- acter of insurrection, broke out in Derbyshire ; and the ring- leaders were tried and convicted. Brandreth, commonly known as the Nottingham Captain, Turner and Ludlam, were exe- cuted : Weightman and twenty-one others received his Ma- jesty's pardon, on condition of transportation or imprisonment ;
I
' For the third reading of the Habeas Corpus Suspension Bill there were 265 votes against 103 — the minority including nearly all the Opposition. — Hans. Deb., 1st Ser., XXXV. 822 ; Edinburgh Review, Aug., 1817, pp. 524-543.
* 57 Geo. III. c. 19, §§ 23, 25 ; amended by 9 & 10 Vict. c. 33.
^St. Tr., xxxii. i, 674; Pellew's Life of Lord Sidmouth, iii. 158.
LIBERTY OF OPINION 73
and against twelve others no evidence was offered by the attorney-general.^
When the repressive measures of this session had been Lord Sid- passed, the Government commenced a more rigorous execution ^°c"ular of the laws against the press. 'Lord Sidmouth addressed a 27th March, circular letter to the lords lieutenants of counties, acquainting ^ ^^' them that the law officers of the Crown were of opinion, that a justice of the peace may issue a warrant to apprehend any person charged on oath with the publication of a blasphemous or seditious libel, and compel him to give bail to answer the charge ; and desiring them to communicate this opinion to the magistrates at the ensuing quarter sessions, and to recommend them to act upon it. He further informed them that the vendors of pamphlets or tracts should be considered as within the provisions of the Hawkers' and Pedlars' Act, and should be dealt with accordingly, if selling such wares without a license. Doubts were immediately raised concerning the law- Its lawful- fulness and policy of this circular; and the question was "j^^^^^"^^" brought by Earl Grey before the Lords,^ and by Sir Samuel May and Romilly before the Commons.^ Their arguments were briefly jg^-^""®' these. The law itself, as declared in this circular, was ably contested, by reference to authorities and principles. It could not be shown that justices had this power by common law : it had not been conferred by statute ; nor had it been recognised by any express decision of the courts. But at all events, it was confessedly doubtful, or the opinion of the law officers would not have been required. In 1808, it had been doubted if judges of the Court of King's Bench could commit or hold to bail persons charged with the publication of libels, before indictment or information ; and this power was then conferred by statute.* But now the right of magistrates to commit, like the judges, was determined, neither by Parliament, nor by any judicial authority, but by the Crown, through its own executive officers. The Secretary of State had interfered with the dis- cretion of justices of the peace. What if he had ventured to
^St. Tr., xxxii. 755-1394; Pellew's Life of Lord Sidmouth, iii. 179-183; Re- ports on the state of the country; Hans. Deb., ist Sen, xxvii. 568, 679.
*i2th May, 1817 (Lords) ; Hans. Deb., ist Ser., xxxvi. 445. See also Lord Sidmouth's Life, iii. 176.
*25th June (Commons); Hans. Deb., ist Sen, xxxvi. 1158.
*48 Geo. HL c. 58.
74 THE CONSTITUTIONAL HISTORY OF ENGLAND
Powers exercised against the press, 1817.
deal, in such a manner, with the judges? The justices had been instructed, not upon a matter of administration, or police, but upon their judicial duties. The constitution had main- tained a separation of the executive and judicial authorities : but here they had been confounded. The Crown, in declaring the law, had usurped the province of the legislature ; and in instructing the magistrates, had encroached upon an indepen- dent judicature. And, apart from these constitutional con- siderations, it was urged that the exercise of such powers by justices of the peace was exposed to grave abuses. Men might be accused before a magistrate, not only of publishing libels, but of uttering seditious words : they might be accused by spies and informers of incautious language, spoken in the con- fidence of private society ; and yet, upon such testimony, they might be committed to prison by a single magistrate — possibly a man of violent prejudices and strong political prepossessions.
On the part of Ministers it was replied that magistrates, embarrassed in the discharge of their duties, having applied to the Secretary of State for information, he had consulted the law officers, and communicated their opinion. He had no desire to interfere with their discretion, but had merely pro- mulgated a law. The law had been correctly expounded, and if disputed, it could be tried before a court of law on a writ of habeas corpus. But, in the meantime, unless the hawkers of seditious tracts could be arrested, while engaged in their per- nicious traffic, they were able to set the police at defiance. Whatever the results of these discussions, they at least served as a warning to the executive, ever to keep in view the broad principle of English freedom, which distinguishes independent magistrates from prefects of police.
Threatening, indeed, were now the terrors of the law. While every justice of the peace could issue his warrant against a supposed libeller, and hold him to bail ; the Secretary of State, armed with the extraordinary powers of the Habeas; Corpus Suspension Act, could imprison him, upon bare sus- picion, and detain him in safe custody, without bringing him to trial. The attorney-general continued to wield his terrible ; ex officio informations, holding the accused to bail, or keeping • them in prison in default of it, until their trial.^ Defendants]
J 48 Geo. III. c. 58.
LIBERTY OF OPINION 75
were punished, if convicted, with fine and imprisonment, and even if acquitted, with ruinous costs. Nor did the judges spare any exertion to obtain convictions. Ever jealous and distrust- ful of the press, they had left as little discretion to juries as they were able ; and using freely the power reserved to them by the Libel Act of 1792, of stating their own opinion, they were eloquent in summing up the sins of libellers.^
William Cobbett, who had already suffered from the severi- Cobbett's ties of the attorney-general, was not disposed to brave thej^^*^^^^ Secretary of State, but suspended his " Political Register," and England, sailed to America. " I do not retire," said he, " from a com- bat with the attorney-general : but from a combat with a dungeon, deprived of pen, ink, and paper. A combat with the attorney-general is quite unequal enough. That, however, I would have encountered. I know too well what a trial by special jury is : yet that, or any sort of trial, I would have stayed to face. But against the absolute power of imprison- ment, without even a hearing, for time unlimited, in any gaol in the kingdom, without the use of pen, ink, and paper, and without communication with any soul but the keepers, — against such a power it would have been worse than madness to attempt to strive."^
Ministers had silenced and put to flight their most formid- Trials of able foe : but against this success must be set their utter ^°"^' ^^^7- discomfiture by an obscure bookseller, who would never have been known to fame had he not been drawn out from his dingy shop into a court of justice. William Hone had pub- lished some political squibs, in the form of parodies upon the liturgy of the Church ; and for this pitiful trash was thrice put upon his trial, for blasphemous and seditious libels. Too poor to seen professional aid, he defended himself in person. But he was a man of genius in his way ; and with singular in- genuity and persistence, and much quaint learning, he proved himself more than a match for the attorney-general and the bench.
In vain did Lord Ellenborough, uniting the authority of the judge with the arts of a counsel, strive for a conviction. Addressing the jury, " under the authority of the Libel Act,
^Lord Campbell's Lives of the Chancellors, vi. 517. 2 Political Register, 28th March, 1817.
76 THE CONSTITUTIONAL HISTORY OF ENGLAND
Trials in Scotland.
M'Laren and Baird, 5tb March, 1817.
Neil
Douglas,
1817.
and still more in obedience to his conscience and his God, he pronounced this to be a most impious and profane libel ". But the jury were proof alike against his authority and his per- suasion. The humble bookseller fairly overcame the awful chief justice; and after intellectual triumphs which would have made the reputation of a more eminent man, was thrice acquitted.^
These proceedings savoured so strongly of persecution, that they excited a wide sympathy for Hone, amongst men who would have turned with disgust from his writings ; and his trial, in connection with other failures, ensured at least a tem- porary mitigation of severity in the administration of the libel laws. 2
At this time some trials in Scotland, if they remind us of 1793, afford a gratifying contrast to the administration of justice at that period. Alexander M'Laren, a weaver, and Thomas Baird, a grocer,^ were tried for sedition before the High Court of Justiciary at Edinburgh. The weaver had made an intemperate speech at Kilmarnock, in favour of Par- liamentary reform, which the grocer had been concerned in printing. It was shown that petitions had been received by Parliament, expressed in language at least as strong : but the accused, though defended by the admirable arguments and eloquence of Francis Jeffrey, were found guilty of sedition.*
Neil Douglas, " Universalist Preacher," had sought to en- liven his prayers and sermons with political lucubrations ; and spies being sent to observe him, reported that the fervid preacher, with rapid utterance, and in a strong highland dia- lect, had drawn a seditious parallel between our afflicted king and Nebuchadnezzar, King of Babylon ; and between the prince regent and King Belshazzar. The Crown witnesses, unused to the eccentricities of the preacher, had evidently failed to comprehend him ; while others, more familiar with Neil
1 Mr. Justice Abbott presided at the first trial ; Lord Ellenborough at the second and third. Lord Ellenborough felt his defeat so sensibly, that on the following day he sent to Lord Sidmouth the draft of a letter of resignation. — PelUw's Life of Lord Sidmouth, iii, 236 ; Hone's Printed Trials ; Mr. Charles Knight's Narrative in Martineau's Hist., i. 144.
^ Lord Dudley's Letters, igg.
' So stated in evidence, St. Tr., xxxiii. 22, though called in the indictment " a merchant".
* St. Tr., xxxiii. i.
LIBERTY OF OPINION 77
Douglas, his dialect, opinions, and preaching, proved him to be as innocent of sedition as he probably was of religious edi- fication. He was ably defended by Mr. Jeffrey, and acquitted by the jury.^
But the year 1819 was the culminating point of the pro- Public tracted contest between the State and liberty of opinion, ^^jg^'"^^ '" Distress still weighed heavily upon the working classes. They assembled at Carlisle, at Leeds, at Glasgow, at Ashton-under- Line, at Stockport, and in London, to discuss their wants, and to devise remedies for their destitution. Demagogues were prompt in giving a political direction to their deliberations ; and universal suffrage and annual Parliaments were soon ac- cepted as the sovereign remedy for the social ills of which they complained. It was affirmed that the constitutional right to return members belonged to all communities. Unrepre- sented towns were invited to exercise that right, in anticipation of its more formal acknowledgment ; and accordingly, at a large meeting at Birmingham, Sir Charles Wolseley was elected "legislatorial attorney and representative" of that populous place. ^
Other circumstances contributed to invest these large as- State of the
semblages with a character of peculiar insecurity. A great r^^""^*^^"""' o r / fc. ,ng popula-
social change had been rapidly developed. The extraordinary tion. growth of manufactures had suddenly brought together vast populations, severed from those ties which usually connect the members of a healthy society. They were strangers — deprived of the associations of home and kindred, without affection or traditional respect for their employers, and baffling, by their numbers, the ministrations of the Church and the softening influence of charity. Distressed and discontented, they were readily exposed to the influence of the most mischievous por- tion of the press, and to the lowest demagogues ; while so great were their numbers, and so densely massed together, that their assemblages assumed proportions previously un- known ; and became alarming to the inhabitants and magis- tracy, and dangerous to the public peace.
These crowded meetings, though addressed in language of
^ St. Tr., xxxiii. 634.
'^ Ann. Reg., 1819, p. 104. Sir Charles was afterwards arrested, while attend- ing a meeting at Smithfield, for seditious words spoken by him at Stockport.
78 THE CONSTITUTIONAL HISTORY OF ENGLAND
Proclama- tion, 30th July, 1819.
Meeting at Manchester dispersed, i6th Aug., 1819.
excitement and extravagance, had hitherto been held without disturbance. The Government had watched them, and taken precautions to repress disorder: but had not attempted any interference with their proceedings. On the 30th July, how- ever, a proclamation was issued against seditious meetings ; and large assemblages of men were viewed with increased alarm by the Government and magistracy.
Following the example of Birmingham,^ the reformers of Manchester appointed a meeting for the 9th of August, for the election of a " legislatorial attorney " : but the magistrates having issued a notice declaring an assemblage for such a purpose illegal, another meeting was advertised for the i6th, to petition for Parliamentary reform. Great preparations were made for this occasion ; and in various parts of Lancashire large bodies of operatives were drilled, in the night time, and practised in military training. It was the avowed object of this drilling to enable the men to march in an orderly manner to the meeting: but the magistrates were, not unnaturally, alarmed at demonstrations so threatening.
On the 1 6th, St. Peter's Field, in Manchester, became the scene of a deplorable catastrophe. Forty thousand men ^ and two clubs of female reformers, marched into the meeting, bear- ing flags, on which were inscribed the objects of their political faith — " Universal Suffrage," "Equal Representation or Death," and "No Corn Laws". However menacing their numbers, their conduct was orderly and peaceful. Mr. Hunt having taken the chair, had just commenced his address when he was interrupted by the advance of cavalry upon the people. The Manchester Yeomanry, having been sent by the magistrates to aid the chief constable in arresting Mr. Hunt, and other reform leaders, on the platform, executed their instructions so awk- wardly as to find themselves surrounded and hemmed in by the dense crowd, and utterly powerless. The 15th Hussars, now summoned to their rescue, charged the people sword in hand ; and in ten minutes the meeting was dispersed, the
' At the Leeds meeting it had been resolved that a similar election should take place, when a suitable candidate had been found : but no representative had been chosen. — Ann. Reg., 1819, p. 105.
* It was variously estimated at from 20,000 to 60,000. Lord Liverpool said 2o,ooo; Lord Castlereagh, 40,000. In the indictment against Hunt and others it was laid at 60,000.
LIBERTY OF OPINION 79
leaders were arrested, and the terrified crowd driven like sheep through the streets. Many were cut down by sabres, or trampled upon by the horses : but more were crushed and wounded in their frantic struggles to escape from the military. Between 300 and 400 persons were injured : but happily no more than five or six lives were lost.
This grievous event brought to a sudden crisis the anta- State of gonism between the Government and the popular right off^nng. meeting to discuss grievances. The magistrates complimented the military upon their forbearance : and the Government im- mediately thanked both the magistrates and the military for their zeal and discretion in maintaining the public peace. But it was indignantly asked — not by demagogues and men ignor- ant of the law, but by statesmen and lawyers of eminence — by whom the public tranquillity had been disturbed ? Other meetings had been held without molestation : why then was this meeting singled out for the inopportune vigour of the magistrates ? If it threatened danger, why was it not pre- vented by a timely exercise of authority? If Hunt and his associates had violated the law, why were they not arrested before or after the meeting ? Or if arrested on the hustings, why not by the civil power ? The people were.peaceable and orderly — they had threatened no one, they had offered no resistance. Then why had they been charged and routed by the cavalry ? It was even doubted if the Riot Act had been duly read. It had certainly not been heard ; and the crowd, without notice or warning, found themselves under the flash- ing swords of the soldiery.^
Throughout the country, " the Manchester Massacre," as it
' The evidence on this point was very confused. Earl Grey, after reading all the documents, affirmed that the Riot Act had not been read. Lord Liverpool said it had been completely read once, and partly read a second time. Lord Castlereagh said the Riot Act had been read from the v/indow of the house in which the magistrates were assembled. This not being deemed sufficient, another magistrate went out into the crowd to read it, and was trampled under foot. Another vainly endeavoured to read it at the hustings after the arrest of Mr. Hunt.
Hans. Deb., 1st Sen, xli. 4, 51, etc.; Pellew's Life of Lord Sidmouth, iii. 249 et seq. ; Ann. Reg., 1819, p. 106 ; Trial of Mr. Hunt and others, 1820 ; Ann. Reg., 1820; Chron., 41 ; Barn, and Aid. Rep., iii. 566; Papers laid before Par- liament, Nov., 1819 ; Hans. Deb., ist Ser., xli. 230 (Mr. Hay's statement) ; Bamford's Passages from the Life of a Radical, i. 176-213 ; Prentice's Man- chester, 160.
8o THE CONSTITUTIONAL HISTORY OF ENGLAND
inquiry.
Meetings and was termed, aroused feelings of anger and indignation. In- petitions for fluential meetings were held in many of the chief counties and cities, denouncing the conduct of the magistrates and the Government, and demanding inquiry. In the manufacturing districts, the working classes assembled, in large numbers, to express their sympathy with the sufferers, and their bitter spirit of resentment against the authorities. Dangerous dis- contents were inflamed into sedition. Yet all these excited meetings were held peaceably, except one at Paisley, where the magistrates having caused the colours to be seized, riots and outrages ensued/ But Ministers were hard and defiant. The Common Council of the City of London addressed the prince regent, praying for an inquiry, and were sternly re- buked in his reply. Earl Fitzwilliam, a nobleman of the highest character, who had zealously assisted the Government in the repression of disorders in his own county, joined the Duke of Norfolk and several other noblemen and gentlemen of the first importance, in a requisition to the High Sheriff of the county of York, to call a meeting for the same purpose. At this meeting he attended and spoke ; and was dismissed from his lord lieutenancy.'^ Hitherto the Whigs had discoun- tenanced the Radical reformers : but now the rigours of the Government forced them to make common cause with that party in opposing the measures of the executive.^
In the midst of this perilous excitement, Parliament was assembled, in November; and the Manchester meeting was naturally the first object of discussion. Amendments were moved to the Address, in the Lords by Earl Grey, and in the Commons by Mr. Tierney, reprobating all dangerous schemes : but urging the duty of giving just attention to the complaints of the people, and the propriety of inquiring into the events at Manchester.* It was the object of the Opposition to respond
Meeting of Parliament, 23rd Nov., 1S19.
' Ann. Reg., 1819, p. log.
'Pellew's Life of Lord Sidmouth, iii. 263-272; Ann. Reg., 1819, p. 113, and Lord Grey's observations ; Hans. Deb., ist Ser., xli. 11-15. The resolutions of this meeting, without condemning the magistrates, merely demanded inquiry.
*Lord Liverpool, writing to Lord Sidmouth, 30th Sept., 1819, said: "As far as the Manchester business goes, it will identify even the respectable part of the opposition with Hunt and the radical reformers ". — Pellew's Li/t of Lord Sid- mouth, iii. 270.
* Hans. Deb., ist Ser., xli. 4, 51 ; Lord Sidmouth's Life, iii. 297 et seq.
LIBERTY OF OPINION 8i
to the numerous meetings, petitions, and addresses, which had prayed for inquiry ; and to evince a spirit of sympathy and conciliation on the part of Parliament, which had been signally wanting in the Government. Earl Grey said, "there was no attempt at conciliation, no concession to the people ; nothing was attended to but a resort to coercion, as the only remedy which could be adopted ". " The natural consequences of such a system, when once begun, was that it could not be stopped : discontents begot the necessity of force : the employment of force increased discontents : these would demand the exercise of new powers, till by degrees they would depart from all the principles of the constitution." It was urged, in the language of Burke, that, " a House of Commons who, in all disputes between the people and administration, presume against the people — who punish their disorders, but refuse even to inquire into the provocations to them, — this is an unnatural, a mon- strous state of things, in such a constitution ".
But conciliation formed no part of the hard policy of Inquiry Ministers. Sedition was to be trampled out. The executive "^^ had endeavoured to maintain the peace of the country : but its hands must now be strengthened. In both Houses the amend- ments were defeated by large majorities ; ^ and a similar fate awaited distinct motions for inquiry, proposed, a few days afterwards, by Lord Lansdowne in the Lords, and Lord Althorp in the Commons.^
Papers were laid before Parliament containing evidence of The Six
Acts
the state of the country, which were immediately followed by the introduction of further measures of repression — then designated, and since familiarly known as, the " Six Acts ". The first deprived defendants in cases of misdemeanour of the right of traversing : to which Lord Holland induced the Chan- cellor to add a clause, obliging the attorney-general to bring defendants to trial within twelve months. By a second it was proposed to enable the court, on the conviction of a publisher of a seditious libel, to order the seizure of all copies of the libel in his possession, and to punish him, on a second conviction, with
^ In the Lords there were 159 for the Address, and 34 for the amendment. In the Commons, 381 for the Address, and 150 for the amendment. — Hans. Deb., 1st Ser., xH. 50, 228.
''soth Nov. Contents, 47; Non-contents, 178. Ayea, 150; Noes, 323,— • Ibid., 418, 517.
VOL. ^-11. 6
82 THE CONSTITUTIONAL HISTORY OF ENGLAND
fine, imprisonment, banishment, or transportation. By a third, the newspaper stamp duty was imposed upon pamphlets and other papers containing news, or observations on public affairs ; and recognizances were required from the publishers of news- papers and pamphlets for the payment of any penalty. By a fourth, no meeting of more than fifty persons was permitted to be held without six days' notice being given by seven house- holders to a resident justice of the peace ; and all but free- holders or inhabitants of the county, parish or township, were prohibited from attending, under penalty of fine and imprison- ment. The justice could change the proposed time and place of meeting: but no meeting was permitted to adjourn itself. Every meeting tending to incite the people to hatred and con- tempt of the king's person, or the Government and constitution of the realm, was declared an unlawful assembly ; and extraor- dinary powers were given to justices for the dispersion of such meetings, and the capture of persons addressing them. If any persons should be killed or injured in the dispersion of an unlawful meeting, the justice was indemnified. Attending a meeting with arms, or with flags, banners, or other ensigns or emblems, was an offence punishable with two years' imprison- ment. Lecture and debating rooms were to be licensed, and open to inspection. By a fifth, the training of persons in the use of arms was prohibited ; and by a sixth, the magistrates, in the disturbed counties, were empowered to search for and seize arms. The bills All these measures, except that for prohibiting military
opposed m training, were strenuously opposed in both Houses, They were justified by the Government on the ground of the dangers which threatened society. It was argued by Lord Castlereagh, " that unless we could reconcile the exercise of our liberties with the preservation of the public peace, our liberties would inevitably perish". It was said that blasphemous and seditious libels were undermining the very foundations of society, while public meetings, under pretence of discussing grievances, were as- sembled for purposes of intimidation, and the display of physi- cal force. Even the example of the French Revolution was not yet considered out of date : but was still relied on, in justification of these measures.^ On the other side, it was
^ See especially speech of Lord Grenville, 30th Nov., 1819, on Lord Lans- downe's motion for inquiry.— //ans. Dcb.^ ist Ser., xli. 448.
LIBERTY OF OPINION 83
contended that the libel laws were already sufficiently severe, and always liable to be capriciously administered. Writings, which at one time would be adjudged innocent and laudable, at another would be punished as subversive of the laws and constitution. Zealous juries would be too ready to confound invectives against Ministers with incitements to hatred and con- tempt of established institutions. The punishments proposed were excessive. Transportation had hitherto been confined to felonious offences ; and banishment was unknown to the laws of England. Such punishments would either deter juries from finding persons guilty of libel ; or, if inflicted, would be out of all proportion to the offence. The extent of the mischief was also denied. It was an unjust reproach to the religion of the country to suppose that blasphemy would be generally toler- ated, and to its loyalty, that sedition would be encouraged.
To the Seditious Meetings Bill it was objected that the constitutional right of assembling to discuss grievances was to be limited to the narrow bounds of a parish, and exercised at the pleasure of a magistrate — probably a stanch supporter of Ministers, jealous of popular rights, and full of prejudice against Radicals and mob orators. 1
These discussions were not without advantage. The mon- strous punishment of transportation was withdrawn from the Seditious Libels Bill ; and modifications were admitted into the bill for restraining seditious meetings : but these severe mea- sures were eventually passed with little change.'^
In presence of a novel development of popular meetings Distrust of in crowded districts. Ministers sought to prevent the assemblage *^^ people, of vast numbers from different parts, and to localise political discussion. Nor can it be denied that the unsettled condition and ignorance of the manufacturing population justified appre- hensions and precaution. The policy, however, which dictated these measures was not limited to the correction of a special danger : but was marked, as before, by settled distrust of the press and popular privileges. Ten years before it had been finely said by Mr. Brougham, " Let the public discuss ! So
* Hans. Deb,, ist Ser., xli. 343, 378, 594, etc.
2 60 Geo. III. and i Geo. IV. c. 1,2, 4, 6, 8, 9. All these were permanent, except the Seditious Meetings Act, which, introduced as a permanent measure, was afterwards limited to five years, and the Seizure of Arms Act, which expired on the 25th March, 1822,
6*
84 THE CONSTITUTIONAL HISTORY OF ENGLAND
much the better. Even uproar is wholesome in England, while a whisper is fatal in France." ^ But this truth had not yet been accepted by the rulers of that period."^ They had not yet learned to rely upon the loyalty and good sense of the people, and upon the support of the middle classes, in upholding order and repressing outrage. On the other hand, we cannot but recognise in the language of the Opposition leaders a bold con- fidence in their countrymen, and a prescient statesmanship, destined in a few years to be accepted as the policy of the State. Cato Street Disaffection, however, still prevailed ; and the evil passions
Fclf^i82o' °^ ^^^^ distempered period soon afterwards exploded in the atrocious conspiracy of Thistlewood and his miscreant gang. To the honour of Englishmen, few were guilty of plotting this bloody and insensate crime, the discovery of which filled all classes of men with horror and disgust.^ Trials of While the country was still excited by this startling event,
Sir c. Wolse- Hunt and his associates were convicted, with five others, of ley, 1820. unlawfully meeting together, with divers other persons un- known, for the purpose of creating discontent and disaffection, and of exciting the king's subjects to hatred of the Government and constitution. Hunt was sentenced to two years and six months' imprisonment, and the others to one year's imprison- ment. Sir Charles Wolseley and Harrison, a dissenting preacher, were also tried and sentenced to eighteen months' imprisonment for their participation in the Stockport meeting.* Let us now examine the general results of the long contest
' In defence of the " Stamford News ".
"Stringent as were the measures of the Government, they fell short of the views of the old Tory party. Mr. Bankes wrote to Lord Colchester, 31st Dec, 1819 : " My only doubt is whether we have gone far enough in our endeavour to restrain and correct the licentiousness and abuse of the press". — Lord Col- cJuster^s Diary , iii. 104.
Lord Redesdale, another type of the same school, wrote: " I doubt whether it would not have been fortunate for the country, if half Manchester had been burned, and Glasgow had endured a little singeing ". — To Lord Colchester, 4th Jan., 1820, ibid., iii. 107.
3 Ann. Reg., 1820, p. 34, and Chron., 29; St. Tr., xxxiii. 681 ; Pellew's Life of Lord Sidmouth, iii. 311-325. Lord Sidmouth himself says (p. 320): "Party feelings appeared to be absorbed in those of indignation, which the lower orders had also evinced very strikingly upon the occasion ".
*Ann. Reg., 1820, Chron., 41; Barn, and Aid. Rep., iii. 566; Bamford's Life of a Radical, ii. 56-103, 162.
I
LIBERTY OF OPINION 8$
which had been maintained between the ill-regulated, mischiev- Review of ous, and often criminal struggles of the people for freedom on between^^* the one hand, and the harsh policy of repression maintained authority and by the Government on the other. The last twenty-eight years opj" on° of the reign of George III. formed a period of perilous transi- tion for liberty of opinion. While the right of free discussion had been discredited by factious license, by wild and danger- ous theories, by turbulence and sedition, the Government and legislature, in guarding against these excesses, had discounten- anced and repressed legitimate agitation. The advocates of Parliamentary reform had been confounded with Jacobins, and fomenters of revolution. Men who boldly impeached the con- duct of their rulers had been punished for sedition. The discussion of grievances — the highest privilege of freemen — had been checked and menaced. The assertion of popu- lar rights had been denounced by Ministers, and frowned upon by society, until low demagogues were able to sup- plant the natural leaders of the people in the confidence of those classes who most needed safe guidance. Authority was placed in constant antagonism to large masses of people, who had no voice in the government of their country. Mutual distrust and alienation grew up between them. The people lost confidence in rulers whom they knew only by oppressive taxes, and harsh laws severely administered. The Govern- ment, harassed by suspicions of disaffection, detected conspir- acy and treason in every murmur of popular discontent.^
Hitherto the Government had prevailed over every adverse Final domi- influence. It had defied Parliamentary opposition by never- ^pj^^Qn^over failing majorities : it had trampled upon the press ; it had authority, stifled public discussion. In quelling sedition, it had forgotten to respect liberty. But henceforward, we shall find its suprem- acy gradually declining, and yielding to the advancing power and intelligence of the people. The working classes were making rapid advances in numbers, industrial resources and knowledge. Commerce and manufactures, bringing them
^ On i2th May, 1817, Earl Grey truly said : " It is no longer the encroach- ments of power of which we are jealous, but the too great extension of freedom. Every symptom of popular uneasiness, every ill-regulated effort of that spirit, without which liberty cannot exist, but which, whilst it exists, will break out into occasional excesses, affords a pretence which we seem emulous to seize, for im- posing on it new restraints". — Hdns. Deb., ist Ser., xxxvi. 446.
86 THE. CONSTITUTIONAL HISTORY OF ENGLAND
together in large masses, had given them coherence and force, education had been widely extended ; and discontent had quickened political inquiry. The press had contributed to the enlightenment of the people. Even demagogues who had misled them, yet stirred up their minds to covet knowledge and to love freedom. The numbers, wealth, and influence of the middle classes had been extended to a degree un- known at any former period. A new society had sprung up, outnumbering the limited class by whom the State was governed ; and rapidly gaining upon them in enlightenment and social influence. Superior to the arts of demagogues, and with every incitement to loyalty and patriotism, their ex- tended interests and important position led them to watch, with earnestness and sober judgment, the course of public affairs. Their views were represented by the best public writers of the time, whose cultivated taste and intellectual re- sources received encouragement from their patronage. Hence was formed a public opinion of greater moral force and author- ity. The middle classes were with Ministers in quelling sedi- tion : but against them when they menaced freedom. During the war they had generally sided with the Government : but after the peace, the unconciliatory policy of Ministers, a too rigorous repression of the press, and restraints upon public liberty, tended to estrange those who found their own temper- ate opinions expressed by the leaders of the Parliamentary Opposition. Their adhesion to the Whigs was the commence- ment of a new political era,^ fruitful of constitutional growth and renovation. Confidence was established between constitu- tional statesmen in Parliament and the most active and in- quiring minds of the country. Agitation, no longer left to demagogues and operatives, but uniting the influence of all classes under eminent leaders, became an instrument for influ- encing the deliberations of Parliament, as legitimate as it was powerful.
PVom this time, public opinion became a power which Ministers were unable to subdue, and to which statesmen of all parties learned, more and more, to defer. In the worst of times, it had never been without its influence : but from the
^ See supra, vol. i. p. 434.
J
LIBERTY OF OPINION , 87
accession of George IV. it gathered strength until it was able, as we shall see, to dominate over Ministers and Parliaments.
Meanwhile, the severities of the law failed to suppress The press not libels ^ or to appease discontents. Complaints of both evils ^"q^^^^ ^^ were as rife as ever. A portion of the press still abounded in libels upon public and private character, which the moral tone of its readers did not yet discourage. It was not in default of legal repression that such libels were published : but because they were acceptable to the vitiated taste of the lower classes of that day. If severity could have suppressed them, the un- thankful efforts of the attorney-general, the Secretary of State, and the magistrates, would have long since been crowned with success. But in 1821, the Constitutional Association of-TheCon- ficiously tendered its intervention in the execution of the law. society, The dangers of such a scheme had been exposed nearly thirty ^^^i. years before ; ^ and were at once acknowledged in a more en- lightened and dispassionate age. This association even ven- tured to address a circular to every justice of the peace, expounding the law of libel. An irresponsible combination, embracing magistrates and jurymen throughout the country, and almost exclusively of one political party, threatened the liberty of the press and the impartial administration of justice. The Court of King's Bench, sensible of these dangers, allowed members of the association to be challenged as jurors ; and discussions in Parliament, opportunely raised by Mr. Brougham and Mr. Whitbread, completed the discomfiture of those zealous gentlemen, whom the vigilance of Lord Sidmouth, the activity of the attorney-general, and the zeal of country justices had failed to satisfy.^ Had Ministers needed any incitement to vigour, they would have received it from the king himself, who took the deepest personal interest in prosecutions of the
* Mr. Fremantle, writing to the Marquess of Buckingham, 30th Aug., 1820, says : " The press is completely open to treason, sedition, blasphemy, and false- hood, with impunity ". " I don't know whether you see CohhetVs Independent Whig, and many other papers now circulating most extensively, and which are dangerous much beyond anything I can describe. I have an opportunity of see- ing them, and can speak, therefore, from knowledge." — Court and Cabinets of Geo. IV., i. 68; Cockburn's Mem., 308.
^ See supra, p. 36.
'Ann. Reg., 1821, p. 205; Edinb. Rev., vol. xxxvii. (1821), 114-131; Hans. Deb., 2nd Ser., v. 891, 1046, 1487-1491.
Association.
88 THE CONSTITUTIONAL HISTORY OF ENGLAND
press ; ^ and from men of rank and influence, who were over- sensitive to every political danger.^ Catholic The Government had soon to deal with a political organ-
isation more formidable than any which had hitherto needed its vigilance — the Catholic Association in Ireland. The ob- jects, constitution, and proceedings of this body demand es- pecial notice, as exemplifying the bounds within which political agitation may be lawfully practised. To obtain the repeal of statutes imposing civil disabilities upon five-sixths of the population of Ireland, was a legitimate object of association. It was no visionary scheme, tending to the subversion of the State : but a practical measure of relief, which had been urged upon the legislature by the first statesmen of the time. To attain this end, it was lawful to instruct and arouse the people, by speeches and tracts, and by appeals to their reason and feelings. It was also lawful to demonstrate to Parliament the unanimity and earnestness of the people, in demanding a re- dress of grievances; and to influence its deliberations by the moral force of a great popular movement. With these ob- jects, organisation, in various forms, had been at work for many years.^ In 1809, a Catholic committee had been formed in Dublin, of which Mr. O'Connell — destined to become a pro- minent figure in the history of his country — was a leading member. Active in the preparation of petitions, and holding weekly meetings, it endeavoured, by discussion and association, io arouse the Catholics to a sense of their wrongs.* In 181 1, it proposed to enlarge its constitution by assembling managers of petitions from all parts of Ireland : but this project was arrested by the Government, as a contravention of the Irish
' On gth January, 1821, his Majesty wrote to Lord Eldon : "As the courts of law will now be open within a few days, I am desirous to know the decision that has been taken by the attorney-general upon the mode in which all the vendors of treason, and libellers, such as Benbow, etc. etc., are to be prosecuted. This is a measure so vitally indispensable to my feelings, as well as to the country, that I must insist that no further loss of time should be suffered to elapse before proceedings be instituted." — Court and Cabinets of Geo. IV., i. 107.
^Ibid., 121, etc.; Lord Colchester's Mem., iii. 87, etc.
'The first association or committee was formed so far back as 1760. — Wyse's Cath. Asso., i. 69 ; O'Conor's Hist, of the Irish Catholics, i. 262. Another com- mittee was arranged in lyj^.—Wyse, i. 91 ; and a more general committee or association in i79». — Ibid., 104.
* Ibid., i. 142-165.
I
LIBERTY OF OPtNlOM &9
Convention Act, which prohibited the appointment of dele- gates or representatives.^ The movement now languished for several years ; - and it was not until 1823 that the Catholic Association was formed on a wider basis. ^ It embraced Catholic nobles, gentry, priesthood, peasantry ; ^ and though disclaiming a delegated authority, its constitution and objects made it, in effect, the representative of the Catholic body. Exclusively Catholic, its organisation embraced the whole of Ireland. Constantly increasing in numbers and influence, it at length assumed all the attributes of a national Parliament. It held its " sessions " in Dublin, appointed committees, re- ceived petitions, directed a census of the population of Ireland to be taken ; and, above all, levied contributions, in the form of a Catholic rent, upon every parish in Ireland.^ Its stirring addresses were read from the altars of all Catholic chapels, its debates — abounding in appeals to the passions of the people — were published in every newspaper. The speeches of such orators as O'Connell and Shell could not fail to com- mand attention : but additional publicity was secured to all the proceedings of the association by contributions from the Catholic rent.
In 1825, its power had become too great to be borne if the authority of the State was to be upheld. Either the Parliament at Westminster, or its rival in Dublin, must give way. The one must grant the demands of the Catholics, or the other must be silenced. Ministers were not yet prepared for the former alternative ; and determined to suppress the Catholic Association. This, however, was a measure of no ordinary difficulty. The association was not unlawful ; and was engaged in forwarding a legitimate cause. It could not be directly put down, without a glaring violation of the right of discussion and association. Agitation was not to be treated as lawful, so long as it was impotent ; and condemned when it was beginning to be assured of success. This embarrass-
^ 33 Geo. III. c. 29 (Ireland) ; see Debates, 22nd Feb., 7th March, and 4th April, 1811. — Hans. Deb., ist Ser., xix. 1-18, 269-321, 700; Wyse, i. 174-178.
''A Catholic board was formed, but soon dissolved. — Ibid., 179.
3 Ibid., 199. * Ibid., 205.
^ Hans. Deb., 2nd Ser., xi. 944 (31st May, 1824) ; ibid., xii. 171 et seq. (Feb. 10-15) ; Wyse, i. 208-217. Mr. Wyse assigns a later date to this census, i. 247 ; ibid., ii. App. xxxvii.
90 THE CONSTITUTIONAL HISTORY OF ENGLAND
ment was avoided by embracing in the same measure Orange Societies and other similar bodies, by which political and re- ligious animosities were fomented. Suppressed The king, on opening Parliament, adverted to '* associations
by i*"l'|- which have adopted proceedings irreconcilable with the spirit of the constitution " ; and a bill was immediately brought in loth Feb., to amend the laws relating to unlawful societies in Ireland. 1825. 'Y\{\s bill prohibited the permanent sittings of political societies
— the appointment of committees to continue more than four- teen days — the levying of money for the redress of grievances — the affiliation and correspondence of societies — the exclusion of persons on the ground of religion — and the administration of oaths. ^ It was strenuously resisted. Ministers were counselled to stay agitation by redressing grievances, rather than by vain attempts to prevent their free discussion. But so perilous was the state of Ireland, so fierce the hatred of her parties, and so full of warning her history, that a measure, otherwise open to grave constitutional objections, found justi- fication in the declared necessity of ensuring the public peace.^ Its operation, however, was limited to three years. But continued The Catholic Association was dissolved in obedience to fonn.° ^^ ^^^^ ^^^ '• ^"* ^^^ immediately replaced by a new association, constituted so as to evade the provisions of the recent law. This society professed to be established for promoting educa- tion, and other charitable objects ; and every week a separate meeting was convened, purporting to be unconnected with the association. " Fourteen days' meetings," and aggregate meet- ings were also held ; and at all these assemblies the same violent language was used, and the same measures adopted, as in the time of the original society. While thus eluding the recent statute, this astute body was beyond the reach of the common law, being associated neither for the purpose of doing any unlawful act, nor of doing any lawful act in an unlawful manner. It was equally unscathed by the Convention Act of 1793, as not professing a representative character. In other respects the new association openly defied the law. Per- manent committees were appointed, and the Catholic rent was
' 6 Geo. IV. c. 4.
' Hans. Deb., and Sen, xii. 2-122, 128-522, etc.
LIBERTY OF OPtNtON Qt
collected by their own "churchwardens" in every parish.^ The Government watched these proceedings with jealousy and alarm : but perceived no means of restraining them. The Act was about to expire at the end of the session of 1828 ; and, after very anxious consideration, Ministers determined not to propose its renewal. It could not have been made effectual without such restraints upon the liberty of speech, and public meetings, as they could not venture to recommend, and which Parliament would, perhaps, have declined to sanction.^
No sooner had the Act expired, than the old Catholic As- Catholic sociation, with all its organisation and offensive tactics, was ^.^^^^ ^'^^'^^^s. revived. At the same time, the Orange Societies were resusci- tated ; and other Protestant associations, called Brunswick Clubs, were established on the model of the Catholic Associa- tion, and collected a Protestant rent.^
Meanwhile, the agitation fomented by the Catholic Associa- Dangerous
tion was most threatening. Meetings were assembled to which "^^^^'^s^'
° °. Sept., 1828.
large bodies of Catholics marched in military array, bearing flags and music, dressed in uniforms, and disciplined to word of command. Such assemblages were obviously dangerous to the public peace. Ministers and the Irish executive watched them with solicitude : and long balanced between the evils of permitting such demonstrations, on the one side, and precipi- tating a bloody collision with excited masses of the people, on the other. They were further embarrassed by counter de- monstrations of the Protestants, and by the hot zeal of the Orange Societies, which represented their cautious vigilance as timidity, and their inaction as an abandonment of the func- tions of government. They were advised that such meetings Proclamation
having no definite object sanctioned by law, and being as- against them, , f , . , , , . , , . . ^ ist Oct., 1828.
sembled m such numbers and with such organisation as to
strike a well-grounded fear into peaceable inhabitants, were
illegal by the common law, even when accompanied by no act
of violence.* And at length they determined to prevent such
^ Opinion of Mr. Joy, 1828 ; Sir R. Peel's Mem., i. 45 ; Wyse, i. 222-24G ; ibid., ii. App. xxxix.
"^ Memorandum and Correspondence of Mr. Peel, the Marquess of Anglesey, and Mr. Lamb. — PeeVs Mem., i. 22-58, 150.
» Wyse, i. 347-359.
* Opinion of attorney and solicitor-general of England. — Sir R. Peel's Mem., i. 225; Queen v. Soley, 11 Modern Reports, and King v. Hunt and others.
^i THE CONSTITUTIONAL HISTORY OF ENGLAND
meetings, and to concert measures for their dispersion by force.* A proclamation being issued for that purpose met with a ready obedience. It formed no part of the scheme of the Catholic leaders to risk a collision with military force, or with their Protestant rivals ; and the association had already begun to discourage these dangerous assemblages, in anticipation of disorders injurious to their cause. The immediate object of the Government was secured : but the association, while it avoided a contest with authority, adroitly assumed all the credit of restoring tranquillity to the country.^
But the proceedings of the association itself became more violent and offensive than ever. Its leaders were insolent and defiant to the Government, and exercised an absolute sway over the Catholic population. In vain the Government took counsel with its law officers.^ Neither the Convention Act of 1793, nor the common law could be relied on for restraining the proceedings of an association which the legislature itself had interposed, three years before, to condemn. Peace was maintained, as the Catholics were unwilling to disturb it : but the country was virtually under the dominion of the associa- tion. Suppression In the following year, however, the suppression of this and
ation^n^i82o ^^^^^ societies in Ireland formed part of the general scheme of Catholic Emancipation.* The Catholic Association was, at length, extinguished : but not until its objects had been fully accomplished. It was the first time a measure had been forced upon a hostile court and reluctant Parliament, a dominant party and an unwilling people, by the pressure of a political organisation. The abolition of the slave trade was due to the conviction which had been wrought by facts, arguments, and appeals to the moral and religious feelings of the people. But the Catholic cause owed its triumph to no such moral conver- sion. The Government was overawed by the hostile demon- strations of a formidable confederacy, supported by the Irish people and priesthood, and menacing authority with their
^ The correspondence of Mr. Peel with Lord Anglesey and the Irish execu- tive, discloses all the considerations by which the Government was influenced, under circumstances of great embarrassment. — Sir R. Peel's Mem., i. 207-231.
2 Ann, Reg., 1828, pp. 140-146 ; Peel's Mem., i. 232.
^Ibid., 243-264.
* See Chap. XIII. ; 10 Geo. IV. c. 1.
I
LIBERTY OF OPINION 93
physical force. It was, in truth, a dangerous example ; and threatened the future independence of Parliament. But how- A good cause ever powerful this association, its efforts would have been"^"^^^^^ paralysed without a good cause, espoused by eminent states- agitation, men, and an influential party in Parliament. The State would have known how to repel irrational demands, however urged ; but was unable to resist the combined pressure of Parliament- ary and popular force, the sympathies of many liberal Protest- ants in Ireland, and the steady convictions of an enlightened minority in England, In our balanced constitution, political agitation, to be successful, must be based on a real grievance, adequately represented in Parliament and in the press, and supported by the rational approval of enlightened men. But though the independence of Parliament remained intact, the triumph of the Catholic Association marked the increased force of political agitation as an element in our constitution. It was becoming superior to authorities and party combinations, by which the State had hitherto been governed.
During the short reign of George IV., the influence of increased
public opinion made steady advances. The press obtained a'"^"5"^^.°f
... ,, ,, ,:,.. public opinion
wider extension ; and the people advanced in education, in- in reign of
telligence, and self-reliance. There was also a marked im- George IV. provement in political literature, corresponding with the jj^ ^Q^gj^^gj^^ national progress. And thus the very causes which were in- of the press, creasing the power of the people were qualifying them to use it wisely.
It was not by the severities of the law that the inferior press was destined to be improved, and its mischievous tendencies corrected. These expedients — after a trial of two centuries — had failed. But moral causes were in operation by which the general standard of society was elevated. The Church and other religious bodies had become more zealous in their sacred mission : ^ society was awakening to the duty of educating the people ; and the material progress of the country was develop- ing a more general and active intelligence. The classes most needing elevation had begun to desire sound and wholesome instruction ; and this inestimable benefit was gradually ex- tended to them. Improved publications successfully competed for popular favour with writings of a lower character ; and, in
1 See Chap. XIV.
94 THE CONSTITUTIONAL HISTORY OF ENGLAND
cultivating the public taste, at the same time raised the general standard of periodical literature. A large share of the credit of this important work is due to the Society for the Diffusion of Useful Knowledge, established in 1826, and to the exertions of its chief promoters, Lord Brougham, Mr, Matthew Davenport Hill, and Mr. Charles Knight.^ The publications of this society were followed by those of the Society for Promoting Christian Knowledge, and by the admirable serials of Messrs. Chambers. By these and other periodical papers — as well political as literary — an extraordinary impulse was given to general education. Public writers promptly responded to the general spirit of the time ; and the aberrations of the press were, in great measure, corrected.
The Government, however, while it viewed with alarm the growing force of public opinion which controlled its own authority, failed to observe its true spirit and tendency. Still holding to the traditions of a polity, then on the very point of exhaustion, it was unable to reconcile the rough energies of popular discussion with respect for the law, and obedience to constituted authority. It regarded the press as an obstacle to good government, instead of conciliating its support by a bold confidence in public approbation. Duke of This spirit dictated to the Duke of Wellington's administra-
Weliingtons j-j^j^ j|.g jn.advised prosecutions of the press in 1830. By
prosecutions *^ ^ , ^ j
of the press, passing the Roman Catholic Relief Act, Ministers had provoked 1830. j.j^g resentment of the Tory press ; and foremost among their
assailants was the " Morning Journal ". One article, appearing to impute personal corruption to Lord Chancellor Lyndhurst, could not be overlooked ; but the editor having sworn that his lordship was not the person alluded to, an information against him was abandoned. The attorney-general, however, now filed no less than three ex-officio informations against the editor and proprietors, for this and two other articles, as libels upon the king, the Ministers, and Parliament. A fourth prosecution was also instituted, for a separate libel upon the Duke of Well- ington. So soon as the personal character of a member of the administration had been cleared. Ministers might have allowed animadversions upon their public conduct to pass with im-
' Edinb. Rev., xlvi. 225, etc. ; Knight's Passages of a Working Life, ii. chap. 2-6, etc.
LIBERTY OF OPINION 95
punity. If the right of free discussion was not respected, the excitement of the times might have claimed indulgence. Again, the accumulation of charges against the same persons, betrayed a spirit of persecution. It was not justice that was sought, but vengeance, and the ruin of an obnoxious journal. So far as the punishment of their political foes was concerned. Ministers prevailed.^ But their success was gained at the expense of much unpopularity. Tories, sympathising with writers of their own party, united with the Opposition in con- demning this assault upon the liberty of the press. Nor was the temper of the people such as to bear, any longer, with complacency, a harsh execution of the libel laws. The un- successful prosecution of Cobbett, in the following year, by a Failure of Whig attorney- general, nearly brought to a close the long ^f°QQ^]^g°" series of contests between the Government and the press.^ 183 1.
Since that time, the utmost latitude of criticism and in- Complete vective has been permitted to the press in discussing public ^1^^^°^^° men and measures. The law has rarely been appealed to, established, even for the exposure of malignity and falsehood.^ Prosecu- tions for libel, like the censorship, have fallen out of our con- stitutional system. When the press errs, it is by the press itself that its errors are left to be corrected. Repression has ceased to be the policy of rulers ; and statesmen have at length fully realised the wise maxim of Lord Bacon, that " the punish- ing of wits enhances their authority ; and a forbidden writing is thought to be a certain spark of truth, that flies up in the faces of them that seek to tread it out ".
Henceforth the freedom of the press was assured ; and Fiscal laws nothing was now wanting to its full expansion but a revision pj,ggg*"^ * ^ of the fiscal laws by which its utmost development was
1 Verdicts were obtained in three out of the four prosecutions. In the second a partial verdict only was given (guilty of libel on the king, but not on his Ministers), with a recommendation to mercy — Mr. Alexander, the editor, being sentenced to a year's imprisonment, a fine of ;^300, and to give security for good behaviour during three years ; and the proprietors to lesser punishments. — Ann. Reg., 1830, p. 3, 119 ; Hans. Deb., 2nd Ser., xxii. 1167.
"^ He was charged with no libel on Ministers, but with inciting labourers to burn ricks; Ann. Reg., 1831, Chron., p. 95. In the same year Carlile and Haley were indicted ; and in 1833, Reeve, Ager, Grant, Bell, Hetherington, Russell, and Stevens ; Hunt's Fourth Est., ii. 67 ; Roebuck's Hist, of the Whig Ministry, ii. 219, n.
3 The law was also greatly improved by Lord Campbell's Libel Act, 6 & 7 Vict. c. 96.
96 THE CONSTITUTIONAL HISTOR V OF ENGLAND
Newspaper stamps.
Unstamped newspapers.
restrained. These were the stamp, advertisement, and paper duties. It was not until after a struggle of thirty years that all these duties were repealed : but in order to complete our survey of the press, their history may, at once, be briefly told.
The newspaper stamp of Queen Anne had risen, by suc- cessive additions, to fourpence. Originating in jealousy of the press, its extension was due partly to the same policy and partly to the exigencies of finance. So high a tax, while it discouraged cheap newspapers, was naturally liable to evasion. Tracts, and other unstamped papers, containing news and comments upon public affairs, were widely circulated among the poor ; and it was to restrain this practice that the stamp laws had been extended to that class of papers by one of the Six Acts.^ They were denounced as seditious and blasphemous, and were to be extinguished. But the passion for news and political discussion was not to be repressed ; and unstamped publications were more rife than ever. Such papers occupied the same place in the periodical press as tracts printed, at a former period, in evasion of the licenser. All concerned in such papers were violating the law, and braving its terrors ; the gaol was ever before their eyes. This was no honourable calling ; and none but the meanest would engage in it. Hence the poor, who most needed wholesome instruc- tion, received the very worst from a contraband press. During the Reform agitation, a new class of publishers, of higher character and purpose, set up unstamped newspapers for the working classes, and defied the Government in the spirit of Prynne and Lilburne. Their sentiments, already democratic, were further embittered by their hard wrestling with the law. They suffered imprisonment, but their papers continued in large circulation ; they were fined, but their fines were paid by subscription. Prosecutions against publishers and vendors of such papers were becoming a serious aggravation of the crim- inal law. Prisons were filled with offenders ; ^ and the State was again at war with the press, in a new form.
If the law could not overcome the unstamped press, it was
' 60 Geo. III. c. 9 ; supra, p. 4.
' From 1 83 1 to 1835 there were no less than 728 prosecutions and about 500 cases of imprisonment. — Mr. Hume's Return, Sept, 1836, No. 2i ; Hunt's Fourth Esute, 69-87.
LIBERTY OF OPINION 97
clear that the law itself must give way. Mr, Lytton Bulwer^ and Mr. Hume exposed the growing evils of the newspaper stamp; Ministers were too painfully .sensible of its embarrass- ments ; and in 1836, it was reduced to one penny, and the un- stamped press was put down. At the same time, a portion of the paper duty was remitted. Already, in 1833, the advertise- ment duty had been reduced ; and newspapers now laboured under a lighter weight.
Meanwhile, efforts had been made to provide an antidote Taxes on for the poison circulated in the lowest of the unstami:)ed papers, °'^^ ^ ^^' by a cheap and popular literature without news ; - but the pro- gress of this beneficent work disclosed the pressure of the paper duty upon all cheap publications, the cost of which was to be repaid by extensive circulation. Cheapness and expan- sion were evidently becoming the characteristics of the peri- odical press ; to which every tax, however light, was an impedi- ment. Hence a new movement for the repeal of all "taxes on knowledge," led by Mr. Milner Gibson, with admirable ability, address, and persistence. In 1853, the advertisement duty was swept away ; and in 1855, the last penny of the newspaper stamp was relinquished. Nothing was now left but the duty on paper ; and this was assailed with no less vigour. Denounced by penny newspapers, which the repeal of the stamp duty had called into existence : complained of by publishers of cheap books ; and deplored by the friends of popular edu- cation, it fell, six years later, after a Parliamentary contest, memorable in history.^ And now the press was free alike from legal oppression and fiscal impediments. It stands re- sponsible to society for the wise use of its unlimited franchises ; and learning from the history of our liberties, that public virtue owes more to freedom than to jealousy and restraint, may we not have faith in the moderation of the press, and the temperate judgment of the people?
The influence of the press has extended with its liberty ; Public jeal- but it has not been suffered to dominate over the independent p"e^f ° opinion of the country. The people love freedom too well to bow the knee to any dictator, whether in the council, the
^ 14th June, 1832 ; Hans. Deb., 3rd Ser., xiii. 619. ^ Supra, p. 93.
^Hans. Deb., 3rd Ser., cxxv. n8 ; cxxviii. 1128; cxxxvii. mo, etc; supra, vol. i. p. 381.
VOL. IL 7
98 THE CO?fSTlTUTIONAL HISTORY OF ENGLAND
senate, or the press. And no sooner has the dictation of any
journal, conscious of its power, become too pronounced, than
its influence has sensibly declined. Free itself, the press has
been taught to respect, with decency and moderation, the
freedom of others.
General Opinion — free in the press, free in every form of public
freedom of dfscussion — has become not less free in society. It is never opiniom • A • L L
coerced into silence or conformity, as m America, by the
tyrannous force of a majority.^ However small a minority : however unpopular, irrational, eccentric, perverse, or un- patriotic its sentiments : however despised or pitied ; it may speak out fearlessly, in full confidence of toleration. The majority, conscious of right, and assured of its proper influence in the State, neither fears nor resents opposition.^ Political The freedom of the press was fully assured before the pass-
unions, 1831. ingof the Reform Act ; and political organisation — more potent than the press — was now about to advance suddenly to its ex- treme development. The agitation for Parliamentary reform in 1831-32 exceeded that of any previous time, in its wide- spread organisation, in the numbers associated, in earnest- ness, and faith in the cause. In this agitation there were also notable circumstances, wholly unprecedented. The middle and the working classes were, for the first time, cordially united in a common cause : they were led by a great con- stitutional party ; and — more remarkable still — instead of op- posing the Government, they were the ardent supporters of the king's Ministers. To these circumstances is mainly due the safe passage of the country through a most perilous crisis. The violence of the masses was moderated by their more in- structed associates, who, again, were admitted to the friendly counsels of many eminent members of the Ministerial party. Popular combination assumed the form of " Political Unions," which were established in the metropolis, and in all the large
^ " Tant que la majority est douteuse, on parle ; mais d&s qu'elle s'est ir- r^vocablement prononc^e, chacun se tait, et amis comme ennemis semblent alors s'attacher de concert k son char." — De Tocqueville, D'emocr. en Amir., i. 307.
" In politics this is true nearly to the extent of Mr. Mill's axiom : " If all mankind, minus one, were of one opinion, and only one person were of the con- trary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind".— On Liberty, 33.
LIBERTY OF OPINION 99
towns throughout the country. Of the provincial unions, that The Birming- of Birmingham took the lead. Founded for another purpose u^^J^''*'''^' so early as January, 1830,^ it became the type of most other unions throughout the country. Its original design was " to form a general political union between the lower and middle classes of the people " ; ^ and it " called, with confidence, upon the ancient aristocracy of the land to come fonvard, and take their proper station at the head of the people, in this great crisis of the national affairs ".^ In this spirit, when the Reform agitation commenced, the council thought it prudent not to "claim universal suffrage, vote by ballot, or annual Parlia- ments, because all the upper classes of the community, and the great majority of the middle classes, deem them dangerous, and the council, cannot find that they have the sanction of experience to prove them safe ".^ And throughout the resolu- tions and speeches of the society, the same desire was shown to propitiate the aristocracy, and to unite the middle and working classes,^
Before the fate of the first Reform Bill was ascertained, the Activity of political unions confined their exertions to debates and resolu- u"ions. tions in favour of reform, and the preparation of numerous petitions to Parliament. Already, indeed, they boasted of their numbers and physical force. The chairman of the Bir- mingham Union vaunted that they could find two armies — each as numerous and brave as that which conquered at Waterloo — if the king and his Ministers required them.** But however strong the language sometimes used, discussion and popular association were, as yet, the sole objects of these unions. No sooner, however, was the bill lost, and Parliament dissolved, than they were aroused to a more formidable activity. Their first object was to influence the elections and to secure
^ Curiously enough, it was founded by Mr. Thomas Attwood, a Tory, to ad- vance his currency doctrines, and to denounce the resumption of cash payments in 1819. — Report of Proceedings, 25th Jan., 1830 (Hodgett's Birmingham).
'^Requisition to High Bailiff of Birmingham, Jan., 1830.
^ Report of Proceedings, 25th Jan., 1830, p. 12.
* Report of Council, 17th May, 1830.
5 Proceedings of Union, passim. " You have the flower of the nobility with you ; you have the sons of the heroes of Runnymede with you : the best and noblest blood of England is on your side." — Birmingham jfotirnal, 14th May, 1832.
"Ann. Reg., 1831, p. 80.
7*
loo THE CONSTITUTIONAL HISTORY OF ENGLAND
the return of a majority of reformers. Electors and non- electors, co-operating in these unions, were equally eager in the cause of reform : but with the restricted franchises of that time, the former would have been unequal to contend against the great territorial interests opposed to them. The unions, however, threw themselves hotly into the contest ; and their demonstrations, exceeding the license of electioneering, and too often amounting to intimidation, overpowered the dis- spirited anti-reformers. There were election riots at Wigan, at Lanark, at Ayr, and at Edinburgh.^ The interposition of the unions, and the popular excitement which they encouraged, brought some discredit upon the cause of reform : but contri- buted to the Ministerial majority in the new Parliament. Meetings and As the Parliamentary struggle proceeded upon the second petitions. Reform Bill, the demonstrations of the political unions became more threatening. Meetings were held and petitions presented, which, in expressing the excited feelings of vast bodies of men were, at the same time, alarming demonstrations of physical force. When the measure was about to be discussed in the 3rd Oct., 1831. House of Lords, a meeting of 150,000 men assembled at Birmingham, declared by acclamation that if all other consti- tutional means of ensuring the success of the Reform Bill should fail, they would refuse the payment of taxes, as John Hampden had refused to pay ship-money, except by a levy upon their goods.^ Conflict It was the first time, in our history, that the aristocracy
nobTeT'and^ had singly confronted the people. Hitherto the people had the people, contended with the Crown, supported by the aristocracy and large classes of the community : now the aristocracy stood alone, in presence of a popular force, almost revolutionary. If they continued the contest too long for the safety of the State, they at least met its dangers with the high courage which be- fits a noble race. Unawed by numbers, clamour, and threats, Riots on re- the Lords rejected the second Reform Bill. The excitement lecond Re- °^ ^^^ ^'"^^ "°^ ^^^ *° disorders disgraceful to the popular form Bill. cause. Mobs paraded the streets of London, hooting, pelting,
' Ann. Reg., 1831, p. 152.
''Ibid., p. 282. See Hans. Deb., 3rd Ser., vii. 1323 ; Report of Proceedings of Meeting at Newhall Hill, 3rd Oct., 1831 ; Speech of Mr. Edmonds, etc. ; Roebuck's Hist, of the Whig Ministry, ii. 218.
LIBERTY OF OPINION loi
and even assaulting distinguished peers and breaking their windows.^ There were riots at Derby : when, some rioters being seized, the mob stormed the gaol and set the prisoners free. At Nottingham, the Castle was burned by the populace, as an act of vengeance against the Duke of Newcastle, In both these places the riots were not repressed without the aid of a military force. ^ For two nights and days Bristol was 29th Oct., the prey of a turbulent and drunken rabble. They broke into ^ the prisons, and having let loose the prisoners, deliberately set on fire the buildings. They rifled and burned down the Mansion House, the Bishop's Palace, the Custom House, the Excise Office, and many private houses. The irresolution and incapacity of magistrates and military commanders left a populous and wealthy city at the mercy of thieves and incendi- aries : nor was order at length restored without military force and loss of life, which a more timely and vigorous interposition might have averted.'^ These painful events were deplored by reformers as a disgrace and hindrance to their cause ; and watched by their opponents as probable inducements to re- action.
Hitherto the political unions had been locally organised. Political and independent of one another, while forwarding an object "^g^^^^'^glg^ common to all. They were daily growing more dangerous ; and gates, the scheme of an armed national guard was even projected. But however threatening their demonstrations, they had been conducted within the bounds of law. In November, 1831, however, they assumed a different character. A National Union was formed in London, to which the several provincial unions throughout the country were invited to send delegates. From that time, the limits of lawful agitation were exceeded ; and the entire organisation became illegal.*
At the same time, meetings assembled in connection with Alarming the unions were assuming a character more violent and unlaw- {["g^d*^'"^^ ful. The Metropolitan Union — an association independent of the London Political Union, and advocating extreme measures
^ Ann. Reg., 1831, p. 280; Twiss's Life of Lord Eldon, iii. 153 ; Courts and Cabinets of Will. IV. and Queen Vict., i. 364.
''Ann. Reg., 1831, p. 280.
^Ibid., p. 291. Twelve persons were killed, and ninety-four wounded and injured.
*3g Geo. III. c. 79 ; 57 Geo. III. c. 19; supra, pp. 62, 71.
I02 THE CONSTITUTIONAL HISTORY OF ENGLAND
of democratic reform — gave notice in a seditious advertisement, of a meeting for the 7th of November, at White Conduit House. The magistrates of Hatton Garden issued a notice declaring the proposed meeting seditious and illegal ; and enjoining loyal and well-disposed persons not to attend it. Whereupon a deputation of working men waited upon Lord Melbourne, at the Home Office, and were convinced by his lordship of the illegality of their proceedings. The meeting was at once abandoned.^ Danger to the public peace was averted by confidence in the Government. Some exception was taken to an act of official courtesy towards men compro- mised by sedition : but who can doubt the wisdom of prevent- ing, rather than punishing, a breach of the law ? Proclamation Lawful agitation could not be stayed : but when associa- cfrunions '*' tions, otherwise dangerous, had begun to transgress the law, Ministers were constrained to interfere ; and accordingly, on the 22nd of November, 1831,3 proclamation was issued for the repression of political unions. It pointed out that such associations, " composed of separate bodies, with various divi- sions and subdivisions, under leaders with a gradation of ranks and authority, and distinguished by certain badges, and sub- ject to the general control and direction of a superior council," were '* unconstitutional and illegal," and commanded all loyal subjects to refrain from joining them. The " National Poli- tical Union " denied that this proclamation applied to itself, or to the majority of existing unions. But the Birmingham Union modified an extensive organisation of unions, in the Midland Counties, which had been projected ; and the system of delegation, correspondence, and affiliation was generally checked and discouraged.^ Unions dis- On the meeting of Parliament, on the 6th of December,
In PaHiaxnent. political unions were further discountenanced in the speech from the throne, in which his Majesty declared that such com- binations were incompatible with regular government, and signified his determination to repress all illegal proceedings.^ Unions more But an organisation directed to the attainment of Parlia- than^ever"^ mentary reform could not be abandoned until that object was
^ Ann. Reg., 1831, p. 297.
" Ihid. ; Twiss's Life of Lord Eldon, iii. 163.
3 Hans. Deb,, 3rd Ser., ix, 5.
LIBERTY OF OPINION 103
accomplished. The unions continued in full activity ; their numbers were increased by a more general adhesion of the middle classes ; and if ostensibly conforming to the law, in their rules and regulations, their proceedings were characterised, more than ever, by menace and intimidation. When the third Reform Bill was awaiting the committee in the Lords, immense meetings were assembled at Birmingham, Manchester, Edin- burgh, Glasgow, and other populous places, which by their numbers, combination, and resolute purpose, as well as by the speeches made and petitions agreed to, proclaimed a determina- tion to overawe the peers, who were still opposed to the bill. The withholding of taxes was again threatened, and even the extinction of the peerage itself, if the bill should be rejected. On the 7th of May, 1832, all the unions of the counties of Warwick, Worcester, and Stafford, assembled at Newhall Hill, Birmingham, to the number of nearly 150,000. A petition to the Commons was there agreed to, praying them to withhold the supplies, in order to ensure the safety of the Reform Bill ; and declaring that the people would think it necessary to have arms for their defence. Other petitions from Manchester and elsewhere, praying that the supplies might be withheld, were brought to London by excited deputations.^
The adverse vote of the Lords in Committee, and the re- Dangerous signation of the Reform Ministry, was succeeded by demon- dudnT\he strations of still greater violence. Revolutionary sentiments, Reform crisis, and appeals to force and coercion, succeeded to reasoning and political agitation. The immediate creation of peers was de- manded. " More lords, or none " : to this had it come, said the clamorous leaders of the unions. A general refusal of taxes was counselled. The Commons having declared them- selves not to be the representatives of the people, had no right to vote taxes. Then why should the people pay them ? The National Political Union called upon the Commons to withhold supplies from the Treasury, and entrust them to commissioners named by themselves. The metropolis was covered with placards inviting the people to union, and a general resistance to the payment of taxes. A run upon the
1 Ann. Reg., 1832, p. 172 ; Hans. Deb., 3rd Ser., xii. 876, 1032, 1274 ; Roe- buck's Hist, of the Whig Ministry, ii. 295 ; Prentice's Recollections of Manches- ter, 408-415.
I04 THE CONSTITUTIONAL HISTORY OF ENGLAND
bank for gold was counselled, "to stop the Duke". The ex- tinction of the privileged orders — and even of the monarchy itself — general confusion and anarchy were threatened. Pro- digious crowds of people marched to open-air meetings, with banners and revolutionary mottoes, to listen to the frantic ad- dresses of demagogues, by whom these sentiments were de- livered.^ The refusal to pay taxes was even encouraged by men of station and influence — by Lord Milton, Mr. Buncombe, and Mr. William Brougham.^ The press also, responding to the prevailing excitement, preached resistance and force.^ Considera- The limits of constitutional agitation and pressure had
tions upon \on2^ been exceeded ; and the country seemed to be on the
the popular ° ' , ,. . ,
triumph. very verge of revolution, when the political tempest was calmed by the final surrender of the Lords to the popular will. An imminent danger was averted : but the triumph of an agitation conducted with so much violence, and marked by so many of the characteristics of revolution, portended serious perils to the even course of constitutional government. The Lords alone had now been coerced : but might not the execu- tive, and the entire legislature, at some future period, be forced to submit to the like coercion ? Such apprehensions were not without justification from the immediate aspect of the times: but further experience has proved that the success of this popular measure was due, not only to the dangerous pressure of democracy, but to other causes not less material to success- ful agitation-^the inherent justice of the measure itself, the union of the middle and working classes under the guidance of their natural leaders, and the support of a strong Parlia- mentary party, embracing the majority of one House, and a considerable minority in the other. Agitatiorj for At the very time when this popular excitement was raging the repeal of Jn England, an agitation of a different kind, and followed by
the Union, , ^ . ' ,. . ., , , , , • t i ,
1830-31. results widely dissimilar, had been commenced in Ireland. Mr. O'Connell, emboldened by his successful advocacy of the Catholic claims, resumed the exciting and profitable arts of the demagogue ; and urged the repeal of the legislative union
^ Ann. Reg., 1832, p. 169 et seq. ; Roebuck's Hist, of the Whig Ministry, ii. 288-297.
* Ibid., 291, 297; Hans. Deb., 3rd Ser., xiii. 430, 5th June, 1832. ^Courts and Cabinets of Will. IV. and Victoria, i. 303-331.
LIBERTY OF OPINION 105
of England and Ireland. But his new cause was one to which no agitation promised success. Not a statesman could be found to counsel the dismemberment of the empire. All political parties alike repudiated it : the press denounced it : the sense of the nation revolted against it. Those who most deplored the wrongs and misgovernment of Ireland, foresaw nothing but an aggravation of those evils, in the idle and factious cry for repeal. But Mr. O'Connell hoped, by demon- Mr. O'Con- strations of physical force, to advance a cause which met with ^^^j^^j^°"j^,?5 none of that moral support which is essential to success. On executive, the 27th of December, 1830, a procession of trades' unions^ 3o-3i- through the streets of Dublin was prevented by a proclamation of the lord-lieutenant, under the Act for the suppression of dangerous assemblies and associations in Ireland,^ as threaten- ing to the public peace. An association was then formed " for the prevention of unlawful meetings " : but again, the meeting of this body was prohibited by proclamation. Mr. O'Connell's subtle and crafty mind quickly planned fresh de- vices to evade the Act. First, to escape the meshes of the law against societies, he constituted himself the " Pacificator of Ireland," and met his friends once a week at a public break- fast, at Home's Hotel. These meetings were also proclaimed illegal under the Act. Next, a number of societies were formed, with various names, but all having a common object. All these — whatever their pretexts and devices — were pro- hibited.
Mr. O'Connell now resorted to public meetings, by which Mr. O'Con- the acts of the lord-lieutenant were denounced as tyrannicalj^ ^^g^j^^ ' and unlawful : but he was soon to quail before the law. On 1S31. the 1 8th of January, 1831, he was apprehended and held to bail, with some of his associates, on informations charging him with having held various meetings, in violation of the lord- lieutenant's proclamation. True bills having been found against him, he pleaded not guilty to the first fourteen counts, and put in demurrers to the others. But not being prepared to argue the demurrers, he was permitted to withdraw them, and enter a plea of not guilty. This plea, again, he soon
1 10 Geo. IV. c. I, by which the Catholic Association had been suppressed {supra, p. 92). It was in force for one year from 5th March, 1829, and until the end of the then next session of Parliament.
io6 THE CONSTITUTIONAL HISTORY OF ENGLAND
afterwards withdrew, and pleaded guilty to the first fourteen counts in the indictment ; when the attorney-general entered a nolle prosequi on the remaining counts, which charged him with a conspiracy. So tame a submission to the law, after intemperate defiance and denunciations, went far to discredit the character of the great agitator. He was, however, suffered to escape without punishment. He was never brought up for judgment; and the Act of 1829, not having been renewed, ex- pired at the end of the short session, in April, 1831.^ The repeal agitation was for a time repressed. Had its objects and means been worthier, it would have met with more sup- port. But the Government, relying upon public opinion, had not shrunk from a prompt vindication of the law ; and men of every class and party, except the followers of Mr. O'Connell himself, condemned the vain political delusions by which the Irish people had been disturbed. Renewal of This baneful agitation, however, was renewed in 1840, and
repeal agita- continued, for some time, in forms more dangerous and mis- 40. ^j^jgyQyg thatt cvcr. A Repeal Association was formed with an extensive organisation of members, associates, and volun- teers, and of officers designated as inspectors, repeal-wardens, and collectors. By the agency of these officers, the repeal rent was collected, and repeal newspapers, tracts, poems, songs, cards, and other devices disseminated among the people. In 1843, many "monster meetings," assembled by Mr. O'Connell, 14th May, were of the most threatening character. At Mullingar, up- 1843- wards of icx),ooo people were collected to listen to inflam-
isth Aue matory speeches from the liberator.^ On the Hill of Tara, 1843. where the rebels had been defeated in 1798, 250,000 people
were said to have assembled ^ for the same purpose. These meetings, by their numbers and organisation, and by the order and discipline with which they were assembled and marshalled, assumed the form of military demonstrations. Menace and intimidation were plainly their object — not political discussion. The language of the liberator and his friends was designed to
1 Ann. Reg., 1831, ch. x. ; Hans. Deb. (14th and 16th Feb., 1831), 3rd Ser., ii. 490, 6og.
'^ Ann. Reg., 1843, pp. 228, 231.
s /6td., p. 231. Soms said even a million ; speech of attorney-general, »Wd., j844, p. 310.
LIBERTY OF OPINION 107
alienate the minds of the people from the English Government and nation. Englishmen were designated as " Saxons " : their laws and rulers were denounced : Irishmen who submitted to the yoke were slaves and cowards. Justice was to be sought in arbitration courts, appointed by themselves, and not in the constituted tribunals. To give battle to the English was no uncommon theme of repeal oratory. " If he had to go to 20th Aug., battle," said O'Connell, at Roscommon, " he should have the ^ '^^' strong and steady tee-total lers with him : the tee -total bands would play before them, and animate them in the time of peril : their wives and daughters, thanking God for their sobriety, would be praying for their safety ; and he told them there was not an army in the world that he would not fight with his tee-totallers. Yes, tee-totalism was the first sure ground on which rested their hope of sweeping away Saxon domination, and giving Ireland to the Irish." ^ This was not constitutional agitation, but disaffection and revolt. At length, 8th Oct., 1843. a monster meeting having been announced to take place at Clontarf, near Dublin, the Government issued a proclamation ^ to prevent it ; and by necessary military precautions, effectually arrested the dangerous demonstration. The exertions of the Government were seconded by Mr. O'Connell himself, who issued a notice abandoning the meeting, and used all his influ- ence to prevent the assembling of the repealers.
This immediate danger having been averted, the Govern- Trial of Mr. ment resolved to bring Mr. O'Connell and his confederates ^j^jj°|J"j^^^l to justice, for their defiance of the law; and on the 14th of leaders. October, Mr. O'Connell, his son, and eight of his friends were arrested and held to bail on charges of conspiracy, sedition, and the unlawful assembling of large numbers of persons for the purpose of obtaining a repeal of the Union, by intimida- 2nd Nov., tion and the exhibition of physical force.^ From this moment, ^ ''^' Mr. O'Connell moderated his language, abjured the use of
^ Ann. Reg., 1843, p. 234; ihid.^ 1844, p. 335 etseq.; Trial of Mr. O'Con- nell ; summing up of chief justice, etc.
2 The proclamation stated "that the motives and objects of the persons to be assembled thereat, are not the fair legal exercise of constitutional rights and privileges, but to bring into hatred and contempt the Government and Constitution of the United Kingdom, as by law established, and to accomplish alterations in the laws and constitution of the realm, by intimidation, and the demonstration ol physical force ".
^ Ann. Reg., 1843, p. 237.
io8 THE CONSTITUTIONAL HISTORY OF ENGLAND
the irritating term of "Saxon," exhorted his followers to tranquillity and submission, and gave tokens of his readiness even to abandon the cause of repeal itself.^ At length the Trial com- trial was commenced : but, at the outset, a painful incident, menced, 15th ^^^ ^^ ^^ peculiar condition of Ireland, deprived it of much of its moral weight, and raised imputations of unfairness. The old feud between Catholic and Protestant was the foundation of the repeal movement : it embittered every political struggle ; and notoriously interfered with the administration of justice. Neither party expected justice from the other. And in this trial, eleven Catholics having been challenged by the Crown, the jury was composed exclusively of Protestants. The leader of the Catholic party — the man who had triumphed over Pro- testant ascendency — was to be tried by his foes.^ After a trial of twenty-five days, in which the proceedings of the agitators were fully disclosed, Mr. O'Connell was found guilty upon all, or parts of all, the counts of the indictment ; and the other defendants (except Father Tierney) on nearly all. Mr. 30th May, O'Connell was sentenced to a year's imprisonment, to pay ^^^^' a fine of ;^2,ooo, and to give security for good behaviour for
seven years. The other defendants were sentenced to some- what lighter punishments; and Mr. Tierney was not called up for judgment The writ of Mr. O'Connell was now old, and in prison. Who can
error. wonder that he met with compassion and sympathy? His
friends complained that he had been unfairly tried ; and the lawfulness of his conviction was immediately questioned by a writ of error. Many who condemned the dangerous excesses of the repeal agitation, remembered his former services to his country — his towering genius and rare endowments ; and grieved that such a man should be laid low. After four months' imprisonment, however, the judgment of the court below was reversed by the House of Lords, on the writ of error, and the repealers were once more at liberty. The liberator was borne from his prison, in triumph, through the streets of Dublin. He was received with tumultuous applause at meetings, where he still promised a repeal of the Union : his rent continued to be collected : but the agitation no longer
1 Ann. Reg., 1843, p. 238.
' Hans. Deb., 3rd Sen, Ixxiii. 435 ; Ixxvi. 1956, etc
LIBERTY OF OPINION 109
threatened danger to the State. Even the miscarriage of the prosecution favoured the cause of order. If one who had defied the Government of England could yet rely upon the impartial equity of its highest court, where was the injustice of the hated Saxon ? And having escaped by technical errors in the indictment, and not by any shortcomings of the law itself, O'Connell was sensible that he could not again venture to transgress the bounds of lawful agitation.
Henceforth the cause of repeal gradually languished and Failure of the died out. Having no support but factious violence, working [fo^.^ ^^^ ^' upon general discontent and many social maladies, it might, Conclusion indeed, have led to tumults, bloodshed, and civil war, but°^.'',^P?^'
' > > > agitation,
never to the coercion of the Government and legislature of 1848. England. Revived a few years later, by Mr. Smith O'Brien, Mr. Smith it again perished in an abortive and ridiculous insurrection.^
During the repeal agitation in Ireland, other combinations, Orange in both countries, were not without peril to the peace of society. ° ^^^* In Ireland, Catholics and Protestants had long been opposed, like two hostile races ; ^ and while the former had been struggling to throw off their civil disabilities, to lessen the burthen of tithes, to humble the Protestant Church, to enlarge their own influence, and lastly, to secure an absolute domina- tion by casting off the Protestant legislature of the United Kingdom, the latter had combined, with not less earnestness, to maintain that Protestant ascendency which was assailed and endangered. So far back as 1795, Orange societies had been established in Ireland, and particularly in the north, where the population was chiefly Protestant. Early in the present century they were extended to England, and an active correspondence was maintained between the societies of the two kingdoms. As the agitation of the Catholics increased, the confederation expanded. Checked, for a time, in Ireland, together with the Catholic Association, by the Act of 1825, it assumed, in 1828, the imposing character of a national institu- tion. The Duke of Cumberland was inaugurated, in London, as grand master : commissions and warrants were made out under the great seal of the order : office-bearers were desig- nated, in the language of royalty, as " trusty and well-beloved " : large subscriptions were collected ; and lodges founded in
1 Ann. Reg., 1848, p. 95 ; Chron., p. 95. 2 infra. Chap. XVI. (Ireland).
no THE CONSTITUTIONAL HISTORY OF ENGLAND
every part of the empire, whence delegates were sent to the grand lodge. Peers, members of the House of Commons, country gentlemen, magistrates, clergy, and officers in the army and navy, were the patrons and promoters of this organisation. The members were exclusively Protestants : they were ad- mitted with a religious ceremony, and taught secret signs and pass-words. 1 In the following year, all the hopes of Orange- men were suddenly dashed, and the objects of the institution frustrated, by the surrender of the Protestant citadel, by the Ministers of the Crown. Hitherto their loyalty had 'scarcely been exceeded by their Protestant zeal : but now the violence and folly of some of their most active, but least discreet mem- bers, brought imputations even upon their fidelity to the Crown. Such men were possessed by the most extravagant illusions. It was pretended that the Duke of Wellington was preparing to seize upon the Crown, as military dictator ; and idle plots were even fomented to set aside the succession of the Duke of Clarence, as insane, and the prospective claims of the infant Princess Victoria, as a female and a minor, in order that the Duke of Cumberland might reign, as a Protestant monarch, over a Protestant people.^ Treason lurked amid their follies. Meanwhile, the organisation was extended until it numbered 1,500 lodges, comprising 220,000 Orangemen in Ireland ; and 381 lodges in Great Britain, with 140,000 members. There were thirty Orange lodges in the army at home, and many others in the colonies ^ which had been held without the know- ledge of the commanding officers of regiments. Parliamen Secret as were the proceedings of the Grand Orange Society,
i8v;'"^"'"^^' ^^ processions of its lodges in Ireland, and its extensive rami- fications elsewhere, could not fail to arouse suspicion and alarm; and at length, in 1835, the magnitude and dangerous character of the organisation were fully exposed by a com- mittee of the House of Commons. It was shown to provoke animosities, to interfere with the administration of justice, and to endanger military discipline.'* Mr. Hume urged the neces-
1 Commons' Report, 1835, pp. vi-x. "Hans. Deb., xxxi. 797, 807; Ann. Reg., 1836, p. 11.
3 Commons' Report, 1835, pp. xi-xv, xxvii ; Ann. Reg., 1835, chap. xii. ; Martineau's Hist., ii. 266-275. * Report, p. xviii.
LIBERTY OF OPINION iii
sity of prompt measures for suppressing Orange and other Orange secret associations among the soldiery ; and so fully was the °)^^^^^ case established, that the House concurred in an Address to condemned, the king, praying him to suppress political societies in the army, and calling attention to the conduct of the Duke of Cumberland.^ His Majesty promised his ready compliance.^ The most indefensible part of the organisation was now con- demned. Early in the ensuing session, the disclosures of the committee being then complete, another Address was unani- Address mously agreed to, praying the king to take measures for theQ^^J^^g effectual discouragement of Orange lodges, and generally of all lodges, 23rd political societies, excluding persons of different religions, and ^ •» ^ 3 • using secret signs and symbols, and acting by means of as- sociated branches. Again the king assured the House of his compliance.^ His Majesty's answer having been communi- cated to the Duke of Cumberland by the Home Secretary, his Royal Highness announced that he had already recommended the dissolution of Orange societies in Ireland, and would take measures to dissolve them in England.'*
Other societies have endeavoured to advance their cause Peculiarity by public discussions and appeals to their numbers and re- g^^jj^^g^^ solution. The Orange Association laboured secretly to aug- ment its numbers, and stimulate the ardour of its associates, by private intercourse and correspondence. Publicity is the very life of constitutional agitation : but secrecy and covert action distinguished this anomalous institution. Such pecu- liarities raised suspicions that men who shrank from appealing to public opinion meditated a resort to force. It was too late to repel Catholic aggression and democracy by argument : but might they not, even yet, be resisted by the sword ? '^ That such designs were entertained by the leading Orangemen, few but their most rancorous enemies affected to believe : but it was plain that a prince of the blood, and the proudest nobles — inflamed by political discontents, and associated with reck- less and foolish men — might become not less dangerous to the State than the most vulgar tribunes of the people.
1 Hans. Deb., 3rd Sen, xxx. 58, 95, 266 ; Ann. Reg., 1835, ch. xii. ; Comm, Journ., xc. 533.
"^Ibid., 552. 3 Hans. Deb., 3rd Ser., xxxi. 779, 870.
* Ann. Reg., 1836, p. 19.
' See Letters of Col. Fairman, Report of Committee, 1835, No. 605, p. xvi.
112 THE CONSTITUTIONAL HISTORY OF ENGLAND
Anti-Slavery Association.
Trades' unions, 1834.
The Dor- chester labourers.
Procession of Trades' Unions, 21st April, 1834.
Such were the failures of two great combinations, re- spectively representing the Catholics and Protestants of Ire- land, and their ancient feuds. While they were in dangerous conflict, another movement — essentially differing from these H in the sentiments from which it sprang, and the means by ■ which it was forwarded — was brought to a successful issue. In 1833 the generous labours of the Anti-Slavery Association were consummated. The venerable leaders of the movement which had condemned the slave-trade,^ together with Mr. Fowell Buxton, and other younger associates, had revived the same agency, for attaining the abolition of slavery itself. Again were the moral and religious feelings of the people successfully appealed to : again did the press, the pulpit, the platform — petitions, addresses, and debates — stimulate and in- struct the people. Again was public opinion persuaded and convinced ; and again a noble cause was won, without violence, menace, or dictation.^
Let us now turn to other combinations of this period, formed by working men alone, with scarcely a leader from another class. In 1834, the trades' unions which had hitherto restricted their action to matters affecting the interests of operatives and their employers, were suddenly impelled to a strong political demonstration. Six labourers had been tried at Dorchester for administering unlawful oaths, and were sentenced to transportation.^ The unionists were persuaded that these men had been punished as an example to them- selves : they had administered similar oaths, and were amen- able to the same terrible law. Their leaders, therefore, resolved to demand the recall of the Dorchester labourers ; and to support their representations by an exhibition of physical force. A petition to the king was accordingly prepared ; and a meeting of trades' unions was summoned to assemble at Copenhagen Fields on the 21st of April, and escort a deputa- tion, by whom it was to be presented, to the Home Office. About 30,000 men assembled on that day, marshalled in their
* Supra, p. 27.
"Life of Wilberforce, v. 122-127, 163-171, etc. ; Life of Sir Fowell Buxton, 125, 256, 311, etc. ; Ann. Reg. 1833, ch. vii.
'Courts and Cabinets of Will. IV., etc., ii. 82. The Duke of Buckingham says that two out of the six " Dorchester labourers " were dissenting ministers.
LIBERTY OF OPINION 1 13
respective unions, and bearing emblems of their several trades. After the meeting, they formed a procession and marched, in orderly array, past Whitehall, to Kennington Common, while the deputation was left to its mission, at the Home Office. The leaders hoped to overawe the Government by their numbers and union : but were quickly undeceived. The de- putation presented themselves at the Home Office, and solicited the interview which Lord Melbourne had appointed : but they were met by Mr. Phillips, the under-secretary, and acquainted that Lord Melbourne could not receive the petition presented in such a manner, nor admit them to his presence, attended, as they were, by 30,000 men. They retired, humbled and crestfallen, and half afraid to announce their discomfiture at Kennington : they had failed in their mission, by reason of the very demonstration upon which they had rested their hopes of success.
Meanwhile the procession passed onwards, without dis- turbance. The people gazed upon them as they passed, with mingled feelings of interest and pity, but with little apprehen- sion. The streets were quiet : there were no signs of prepara- tion to quell disorder : not a soldier was to be seen : even the police were in the background. Yet, during the previous night, the metropolis had been prepared as for a siege. The streets were commanded by unseen artillery : the barracks and public offices were filled with soldiers under arms : large numbers of police and special constables were close at hand. Riot and outrage could have been crushed at a blow : but neither sight nor sound was there, to betray distrust of the people, or provoke them to a collision with authority. To a Government thus prepared, numbers were no menace : they were peaceable, and were unmolested. The vast assemblage dispersed ; and a few days afterwards, a deputation, with the petition, was courteously received by Lord Melbourne.^ It was a noble example of moderation and firmness on the part of the executive — worthy of imitation in all times.
Soon after these events a wider combination of working The Chart- men was commenced, the history of which is pregnant with ■^*^' ^^37-48.
1 Ann. Reg., 1834, Chron., p. 58; Court and Cabinets of Will. IV., ii. 82 ; Personal observation.
VOL. IL 8
114 THE CONSTITUTIONAL HISTORY OF ENGLAND
political instruction. The origin of Chartism was due to dis- tress and social discontents, rather than to political causes. Operatives were jealous of their employers, and discontented with their wages and the high price of food ; and between 183s and 1839, many were working short time in the factories, or were wholly out of employment. The recent introduction of the new poor law was also represented as an aggravation of their wrongs. Their discontents were fomented, but their distresses not alleviated, by trades' unions. Torch-light In 1 838, they held vast torch-light meetings throughout
nice ings. Lancashire. They were addressed in language of frantic vio- lence : they were known to be collecting arms : factories were burned : tumults and insurrection were threatened. In Nov- 22nd Nov., ember, the Government desired the magistrates to give notice of the illegality of such meetings, and of their intention to prevent them ; and in December, a proclamation was issued for that purpose.^ The national Hitherto the Chartists had been little better than the pe 1 1 n, 39. Lmjjjj^gg Qf ^ former period. Whatever their political objects, they were obscured by turbulence and a wild spirit of discon- tent— to which hatred of capitalists seemed to be the chief in- citement. But in 1838, the "People's Charter" was agreed upon ; and a national petition read at numerous meetings in support of it.^ Early in 1839, a national convention of dele- gates from the working classes was established in London, whose views were explained in the monster national petition, signed by 1,280,000 persons, and presented to the House of Commons on the 14th of June.' It prayed for universal suf- frage, vote by ballot, annual Parliaments, the payment of members, and the abolition of their property qualification — such being the five points of the people's charter. The mem- bers of the convention deprecated appeals to physical force ; and separated themselves, as far as possible, from those turbu- lent Chartists who had preached, and sometimes even practised, a different doctrine. The petition was discussed with temper
' Ann. Reg., 1839, p. 304 ; Carlyle's Tract on Chartism ; Life of Sir C. Napier, ii. 1-150.
"Ann. Reg., 1838; Chron., p. 120.
'Hans. Deb., 3rd Ser., xlviii. 222 ; Ann, Reg., 1839, p. 304.
LIBERTY OF OPINION 1 1 5
and moderation : but certainly with no signs of submission to the numbers and organisation of the petitioners.^
While the political section of Chartists were appealing to Chartist riots Parliament for democratic reform, their lawless associates, in^g^ce"^ "' the country, were making the name of Chartists hateful to all classes of society. There were Chartist riots at Birmingham, at Sheffield, at Newcastle : contributions were extorted from house to house by threats and violence : the services of the Church were invaded by the intrusion of large bodies of Chartists. At some of their meetings, the proceedings bore a remarkable resemblance to those of 18 19. At a great meeting at Kersal Moor, near Manchester, there were several female associations ; and in imitation of the election of legislatorial attorneys, Chartists were desired to attend every election ; when the members returned by show of hands, being the true representatives of the people, would meet in London at a time to be appointed. Thousands of armed men attacked the town Riot at New- of Newport : but were repulsed with loss by the spirit of Mr. P°'''- Phillipps, the mayor, and his brother magistrates, and the well-directed fire of a small file of troops. Three of their leaders. Frost, Williams, and Jones, were tried and transported for their share in this rebellious outrage.^ Such excesses were clearly due to social disorganisation among the operatives — to be met by commercial and social remedies, rather than to political discontents — to be cured by constitutional changes ; but being associated with political agitation, they disgraced a cause which — even if unstained by crimes and outrage — would have been utterly hopeless.
The Chartists occupied the position of the democrats and Weakness radical reformers of 1793, 1817, and 18 19. Prior to i830,°f^^g°g^!J^j^g reformers among the working classes had always demanded in agitation, universal suffrage and annual Parliaments. No scheme less comprehensive embraced their own claims to a share in the government of the country. But measures so democratic having been repudiated by the Whig party and the middle classes, the
1 14th June, i2th July, Hans. Deb., 3rd Sen, xlviii. 222, xlix. 220. A motion for referring it to a committee was negatived by a majority of 189— Ayes, 46; Noes, 235.
2 Ann. Reg., 1839, p. 393; Chron., pp. 73, 132-164.
Q *
1 1 6 THE CONSTITUTIONAL HISTORY OF ENGLAND
cause of reform had languished.^ In 1830 the working classes, powerless alone, had formed an alliance with the reform party and the middle classes ; and, waiving their own claims, had contributed to the passing of a measure which enfranchised every class but themselves.'^ Now they were again alone in their agitation. Their numbers were greater, their knowledge advanced, and their organisation more extended : but their hopes of forcing democracy upon Parliament were not less desperate. Their predecessors in the cause had been met by repression and coercion. Free from such restraints, the Chartists had to encounter the moral force of public opinion, and the strength of a Parliament resting upon a wider basis of representation and popular confidence. Chartist This agitation, however hopeless, was continued for several
loth^Apdl years; and in 1848, the Revolution in France inspired the 1848. Chartists with new life. Relying upon the public excitement,
and their own numbers, they now hoped to extort from the fears of Parliament what they had failed to obtain from its sympathies. A meeting was accordingly summoned to as- semble on the loth of April, at Kennington Common, and carry a Chartist petition, pretending to bear the signatures of 5,000,000 persons, to the very doors of the House of Commons. The Chartist leaders seemed to have forgotten the discomfiture of the trades' unions in 1835 : but the Govern- ment, profiting by the experience of that memorable occasion, prepared to protect Parliament from intimidation, and the public peace from disturbance. Preparations On the 6th, a notice was issued declaring the proposed menr. °^"" nieeting criminal and illegal — as tending to excite terror and alarm ; and the intention of repairing to Parliament, on pretence of presenting a petition, with excessive numbers, un- lawful, and calling upon well-disposed persons not to attend. At the same time, it was announced that the constitutional right of meeting to petition, and of presenting the petition, would be respected.^ The special On the loth, the bridges, the Bank, the Tower, and the
neighbourhood of Kennington Common were guarded by horse, foot, and artillery. Westminster Bridge, and the streets
* S^tpra, vol. i. p. 270 ; vol. ii. p. 80. ' Supra, p. 99.
3 Ann. Reg., 1848; Chron., p. 51.
constables.
LIBERTY OF OPINIO 1^ ti7
and approaches to the Houses of Parliament and public offices, were commanded by unseen ordnance. An overpowering military force — 'vigilant, yet out of sight — was ready for im- mediate action. The Houses of Parliament were filled with police; and the streets guarded by 170,000 special constables. The assembling of this latter force was the noblest example of the strength of a constitutional Government to be found in history. The maintenance of peace and order was confided to the people themselves. All classes of society vied with one another in loyalty and courage. Nobles and gentlemen of fashion, lawyers, merchants, scholars, clergymen, tradesmen, and operatives, hastened together to be sworn, and claim the privilege of bearing the constable's staff on this day of peril. The Chartists found themselves opposed not to their rulers only, but to the vast moral and material force of English society. They might, indeed, be guilty of outrage : but in- timidation was beyond their power.
The Chartists, proceeding from various parts of the town, Failure of at length assembled at Kennington Common. A body of**^®'"®^*'"S- 150,000 men had been expected: not more than 25,000 attended — to whom may be added about 10,000 spectators, attracted by curiosity. Mr. Feargus O'Connor, their leader, being summoned to confer with Mr. Mayne, the Police Com- missioner, was informed that the meeting would not be inter- fered with, if Mr. O'Connor would engage for its peaceable character : but that the procession to Westminster would be prevented by force. The disconcerted Chartists found all their proceedings a mockery. The meeting, having been assembled for the sake of the procession, was now without an object, and soon broke up in confusion. To attempt a pro- cession was wholly out of the question. The Chartists were on the wrong side of the river, and completely entrapped. Even the departing crowds were intercepted and dispersed on their arrival at the bridges, so as to prevent a dangerous re- union on the other side. Torrents of rain opportunely com- pleted their dispersion ; and in the afternoon the streets were deserted. Not a trace was left of the recent excitement.^
Discomfiture pursued this petition even into the House Signatures to
the petition.
^Ann. Reg., 1848; Chron., p. 50 ; Newspapers, gth, loth, and nth April, 1848 ; Personal observation.
ti8 THE CONSTITUTIONAL HISTORV OF ENGLANb
of Commons. It was numerously signed, beyond all ex- ample : but Mr. O'Connor, in presenting it, affirmed that it bore 5,706,000 signatures. A few days afterwards the real number was ascertained to be i ,900,000 — of which many were in the same handwriting, and others fictitious, jocose, and im- pertinent. The vast numbers who had signed this petition, earnestly and in good faith, entitled it to respect : but the ex- aggeration, levity, and carelessness of its promoters brought upon it discredit and ridicule.^ The failure of the Chartist agi- tation was another example of the hopelessness of a cause not supported by a Parliamentary party, by enlightened opinion, and by the co-operation of several classes of society. Anti-Corn- The last political agitation which remains to be described
Law League, ^^g essentially different in its objects, incidents, character, and result. The " Anti-Corn-Law League " affords the most re- markable example in our history of a great cause won against powerful interests and prejudice, by the overpowering force of reason and public opinion. When the league was formed in 1838, both Houses of Parliament, the first statesmen of all parties, and the landlords and farmers thi'oughout the country, firmly upheld the protective duties upon corn ; while mer- chants, manufacturers, traders, and the inhabitants of towns, were generally indifferent to the cause of free trade. The Parliamentary advocates of free trade in corn, led by Mr. Pou- lett Thomson and Mr. Charles Villiers, had already exhausted the resources of political science in support and illustration of this measure. Their party was respectable in numbers, in talent, and political influence ; and was slowly gathering strength. It was supported, in the country, by many political philosophers, by thoughtful writers in the press, and by a few far-seeing merchants and manufacturers : but the impulse of a popular movement, and public conviction, was wanting. This it became the mission of the Anti-Corn- Law League to create. Itsorganisa- This association at once seized upon all the means by tion. which, in a free country, public opinion may be acted upon.
Free-trade newspapers, pamphlets, and tracts were circulated with extraordinary industry and perseverance. The leaders
* The Queen, the Duke of Wellington, Sir R. Peel, and others, were repre- sented as having signed it several times. Hans. Deb., 3rd Ser., xcviii. 285; Report of Public Petitions Committee.
LIBERTY OF OPINION itg
of the League, and, above all, Mr. Cobden, addressed meet- ings, in every part of the country, in language calculated at once to instruct the public mind in the true principles of free trade, and to impress upon the people the vital importance of those principles to the interests of the whole community. Delegates, from all parts of England, were assembled at West- minster,! Manchester, and elsewhere, who conferred with Ministers, and members of Parliament.^ In 1842, they num- bered nearly 1,600.^ In London, Drury Lane and Covent Garden theatres were borrowed from the drama, and con- verted into arenas for political discussion, where crowded audi- ences listened with earnest, and often passionate, attention, to the stirring oratory of the corn-law repealers. In country towns, these intrepid advocates even undertook to convert farmers to the doctrines of free trade ; and were ready to break a lance with all comers, in the town-hall or corn exchange. The whole country was awakened by the masterly logic and illus- tration of Mr. Cobden, and the vigorous eloquence of Mr. Bright. Religion was pressed into the service of this wide- spread agitation. Conferences of ministers were held at Man- chester, Carnarvon, and Edinburgh, where the corn laws were denounced as sinful restraints upon the bounty of the Al- mighty ; and the clergy of all denominations were exhorted to use the persuasions of the pulpit, and every influence of their sacred calling, in the cause.* Even the sympathies of the fair sex were enlisted in the agitation, by the gaieties and excite- ment of free-trade bazaars.^ Large subscriptions were raised, which enabled the League to support a numerous staff" of agents, who everywhere collected and disseminated informa- tion upon the operation of the corn laws ; and encouraged the preparation of petitions.
By these means public opinion was rapidly instructed, and won over to the cause of free trade in corn. But Parliament and the constituencies were still to be overcome. Parliament was addressed in petitions from nearly every parish ; and no- thing was left undone that debates and divisions could accom-
^ Prentice's History of the Anti-Corn-Law League, i. loi, 107, 125. 2 Ihid., 150, 200. ^ Ihid., 306.
* Ihid.^ 234, 252, 290. * Ihid., 296.
tiO THE CONSTITUTIONAL HISTORY OF ENGLAND
1844.
Its success.
Causes of success.
plish within its walls. The constituencies were appealed to at every election on behalf of free-trade candidates : the regis- tration was diligently watched ; and no pains were spared to add free-trade voters to the register. Nor did the League stop here : but finding that, with all their efforts, the constitu- encies were still opposed to them, they resorted to an extensive creation of votes by means of 40s. freeholds, purchased by the working classes.^
Never had political organisation been so complete. The circumstances of the time favoured its efforts; and in 1846, the protective corn law — with which the most powerful inter- ests in the State were connected — was unconditionally and for ever abandoned. There had been great pressure from without, but no turbulence. Strong feelings had been aroused in the exciting struggle : landlords had been denounced : class ex- asperated against class : Parliament approached in a spirit of dictation. Impetuous orators, heated in the cause, had breathed words of fire : promises of cheap bread to hungry men, and complaints that it was denied them, were full of peril : but this vast organisation was never discredited by acts of violence or lawlessness. The leaders had triumphed in a great popular cause, without the least taint of sedition.
This movement had enjoyed every condition of success. The cause itself appealed alike to the reason and judgment of thinking men, and to the interests and passions of the multi- tude : it had the essential basis of Parliamentary support ; and it united, for a common object, the employers of labour and the working classes. The latter condition mainly ensured its success. Manufacturers foresaw, in free trade, an indefinite extension of the productive energies of the country ; operatives hoped for cheap bread, higher wages, and more constant em- ployment. These two classes, while suffering from the com- mercial stagnation of past years, had been estranged and hostile. Trades' unions and chartism had widened the breach between them : but they now worked heartily together in ad- vancing a measure which promised advantage to them all.
The history of the League yet furnishes another lesson.
* Prentice's Hist., passim, and particularly i. 64, 90, 126, 137, 225, 410 : i68, 236, etc. ; M. Bastiat, Cobden et la Ligue; Ann. Reg., 1843, 1844.
Liberty of opinion 121
It was permitted to survive its triumph ;^ and such is the love The Com- of freedom which animates Englishmen, that no sooner had ^^^^ 1^46°"^' its mission been accomplished, than men who had laboured with it became jealous of its power, and dreaded its dictation. Its influence rapidly declined ; and at length it became un- popular, even in its own strongholds.
In reviewing the history of political agitation, we cannot Review of be blind to the perils which have sometimes threatened the^gj^JI^Qn State. We have observed fierce antagonism between the people and their rulers — evil passions and turbulence — class divided against class — associations overbearing the councils of Parliament — and large bodies of subjects exalting them- selves into the very seat of government. Such have been the storms of the political atmosphere, which, in a free State, alter- nate with the calms and light breezes of public opinion ; and statesmen have learned to calculate their force and direction. There have been fears and dangers : but popular discontents have been dissipated ; wrongs have been redressed ; and public liberties established without revolution : while popular violence and intimidation have been overborne by the combined force of Government and society. And what have been the re- sults of agitation upon the legislation of the country? Not a measure has been forced upon Parliament which the calm judgment of a later time has not since approved : not an agi- tation has failed which posterity has not condemned. The abolition of the slave trade and slavery, Catholic emancipation. Parliamentary reform, and the repeal of the corn laws were the fruits of successful agitation — the repeal of the Union and chartism, conspicuous examples of failure.
But it may be asked, is agitation to be the normal condi- tion of the State ? Are the people to be ever combining, and the Government now resisting, and now yielding to, their pressure? Is constitutional Government to be worked with this perpetual wear and tear — this straining and wrenching of its very framework ? We fervently hope not. The struggles we have narrated marked the transition from old to new principles of government — from exclusion, repression, and distrust, to comprehension, sympathy, and confidence. Par-
^ It was dissolved in July, 1846 : see Cobden's Speeches, i. 387 ; but its or- ganisation was maintained for other purposes.
ti2 THE CONSTITUTIONAL HISTORY OF ENGLAND
Altered re- lations of Government
liament, yielding slowly to the expansive energies of society, was stirred and shaken by their upheavings. But with a free and instructed press, a wider representation, and a Parliament enjoying the general confidence of the people, agitation has nearly lost its fulcrum. Should Parliament, however, oppose itself to the progressive impulses of another generation, let it study well the history of the past ; and discern the signs of a pressure from without, which may not wisely be resisted. Let it reflect upon the wise maxim of Macaulay : " the true secret of the power of agitators is the obstinacy of rulers ; and liberal governments make a moderate people ".i
The development of free institutions, and the entire recog- nition of liberty of opinion, have wrought an essential change to the people, in the relations of the Government and the people. Mutual confidence has succeeded to mutual distrust. They act in con- cert, instead of opposition ; and share, with one another, the cares and responsibility of State affairs. If the power and in- dependence of Ministers are sometimes impaired by the neces- sity of admitting the whole people to their councils, their position is more often fortified by public approbation. Free discussion aids them in all their deliberations : the first intel- lects of the country counsel them : the good sense of the people strengthens their convictions. If they judge rightly, they may rely with confidence on public opinion ; and even if they err, so prompt is popular criticism, that they may yet have time to repair their error. The people having advanced in enlightenment as well as in freedom, their judgment has become more discriminating, and less capricious, than in for- mer times. To wise rulers, therefore, government has become less difificult. It has been their aim to satisfy the enlightened judgment of the whole community, freely expressed, and readily interpreted. To read it rightly — to cherish sentiments in advance of it, rather than to halt and falter behind it — has become the first office of a successful statesman.
What theory of a free state can transcend this gradual de- velopment of freedom, in which the power of the people has increased with their capacity for self-government ? It is this remarkable condition that has distinguished English freedom from democracy. Public opinion is expressed, not by the
* Speech on Reform Bill, 5th July, 1831; Hans. Deb., 3rd Ser., iv. 118.
Concurrent increase of power and intelligence in the people.
LIBERTY OF OPINION t2%
clamorous chorus of the multitude : but by the measured voices of all classes, parties, and interests. It is declared by the press, the exchange, the market, the club, and society at large. It is subject to as many checks and balances as the constitution itself; and represents the national intelligence, rather than the popular will.
CHAPTER XI.
Liberty of the subject assured earlier than political privileges.
General
warrants,
1763.
Liberty of the subject secured before political privileges — General war- rants— Suspension of Habeas Corpus Act — Impressment — Revenue laws as affecting civil liberty — Commitments for contempt — Arrests and imprisonment for debt — Last relics of slavery — Spies and in- formers— Opening letters — Protection of foreigners — Extradition treaties.
During the last hundred years, every institution has been popularised, every public liberty extended. Long before this period, however. Englishmen had enjoyed personal liberty as their birthright. More prized than any other civil right, and more jealously guarded, it had been secured earlier than those political privileges, of which we have been tracing the develop- ment. The franchises of Magna Charta had been firmly estab- lished in the seventeenth century. The Star Chamber had fallen : the power of arbitrary imprisonment had been wrested from the Crown and Privy Council : liberty had been guarded by the Habeas Corpus Act : judges redeemed from dependence and corruption ; and juries from intimidation and servile com- pliance. The landmarks of civil liberty were fixed : but relics of old abuses were yet to be swept away ; and traditions of times less favourable to freedom to be forgotten. Much re- mained to be done for the consolidation of rights already re- cognised ; and we may trace progress, not less remarkable than that which has characterised the history of our political liberties.
Among the remnants of a jurisprudence which had favoured prerogative at the expense of liberty, was that of the arrest of persons under general warrants, without previous evidence of their guilt, or identification of their persons. This practice sur- vived the Revolution, and was continued without question, on the ground of usage, until the reign of George HI., when it received its death-blow from the boldness of Wilkes, and the
124
LIBERTY OF THE SUBJECT 125
wisdom of Lord Camden. This question was brought to an issue by No. 45 of the " North Briton," already so often men- tioned. There was the libel, but who was the libeller ? Min- isters knew not, nor waited to inquire, after the accustomed forms of law : but forthwith Lord Halifax, one of the Secre- taries of State, issued a warrant, directing four messengers, taking with them a constable, to search for the authors, printers, and publishers ; and to apprehend and seize them, together with their papers, and bring them in safe custody before him. No one having been charged, or even suspected — no evidence of crime having been offered — no one was named in this dread instrument. The offence only was pointed at, not the offender. The magistrate, who should have sought proofs of crime, de- puted this office to his messengers. Armed with their roving commission, they set forth in quest of unknown offenders ; and unable to take evidence, listened to rumours, idle tales, and curious guesses. They held in their hands the liberty of every man whom they were pleased to suspect Nor were they triflers in their work. In three days, they arrested no less than forty-nine persons on suspicion, many as innocent as Lord Halifax himself Among the number was Dryden Leach, a printer, whom they took from his bed at night. They seized his papers ; and even apprehended his journeymen and ser- vants. He had printed one number of the " North Briton," and was then reprinting some other numbers : but as he hap- pened not to have printed No. 45, he was released, without being brought before Lord Halifax. They succeeded, however, in arresting Kearsley, the publisher, and Balfe the printer, of the obnoxious number, with all their workmen. From them it was discovered that Wilkes was the culprit of whom they were in search : but the evidence was not on oath ; and the messengers received verbal directions to apprehend Wilkes, under the general warrant. Wilkes, far keener than the Crown lawyers, not seeing his own name there, declared it " a ridiculous warrant against the whole English nation," and refused to obey it. But after being in custody of the messengers for some Arrest of hours, in his own house, he was taken away in a chair to ap- ^^i^^^es, pear before the Secretaries of State. No sooner had he been removed, than the messengers, returning to his house, pro- ceeded to ransack his drawers ; and carried off all his private
126 THE CONSTITUTIONAL HISTORY OF ENGLAND
30th April, 1763-
2nd May, 1763.
Actions against the messengers, 6th July, 1763.
Wilkes' ac- tion against Wood, 6th Dec, 1763.
papers, including even his will and pocket-book. When brought into the presence of Lord Halifax and Lord Egre- mont, questions were put to Wilkes, which he refused to answer : whereupon he was committed, close prisoner, to the Tower, denied the use of pen and paper, and interdicted from receiving the visits of his friends, or even of his professional advisers. From this imprisonment, however, he was shortly released, on a writ of habeas corpus, by reason of his privilege, as a member of the House of Commons.^
Wilkes afid the printers, supported by Lord Temple's liber- ality, soon questioned the legality of the general warrant. First, several journeymen printers brought actions against the messengers. On the first trial, Lord Chief Justice Pratt — not allowing bad precedents to set aside the sound prin- ciples of English law — held that the general warrant was illegal : that it was illegally executed ; and that the mes- sengers were not indemnified by statute. The journeymen recovered ;^300 damages ; and the other plaintiffs also obtained verdicts. In all these cases, however, bills of exceptions were tendered and allowed.
Mr. Wilkes himself brought an action against Mr. Wood, Under-Secretary of State, who had personally superintended the execution of the warrant. At this trial it was proved that Mr. Wood and the messengers, after Wilkes' removal in custody, had taken entire possession of his house, refusing admission to his friends ; had sent for a blacksmith, who opened the drawers of his bureau ; and having taken out the papers, had carried them away in a sack, without taking any list or inventory All his private manuscripts were seized, and his pocket-book filled up the mouth of the sack.^ Lord Halifax was examined, and admitted that the warrant had been made out three days before he had received evidence that Wilkes was the author of the " North Briton ". Lord Chief Justice Pratt thus spoke of the warrant : " The defendant claimed a right, under prece- dents, to force persons' houses, break open escritoires, and seize their papers, upon a general warrant, where no inventory is made of the things thus taken away, and where no offenders' names are specified in the warrant, and therefore a discre-
* Altnon's Corr, of Wilkes, i, 95-124 ; iii. 196-210, etc. > So stated by Lord Camden in Entinck v. Carring^on.
LIBERTY OF THE SUBJECT 127
tionary power given to messengers to search wherever their suspicions may chance to fall. If such a power is truly in- vested in a Secretary of State, and he can delegate this power, it certainly may affect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject." The jury found a verdict for the plaintiff, with ;^i ,000 damages.^
Four days after Wilkes had obtained his verdict against Leach v. Mr. Wood, Dryden Leach, the printer, gained another verdict, Decl^^Vea. with ;^400 damages, against the messengers. A bill of ex- ceptions, however, was tendered and received in this, as in other cases, and came on for hearing before the Court of King's Bench in 1766. After much argument, and the citing of precedents showing the practice of the Secretary of State's Office ever since the Revolution, Lord Mansfield pronounced the warrant illegal, saying : " It is not fit that the judging of the information should be left to the discretion of the officer. The magistrate should judge and give certain directions to the officer." The other three judges agreed that the warrant was illegal and bad, believing that " no degree of antiquity can give sanction to an usage bad in itself".^ The judgment was therefore affirmed.
Wilkes had also brought actions for false imprisonment Wilkes and against both the Secretaries of State. Lord Egremont's death ^^^ ^ '" put an end to the action against him ; and Lord Halifax, by pleading privilege, and interposing other delays unworthy of his position and character, contrived to put off his appearance until after Wilkes had been outlawed, when he appeared and pleaded the outlawry. But at length, in 1769, no further postponement could be contrived ; the action was tried, and Wilkes obtained no less than ;^4,ooo damages.^ Not only in this action, but throughout the proceedings in which persons aggrieved by the general warrant had sought redress, the Government offered an obstinate and vexatious resistance. The defendants were harassed by every obstacle which the law permitted, and subjected to ruinous costs.* The expenses
1 Loflft's Reports, St. Tr., xix. 1153.
2 Burrow's Rep., iii. 1742 ; St. Tr., xix. looi ; Sir W. Blackstone's Rep., 555. 2 Wilson's Rep., ii. 256; Almon's Corr. of Wilkes, iv. 13 ; Adolph. Hist., i.
136, «. ; St. Tr., xix. 1406.
* On a motion for a new trial in one of these numerous cases on the ground of excessive damages, Ch. Justice Pratt said: " They heard the king's counsel, •
128 THE CONSTITUTIONAL HISTORY OF ENGLAND
which Government itself incurred in these various actions were said to have amounted to ;^i 00,000.^ Search-war- The liberty of the subject was further assured, at this
mpers^ En- period, by another remarkable judgment of Lord Camden. In tincku. Car- November, 1762, the Earl of Halifax, as Secretary of State, 1765°"' had issued a warrant directing certain messengers, taking a constable to their assistance, to search for John Entinck, Clerk, the author, or one concerned in the writing, of several numbers of the " Monitor, or British Freeholder," and to seize him, " together with his books and papers," and to bring them in . safe custody before the Secretary of State. In execution of this warrant, the messengers apprehended Mr. Entinck in his house, and seized the books and papers in his bureau, writing- desk, and drawers. This case differed from that of Wilkes, as the warrant specified the name of the person against whom it was directed. In respect of the person, it was not a general warrant : but as regards the papers, it was a general search- warrant, not specifying any particular papers to be seized, but giving authority to the messengers to take all his books and papers, according to their discretion.
Mr. Entinck brought an action of trespass against the messengers for the seizure of his papers,^ upon which the jury found a special verdict with ;^300 damages. This special verdict was twice learnedly argued before the Court of Common Pleas, where at length, in 1765, Lord Camden pronounced an elaborate judgment. He even doubted the right of the Secretary of State to commit persons at all, except for high treason : but in deference to prior decisions ^ the court felt bound to acknowledge the right. The main question, however, was the legality of a search-warrant for papers. " If this point should be determined in favour of the jurisdiction," said Lord Camden, " the secret cabinets and bureaus of every subject in this kingdom will be thrown open to the search and inspection of a messenger, whenever the Secretary of State shall think fit to charge, or even suspect, a person to be the author, printer, or publisher of a seditious
and saw the solicitor of the Treasury endeavouring to support and maintain the legality of the warrant in a tyrannical and severe manner". — Ht. Tr., xix. 405.
1 Almon's Corr. of Wilkes.
^ Entinck v. Carrington, St. Tr., xix. 1030.
= Queen v. Derby, Fort. 140, and R. v. Earbury, 2 Barnadist, 293, 346.
LIBERTY OF THE SUBJECT 129
libel." "This power, so assumed by the Secretary of State, is an execution upon all the party's papers in the first instance. His house is rifled, his most valuable papers are taken out of his possession, before the paper, for which he is charged, is found to be criminal by any competent jurisdiction, and before he is convicted either of writing, publishing, or being con- cerned in the paper." It had been found by the special verdict that many such warrants had been issued since the Revolution : but he wholly denied their legality. He referred the origin of the practice to the Star Chamber, which in pur- suit of libels had given search-warrants to their messenger of the press — a practice which, after the abolition of the Star Chamber, had been revived and authorised by the Licensing Act of Charles H. in the person of the Secretary of State. And he conjectured that this practice had been continued after the expiration of that Act — a conjecture shared by Lord Mansfield and the Court of King's Bench. ^ With the unani- mous concurrence of the other judges of his court, this eminent magistrate now finally condemned this dangerous and uncon- stitutional practice.
Meanwhile, the legality of a general warrant had been General repeatedly discussed in Parliament.^ Several motions were ^j^^^^g"^^^ j^ offered, in different forms, for declaring it unlawful. While Parliament, trials were still pending, there were obvious objections to any proceeding by which the judgment of the courts would be anticipated : but in debate, such a warrant found few sup- porters. Those who were unwilling to condemn it by a vote of the House, had little to say in its defence. Even the attorney and solicitor-general did not venture to pronounce it legal. But whatever their opinion, the competency of the House to decide any matter of law was contemptuously denied. Sir Fletcher Norton, the attorney- general, even went so far as to declare that "he should regard a resolution of the members of the House of Commons no more than the oaths of so many drunken porters in Covent Garden " — a sentiment as unconstitutional as it was insolent. Mr. Pitt affirmed " that
^ Leach v. Money and others, Burrow's Rep., Hi. 1692, 1767; Sir V^. Blackstone's Rep., 555. The same view was also adopted by Blackstone, Comm., iv. 336, n. (Kerr's Ed,, 1862).
* 19th Jan., 3rd, 6th, 13th, 14th, and 17th Feb., 1764 ; Pari, Hist., xv. 1393- 1418; 29th Jan., 1765 ; ?W,, xvi. 6. *
VOL. IL 9
I30 THE CONSTITUTIONAL HISTORY OF ENGLAND
Resolutions of the Commons, 22nd April, 1766.
Declara- tory bill, 2gth April, 1766.
Suspension of Habeas Corpus Act.
there was not a man to be found of sufficient profligacy to defend this warrant upon the principle of legality ".
In 1766, the Court of King's Bench had condemned the warrant, and the objections to a declaratory resolution were therefore removed ; the Court of Common Pleas had pro- nounced a search-warrant for papers to be illegal ; and lastly, the more liberal administration of the Marquess of Rocking- ham had succeeded to that of Mr. Grenville. Accordingly, resolutions were now agreed to, condemning general warrants, whether for the seizure of persons or papers, as illegal ; and declaring them, if executed against a member, to be a breach of privilege.^
A bill was introduced to carry into effect these resolutions, and passed by the House of Commons: but was not agreed to by the Lords. ^ A declaratory act was, however, no longer necessary. The illegality of general warrants had been judici- ally determined, and the judgment of the courts confirmed by the House of Commons, and approved as well by popular opinion, as by the first statesmen of the time. The cause of public liberty had been vindicated, and was henceforth secure.
The writ of habeas corpus is unquestionably the first security of civil liberty. It brings to light the cause of every imprison- ment, approves its lawfulness, or liberates the prisoner. It exacts obedience from the highest courts : Parliament itself submits to its authority.^ No right is more justly valued It protects the subject from unfounded suspicions, from the aggressions of power, and from abuses in the administration of justice.* Yet this protective law, which gives every man security and confidence, in times of tranquillity, has been suspended, again and again, in periods of public danger or apprehension. Rarely, however, has this been suffered without jealousy, hesitation, and remonstrance ; and whenever the perils of the State have been held sufficient to warrant this sacrifice of personal liberty, no Minister or magistrate has been suffered to tamper with the law at his discretion. Parliament alone, convinced of the exigency of each occasion, has suspended, for a time, the rights of individuals, in the interests of the State.
1 Pari. Hist., xvi. 209. ^ Ibid., 210.
' May's Law and Usage of Parliament, p. 75 (6th Ed.). * Blackstone's Comm. (Kerr), iii. 138-147, etc.
LIBERTY OF THE SUBJECT 131
The first years after the Revolution were full of danger. Cases from A dethroned king, aided by foreign enemies, and a powerful ^^. ^^^'^- body of English adherents, was threatening the new settlement 1794. of the Crown with war and treason. Hence the liberties of Englishmen, so recently assured, were several times made to yield to the exigencies of the State. Again, on occasions of no less peril — the rebellion of 171 5, the Jacobite conspiracy of 1722, and the invasion of the realm by the Pretender in 1745 — the Habeas Corpus Act was suspended.^ Henceforth, for nearly half a century, the law remained inviolate. During the American War, indeed, it had been necessary to empower the king to secure persons suspected of high treason, committed in North America, or on the high seas, or of the crime of piracy : ^ but it was not until 1794 that the civil liberties of Englishmen at home were again to be suspended. The dangers and alarms of that dark period have already been recounted.^ Ministers, believing the State to be threatened by traitorous conspiracies, once more sought power to countermine treason by powers beyond the law.
Relying upon the report of a secret committee, Mr. Pitt Habeas
moved for a bill to empower his Majesty to secure and detain ^oi'P^s
, r • ■ • 1 • 1 ^ Suspension
persons suspected 01 conspirmg agamst his person and Govern- Act, 1794.
ment. He justified this measure on the ground that whatever ^^'^^ ^^y- the temporary danger of placing such power in the hands of the Government, it was far less than the danger with which the constitution and society were threatened. If Ministers abused the power entrusted to them, they would be responsible for its abuse. It was vigorously opposed by Mr. Fox, Mr. Grey, Mr. Sheridan, and a small body of adherents. They denied the disaffection imputed to the people, ridiculed the revelations of the committee, and declared that no such dangers threatened the State as would justify the surrender of the chief safeguard of personal freedom. This measure would give Ministers absolute power over every individual in the king- dom. It would empower them to arrest, on suspicion, any man whose opinions were obnoxious to them — the advocates
' Pari. Hist., viii. 27-39; xiii. 671. In 1745 it was stated by the solicitor- general that the Act had been suspended nine times since the Revolution ; and in 1794 Mr. Secretary Dundas made a similar statement. — Ihid., xxx. 539.
* In 1777, Act 17 Geo. III. c. 9. ^ Supra, p. 44.
9 *
132 THE CONSTITUTIONAL HISTORY OF ENGLAND
Grounds and char- acter of the measure.
of reform, even the members of the Parliamentary Opposition. Who would be safe, when conspiracies were everywhere sus- pected, and constitutional objects and language believed to be the mere cloak of sedition? Let every man charged with treason be brought to justice; in the words of Sheridan, " where there was guilt, let the broad axe fall " ; but why surrender the liberties of the innocent?
Yet thirty-nine members only could be found to oppose the introduction of the bill.^ Ministers, representing its immediate urgency, endeavoured to pass it at once through all its stages. The Opposition, unable to resist its progress by numbers, en- deavoured to arrest its passing for a time, in order to appeal to the judgment of the country : but all their efforts were vain. With free institutions, the people were now governed according to the principles of despotism. The will of their rulers was supreme, and not to be questioned. After eleven divisions, the bill was pressed forward as far as the report on the same night ; and the galleries being closed, the arguments urged against it were merely addressed to a determined and taciturn majority. On the following day, the bill was read a third time and sent up to the Lords, by whom, after some sharp debates, it was speedily passed.'^
The strongest opponents of the measure, while denying its present necessity, admitted that when danger is imminent, the liberty of the subject must be sacrificed to the paramount in- terests of the State. Ringleaders must be seized, outrages an- ticipated, plots disconcerted, and the dark haunts of conspiracy filled with distrust and terror. And terrible indeed was the power now entrusted to the executive. Though termed a sus- pension of the Habeas Corpus Act, it was, in truth, a suspen- sion of Magna Charta,^ and of the cardinal principles of the common law. Every rnan had hitherto been free from im- prisonment until charged with crime, by information upon oath ; and entitled to a speedy trial and the judgment of his peers. But any subject could now be arrested on suspicion of treason- able practices, without specific charge or proof of guilt ; his accusers were unknown ; and in vain might he demand public
1 Ayes, 20I ; Noes, 39. 2 pju-i. Hist., xxxi. 497, 521, 525.
*"Nullu8 liber homo capiatur aut imprisonetur, nisi per legale judicium parium suorum." ..." Nulli negabimus, null! differemus justiciam."
J
LIBERTY OF THE SUBJECT \%%
accusation and trial. Spies and treacherous accomplices, how- ever circumstantial in their narratives to Secretaries of State and law officers, shrank from the witness-box ; and their victims rotted in gaol. Whatever the judgment, temper, and good faith of the executive, such a power was arbitrary, and could scarcely fail to be abused.^ Whatever the dangers by which it was justified, never did the subject so much need the pro- tection of the laws, as when Government and society were filled with suspicion and alarm.
Notwithstanding the failure of the State prosecutions, and Its con- the discredit cast upon the evidence of a traitorous conspiracy, i7g">^.i8oo. on which the Suspension Act had been expressly founded. Ministers declined to surrender the invidious power with which they had been entrusted. Strenuous resistance was offered by the Opposition to the continuance of the Act : but it was renewed again and again, so long as the public apprehensions continued. From 1 798 to 1 800, the increased malignity and violence of English democrats, and their complicity with Irish treason, repelled further objections to this exceptional law.*^
At length, at the end of 1801, the Act being no longer Habeas defensible on grounds of public danger, was suffered to expire Corpus after a continuous operation of eight years.^ But before its Act expired, operation had ceased, a bill was introduced to indemnify all ^ persons who since the ist of February, 1793, had acted in the apprehension of persons suspected of high treason. A measure designed to protect the Ministers and their agents from respon- sibility, on account of acts extending over a period of eight years, was not suffered to pass without strenuous opposition.* When extraordinary powers had first been sought, it was said that Ministers would be responsible for their proper exercise ; and now every act of authority, every neglect or abuse, was
^ Blackstone says : " It has happened in England during temporary suspen- sions of the statute, that persons apprehended upon suspicion have suffered a long imprisonment, merely because they were forgotten ". — Comtn,, iii. (Kerr), 146.
^ In 1798 there were only seven votes against its renewal. In 1800 it was opposed by twelve in the Commons, and by three in the Lords. It was then stated that twenty-nine persons had been imprisoned, some for more than two years, without being brought to trial. — Pari. Hist., xxxiv. 1484.
^ The Act 41 Geo. III. c. 26, expired six weeks after the commencement of the next session, which commenced on the 29th of Oct., in the same year.
* Pari. Hist., xxxv. 1507-1549.
134 TME CONSTITUTIONAL HISTORY OF ENGLAND
Suspension of Habeas Corpus Act, 1817.
Bill of In- demnity, 1817.
to be buried in oblivion. It was stated in debate that some persons had suffered imprisonment for three years, and one for six, without being brought to trial ; ^ and Lord Thurlow could " not resist the impulse to deem men innocent until tried and convicted ". The measure was defended, however, on the ground that persons accused of abuses would be unable to defend themselves, without disclosing secrets dangerous to the lives of individuals, and to the State. Unless the bill were passed, those channels of information would be stopped, on which Government relied for guarding the public peace.^ When all the accustomed forms of law had been departed from, the justification of the executive would indeed have been difficult : but evil times had passed, and a veil was drawn over them. If dangerous powers had been misused, they were covered by an amnesty. It were better to withhold such powers, than to scrutinise their exercise too curiously ; and were any further argument needed against the suspension of the law, it would be found in the reasons urged for indemnity.
For several years the ordinary law of arrest was free from further invasion. But on the first appearance of popular dis- contents and combinations, the Government resorted to the same ready expedient for strengthening the hands of the exe- cutive, at the expense of public liberty. The suspension of the Habeas Corpus Act formed part of Lord Sidmouth's re- pressive measures in 1817,^ when it was far less defensible than in 1794. At the first period, the French Revolution was still raging ; its consequences no man could foresee ; and a deadly war had broken out with the revolutionary Government of France. Here, at least, there may have been grounds for ex- traordinary precautions. But in 1 8 17, France was again settled under the Bourbons : the Revolution had worn itself out : Europe was again at peace ; and the State was threatened with no danger but domestic discontent and turbulence.
Again did Ministers — having received powers to apprehend and detain in custody persons suspected of treasonable prac- tices, and having imprisoned many men without bringing them to trial — seek indemnity for all concerned in the exercise of these powers, and in the suppression of tumultuous assem-
' Pari. Hist., xxxv. 1517.
^Ibid., 15 10.
» Supra, p. 44.
LIBERTY OF THE SUBJECT 135
blies.^ Magistrates had seized papers and arms, and interfered with meetings, under circumstances not warranted even by the exceptional powers entrusted to them : but having acted in good faith for the repression of tumults and sedition they claimed protection. This bill was not passed without a spirited resistance. The executive had not been idle in the exercise of its extraordinary powers. Ninety-six persons had been arrested on suspicion. Of these, forty- four were taken by warrant of the Secretary of State : four by warrant of the Privy Council : the remainder on the warrants of magistrates. Not one of those arrested on the warrant of the Secretary of State had been brought to trial. The four arrested on the warrant of the Privy Council were tried and acquitted.^ Prisoners had been moved from prison to prison in chains ; and after long, painful, and even solitary imprisonment, discharged on their recognis- ances, without trial. ^
Numerous petitions were presented, complaining of cruelties Petitions and hardships ; and though falsehood and exaggeration charac- complam- terised many of their statements, the justice of inquiry was iii-usage. insisted on, before a general indemnity was agreed to. " They were called upon," said Mr. Lambton, " to throw an impene- trable veil over all the acts of tyranny and oppression that had been committed under the Suspension Act. They were re- quired to stifle the voice of just complaint, to disregard the numerous petitions that had been presented, arraigning the conduct of Ministers, detailing acts of cruelty unparalleled in the annals of the Bastille, and demanding full and open inves- tigation." * But on behalf of Government, it appeared that in no instance had warrants of detention been issued, except on information upon oath ; ^ and the attorney-general declared that none of the prisoners had been deprived of liberty for a single hour, on the evidence of informers alone, which was
1 Hans. Deb., ist Ser., xxxv. 491, 551, 643, 708, 795, etc. ; 57 Geo. III. c. 55 ; repealed by 58 Geo. III. c. i.
^ Lords' Report on the State of the Country. In ten other cases the parties had escaped. — Hans. Deb., ist Ser., xxxvii. 573 ; Sir M. W. Ridley, 9th March, i8i8; ibid., 901.
3 Petitions of Benbow, Drummond, Bagguley, Leach, Scholes, Ogden, and others. — Hans. Deb., ist Ser., xxxvii. 438, 441, 453, 461, 519.
* 9th March, 1818 ; Hans. Deb., ist Ser., xxxvii. 891.
* Lords' Report on State of the Nation ; Hans. Deb., ist Ser., xxxvii. 574.
ts6 T//E CONSTITUTIONAL HISTORY OF ENGLAND
Habeas Corpus Act since respected.
Suspension of Habeas Corpus Act in Ireland.
Impress- ment.
never acted on, unless corroborated by other undoubted testi- mony.^
Indemnity was granted for the past : but the discussions which it provoked, disclosed, more forcibly than ever, the hazard of permitting the even course of the law to be inter- rupted. They were not without their warning. Even Lord Sidmouth was afterwards satisfied with the rigorous provisions of the Six Acts ; and, while stifling public discussion, did not venture to propose another forfeiture of personal liberty. And happily, since his time. Ministers, animated by a higher spirit of statesmanship, have known how to maintain the authority of the law in England, without the aid of abnormal powers.
In Ireland, a less settled state of society — agrarian outrages, feuds envenomed by many deeds of blood, and dangerous conspiracies, have too often called for sacrifices of liberty. Before the Union, a bloody rebellion demanded this security ; and since that period, the Habeas Corpus Act was suspended on no less than six occasions prior to 1860.^ The last Sus- pension Act, in 1848, was rendered necessary by an imminent rebellion, openly organised and threatened : when the people were arming, and their leaders inciting them to massacre and plunder.^ Other measures in restraint of crime and outrage have also pressed upon the constitutional liberties of the Irish people. But let us hope that the rapid advancement of that country in wealth and industry, in enlightenment and social improvement, may henceforth entitle its spirited and generous people to the enjoyment of the same confidence as their English brethren.
But perhaps the greatest anomaly in our laws — the most signal exception to personal freedom — is to be found in the custom of impressment for the land and sea service. There is nothing incompatible with freedom in a conscription or forced levy of men for the defence of the country. It may be sub- mitted to, in the freest republic, like the payment of taxes.
' 17th Feb., 1818 ; Hans. Deb., ist Ser., xxxvii. 499, 88i, 953, etc.
" It was suspended in 1800 at the very time of the Union ; from 1802 till 1805; from 1807 till 1810; in 1814; and from 1822 till 1824; subsequently to i860, it was suspended, in 1866 ; and this suspension was twice continued until March, 1869. Again, in 1871, it was suspended in Westmeath, and parts of adjacent counties.
* Hans. Deb., 3rd Ser., c. 696-755.
LIBERTY OF THE SUBJECT t^y
The services of every subject may be required in such form as the State determines. But impressment is the arbitrary and capricious seizure of individuals from among the general body of citizens. It differs from conscription, as a particular con- fiscation differs from a general tax.
The impressment of soldiers for the wars was formerly impress- exercised as part of the royal prerogative : but among the ser- ^e"^my. vices rendered to liberty by the Long Parliament, in its earlier councils, this custom was condemned, " except in case of neces- sity of the sudden coming in of strange enemies into the king- dom, or except " in the case of persons " otherwise bound by the tenure of their lands or possessions".^ The prerogative was discontinued : but during the exigencies of war, the tempta- tion of impressment was too strong to be resisted by Parliament. The class on whom it fell, however, found little sympathy from society. They were rogues and vagabonds, who were held to be better employed in defence of their country than in plunder and mendicancy.^ During the American war, impressment was permitted in the case of all idle and disorderly persons, not following any lawful trade, or having some substance sufficient for their maintenance.^ Such men were seized upon, without compunction, and hurried to the war. It was a dangerous license, repugnant to the free spirit of our laws ; and, in later times, the State has trusted to bounties and the recruiting sergeant, and not to impressment, for strengthening its land forces.
But for manning the navy in time of war, the impressment impress- of seamen has been recognised by the common law, and by Jl^^"^^ '^'"^ many statutes.* The hardships and cruelties of the system were notorious.^ No violation of natural liberty could be more gross. Free men were forced into a painful and dan- gerous service, not only against their will, but often by fraud and violence. Entrapped in taverns, or torn from their homes by armed press-gangs, in the dead of night, they were hurried on board ship, to die of wounds or pestilence. Impressment
1 16 Charles I. c, 28. * Pari. Hist., xv, 547.
3 19 Geo. III. c. 10, ibid., xx. 114.
* Sir M. Foster's Rep., 154 ; Stat. 2 Rich. II. c. 4 ; 2 & 3 Phil, and Mary, c. 16, etc.; 5 & 6 Will. IV. c. 24; Barrington on the Statutes, 334; Blackstone, i. 425 (Kerr) ; Stephen's Comm., ii. 576; Pari. Hist.^ vi. 518.
^Ihid., XV. 544, xix. 81, etc.
138 THE CONSTITUTIONAL HISTORY OF ENGLAND
was restricted by law to seamen, who being most needed for the fleet, chiefly suffered from the violence of the press-gangs. They were taken on the coast, or seized on board merchant- ships, like criminals : ships at sea were rifled of their crews, and left without sufficient hands to take them safely into port. Nay, we even find soldiers employed to assist the press-gangs : villages invested by a regular force ; sentries standing with fixed bayonets ; and churches surrounded, during divine service, to seize seamen for the fleet. ^ Press-gangs. The lawless press-gangs were no respecters of persons. In vain did apprentices and landsmen claim exemption. They were skulking sailors in disguise, or would make good seamen at the first scent of salt-water ; and were carried off to the sea- ports. Press-gangs were the terror of citizens and apprentices in London, of labourers in villages, and of artisans in the re- motest inland towns. Their approach was dreaded like the invasion of a foreign enemy. To escape their swoop, men forsook their trades and families, and fled — or armed them- selves for resistance. Their deeds have been recounted in history, in fiction, and in song. Outrages were of course deplored : but the navy was the pride of England, and every one agreed that it must be recruited In vain were other means suggested for manning the fleet — higher wages, limited service, and increased pensions. Such schemes were doubtful expedients : the navy could not be hazarded : press-gangs must still go forth and execute their rough commission, or England would be lost. And so impressment prospered. 2 Retrospec- So constant were the draughts of seamen for the American
1779. ' War, that in 1779 the customary exemptions from impress- ment were withdrawn. Men following callings under the protection of various statutes were suddenly kidnapped, by the authority of Parliament, and sent to the fleet ; and this in- vasion of their rights was effected in the ruffianly spirit of the press-gang. A bill proposed late at night, in a thin house,
i2nd Dec, 1755, Pari. Hist., xv. 549.
* See debate on Mr. Luttrell's motion, nth March, 1777; Pari. Hist., xix. 81. On the 22nd November, 1770, Lord Chatham said : " I am myself clearly convinced, and I believe every man who knows anything of the English navy will acknowledge, that, without impressing, it is impossible to equip a respect- able fleet within the time in which such armaments are usually wanted ". — Pari. Hist., xvi. not.
LIBERTY OF THE SUBJECT 139
and without notice — avowedly in order to surprise its victims — was made retrospective in its operation. Even before it was proposed to Parliament, orders had been given for a vigorous impressment, without any regard to the existing law. Every illegal act was to be made lawful ; and men who had been seized in violation of statutes, were deprived of the protection of a writ oi habeas corpus} Early in the next exhausting war, Enlistment the State, unable to spare its rogues and vagabonds for the ^^' ^^^^" army, allowed them to be impressed, with smugglers and others of doubtful means and industry, for the service of the fleet. The select body of electors were exempt : but all other men out of work were lawful prize. Their service was with- out limit : they might be slaves for life. 2
Throughout the war, these sacrifices of liberty were exacted Enlistment for the public safety. But when the land was once nniorep^^" *^^ blessed with peace, it was asked if they would be endured again. The evils of impressment were repeatedly discussed in Parliament, and schemes of voluntary enlistment proposed by Mr. Hume=^ and others.* Ministers and Parliament were no less alive to the dangerous principles on which recruiting for the navy had hitherto been conducted ; and devised new ex- pedients more consistent with the national defences of a free country. Higher wages, larger bounties, shorter periods of service, and a reserve volunteer force ^ — such have been the means by which the navy has been strengthened and popu- larised. During the Russian War great fleets were manned for the Baltic and the Mediterranean by volunteers. Impress- ment— not yet formally renounced by law — has been con- demned by the general sentiment of the country;*^ and we
^ 23rd June, 1779. Speech of the Attorney-General Wedderburn ; Pari. Hist., XX. 962 ; 29 Geo. III. c. 75.
2 35 Geo. III. c. 34-
*ioth June, 1824; Hans. Deb., 2nd Ser., xi. 1171; 9th June, 1825; ibid,, xiii. 1097.
■♦Mr. Buckingham, 15th Aug., 1833; 4th March, 1834; Hans. Deb., 3rd Ser., XX. 691, xxi. 1061 ; Earl of Durham, 3rd March, 1834 ; ibid., xxi. 992 ; Capt. Harris, 23rd May, 1850; ihid., cxi. 279.
^ 5 & 6 Will. IV. c. 24; Hans. Deb., 3rd Ser., xxvi. 1120; xcii. 10, 729; 16 & 17 Vict. c. 69 ; 17 & 18 Vict. c. 18.
* The able commission on manning the navy, in 1859, reported " the evi- dence of the witnesses, with scarcely an exception, shows that the system of naval impressment, as practised in former wars, could not now be successfully enforced ". — p. xi.
140 THE CONSTITUTIONAL HISTORY OP ENGLAND
Revenue Laws.
Crown debtors.
Vindictive exercise of privileges by Parlia- ment, another encroach- ment upon liberty.
may hope that modern statesmanship has, at length, provided for the efficiency of the fleet, by measures consistent with the Hberty of the subject.
The personal liberty of British subjects has further suffered from rigours and abuses of the law. The supervision neces- sary for the collection of taxes — and especially of the excise — has been frequently observed upon, as a restraint upon the natural freedom of the subject. The visits of revenue officers, throughout the processes of manufacture, the summary proced- ure by which penalties are enforced, and the encouragement given to informers, have been among the most popular argu- ments against duties of excise.^ The repeal of many of these duties, under an improved fiscal policy, has contributed as well to the liberties of the people as to their material welfare.
But restraints and vexations were not the worst incident of the revenue laws. An onerous and complicated system of taxation involved numerous breaches of the law. Many were punished with fines, which, if not paid, were followed by im- prisonment. It was right that the law should be vindicated : but while other offences escaped with limited terms of im- prisonment, the luckless debtors of the Crown, if too poor to pay their fees and costs, might suffer imprisonment for life.^ Even when the legislature at length took pity upon other debtors, this class of prisoners were excepted from its merciful care.^ But they have since shared in the milder policy of our laws ; and have received ample indulgence from the Treasury and the Court of Exchequer.*
While Parliament continued to wield its power of commit- ment capriciously and vindictively — not in vindication of its own just authority, but for the punishment of libels, and other offences cognisable by the law — it was scarcely less dangerous than those arbitrary acts of prerogative which the law had already condemned as repugnant to liberty. Its abuses,
I
^ Adam Smith, speaking of " the frequent visits and odious examination of the tax-gatherers," says : " Dealers have no respite from the continual visits and examination of the excise officers". — Book v. c. 2. Blackstone says: "The rigour, and arbitrary proceedings of excise laws, seem hardly compatible with the temper of a free nation". — Comm., i. 308 (Kerr's Ed.).
* Hans. Deb., 2nd Ser., viii. 808. 3 53 Geo. III. c. 102, § 51.
* 7 Geo. IV. c. 57, § 74 ; i d 2 Vict. c. no, §§ 103, 104.
LIBERTY OF THE SUBJECT 141
however, survived but for a few years after the accession of George III.i
But another power, of like character, continued to impose Commit- — and still occasionally permits — the most cruel rcstraints ^^"^^ ""^ upon personal liberty. A court of equity can only enforce obedience to its authority by imprisonment. If obedience be refused, commitment for contempt must follow. The authority of the court would otherwise be defied, and its juris- diction rendered nugatory. But out of this necessary judicial process grew up gross abuses and oppression. Ordinary offences are purged by certain terms of imprisonment ; men suffer punishment and are free again. And, on this principle, persons committed for disrespect or other contempt to the court itself, were released after a reasonable time, upon their apology and submission.^ But no such mercy was shown to those who failed to obey the decrees of the court, in any suit. Their imprisonment was indefinite, if not perpetual. Their contempt was only to be purged by obedience, perhaps wholly beyond their power. For such prisoners there was no relief but death. Some persisted in their contempt from obstinacy, sullenness, and litigious hate : but many suffered for no offence but ignorance and poverty. Humble suitors, dragged into court by richer litigants, were sometimes too poor to obtain professional advice, or even to procure copies of the bills filed against them. Lord Eldon himself, to his honour be it said, had charitably assisted such men to put in answers in his own court.^ Others, again, unable to pay money and costs decreed against them, suffered imprisonment for life. This latter class, however, at length became entitled to relief as insolvent debtors.^ But the complaints of other wretched men, to whom the law brought no relief, were often heard. In 1817, Mr, Benriet, in presenting a petition from one of these prisoners, thus stated his own experience : '* Last year," he said, " Thomas Williams had been in confinement for thirty-one years by an order of the Court of Chancery, He had visited him in his
^ Supra, Chap. VII. ; and see Townsend's Mem. of the House of Commons, passim.
2 Hans. Deb., 2nd Ser., viii. 808. ^ Ibid., xiv. 1178.
* 49 Geo. III. c. 6 ; 53 Geo. III. c. 102, § 47 ; Hans. Deb., 2nd Ser,, xiv. 1178.
X820.
142 THE CONSTITUTIONAL HISTORY OF ENGLAND
wretched house of bondage, where he had found him sinking under all the miseries that can afflict humanity, and on the following day he died. At this time," he added, "there were in the same prison with the petitioner, a woman who had been in confinement twenty-eight years, and two other persons who had been there seventeen years." ^ In the next year, Mr. Bennet presented another petition from prisoners confined for 22nd April, contempt of court, complaining that nothing had been done to ^^^^' relieve them, though they had followed all the instructions of
their lawyers. The petitioners had witnessed the death of six persons, in the same condition as themselves, one of whom had been confined four, another eighteen, and another thirty-four years.2 3i8tAug., In 1820, Lord Althorp presented another petition; and
among the petitioners was a woman, eighty-one years old, who had been imprisoned for thirty-one years.^ In the eight years preceding 1 820, twenty prisoners had died while under confine- ment for contempt, some of whom had been in prison for up- wards of thirty years.* Even so late as 1856, Lord St Leonards presented a petition, complaining of continued hardships upon prisoners for contempt ; and a statement of the Lord Chancellor revealed the difficulty and painfulness of such cases. "A man who had been confined in the early days of Lord Eldon's Chancellorship for refusing to disclose certain facts, remained in prison, obstinately declining to make any statement upon the subject, until his death a few months ago."^
Doubtless the peculiar jurisdiction of courts of equity has caused this extraordinary rigour in the punishment of con- tempts : but justice and a respect for personal liberty alike require that punishment should be meted out according to the gravity of the offence. The Court of Queen's Bench upholds its dignity by commitments for a fixed period ; and may not the Court of Chancery be content with the like punishment for disobedience, however gross and culpable ?
1 6th May, 1817 ; Hans. Deb., 1st Ser., xxxvi. 158. Mr. Bennet had made a statement on the same subject in 1816 ; ibid., xxxiv. 1099.
^Ibid., xxxviii. 284. ' Ibid., 2nd Ser., i. 693.
* Ibid., xiv. 1178; Mr. Hume's Return, Pari. Paper, 1820 (302).
* Ibid., 3rd Ser., cxlii. 1570. In another recent case, a lad was committed for refusing to discontinue his addresses to a ward of the court, and died in prison.
LIBERTY OF THE SUBJECT 143
Every restraint on public liberty hitherto noticed has been Arrest on
mesne process.
permitted either to the executive Government, in the interests '"^"^
of the State, or to courts of justice, in the exercise of a neces- sary jurisdiction. Individual rights have been held subordinate to the public good ; and on that ground, even questionable practices admitted of justification. But the law further per- mitted, and society long tolerated, the most grievous and wanton restraints, imposed by one subject upon another, for which no such justification is to be found. The law of debtor and creditor, until a comparatively recent period, was a scandal to a civilised country. For the smallest claim, any man was liable to be arrested, on mesne process, before legal proof of the debt. He might be torn from his family, like a malefactor — at any time of day or night — and detained until bail was given ; and in default of bail, imprisoned until the debt was paid. Many of these arrests were wanton and vexatious ; and writs were issued with a facility and looseness which placed the liberty of every man — suddenly and without notice — at the mercy of anyone who claimed payment of a debt. A debtor, however honest and solvent, was liable to arrest. The demand might even be false and fraudulent : but the pretended creditor, on making oath of the debt, was armed with this terrible pro- cess of the law.i The wretched defendant might lie in prison for several months before his cause was heard ; when, even if the action was discontinued, or the debt disproved, he could not obtain his discharge without further proceedings, often too costly for a poor debtor, already deprived of his livelihood by imprisonment. No longer even a debtor, he could not shake off his bonds.
Slowly and with reluctance, did Parliament address itself to the correction of this monstrous abuse. In the reign of George I. arrests on mesne process, issuing out of the superior courts, were limited to sums exceeding £io-^ but it was not until 1779, that the same limit was imposed on the process of in- ferior jurisdictions.^ This sum was afterwards raised to ^15, and in 1827 to £20. In that year 1,100 persons were confined, in the prisons of the metropolis alone, on mesne process.*
'An executor might even obtain an arrest on swearing to his belief of a debt. Report, 1792, Com. Journ., xlvii. 640.
2 12 Geo. I. c. 29. 3 ig Geo. III. c. 70.
* Hans. Deb., and Ser., xvii. 386. The number in England amounted to 3,662.
144 THE CONSTITUTIONAL HISTORY OF ENGLAND
The total abolition of arrests on mesne process was fre- quently advocated, but it was not until 1838 that it was at length accomplished. Provision was made for securing ab- sconding debtors : but the old process for the recovery of debt, in ordinary cases, which had wrought so many acts of oppres- sion, was abolished. While this vindictive remedy was denied, the creditor's lands were, for the first time, allowed to be taken in satisfaction of a debt ; ^ and extended facilities were afterwards afforded for the recovery of small claims by the establishment of county courts.^ Imprison- The law of arrest was reckless of liberty : the law of exe-
debt! ^^ cution for debt was one of savage barbarity. A creditor is entitled to every protection and remedy which the law can reasonably give. All the debtor's property should be his ; and frauds by which he has been wronged should be punished as criminal. But the remedies of English law against the pro- perty of a debtor were strangely inadequate, its main security being the body of the debtor. This became the property of the creditor, until the debt was paid. The ancients allowed a creditor to seize his debtor, and hold him in slavery. It was a cruel practice, condemned by the most enlightened law- givers : "^ but it was more rational and humane than the law of England. By servitude a man might work out his debt : by imprisonment restitution was made impossible. A man was torn from his trade and industry, and buried in a dungeon : the debtor perished, but the creditor was unpaid. The penalty of an unpaid debt, however small, was imprisonment for life. A trader within the operation of the bankrupt laws might ob- tain his discharge, on giving up all his property : but for an insolvent debtor there was no possibility of relief, but charity or the rare indulgence of his creditor. His body being the pro- perty of his creditor, the law could not interfere. He might become insane, or dangerously sick : but the court was unable to give him liberty. We read with horror of a woman dying
' I & 2 Vict. c. no. ' 9 & 10 Vict. c. 95.
' Solon renounced it, finding examples amongst the Egyptians. — Plutarch's Life of Solon ; Diod. Sic, lib. i. part 2, ch. 3 ; Montesquieu, livr. xii. ch. 21. It was abolished in Rome, B.C. 321, when the true principle was thus defined : " Bona debitoris, non corpus obnoxium esset". — Livy, lib. 8 ; Montesquitu, livr. XX. ch. 14.
LIBERTY OF TME SUBJECT 14^
in the Devon county gaol, after an imprisonment of forty-five years, for a debt o{ £\<^}
While the law thus trifled with the liberty of debtors, it Debtors' took no thought of their wretched fate after the prison doorP"^°"^- had closed upon them. The traditions of the debtors' prison are but too familiar to us all. The horrors of the Fleet and the Marshalsea were laid bare in 1729. The poor debtors were found crowded together on the "common side," covered with filth and vermin, and suffered to die, without pity, of hunger and gaol fever. Nor did they suffer from neglect alone. They had committed no crime : yet were they at the mercy of brutal gaolers, who loaded them with irons, and racked them with tortures.^ No attempt was made to distinguish the fraudulent from the unfortunate debtor. The rich rogue — able, but un- willing to pay his debts — might riot in luxury and debauchery, while his poor, unlucky fellow-prisoner was left to starve and rot on the "common side".^
The worst iniquities of prison life were abated by the active benevolence of John Howard ; and poor debtors found some protection, in common with felons, from the brutality of gaolers. But otherwise their sufferings were without mitigation. The law had made no provision for supplying indigent prisoners with necessary food, bed-clothes, or other covering ; * and it was proved, in 1792, that many died of actual want, being with- out the commonest necessaries of life.^
The first systematic relief was given to insolvent debtors, The by the benevolence of the Thatched House Society, in '^TT^'yiq^^ In twenty years this noble body released from prison 12,590 Society, honest and unfortunate debtors ; and so trifling were the debts ^^^^' for which these prisoners had suffered confinement, that their freedom was obtained at an expense of 455'. a head. Many were discharged merely on payment of the gaol fees, for which
^ Report of 1792, Com. Journ., xlvii. 647.
^Ibid., xxi. 274, 376, 513.
^ Report 1792, ibid. , xlvii. 652 ; Vicar of Wakefield, ch. xxv., xxviii;
^ Report, 1792, Com. Journ., xlvii. 641. The only exception was under the Act 32 Geo. II, c. 28, of very partial operation, under which the detaining creditor was forced to allow the debtor ^d. a day ; and such was the cold cruelty of credi- tors, that many a debtor confined for sums under 20s., was detained at their ex- pense, which soon exceeded the amount of the debt. — Ibid., 644, 650. This allowance was raised to 3s. 6d. a week by 37 Geo. III. c. 85.
^ Ibid., 6si. VOL. II. 10
146 THE CONSTITUTIONAL HISTORY OF ENGLAND
Exposure of abuses, 1792 and 1815.
Insolvent Debtors' Act, 1813.
Later measures of relief to debtors.
alone they were detained in prison : others on payment of costs, the original debts having long since been discharged.^
The monstrous evils and abuses of imprisonment for debt, and the sufferings of prisoners, were fully exposed in an able report to the House of Commons drawn by Mr. Grey in 1792.* But for several years these evils received little correction. In 1 81 5 the prisons were still overcrowded, and their wretched inmates left without allowance of food, fuel, bedding, or medical attendance. Complaints were still heard of their perishing of cold and hunger.^
Special Acts had been passed, from time to time, since the reign of Anne,* for the relief of insolvents : but they were of temporary and partial operation. Overcrowded prisons had been sometimes thinned : but the rigours and abuses of the laws affecting debtors were unchanged ; and thousands of in- solvents still languished in prison. In 1760, a remedial mea- sure of more general operation was passed : but was soon afterwards repealed.^ Provision was also made for the release of poor debtors in certain cases:" but it was not until 181 3 that insolvents were placed under the jurisdiction of a court, and entitled to seek their discharge on rendering a true account of all their debts and property.^ A distinction was at length recognised between poverty and crime. This great remedial law restored liberty to crowds of wretched debtors. In the next thirteen years upwards of 50,cx)0 were set free.^ Thirty years later, its beneficent principles were further extended, when debtors were not only released from confinement, but able to claim protection to their liberty on giving up all their goods," And at length, in 1861, the law attained its fullest develop- ment, in the liberal measure of Sir R. Bethell : when fraudulent debt was dealt with as a crime, and imprisonment of common
1 Report, 1792, Com. Journ., xlvii. 648.
»i6»d., 640.
» 7th March, 1815 ; Hans. Deb., ist Ser., xxx. 39 ; Commons' Report on King's Bench, Fleet, and Marshalsea Prisons, 1815. The King's Bench, cal- culated to hold 220 prisoners, had 600 ; the Fleet, estimated to hold 200, had 769.
* I Anne, st. i. c. 25.
» I Geo. III. c. 17 ; Adolph. Hist., i. 17, n.
«32 Geo. II. c. 28; 33 Geo. III. c. 5.
'53 Geo. III. c. 102 ; Hans. Deb., ist Ser., xxvi, 301, etc.
■ Mr. Hume's Return, 1827 (430).
■ Protection Acts, 5 & 6 Vict. c. 96 ; 7 & 8 Vict. c. 96.
LIBERTY OF THE SUBJECT 147
debtors was repudiated.^ Nor did the enlightened charity of the legislature rest here. Debtors already in confinement were not left to seek their liberation : but were set free by the officers of the Court of Bankruptcy.^ Some had grown familiar with their prison walls, and having lost all fellowship with the outer world, clung to their miserable cells as to a home.^ They were led forth gently, and restored to a life that had become strange to them ; and their untenanted dungeons were con- demned to destruction.
The free soil of England has, for ages, been relieved from The negro the reproach of slavery. The ancient condition of villenage '^*^' ^'7^" expired about the commencement of the seventeenth century ;^ and no other form of slavery was recognised by our laws. In the colonies, however, it was legalised by statute ; ^ and it was long before the rights of a colonial slave, in the mother country, were ascertained. Lord Holt, indeed, had pronounced an opinion that, "as soon as a negro comes into England, he be- comes free " ; and Mr. Justice Powell had affirmed that " the law takes no notice of a negro".® But these just opinions were not confirmed by express adjudication until the celebrated case of James Sommersett in 1771. This negro having been brought to England by his owner, Mr. Stewart, left that gentle- man's service, and refused to return to it. Mr. Stewart had him seized and placed in irons, on board a ship then lying in the Thames, and about to sail for Jamaica, where he intended to sell his mutinous slave. But while the negro was still lying on board, he was brought before the Court of King's Bench by habeas corpus. The question was now fully discussed, more particularly in a most learned and able argument by Mr, Har- grave ; and at length, in June, 1772, Lord Mansfield pronounced the opinion of the court, that slavery in England was illegal, and that the negro must be set free.'^
It was a righteous judgment : but scarcely worthy of the
1 Bankruptcy Act, 24 & 25 Vict. c. 134, § 221. 2 n^id,^ §§ 98-105.
* In January, 1862, John Miller was removed from the Queen's Bench Prison, having been there since 1814. — Times, 23rd Jan., 1862.
^ Noy, 27. Hargrave's Argument in Negro Case, St. Tr., xx. 40 ; Smith's Commonwealth, book 2, ch. 10 ; Barrington on the Statutes, 2nd ed. p. 232. 5 10 Will. III. c. 26 ; 5 Geo. II. c. 7 ; 32 Geo. II. c. 31.
* Smith V. Browne and Cowper, 2 Salk. 666.
' Case of James Sommersett, St. Tr., xx. i ; Lofft's Rep., i.
10 *
148 THE CONSTITUTIONAL HISTORY OF ENGLAND
Negroes in Scotland.
Colliers and salters in Scotland.
extravagant commendation bestowed upon it, at that time and since. This boasted law, as declared by Lord Mansfield, was already recognised in France, Holland, and some other European countries ; and as yet England had shown no symptoms of compassion for the negro beyond her own shores. i
In Scotland, negro slaves continued to be sold as chattels, until late in the last century.'-^ It was not until 1756 that the lawfulness of negro slavery was questioned. In that year, however, a negro who had been brought to Scotland claimed his liberty of his master, Robert Sheddan, who had put him on board ship to return to Virginia. But before his claim could be decided, the poor negro died.^ But for this sad in- cident, a Scotch court would first have had the credit of setting the negro free on British soil. Four years after the case of Sommersett, the law of Scotland was settled. Mr. Wedderburn had brought with him to Scotland, as his personal servant, a negro named Knight, who continued several years in his service, and married in that country. But, at length, he claimed his freedom. The sheriff being appealed to, held " that the state of slavery is not recognised by the laws of this kingdom ". The case being brought before the Court of Session, it was adjudged that the master had no right to the negro's service, nor to send him out of the country without his consent*
The negro in Scotland was now assured of freedom : but, startling as it may sound, the slavery of native Scotchmen continued to be recognised, in that country, to the very end of last century. The colliers and salters were unquestionably slaves. They were bound to continue their service during their lives, were fixed to their places of employment, and sold with the works to which they belonged. So completely did the law of Scotland regard them as a distinct class, not entitled to the same liberties as their fellow-subjects, that they were excepted from the Scotch Habeas Corpus Act of 1701. Nor
^ Hargrave's Arg^ument, St. Tr., xx. 62.
■^ Chambers' Domestic Annals of Scotland, iii. 453. On the and May, 1722, an advertisement appeared in the " Edinburgh Evening Courant," announcing that a stolen negro had been found, who would be sold to pay expenses, unless claimed within two weeks. — Ihid.
' See Dictionary of Decisions, tit. Slave, iii. 14,545.
* Ibid., 14,549.
LIBERTY OF THE SUBJECT 149
had their slavery the excuse of being a remnant of the ancient feudal state of villenage, which had expired before coal mines were yet worked in Scotland. But being paid high wages, and having peculiar skill, their employers had originally con- trived to bind them to serve for a term of years, or for life ; and such service at length became a recognised custom.^ In 1775 their condition attracted the notice of the legislature, and an Act was passed for their relief^ Its preamble stated that " many colliers and salters are in a state of slavery and bondage " ; and that their emancipation " would remove the reproach of allowing such a state of servitude to exist in a free country ". But so deeply rooted was this hateful custom, that Parliament did not venture to condemn it as illegal. It was provided that colliers and salters commencing work after the 1st of July, 1775, should not become slaves; and that those already in a state of slavery might obtain their freedom in seven years, if under twenty-one years of age ; in ten years, if under thirty-five. To avail themselves of this enfranchisement, however, they were obliged to obtain a decree of the Sheriffs Court ; and these poor ignorant slaves, generally in debt to their masters, were rarely in a condition to press their claims to freedom. Hence the Act was practically inoperative. But at length, in 1799, their freedom was absolutely established by law.^
The last vestige of slavery was now effaced from the soil slave trade of Britain: but not until the land had been resounding for ^J^^^ °[°"'*' years with outcries against the African slave trade. Seven years later that odious traffic was condemned ; and at length colonial slavery itself — so long encouraged and protected by the legislature — gave way before the enlightened philanthropy of another generation.
Next in importance to personal freedom is immunity from Spies and suspicions and jealous observation. Men may be without re- '"fo'^rn^rs. straints upon their liberty : they may pass to and fro at pleasure : but if their steps are tracked by spies and informers, their words noted down for crimination, their associates watched as conspirators — who shall say that they are free? Nothing is more revolting to Englishmen than the espionage which forms
1 Forb. Inst., part i, b. 2, t. 3 ; Macdonal. Inst., i.63 ; Cockburn's Mem. 76. ' 15 Geo. III. c. 28. « 39 Geo. III. c. 56.
ISO THE CONSTITUTIONAL HISTORY OF ENGLAND
part of the administrative system of Continental despotisms. It haunts men like an evil genius, chills their gaiety, restrains their wit, casts a shadow over their friendships, and blights their domestic hearth. The freedom of a country may be measured by its immunity from this baleful agency.^ Rulers who distrust their own people must govern in a spirit of absolutism ; and suspected subjects will be ever sensible of their bondage.
Spies in Our own countrymen have been comparatively exempt
^'^^' from this hateful interference with their moral freedom. Yet
we find many traces of a system repugnant to the liberal policy of our laws. In 1764, we see spies following Wilkes everywhere, dogging his steps like shadows, and reporting every movement of himself and his friends to the Secretaries of State. Nothing was too insignificant for the curiosity of these exalted magistrates. Every visit he paid or received through- out the day was noted : the persons he chanced to encounter in the streets were not overlooked : it was known where he dined, or went to church, and at what hour he returned home at night. ^
In 1794. In the State trials of 1794, we discover spies and informers
in the witness-box, who had been active members of political societies, sharing their councils, and encouraging, if not prompt- ing their criminal extravagance.^ And throughout that period of dread and suspicion, society was everywhere infested with espionage.*
Spies in 1817. Again, in 1817, Government spies were deeply com- promised in the turbulence and sedition of that period. Castle, a spy of infamous character, having uttered the most seditious language, and incited the people to arm, proved in the witness- box the very crimes he had himself prompted and encouraged.^
1 Montesquieu speaks of informers as *' un genre d'hommes funeste". — Liv. vi, ch. 8. And of spies, he says : " Faut-il des espions dans la monarchic ? ce n'est pas la pratique ordinaire des bons princes ". — Liv. xii, ch. 23. And again : " L'espionage seroit peut-^tre tolerable s'il pouvoit etre exercd par d'honnltes gens : mais I'infiamie n^cessaire de la personne peut faire juger de I'infaraie de la chose ". — Ibid.
2 Grenville Papers, ii. 155. s st. Tr., xxiv. 722, 800, 806.
* Su^ra, p. 45 et seq. ; Wilberforce's Life, iv. 369 ; Cartwright's Life, i. 209 ; Currie's Life, i. 172 ; Holcroft's Mem., ii. 190 ; Stephens' Life of Home Tooke, ii. 118.
*St. Tr., xxxii. 214, 284 et seq.; Earl Grey, i6th June, 1817; Hans. Deb., I St Ser., xxxvi. 102,
LIBERTY OF THE SUBJECT 151
Another spy, named Oliver, proceeded into the disturbed dis- tricts, in the character of a London delegate, and remained for many weeks amongst the deluded operatives, everywhere instigating them to rise and arm. He encouraged them with hopes that in the event of a rising, they would be assisted by 150,000 men in the metropolis; and thrusting himself into their society, he concealed the craft of the spy, under the dis- guise of a traitorous conspirator.^ Before he undertook this shameful mission, he was in communication with Lord Sid- mouth ; and throughout his mischievous progress was corre- sponding with the Government or its agents. Lord Sidmouth himself is above the suspicion of having connived at the use of covert incitements to treason. The spies whom he employed had sought him out and offered their services in the detection of crime ; and, being responsible for the public peace, he had thought it necessary to secure information of the intended movements of dangerous bodies of men.^ But Oliver's ac- tivity was so conspicuous as seriously to compromise the Government. Immediately after the outbreak in Derbyshire, his conduct was indignantly reprobated in both Houses ; ^ and after the outrages, in which he had been an accomplice, had been judicially investigated, his proceedings received a still more merciless exposure in Parliament* There is little doubt that Oliver did more to disturb the public peace by his malign influence, than to protect it by timely information to the Government. The agent was mischievous, and his principals could not wholly escape the blame of his misdeeds. Their base instrument, in his coarse zeal for his employers, brought discredit upon the means they had taken, in good faith, for preventing disorders. To the severity of repressive measures, and a rigorous administration of the law, was added the re- proach of a secret alliance between the executive and a wretch who had at once tempted and betrayed his unhappy victims. The relations between the Government and its informers
1 Bamford's Life of a Radical, i. 77, 158 ; Mr. Ponsonby's Statement, 23rd June, 1817; Hans. Deb., ist Ser., xxxvi. 1114.
2 Lord Sidmouth's Life, iii. 185.
3 i6th and 23rd June, 1817 ; Hans. Deb., ist Ser., xxxvi. 1016, iiii.
*St. Tr., xxxii. 755 et seq.; nth Feb., 1818; Hans. Deb., xxxvii. 338; Speeches of Lord Milton, Mr. Bennet, 19th Feb. and 5th March; (Lords), ibid., S22, 802.
152 THE CONSTITUTIONAL HISTORY OF ENGLAND
The spy
Edwards,
1820.
Relations of are of extreme delicacy. Not to profit by timely information wUh ^nfor-'^^ were a crime : but to retain in Government pay, and to reward mers. spies and informers, who consort with conspirators as their
sworn accomplices, and encourage while they betray them in their crimes, is a practice for which no plea can be offered. No Government, indeed, can be supposed to have expressly instructed its spies to instigate the perpetration of crime : but to be unsuspected, every spy must be zealous in the cause which he pretends to have espoused ; and his zeal in a criminal enterprise is a direct encouragement of crime. So odious is the character of a spy, that his ignominy is shared by his em- ployers, against whom public feeling has never failed to pro- nounce itself, in proportion to the infamy of the agent, and the complicity of those whom he served.
Three years later, the conduct of a spy named Edwards, in connection with the Cato Street Conspiracy, attracted unusual obloquy. For months he had been at once an active con- spirator and the paid agent of the Government ; prompting crimes, and betraying his accomplices. Thistlewood had long been planning the assassination of the Ministers; and Edwards had urged him to attempt that monstrous crime, the consumma- tion of which his treachery prevented. He had himself sug- gested other crimes, no less atrocious. He had counselled a murderous outrage upon the House of Commons ; and had distributed hand grenades among his wretched associates in order to tempt them to deeds of violence.^ The conspirators were justly hung : the devilish spy was hidden and rewarded. Infamy so great and criminal in a spy had never yet been ex- posed : but the frightfulness of the crime which his information had prevented, and the desperate character of the men who had plotted it, saved Ministers from much of the odium that had attached to their connection with Oliver. They had saved themselves from assassination ; and could they be blamed for having discovered and prevented the bloody design? The crime had been plotted in darkness and secrecy, and counter- mined by the cunning and treachery of an accomplice. That it had not been consummated was due to the very agency which hostile critics sought to condemn. But if Ministers escaped
'Ann. Reg., 1820, p. 30; Hans. Deb., 2nd Ser., i. 54, 242; Lord Sidmouth's Life, iii. 216 ; Edinb. Rev., xxxiii. 211; St. Tr., xxxiii. 749, 754, 987, 1004, 1435.
LIBERTY OF THE SUBJECT 153
censure, the iniquity of the spy -system was illustrated in its most revolting aspects.
Again, in 1833, complaint was made that the police had Detective been concerned in equivocal practices, too much resembling P° ^^^' the treachery of spies : but a Parliamentary inquiry elicited little more than the misconduct of a single policeman, who was dismissed from the force.^ And the organisation of a well- qualified body of detective police has at once facilitated the prevention and discovery of crime, and averted the worst evils incident to the employment of spies.
Akin to the use of spies, to watch and betray the acts of Opening men, is the intrusion of Government into the confidence of ^^ ^"'^' private letters entrusted to the post-office. The State having assumed a monopoly in the transmission of letters on behalf of the people, its agents could not pry into their secrets without a flagrant breach of trust, which scarcely any necessity could justify. For the detection of crimes dangerous to the State, or society, a power of opening letters was, indeed, reserved to the Secretary of State. But for many years Ministers or their subordinate officers appear to have had no scruples in obtain- ing information, through the post-office, not only of plots and conspiracies, but of the opinions and projects of their political opponents. Curiosity more often prompted this vexatious in- trusion than motives of public policy.
The political correspondence of the reign of George III. affords conclusive evidence that the practice of opening the letters of public men at the post-office was known to be general. We find statesmen of all parties alluding to the practice, without reserve or hesitation, and entrusting their letters to private hands whenever their communications were confidential.^
^ Petition of F. Young and others, Commons' Rep. 1833 ; Hans. Deb., 3rd Ser., xviii. 1359, xx. 404, 834.
2 From a great number of examples, the following may be selected : —
Lord Hardwicke, writing in 1762 to Lord Rockingham of the Duke of Devon- shire's spirited letter to the Duke of Newcastle, said: "Which his grace judged very rightly in sending by the common post, and trusting to their curiosity". — Rockingham Mem., i. 157.
Mr. Hans Stanley, writing to Mr. Grenville, 14th Oct., 1765, says : " Though this letter contains nothing of consequence, I chuse to send it by a private hand, observing that all my correspondence is opened in a very awkward and bungling manner, which I intimate in case you should chuse to write anything which you
154 THE CONSTITUTIONAL HISTORY OF ENGLAND
Petition of Mazzini and others, 14th June, 1844.
Traces of this discreditable practice, so far as it ministered to idle or malignant curiosity, have disappeared since the early part of the present century. From that period, the general correspondence of the country, through the post-office, has been inviolable. But for purposes of police and diplomacy — to thwart conspiracies at home, or hostile combinations abroad — the Secretary of State has continued, until our own time, to issue warrants for opening the letters of persons suspected of crimes, or of designs injurious to the State. This power, sanc- tioned by long usage, and by many statutes, had been con- tinually exercised for two centuries. But it had passed without observation until 1844, when a petition was presented to the House of Commons from four persons — of whom the notori- ous Joseph Mazzini was one — complaining that their letters had been detained at the post-office, broken open, and read. Sir James Graham, the Secretary of State, denied that the letters of three of these persons had been opened : but avowed that the letters of one of them had been detained and opened by his warrant, issued under the authority of a statute.^ Never had any avowal, from a Minister, encountered so general a tumult of disapprobation. Even Lord Sidmouth's spy-system had escaped more lightly. The public were ignorant of the law, though renewed seven years before,^ and wholly uncon- scious of the practice which it sanctioned. Having believed
would not have publick". — Grenville Papers, iii. gg. Again, Mr. Whately, writ- ing to Mr. Grenville, 4th June, 1768, says : " I may have some things to say which I would not tell the postmaster, and for that reason have chosen this manner of conveyance ". — Ibid., iv. 2gg.
Lord Temple, veiling to Mr. Beresford, 23rd Oct., 1783, says : " The shame- ful liberties taken with my letters, both sent and received (for even the speaker's letter to me had been opened) make me cautious on politics". — Beresford Cor- respondence, i. 243.
Mr. Pitt, writing to Lady Chatham, nth Nov., 1783, said: "I am afraid it will not be easy for me, by the post, to be anything else than a fashionable cor- respondent, for I believe the fashion which prevails, of opening almost every letter that is sent, makes it almost impossible to write anything worth reading ". — Lord Stanhope^s Life of Pitt, i. 136.
Lord Melville, writing to Mr. Pitt, 3rd April, 1804, said: •' I shall continue to address you through Alexander Hope's conveyance, as I remember our friend Bathurst very strongly hinted to me last year, to beware of the post-office, when you and I had occasion to correspond on critical points, or in critical times ". — Ibid., iv. 145. See also Currie's Life, ii. 160; Stephens' Mem. of Home Tooke ii, 118 ; Court and Cab. of George IIL, iii. 265, etc.
* Hans. Deb., 3rd Ser., Ixxv. 8g2.
* Post-office Act, 1837, I Vict. c. 33, s. 25.
LIBERTY OF THE SUBJECT 155
in the security of the post-office, they now dreaded the betrayal of all secrecy and confidence, A general system of espionage being suspected, was condemned with just indignation.
Five-and-twenty years earlier, a Minister — secure of a Parliamen- Parliamentary majority — having haughtily defended his own ^^^^ i"qu'"es. conduct, would have been content to refuse further inquiry, and brave public opinion. And in this instance inquiry was at first successfully resisted : ^ but a few days later. Sir James Graham adopted a course, at once significant of the times and of his own confidence in the integrity and good faith with which he had discharged a hateful duty. He proposed the appointment of a secret committee to investigate the law in regard to the opening of letters, and the mode in which it had been exercised,^ A similar committee was also appointed in the House of Lords.^ These committees were constituted of the most eminent and impartial men to be found in Parlia- ment ; and their inquiries, while eliciting startling revelations as to the practice, entirely vindicated the personal conduct of Sir James Graham. It appeared that foreign letters had, in early times, been constantly searched to detect correspondence with Rome and other foreign powers : that by orders of both Houses, during the Long Parliament, foreign mails had been searched ; and that Cromwell's Postage Act expressly authorised the opening of letters, in order " to discover and prevent dangerous and wicked designs against the peace and welfare of the Com- monwealth ". Charles H. had interdicted, by proclamation, the opening of any letters, except by warrant from the Secretary of State. By an Act of the 9th Anne, the Secretary of State first received statutory power to issue warrants for the opening of letters ; and this authority had been continued by several later statutes for the regulation of the post-office. In 1783, a simi- lar power had been entrusted to the Lord Lieutenant of Ire- land.* In 1722, several letters of Bishop Atterbury having been opened, copies were produced in evidence against him, on the bill of pains and penalties. During the rebellion of 1745, ^'^d at other periods of public danger, letters had been
^ 24th June, 1844 ; Mr. Buncombe's motion for a committee — Ayes, 162 ; Noes, 206. — Hans. Deb., 3rd Ser., Ixxv. 1264.
'^2nd July, as an amendment to another motion of Mr. Buncombe; ibid., Ixxvi. 212.
^Jbid., 296. * 23 & 24 Geo. III. c, 17.
156 THE CONSTITUTIONAL HISTORY OF ENGLAND
extensively opened. Nor were warrants restricted to the de- tection of crimes or practices dangerous to the State, They had been constantly issued for the discovery of forgery and other offences, on the application of the parties concerned in the apprehension of offenders. Since the commencement of this century they had not exceeded an annual average of eight. They had been issued by successive Secretaries of State, of every party, and except in periods of unusual dis- turbance, in about the same annual numbers. The public and private correspondence of the country, both foreign and domestic, practically enjoyed complete security. A power so rarely exercised could not have materially advanced the ends of justice. At the same time, if it were wholly withdrawn, the post-office would become the privileged medium of criminal correspondence. No amendment of the law was recom- mended ; and the Secretary of State retains his accustomed authority.^ But no one can doubt that, if used at all, it will be reserved for extreme occasions, when the safety of the State demands the utmost vigilance of its guardians. Protection of Nothing has served so much to raise, in other States, the oreigners. estimation of British liberty, as the protection which our laws afford to foreigners. Our earlier history, indeed, discloses many popular jealousies of strangers settling in this country. But to foreign merchants special consideration was shown by Magna Charta ; and whatever the policy of the State, or the feelings of the people, at later periods, aliens have generally enjoyed the same personal liberty as British subjects, and com- plete protection from the jealousies and vengeance of foreign powers. It has been a proud distinction for England to af- ford an inviolable asylum to men of every rank and condition, seeking refuge on her shores, from persecution and danger in their own lands. England was a sanctuary to the Flemish re- fugees driven forth by the cruelties of Alva ; to the Protestant refugees who fled from the persecutions of Louis XIV. ; and to the Catholic nobles and priests who sought refuge from the bloody guillotine of revolutionary France. All exiles from their own country — whether they fled from despotism or demo- cracy, whether they were kings discrowned, or humble citizens
1 Reports of Secret Committees of Lords and Commons ; and see Torrens' Life of Sir J. Graham, ii. 285-349.
LIBERTY OF THE SUBJECT 157
in danger — have looked to England as their home. Such re- fugees were safe from the dangers which they had escaped. No solicitation or menace from their own Government could disturb their right of asylum ; and they were equally free from molestation by the municipal laws of England. The Crown indeed had claimed the right of ordering aliens to withdraw from the realm : but this prerogative had not been exercised since the reign of Elizabeth. 1 From that period, through civil wars and revolutions, a disputed succession, and treason- able plots against the State, no foreigners had been disturbed. If guilty of crimes, they were punished : but otherwise enjoyed the full protection of the law.
It was not until 1 793 that a departure from this generous Alien Act, policy was deemed necessary in the interests of the State. ^^^^' The Revolution in France had driven hosts of political refugees to our shores. 2 They were pitied, and would be welcome. But among the foreigners claiming our hospitality. Jacobin emissaries were suspected of conspiring, with democratic as- sociations in England, to overthrow the Government. To guard against the machinations of such men. Ministers sought extraordinary powers for the supervision of aliens, and, if necessary, for their removal from the realm. Whether this latter power may be exercised by the Crown, or had fallen into desuetude, became a subject of controversy : but however that might be, the provisions of the Alien Bill, now proposed, far exceeded the limits of any ancient prerogative. An ac- count was to be taken of all foreigners arriving at the several ports, who were to bring no arms or ammunition : they were not to travel without passports : the Secretary of State might remove any suspected alien out of the realm ; and all aliens might be directed to reside in such districts as were deemed necessary for public security, where they would be registered, and required to give up their arms. Such restraints upon foreigners were novel, and wholly inconsistent with the free and liberal spirit with which they had been hitherto enter- tained. Marked with extreme jealousy and rigour, they could only be justified by the extraordinary exigency of the times.
1 Viz., in 1571, 1574, and 1575.
2 In Dec, 1792, it appeared that 8,000 had emigrated to England. — Pari. Hist., XXX. 147.
1S8 THE CONSTITUTIONAL HISTORY OF ENGLAND
Traitorous Correspond- ence Bill, 1793-
Alien Bill renewed.
Alien Bill, 1818.
They were, indeed, equivalent to a suspension of the Habeas Corpus Act, and demanded proofs of public danger no less conclusive. In opposition to the measure, it was said that there was no evidence of the presence of dangerous aliens : that discretionary power to be entrusted to the executive might be abused ; and that it formed part of the policy of Ministers to foment the public apprehensions. But the right of the State, on sufficient grounds, to take such precautions, could not be disputed.^ The bill was to continue in force for one year only,^ and was passed without difficulty.
So urgent was deemed the danger of free intercourse with the continent at this period, that even British subjects were made liable to unprecedented restraints by the Traitorous Correspondence Bill.^
The Alien Bill was renewed from time to time ; and throughout the year foreigners continued under strict sur- veillance. When peace was at length restored. Government relaxed the more stringent provisions of the war alien bills ; and proposed measures better suited to a time of peace. This was done in 1802, and again in 1814. But, in 181 6, when public tranquillity prevailed throughout Europe, the propriety of continuing such measures, even in a modified form, was strenuously contested.*
Again, in 18 18, opposition no less resolute was offered to the renewal of the Alien Bill. Ministers were urged to revert to the liberal policy of former times, and not to insist further upon jealous restrictions and invidious powers. The hardships which foreigners might suffer from sudden banish- ment were especially dwelt upon. Men who had made Eng- land their home, bound to it by domestic ties and affections, and carrying on trade under protection of its laws, were liable, without proof of crime, on secret information, and by a clandestine procedure, to one of the gravest punish- ments.^ This power, however, was rarely exercised, and in a few years was surrendered. ** During the political convulsions of the continent in 1 848, the executive again received author-
1 Pari. Hist, xxx. 155-238. ^as Geo. III. c. 4.
3 Pari. Hist., xxx. 582, 928. •» Hans. Deb., ist Ser., xxxiv. 430, 617.
* /6»d., xxxviii. 521, 735, 81 r, etc.; 58 Geo. III. c. 96.
6 In 1826: 5 Geo. IV. c. 37; Hans. Deb., 2nd Ser., x. 1376.
LIBERTY OF THE SUBJECT 159
ity, for a limited time, to remove any foreigners who might be dangerous to the peace of the country : ^ but it was not put in force in a single instance,^ The law has still required the registration of aliens : ^ but its execution has fallen more and more into disuse. The confidence of our policy, and the prodigious intercourse developed by facilities of communica- tion and the demands of commerce, have practically restored to foreigners that entire freedom which they enjoyed before the French Revolution.
The improved feeling of Parliament in regard to foreigners Naturalisa- was marked in 1844 by Mr. Hutt's wise and liberal measure ^g" "' for the naturalisation of aliens.* Confidence succeeded to jealousy ; and the legislature, instead of devising impediments and restraints, offered welcome and citizenship.
While the law had provided for the removal of aliens, it Right of was for the safety of England, not for the satisfaction of other fmp^^d.^^" States. The right of asylum was as inviolable as ever. It was not for foreign Governments to dictate to England the conditions on which aliens under her protection should be treated. Of this principle, the events of 1802 offered a re- markable illustration.
During the short peace succeeding the Treaty of Amiens, Napoleon's Napoleon, First Consul of the French Republic, demanded that ^g^^^"^^ '" our Government should " remove out of the British dominions all the French princes and their adherents, together with the bishops and other individuals, whose political principles and conduct must necessarily occasion great jealousy to the French Government".^
To this demand Lord Hawkesbury replied, his Majesty " certainly expects that all foreigners who may reside within his dominions should not only hold a conduct conformable to the laws of the country, but should abstain from all acts which may be hostile to the Government of any country with which his Majesty may be at peace. As long, however, as they con- duct themselves according to these principles, his Majesty would feel it inconsistent with his dignity, with his honour, and with the common laws of hospitality, to deprive them of that
1 II & 12 Vict c. 20. 2 Pari. Return, 1850 (688).
» 7 Geo. IV. c. 54 ; 6 & 7 Will. IV. c. 11.
* 7 & 8 Vict. c. 66 ; 10 & 11 Vict. C. 83.
* Mr. Merry to Lord Hawkesbury, 4th June, 1802 ; Pari. Hist., xxx. 1263.
i6o THE CONSTITUTIONAL HISTORY OF ENGLAND
protection which individuals, resident in his dominions, can only forfeit by their own misconduct." ^
Still more decidedly were these demands reiterated. It was demanded, ist. That more effectual measures should be adopted for the suppression of seditious publications, 2nd, That certain persons named should be sent out of Jersey. 3rd. "That the former bishops of Arras and St. Pol de Leon, and all those who, like them, under the pretext of religion, seek to raise disturbances in the interior of France, shall like- wise be sent away". 4th. That Georges and his adherents shall be transported to Canada. 5 th. That the princes of the House of Bourbon be recommended to repair to Warsaw, the residence of the head of their family. 6th. That French emi- grants, wearing orders and decorations of the ancient Govern- ment of France, should be required to leave England. These demands assumed to be based upon a construction of the re- cent treaty of Amiens ; and effect was expected to be given to them, under the provisions of the Alien Act.^ Reply of the These representations were frankly and boldly met. For
English Go- the repression of seditious writings, our Government would
vernment. *. ° r , 1
entertam no measure but an appeal to the courts ot law.**
To apply the Alien Act in aid of the law of libel, and to send foreign writers out of the country, because they were obnoxious, not to our own Government, but to another, was not to be listened to.
The removal of other French emigrants, and especially of the princes of the House of Bourbon, was refused, and every argument and precedent adduced in support of the demand re- futed.* The emigrants in Jersey had already removed, of their own accord ; and the bishops would be required to leave Eng- land if it could be proved that they had been distributing papers on the coast of France, in order to disturb the Govern- ment : but sufficient proof of this charge must be given. As regards M. Georges, who had been concerned in circulating papers hostile to the Government in France, his Majesty agreed to remove him from our European dominions. The king refused to withdraw the rights of hospitality from the
1 Lord Hawkesbury to Mr. Merry, loth June, 1802. " M. Otto to Lord Hawkesbury, 17th Aug., 1802. ^ See supra, p. 64. * Mr. Merry to Lord Hawkesbury, 17th June, 1802.
LIBERTY OF THE SUBJECT i6i
French princes, unless it could be proved that they were at- tempting to disturb the peace between the two countries. He also declined to adopt the harsh measures which had been demanded against refugees who continued to wear French decorations. 1
The ground here taken has been since maintained. It is Principles
not enough that the presence or acts of a foreigner may be ?" which ° ^ >=> J foreigners
displeasing to a foreign power. If that rule were accepted, are protected, where would be the right of asylum ? The refugee would be followed by the vengeance of his own Government, and driven forth from the home he had chosen in a free country. On this point Englishmen have been chivalrously sensitive. Hav- ing undertaken to protect the stranger, they have resented any menace to him as an insult to themselves. Disaffection to the rulers of his own country is natural to a refugee : his banishment attests it. Poles hated Russia : Hungarians and Italians were hostile to Austria : French Royalists spurned the Republic and the first empire : Charles X. and Louis Na- poleon were disaffected to Louis-Philippe, King of the French : legitimists and Orleanists alike abhorred the French Republic of 1848, and the revived empire of 1852. But all were safe under the broad shield of England. Every political sentiment, every discussion short of libel, enjoyed freedom. Every act not prohibited by law — however distasteful to other States — was entitled to protection. Nay more: large numbers of refugees, obnoxious to their own rulers, were maintained by the liberality of the English Government
This generosity has sometimes been abused by aliens, who, The Orsini under cover of our laws, have plotted against friendly States. ^°"spiracy, There are acts, indeed, which the laws could only have tolerated by an oversight ; and in this category was that of conspiracy to assassinate the sovereign of a friendly State. The horrible conspiracy of Orsini, in 1858, had been plotted in England. Not countermined by espionage, nor checked by jealous re- straints on personal liberty, it had been matured in safety ; and its more overt acts had afterwards escaped the vigilance of the police in France. The crime was execrated : but how could its secret conception have been prevented ? So far our laws were blameless. The Government of France, however, in the excite-
^ Lord Hawkesbury to Mr. Merry, 28th Aug*, 1802. VOL. II. II
1 62 THE CONSTITUTIONAL HISTORY OF ENGLAND
ment of recent danger, angrily remonstrated against the alleged impunity of assassins in this country.^ Englishmen repudiated, with just indignation, any tolerance of murder. Yet on one point were our laws at fault. Orsini's desperate crime was unexampled ; planned in England, it had been executed be- yond the limits of British jurisdiction ; it was doubtful if his confederates could be brought to justice ; and certain that they would escape without adequate punishment. Ministers, be- Conspiracy lieving it due, no less to France than to the vindication of our Bill Sth^eb. own laws, that this anomaly should be corrected, proposed a 1858. measure, with that object, to Parliament. But the Commons,
resenting imputations upon this country, which had not yet been repelled ; and jealous of the apparent dictation of France, under which they were called upon to legislate, refused to en- tertain the bill.^ A powerful Ministry was struck down ; and a rupture hazarded with the Emperor of the French. Yet to the measure itself, apart from the circumstances under which it was offered, no valid objection could be raised ; and three years later, its provisions were silently admitted to a place in our revised criminal laws.^ Extradition A just protection of political refugees is not incompatible
with the surrender of criminals. All nations have a common interest in the punishment of heinous crimes ; and upon this principle, England entered into extradition treaties with France, and the United States of America, for mutually delivering up to justice persons charged with murder, piracy, arson, or forgery, committed within the jurisdiction of either of the contracting States.* England offers no asylum to such criminals ; and her own jurisdiction has been vastly extended over offenders escap- ing from justice. It is a wise policy, conducive to the comity of civilised nations.
1 Despatch of Count Walewski, 20th Jan., 1858.
2 Mr. Milner Gibson's amendment on second reading. — Hans. Deb., ^id Ser., cxlviii. 1742, etc.
3 24 & 25 Vict. c. 100, § 4. * Treaty with France, 1843, confirmed by 6 & 7 Vict. c. 75; treaty with
United States, 1842, confirmed by 6 & 7 Vict. c. 76. Provisions to the same effect had been comprised in the Treaty of Amiens ; and also in a treaty with the United States in 1794. — Phillimore Int. Law, i. 427 ; Hans. Deb., 3rd Ser., Ixx. 1325, Ixxi. 564. In 1862, after the period of this history, the like arrangement was made with Denmark ; 25 & 26 Vict. c. 70. In 1864, a similar treaty was entered into with Prussia, but not confirmed by Parliament; Hans. Deb., 25th and 27th July. See also The Extradition Act, 1870.
treaties.
CHAPTER XII.
Relations of the Church to political history — ^ Leading incidents and conse- quences of the Reformation in England, Scotland, and Ireland — Ex- action of conformity with the State Church — Sketch of the Penal Code against Roman Catholics and Nonconformists — State of the Church and other religious bodies on the accession of George III. — General relaxation of the Penal Code — History of Catholic claims prior to the Regency.
In the sixteenth century, the history of the Church is the Relations of history of England. In the seventeenth century, the relations to^poiitlcal of the Church to the State and society, contributed, with history, political causes, to convulse the kingdom with civil wars and revolutions. And in later and more settled times, they formed no inconsiderable part of the political annals of the country. The struggles, the controversies, the polity, and the laws of one age, are the inheritance of another. Henry VIII. and Elizabeth bequeathed to their successors ecclesiastical strifes which have disturbed every subsequent reign ; and, after three centuries, the results of the Reformation have not yet been fully developed.
A brief review of the leading incidents and consequences The Church of that momentous event will serve to elucidate the later j^g^r^'^Jon history of the Church and other religious bodies in their re- lations to the State.
For centuries, the Catholic Church had been at once the Church of the State and the Church of the people. All the subjects of the Crown acknowledged her authority, accepted her doctrines, participated in her offices, and worshipped at her consecrated shrines. In her relations to the State she approached the ideal of Hooker, wherein the Church and the Commonwealth were identified : no one being a member of the one who was not also a member of the other.^ But
^ Book viii., [2] Keble's Ed., iii. 411. Bishop Gardiner had already expressed the same theory : " The realm and the Church consist of the same persons ; and
163 II *
1 64 THE CONSTITUTIONAL HISTORY OF ENGLAND
under the shadow of this majestic unity grew ignorance, errors, superstition, imperious authority and pretensions, excessive wealth, and scandalous corruption. Freedom of thought was proscribed. To doubt the infallible judgment of the Church was heresy — a mortal sin, for which the atonement was re- cantation or death. From the time of Wicklifife to the Refor- mation heresies and schisms were rife : ^ the authority of the Church and the influence of her clergy were gradually im- paired ; and at length she was overpowered by the ecclesi- astical revolution of Henry VIII. With her supremacy perished the semblance of religious union in England, The Rcforma- So vast a change as the Reformation, in the religious faith tion. and habitudes of a people, could not have been effected, at any
time, without wide and permanent dissensions. When men were first invited to think, it was not probable that they should think alike. But the time and circumstances of the Reforma- tion were such as to aggravate theological schisms, and to embitter the contentions of religious parties. It was an age in which power was wielded with a rough hand ; and the reform of the Church was accompanied with plunder and persecution. The confiscation of Church property envenomed the religious antipathies of the Catholic clergy : the cruel and capricious rigour with which every communion was, in turn, oppressed, estranged and divided the laity. The changes of faith and policy — sometimes progressive, sometimes reac- tionary— which marked the long and painful throes of the Reformation, from its inception under Henry VIII. to its final consummation under Elizabeth, left no party without its wrongs and sufferings. Toleration Toleration and liberty of conscience were unknown.
Catholics and Protestants alike recognised the duty of the State to uphold truth and repress error. In this conviction reforming prelates concurred with popes and Roman divines. The Reformed Church, owing her very life to the right of private judgment, assumed the same authority, in matters of doctrine, as the Church of Rome, which pretended to infalli-
as the king is the head of the realm, he must, therefore, be head of the Church ". — Gilpin, ii. 29. See also Gladstone's State and Church, 4th Ed., i. 9-31.
1 Warner, i. 527 ; Rennet's Hist., i. 265 ; Collier's Eccl. Hist., i. 579 ; Echard's Hist., 159; Burnet's Hist, of the Reformation, i. 27.
unknown.
knUGlOUS LIBERTY 165
bility. Not to accept the doctrines or ceremonies of the State Church, for the time being, was a crime ; and conformity with the new faith as with the old was enforced by the dungeon, the scaffold, the gibbet, and the torch.^
The Reformed Church being at length established under Policy of Elizabeth, the policy of her reign demands especial notice. Elizabeth. Finding her fair realm distracted by the religious convulsions of the last three reigns, she insisted upon absolute unity. She exacted a strait conformity of doctrine and observance, denied liberty of conscience to all her subjects, and attached civil dis- abilities to dissent from the State Church. By the first Act of Civil dis- her reign,^ the oath of supremacy was required to be taken as ^ ' "'^^' a qualification for every ecclesiastical benefice or civil office under the Crown. The Act of Uniformity ^ enforced, with severe penalties, conformity with the ritual of the Established Church, and attendance upon its services. A few years later, the oath of supremacy was, for the first time, required to be taken by every member of the House of Commons.^
The Catholics were not only hostile to the State Church, The Catholic but disaffected to the queen herself They contested her right ^^^^j ^j^h"" to the Crown ; and despairing of the restoration of the ancient treason, faith, or even of toleration, during her life, they plotted against her throne. Hence the Catholic religion was associated with treason ; and the measures adopted for its repression were de- signed as well for the safety of the State as for the discourage- ment of an obnoxious faith. ^
To punish popish recusants, penalties for non-attendance Popish re- upon the services of the Church were multiplied,*' and enforced '^"^^"*^' with merciless rigour.'^ The Catholic religion was utterly proscribed : its priests were banished, or hiding as traitors : ^ its adherents constrained to attend the services of a Church which they spurned as schismatic and heretical.
^ " A prince being God's deputy, ought to punish impieties against God," said Archbishop Cranmer to Edward VI. — Burners Hist., i. iii.
^1 Eliz. CI. 3 2 Eliz. c. 2. *5 Eliz. c. i.
^ 13 Eliz. c. 2 ; Burnet's Hist, ii. 354 ; Short's Hist, of the Church, 273.
^ 23 Eliz. c. I ; 29 Eliz. c. 6 ; 33 Eliz. c. 2 ; 35 Eliz. c. i ; Strype's Life of Whitgift, 95; Collier's Eccl. Hist, ii. 637; Warner, ii. 287 ; Kennet's Hist. ii.
497-
■^ Lingard, note «, viii. 356; Dodd's Church Hist., iii. 75 ; and Butler's Hist. Mem. of the Catholics, i. 230.
^27 Eliz. c. 2.
l66 THECdNSTITVTIONAL HISTOkY OF ENGLAND
Doctrinal While Catholics were thus proscribed, the ritual and polity
moderation ^^ ^^ Reformed Church were narrowing the foundations of the Reformation. Protestant establishment. The doctnnal modifications of the Roman creed were cautious and moderate. The new ritual, founded on that of the Catholic church,^ was simple, eloquent, and devotional. The patent errors and superstitions of Rome were renounced : but otherwise her doctrines and ceremonies were respected. The extreme tenets of Rome, on the one side, and of Geneva on the other, were avoided. The design of Reformers was to restore the primitive Church,- rather than to settle controversies already arising among Protestants.^ Such moderation — due rather to the predilections of Lutheran Re- formers, and the leaning of some of them to the Roman faith, than to a profound policy — was calculated to secure a wide conformity. The respect shown to the ritual, and many of the observances of the Church of Rome, made the change of re- ligion less abrupt and violent to the great body of the people. But extreme parties were not to be reconciled. The more faithful Catholics refused to renounce the supremacy of the Pope, and other cherished doctrines and traditions of their Church. Neither conciliated by concessions, nor coerced by intimidation, they remained true to the ancient faith. The Puritans. On the Other hand, these very concessions to Romanism repelled the Calvinistic Reformers, who spurned every vestige of the Roman ritual, and repudiated the form of Church government, which, with the exception of the Papal supre- macy, was maintained in its ancient integrity. They con- demned every ceremony of the Church of Rome as idolatrous and superstitious ; * they abhorred episcopacy, and favoured the Presbyterian form of government in the Church. Tolera- tion might have softened the asperities of theological contro-
' Cardwell's Hist, of the Book of Common Prayer.
* Bishop Jewell's Apology, ch. vii. Div. 3, c. x. Div. i, etc.; Short's Hist, of the Church, 238 ; Mant's Notes to Articles.
"Lawrence's Bampton Lectures, 237; Short's Hist,, 199; Froude's Hist., vii. 79.
< In matters of ceremonial they objected to the wearing of the surplice, the sign of the cross, and the office of sponsors in baptism ; the use of the ring in the marriage ceremony, kneeling at the sacrament, the bowing at the name of Jesus, and music in the services of the Church. They also objected to the or- dination of priests without a call by their flocks. — Heylyn's Hist, of the Presby- terians, 259.
RELIGIOUS LIBERTY 167
vefsy, until time had reconciled many of the differences springing from the Reformation. A few enlightened states- Rigorous en- men would gladly have practised it ; ^ but the imperious temper j,q^^^'^^"j° of the queen,- and the bigoted zeal of her ruling churchmen, would not suffer the least liberty of conscience. Not even wait- ing for outward signs of departure from the standard of the Church, they jealously enforced subscription to the articles of religion ; and addressed searching interrogatories to the clergy, in order to extort confessions of doubt or nonconformity.^ Even the oath of supremacy, designed to discover Catholics, was also a stumbling-block to many Puritans. The former denied the queen's supremacy, because they still owned that of the Pope ; many of the latter hesitated to acknowledge it, as irreconcilable with their own Church polity. One party were known to be disloyal : the other were faithful subjects of the Crown. But conformity with the reformed ritual, and attendance upon the services of the Church, were enforced against both, with indiscriminating rigour.* In aiming at unity the Church fostered dissent.
The early Puritans had no desire to separate from the Growth of national Church : but were deprived of their benefices, and cast "j°"^°" °'^'"" forth by persecution. They sought further to reform her polity and ceremonies, upon the Calvinistic model ; and claimed greater latitude in their own conformity. They objected to clerical vestments, and other forms, rather than to matters of faith and doctrine ; and were slow to form a distinct com- munion. They met secretly for prayer and worship, hoping that truth and pure religion would ultimately prevail in the Church, according to their principles, as Protestantism had prevailed over the errors of Rome. The ideal of the Presby- terians was a national Church, to which they clung through all their sufferings : but they were driven out, with stripes, from the Church of England. The Independents, claiming
^ Strype's Life of Whitgift, i. 431.
2 Elizabeth's policy may be described in her own words : " She would sup- press the papistical religion, that it should not grow ; but would root out puri- tanism, and the favourers thereof". — Strype's Eccl. Annals, iv. 242.
» Ibid., iii. 81 ; Strype's Life of Whitgift, iii. 106 ; Fuller's Church Hist., ix. 156 ; Sparrow, 123.
* Burnet's Hist, of the Reformation, iii. 587 ; Short's Hist, of the Church, 306; Strype's Eccl. Annals, iv. 93 et seq.; Strype's Parker, 155, 225; Strype's Grindal, 99 ; Froude's Hist., ii. 134.
i68 THE CONSTITUTIONAL MiSTOkY OF ENGLAND
self-government for each congregation, repelling an ecclesias- tical polity, and renouncing all connection with the State, naturally favoured secession from the establishment. Separa- • tion and isolation were the very foundation of their creed ; ^ and before the death of Elizabeth they had spread themselves widely through the country, being chiefly known as Brownists,^ Protestant nonconformity had taken root in the land ; and its growth was momentous to the future destinies of Church and State. Close con- While the Reformed Church lost from her fold considerable
Reformed ^ ^ numbers of the people, her connection with the State was far Church with more intimate than that of the Church of Rome. There was no longer a divided authority. The Crown was supreme in Church and State alike. The Reformed Church was the creation of Parliament : her polity and ritual, and even her doctrines, were prescribed by statutes. She could lay no claim to ecclesiastical independence. Convocation was restrained from exercising any of its functions without the king's licence.^ No canons had force without his assent ; and even the sub- sidies granted by the clergy, in convocation, were hencefor- ward confirmed by Parliament. Bishops, dignitaries, and clergy looked up to the Crown as the only source of power within the realm. Laymen administered justice in the ecclesiastical courts ; and expounded the doctrines of the Church. Lay patronage placed the greater part of the benefices at the dis- posal of the Crown, the barons, and the landowners. The constitution of the Church was identified with that of the State ; and their Union was political as well as religious. The Church leaned to the Government rather than to the people ; and, on her side, became a powerful auxiliary in maintaining the ascendency of the Crown, and the aristocracy. The Union of ecclesiastical supremacy with prerogatives, already excessive, dangerously enlarged the power of the Crown over the civil and religious liberties of the people. Authority had too strong a fulcrum ; and threatened the realm with absolute subjection :
^ Heylyn's Hist, of the Presbyterians, lib. vi.-x. ; Neal's Hist, of the Puri- tans, i. ch. iv. etc. ; Bogue and Bennett's Hist of Dissenters, Intr. 58-65 ; i. 109- 140 ; Price's Hist, of Nonconformity ; Conder's View of all Religions.
*The Act 35 Eliz. c. i, was passed to suppress them.
'25 Hen. Vni. c. 19; Froude's Hist., ii. 193-198, 325, iv. 479.
kBLiGiO vs Liberty \ 69
but the wrongs of Puritans produced a spirit of resistance, which eventually won for Englishmen a surer freedom.
Meanwhile, the Reformation had taken a different course Reformation in Scotland. The Calvinists had triumphed. They had over- '" Scotland, thrown episcopacy, and established a Presbyterian Church upon their own cherished model.^ Their creed and polity suited the tastes of the people, and were accepted with en- thusiasm. The Catholic faith was renounced everywhere but in some parts of the Highlands ; and the Reformed establishment at once assumed the comprehensive character of a national Church. But while supported by the people, it was in constant antagonism to the State. Its rulers repudiated the supremacy of the Crown : ^ resisted the jurisdiction of the civil courts ; '^ and set up pretensions to spiritual authority and independence, not unworthy of the Church they had lately overthrown.* They would not suffer temporal power to in- trude upon the spiritual Church of Christ.^
The constitution of the Scottish Church was republican : The Church her power at once spiritual and popular. Instead of being governed by courtly prelates and an impotent convocation, she was represented by the General Assembly — an ecclesiastical Parliament of wide jurisdiction, little controlled by the civil power. The leaders of that assembly were bold and earnest men, with high notions of ecclesiastical authority, a democratic temper, and habitual reliance upon popular support. A
^ 1560-1592. — The events of this period are amply illustrated in Spottis- wood's Hist, of the Church of Scotland; M'Crie's Lives of Knox and Melville ; Knox's Hist, of the Reformation; Robertson's Hist, of Scotland ; Ty tier's Hist, of Scotland; Cook's Hist, of the Reformation in Scotland; Cunningham's Church Hist., i. 351; Row's Hist, of the Kirk of Scotland; Stephen's Hist, of the Church of Scotland; Buckle's Hist., ii. ch. 3 ; Froude's Hist., vii. 116, 269.
^ In the Book of Polity, it is laid down that " the power ecclesiastical flows immediately from God and the Mediator Jesus Christ, and is spiritual, not hav- ing a temporal head on earth, but only Christ, the only spiritual governor and head of His kirk ".
' Cunningham's Church Hist., 535 ; Calderwood's Hist., v. 457-460, 475 ; Spottiswood's Hist., iii. 21; Tytler's Hist., vii. 326; Buchanan's Ten Years' Conflict, i. 73-81.
^ Mr. Cunningham, comparing the Churches of Rome and Scotland, says : " With both there has been the same union and energy of action, the same as- sumption of spiritual supremacy, the same defiance of law courts. Parliaments, and kings ".—Pref. to Church Hist. 0/ Scotland.
5 " When the Church was Roman, it was the duty of the magistrate to reform it. When the Church was Protestant, it was impiety in the magistrate to touch it." — Cunningham's Church Hist., i. 537.
170 THk CONSTTTUTIOIVAL HISTOkY OF ENGLAND
Her connec- tion with the State.
Reformation in Ireland.
The three Churches under James I.
Church SO constituted was, indeed, endowed and acknowledged by the State : but was more likely to withstand the power of the Crown and aristocracy than to uphold it.
The formal connection of the Church with the State was, nevertheless, maintained with scarcely less strictness than in England. The new establishment was the work of the legis- lature ; the Protestant religion was originally adopted ; the Church's confession of faith ratified ; and the entire Presby- terian polity established by statute.^ And further, the Crown was represented in her assembly by the Lord High Commis- sioner.
The Reformation had also been extended to Ireland : but in a manner the most extraordinary and exceptional. In England and Scotland, the clergy and people had unquestion- ably been predisposed to changes in the Catholic Church ; and the reforms effected were more or less the expression of the national will. But in Ireland, the Reformation was forced upon an unyielding priesthood and a half-conquered people. The priests were driven from their churches and homes by ministers of the new faith — generally Englishmen or strangers — who were ignorant of the language of their flocks, and indifferent to their conversion or teaching. Conformity was exacted in obedience to the law, and under severe penalties : not sought by appeals to the reason and conscience of a sub- ject race. Who can wonder that the Reformation never took root in Ireland? It was accepted by the majority of the English colonists : but many who abjured the Catholic faith declined to join the new establishment, and founded Presby- terian communions of their own. The Reformation added a new element of discord between the colonists and the natives : embittered the chronic discontents against the Government ; and founded a foreign Church, with few communicants, in the midst of a hostile and rebellious people. It was a State Church : but, in no sense, the Church of the nation.^
Such having been the results of the Reformation, the ac- cession of James united the three crowns of these realms ; and
' Scots Acts, 1560 ; 1567, c. 4, 6, 7 ; 1592, c. 116 ; ibid,, i6go, c. 5, 23.
" Leland's Hist., ii. 165, 224, etc. ; Lanigan's Eccl. Hist., iv. 207, etc. ; Mant's Hist, of the Church of Ireland, i. ch. 2, 3, 4 ; Goldwin Smith's Irish His- tory and Irish Character, 83, 88, 92, 100.
kBUGIO US LIBERTY 1 1 1
what were his relations to the Church ? In England, he was the head of a State Church, environed by formidable bodies of Catholics and Puritans. In Scotland, a Presbyterian Church had been founded upon the model approved by English Puri- tans. In Ireland, he was the head of a Church maintained by the sword. This incongruous heritage, unwisely used, brought ruin on his royal house. Reared among a Presbyterian people, he vexed the English Puritans with a more rigorous conformity ; and spurning the religion of his own countrymen, forced upon them a hated episcopacy, the supremacy of the Crown, and observances repugnant to their creed. No less intolerant of his own mother's Church, he hastened to aggravate the pen- alties against Popish recusants. Such was his rancour that he denied them the right of educating their children in the Catholic faith.^ The laws against them were also enforced with renewed severity.^ The monstrous plot of Guy Fawkes naturally incensed Parliament and the people against the whole body of Catholics, whose religion was still associated with imminent danger to the State ; and again were treason and Popery scourged with the same rod. Further penalties were imposed on Popish recusants not attending the services and sacraments of the Church ; and a new oath of allegiance was devised to test their loyalty.^ In Ireland, Catholic priests were banished by proclamation ; and the laws rigorously en- forced against the laity who absented themselves from Pro- testant worship. The king's only claim upon the favour of the Puritans was his persecution of Papists ; and this he suddenly renounced. In compliance with engagements entered into with foreign powers, he began openly to tolerate the Cath- olics ; and granted a pardon to all who had incurred the penalties of recusancy. The breach was ever widening between the Puritans and the throne ; and while the monarch was as- serting the divine right of kings, his bishops were exalting prelacy, and bringing the Reformed Church nearer to the Romish model.
Charles continued to extend an indulgence to Catholics, Relations of at once offensive to the Puritan party, and in violation of laws ^^^^f^ \
r- / > ^,th Cath-
which his prerogative could not rightfully suspend. Even the oiics and
Puritans. 1 I Jac. I. c. 4. 2 Lingard's Hist., ix. 41, 55.
=*3 Jac. I. c. 4,5.
i;2 THE CONSTITUTIONAL HISTORY OF ENGLAND
toleration of the Stuarts, like their rigour, was beyond the law. The prerogatives and supremacy of the Crown were alike abused. Favouring absolutism in the State, and domination in the Church, Charles found congenial instruments of tyranny in the Star Chamber and High Commission, in Strafford and in Laud. In England he oppressed Puritans : in Scotland he introduced a high-church liturgy, which provoked rebellion. Arbitrary rule in Church and State completed the alienation of the Puritan party ; and their enmity was fatal. The Church was overthrown ; and a republican commonwealth established on the ruins of the monarchy. The polity of the Reformation was riven, as by a thunderbolt. Religion The Commonwealth was generally favourable to religious
Commcm- liberty. The intolerance of Presbyterians, indeed, was fanati- weaith. cal.^ In the words of Milton, " new Presbyter was but old
Priest — writ large". Had they been suffered to exercise un- controlled dominion, they would have rivalled Laud himself in persecution. But Cromwell guaranteed freedom of worship to all except Papists and Prelatists ; declaring " that none be compelled to conform to the public religion by penalties or otherwise".^ Such was his policy, as a statesman and an In- dependent.^ He extended toleration even to the Jews.* Yet was he sometimes led, by political causes, to put his iron heel upon the bishops and clergy of the Church of England, upon Roman Catholics, and even upon Presbyterians.^ The Church
* Life of Baxter, 103. Their clergy in London protested against toleration to the Westminster Assembly, i8th Dec, 1645, saying, "we cannot dissemble how we detest and abhor this much endeavoured toleration ". — Price's Hist, of Nonconformity, ii. 329. Edwards, a Presbyterian minister, denounced toleration as " the grand design of the devil," and " the most ready, compendious, and sure way to destroy all religion," — " all the devils in hell and their instruments being at work to promote it ". — Gangrana, part i. 58.
' Whitelock's Mem., 499, 576, 614; Neal's Hist, of the Puritans, iv. 28, 138, 338, etc.
' Hume affirms, somewhat too broadly, that " of all the Christian sects this was the first which during its prosperity as well as its adversity, always adopted the principles of toleration". — Hist., v. 168. See also Neal's Hist, of the Puri- tans, ii. 98 ; iv. 144 ; Collier, 829 ; Hallam's Const. Hist., i. 621 ; Short's Hist. 425 ; Brook's Hist, of Religious Liberty, i. 504, 513-528.
* Bate's Elen., part ii. 211.
* Lord Clarendon's Hist., vii. 253, 254 ; Baxter's Life, i. 64 ; Kennet's Hist., iii. 206; Neal's Hist, of the Puritans, iv. 39, 122, 138, 144; Hume's Hist., v. 368; Butler's Rom. Cath., ii. 407; Parr's Life of Archbishop Usher; Rushworth, vii. 308, etc.
RELIGIOUS LIBERTY 173
party and Roman Catholics had fought for the king in the civil war ; and the hands of churchmen and Puritans were red with each others' blood. To religious rancour was added the vengeance of enemies on the battle-field.
Before the king's fall, he had been forced to restore the Presbyterians Presbyterian polity to Scotland ; ^ and the Covenanters, in a '" Scotland, furious spirit of fanaticism, avenged upon Episcopalians the wrongs which their cause had suffered in the last two reigns. Every age brought new discords ; and religious differences commingled with civil strifes.
After the Restoration, Roundheads could expect no mercy Puritans from Cavaliers and churchmen. They were spurned as dis-"" " ^^^^ senters and republicans. While in the ascendant, their gloomy fanaticism and joyless discipline had outraged the natural sentiments and taste of the people ; and there was now a strong reaction against them. And first the Church herself was to be purged of Puritans. Their consciences were tried by a new Act of Uniformity, which drove forth 2,000 of her clergy, and further recruited the ranks of Protestant noncon- formists.2 This measure, fruitful of future danger to the Church, was followed by a rigorous code of laws, proscribing freedom of worship, and multiplying civil disabilities, as penalties for dissent.
By the Corporation Act, none could be elected to a cor- Oppressive porate office who had not taken the sacrament within thej.g^n.° year.^ By another Act, no one could serve as a vestryman, unless he made a declaration against taking up arms and the covenant, and engaged to conform to the Liturgy.* The Five Mile Act prohibited any nonconformist minister from coming within five miles of a corporate town ; and all nonconformists, whether lay or clerical, from teaching in any public or private school.^ The monstrous Conventicle Act punished attendance at meetings of more than five persons, in any house, for religi- ous worship, with imprisonment and transportation.^ This, again, was succeeded by a new test, by which the clergy were required to swear that it was not lawful, on any pretence what-
^In 1641.
2 13 & 14 Car. II. c. 4. Calamy's Nonconformist's Memorial, Intr. 31, etc. ; Baxter's Life and Times, by Calamy, i. 181.
'^ 13 Car. II. Stat. 2, c. i. * 15 Car. II. c. 5. *I3 & 14 Car. II. c. 4.
* 16 Car. II. c. 4, continued and amended by 22 Car, II. c. i.
174 THE CONSTITUTIONAL HISTORY OF ENGLAND
ever, to take up arms against the king.^ This test, conceived in the spirit of the high church, touched the consciences of none but the Calvinistic clergy, many of whom refused to take it, and further swelled the ranks of dissent. Persecution of While the foundations of the Church were narrowed by nonconform- ^^^j^ j^^^ ^^ these, nonconformists were pursued by incessant persecutions. Eight thousand Protestants are said to have been imprisoned, besides great numbers of Catholics.^ Fifteen Attempts at hundred Quakers were confined : of whom three hundred and sSn^'^^^" fifty died in prison.^ During this reign, indeed, several at- tempts were made to effect a reconciliation between the Church and nonconformists : ^ but the irreconcilable differences of the two parties, the unyielding disposition of churchmen, and the impracticable temper of nonconformists, forbad the success of any scheme of comprehension. The Catholics Nonconformists having been discouraged at the begin- under Charles j^jj^g ^j- ^.j^j^ reign. Catholics provoked repression at the end. In 1673, Parliament, impelled by apprehension for the Pro- testant religion and civil liberties of the people, passed the celebrated Test Act* Designed to exclude Roman Catholic Ministers from the king's councils, its provisions yet em- braced Protestant nonconformists. That body, for the sake of averting a danger common to all Protestants, joined the Church in supporting a measure fraught with evil to them- selves. They were, indeed, promised further indulgence in the exercise of their religion, and even an exemption from the Test Act itself: but the Church party, having secured them in its toils, was in no haste to release them.^ Church of The Church of Scotland fared worse than the English non-
^gg^Q^^jjp^'" conformists after the Restoration. Episcopacy was restored: the king's supremacy reasserted : the entire polity of the
1 17 Car. II. c. 2.
' Delaune's Plea for Nonconformists, preface ; Short's Hist., 559. Old- mixon goes so far as to estimate the total number who suffered on account of their religion, during this reign, at 60,000 1 — History of the Stuarts, 715.
' Neal's Hist, of the Puritans, v. 17.
* The Savoy Conference, 1661 ; Baxter's Life and Times, i. 139 ; Burnet's Own Time, i. 309; Collier's Church Hist., ii. 879; Perry's Hist. ii. 317. In 1669 ; Baxter's Life, iii. 23 ; Burnet's Own Time, i. 439,; Scheme of Tillotson and Stillingfleet, 1674 ; Burnet's Life of Tillotson, 42.
" 25 Car. II. c. 2.
» Kennet's Hist., iii. 294 ; Burnet's Own Time, i. 348, 516.
RELIGIOUS LIBERTY 175
Church overthrown ; 1 while the wrongs of Episcopalians, under the Commonwealth, were avenged, with barbarous cruelty, upon Presbyterians.^
The Protestant faith and civil liberties of the people being Union of threatened by James II., all classes of Protestants combined to^^^^^^^^^ expel him from his throne. Again the nonconformists united against with the Church to resist a common danger. They were not-'*'"^^ even conciliated by his declarations of liberty of conscience and indulgence, in which they perceived a stretch of preroga- tive, and a dangerous leaning towards the Catholic faith, under the guise of religious freedom. The revolution was not less Protestant than political ; and Catholics were thrust further than ever beyond the pale of the constitution.
The recent services of dissenters to the Church and the The Tolera- Protestant cause were rewarded by the Toleration Act.^ This*^'°" ' celebrated measure repealed none of the statutes exacting con- formity with the Church of England : but exempted all persons from penalties, on taking the oaths of allegiance and suprem- acy, and subscribing a declaration against transubstantiation. It relieved dissenting ministers from the restrictions imposed by the Act of Uniformity and the Conventicle Act, upon the administration of the sacrament and preaching in meetings : but required them to subscribe the Thirty-nine: Articles, with some exceptions.* The dissenting chapels were to be regis- tered ; and their congregations protected from any molesta- tion. A still easier indulgence was given to the Quakers : but toleration was withheld from Roman Catholics and Unitarians, who found no favour either with the Church or nonconformists.
The Toleration Act, whatever its shortcomings, was at Right of least the first recognition of the right of public worship be- P"^^'^. yond the pale of the State Church. It was the great charter conceded, ot dissent. Far from granting religious liberty, it yet gave indulgence and security from persecution.
1 Scots Acts, 1661, c. II ; 1669, c. i ; 1681, c. 6 ; Wodrow's Church Hist., i. igo.
"^Ibid., 57, 236, 390, etc.; Burnet's Own Time, i. 365, ii. 416, etc.; Crookshank's Hist., i. 154, 204, etc. ; Buckle's Hist., ii. 281-292 ; Cunningham's Church Hist., ii. ch. i. vi.
* I Will. & Mar. c. 8 ; confirmed by 10 Anne, c. 2 ; Bogue and Bennett's Hist, of Dissenters, i. 187-204.
^ All except three and part of a fourth. See infra, p. 185.
176 THE CONSTITUTIONAL HISTORY OF ENGLAND
Further measures against Uni- tarians and Catholics.
Scheme of comprehen- sion under William III.
Church of Scotland after the Revolution.
The age was not ripe for wider principles of toleration. Catholics and Unitarians were soon afterwards pursued with severer penalties ; i and in 1700, the intolerant spirit of Par- liament was displayed by an Act — no less factious than bigoted — which cannot be read without astonishment. It offered a reward of i^ioo for the discovery of any Catholic priest per- forming the offices of his Church : it incapacitated every Roman Catholic from inheriting or purchasing land, unless he abjured his religion upon oath ; and on his refusal, it vested his pro- perty, during his life, in his next of kin, being a Protestant. He was even prohibited from sending his children abroad, to be educated in his own faith.^ And while his religion was thus proscribed, his civil rights were further restrained by the oath of abjuration.^
Again the policy of comprehension was favoured by William III. : but it was too late. The Church was far too strong to be willing to sacrifice her own convictions to the scruples of nonconformists. Nor was she forgetful of her own wrongs under the Commonwealth, or insensible to the sufferings of Episcopalians in Scotland. On the other side, the noncon- formists, confirmed in their repugnance to the doctrines and ceremonies of the Church by the persecutions of a hundred and fifty years, were not to be tempted by small concessions to their consciences, or by the doubtful prospects of prefer- ment, in an establishment from which they could expect little favour.*
To the Church of Scotland the Revolution brought freedom and favour. The king's supremacy was finally renounced ; Episcopacy, against which she had vainly struggled for a hun- dred years, for ever abolished ; her confession of faith recog- nised by statute ; and the Presbyterian polity confirmed.^ But William III., in restoring the privileges of the Church, en- deavoured to impress upon her rulers his own moderation and
1 1 Will. & Mar. c. 9, 15, 26; 9 & 10 Will. III. c. 32.
'11 & 12 Will. III. c. 4; Burnet's Own Time, iv. 409; Butler's Hist. Mem. of the Catholics, iii. 134-138, 279; Burke's Speech at Bristol, 1780, Works,
iii. 385-
3 13 Will. III. c. 6.
* D'Oyley's Life of Sancroft, 327, 520 ; Burnet's Own Time, ii. 1033, etc. ; Kennet's Hist., iii. 483, 551 et seq. ; Macaulay's Hist, iii. 8g, 468-495 ; Bogue and Bennett's Hist., i. 207.
''Scots Acts, 1689, c. 2; 1690, c. 5 ; 1692, c. 117.
RELIGIOUS LIBERTY 177'
tolerant spirit. Fearing the persecution of Episcopalians at their hands, he wrote thus nobly and wisely to the General Assembly : " We expect that your management shall be such that we may have no reason to repent what we have done. We never could be of the mind that violence was suited to the advancing of true religion : nor do we intend that our author- ity shall ever be a tool to the irregular passions of any party." ^ And not many years afterwards, when Presbyterian Scotland was united to Episcopalian England, the rights of her Church, in worship, discipline, and government, were confirmed, and declared unalterable.'-^
To the Catholics of Ireland, the reign of William was made Catholics of terrible by new rigours and oppression. They were in arms wuHamm" for the exiled king ; and again was their faith the symbol of rebellion. Overcome by the sword, they were condemned to proscription and outlawry.
It was long before Catholics were to enjoy indulgence. In Catholics 171 1, a proclamation was published for enforcing the penal q" o"j J^"^ ll_ laws against them in England,^ And in Ireland, the severities of former reigns were aggravated by Acts of Queen Anne.* After the rebellion of 17 15, Parliament endeavoured to strengthen the Protestant interest by enforcing the laws against Papists.^ Again, in 1722, the estates of Roman Catholics and non-jurors were made to bear a special financial burden, not charged upon other property.^ And, lastly, the rebel- lion of 1745 called forth a proclamation, in the spirit of earlier times, offering a reward of ;^ 100 for the discovery of Jesuits and popish priests and calling upon magistrates to bring them to justice.
Much of the toleration which had been conceded to Pro- Nonconform- testant nonconformists at the Revolution, was again withdrawn Anne, Geo. during the four last years of Queen Anne. Having found ^- and H- their way into many offices, by taking the sacrament, an Act was passed, in 171 1, against occasional conformity, by which dissenters were dispossessed of their employments, and more
1 Macaulay's Hist., iii. 708.
2 Act of Union, 5 Anne, c. 8 ; Scots Acts, 1705, c. 4 ; 1706, c. 7. ^ Boyce's Reign of Queen Anne, 429, etc.
^ 2 Anne, c. 3, 6 ; 8 Anne, c. 3. * i Geo. I. c. 55.
*9 Geo. I. c. 18 ; Pari. Hist., viii. 51, 353.
VOL. IL 12
fjS THE CONSTITUTIONAL HISTORY OF ENGLAND
rigorously disqualified in future.^ Again were nonconformists repelled, with contumely, from honourable fellowship with the State. Two years afterwards the Schism Bill was passed, pro- hibiting the exercise of the vocation of schoolmaster or private teacher without a declaration of conformity, and a licence from a bishop.2 Both these statutes, however, were repealed in the following reign.^ With the reign of George II. a wider tolera- tion was commenced in another form. The time was not yet come for repealing the laws imposing civil disabilities upon dissenters : but annual Acts of Indemnity were passed, by which persons who had failed to qualify themselves for office were protected.* State of the -pj^g reign of George III. opened under circumstances
Church and ° o i
religion on favourable to religious liberty. The intolerant spirit of the the accession j^jgj^ Church party had been broken since the death of Anne. The phrensies of Sacheverell and Atterbury had yielded to the liberal philosophy of Milton and Locke, of Jeremy Taylor, Hoadley, Warburton, and Montesquieu. The angry disputa- tions of convocation were silenced. The Church was at peace ; and the State had ceased to distrust either Roman Catholics or nonconformists. Never since the Reformation had any monarch succeeded to the throne at a period so free from re- ligious discords and embarrassments. In former reigns, high churchmen had been tainted with Jacobite sympathies : now all parties vied in attachment and loyalty. Once more the Church was wholly with the king : and added all her weight to the influence of the Crown. Many English Catholics, crushed by persecution, and losing hopes of the restoration of their own faith, had gradually conformed to a Church, already beginning to boast a certain antiquity, enshrined in the an- cient temples of their forefathers, respecting their traditions, allied to the State, and enjoying the power, wealth, fashion and popularity of a national establishment. Some of this body had been implicated in both the Jacobite rebellions : but their numbers had ceased to be formidable ; and they were now
1 loAnne, c. 2 ; Burnet's Own^Time, 11.364, 585, etc. ; Bogueand Bennett's Hist., i. 228, 262.
* 12 Anne, c. 7 ; Pari. Hist., vi. 1349; Bogue and Bennett's Hist., i. 268,
2 5 Geo I. c. 4.
* The first of these Acts was in 1727 ; i Geo. II. c. 23 ; Hallam's Const. Hist., ii. 412.
RELIGIOUS LIBERTY 179
universally well-disposed and loyal. ^ The dissenters had been uniformly attached to the House of Hanover ; and, hav- ing ceased to be oppressed, quietly prospered, without offence to the Church. The old nonconformist bodies — the offspring of the Reformation and the Act of Uniformity — so far from making progress, had declined in numbers and activity since the time of William III.^ There had been little religious zeal, either within or without the Church. It was an age of spiritual indifference and lethargy.^ With many noble excep- tions, the clergy had been inert and apathetic. A benefice was regarded as an estate, to which was attached the perform- ance of certain ecclesiastical duties. These once performed — the service read, the weekly sermon preached, the child christened, the parishioner buried — and the parson differed little from the squire. He was generally charitable, kindly, moral, and well educated — according to the standard of the age — in all but theology.* But his spiritual calling sat lightly upon him. Zealous for Church and king, and honestly hating dissenters, he was unconscious of a mission to spread the knowledge of the gospel among the people, to solve their doubts, to satisfy their spiritual longings, and to attach their religious sympathies to the Church.^ The nonconformist
^ In 1767, there appear to have been no more than 67,916 ; and, in 1780, 69,376. They had 200 chapels. — Census, 1851: Report on Religious Worship, ci. In 1696, out of 2,599,786 freeholders in England and Wales, there had been 13,856 Catholics. — Ihid., c. Dalrymple, book i. part ii. App. ; Butler's Historical Mem. of the Catholics, iii. 162.
- Calamy's Life and Times, ii. 529 ; Lord Mahon's Hist., ii. 372 ; Bogue and Bennett's Hist., iii. 314-324. In 1696 it appeared that 108,676 freeholders in England and Wales were nonconformists (Census Report, 1851, c.) ; but as dissent chiefly prevailed in the towns, this report must have fallen very far short of the total numbers.
* Bishop Gibson's Pastoral Letters, 2nd Ed., 1728, p. 2 ; Butler's advertise- ment to Analogy of Revealed Religion, 1736 ; Archbishop Seeker's Eight Charges, 1738, p. 4 ; Southey's Life of Wesley, i. 324, etc.
^ Bishop Burnet thus speaks of candidates for ordination : " Those who have read some few books, yet never seem to have read the Scriptures ". " The case is not much better in many, who, having got into orders, come for instruc- tion and cannot make it appear that they have read the Scriptures, or any one good book, since they were ordained." — Pastoral Care, 3rd Ed., 1713 : Preface.
^ " A remiss, unthinking course of life, with little or no application to study, and the bare performing of that, which, if not done, would draw censures when complained of, without even pursuing the pastoral care in any suitable degree, is but too common, as well as too evident." — Ibid. See also Intr. to last volume of Burnet's Hist.
12 *
i8o THE CONSTITUTIONAL HISTORY OF ENGLAND
ministers, comfortably established among their flocks, and en- joying their modest temporalities, shared the spiritual ease of churchmen. They were ruffled by no sectarian zeal or rest- less spirit of encroachment. Many even conformed to the Church of England, The age was not congenial to religious excitement and enthusiasm ; a lull had succeeded to storms and agitations. Wesley and gut this religious calm had lately been disturbed by
Wesley and Whitefield, the apostles of modern dissent. These eminent men were both brought up as faithful disciples of the Church, and admitted to holy orders. Not impelled to their extraordinary mission by any repugnance to her doc- trines and discipline, they went forth to rouse the people from their religious apathy, and awaken them to a sense of sin. They penetrated the haunts of ignorance and vice ; and braved ridicule, insults, and violence. They preached in the open air, to multitudes who had scarcely heard of the Gospel. On the hill-side, by ruins, on the seashore, they appealed to the imagination as well as to the devotional sentiments of their hearers. They devoted their lives to the spiritual instruction of the middle and lower classes : preached to them every- where : prayed with them : read the Scriptures in public and private ; and addressed them with familiar speech and homely illustration.^ Wesley, still in communion with the Church, and holding her in love and reverence, became the founder of a new sect.^ He preached to reclaim men from sin : he addressed the neglected heathens of society, whom the Church knew not: he laboured as a missionary, not as a sectarian. Schism grew out of his pious zeal : but his followers, like their revered founder, have seldom raised their voices, in the spirit
^ " I design plain truth for plain people ; therefore, of set purpose, I abstain from all nice and philosophical speculations, from all perplexed and intricate reasonings ; and, as far as possible, from even the show of learning, unless in sometimes citing the original Scriptures. I labour to avoid all words which are not easy to be understood — all which are not used in common life, and in par- ticular those kinds of technical terms that so frequently occur in bodies of divin- ity."— Wesley^s Pref. to Sermons, 1746. In another place Wesley wrote : " I dare no more write in a fine style, than wear a fine coat ". — Pre/, to 2nd Ser. of Ser- mons, 1788.
3 Rev. J. Wesley's Works, i. 185; ii. 515 ; vii. 422-423; viii. iii, 254, 269, 311 ; Southey's Life of Wesley, ch. xii., xx., etc.
RELIGIOUS LIBERTY i8i
of schismatics, against their parent Church. ^ Whitefield, for a time the fellow-labourer of Wesley, surpassed that great man as a preacher ; and moved the feelings and devotion of his hearers with the inspiration of a prophet : but, less gifted with powers of organisation and government, he left fewer monu- ments of his labours, as the founder of a religious sect,^ Holding to the doctrine of absolute predestination, he became the leader of the Calvinistic Methodists, and Lady Hunting- don's connection.^ The Methodists were regarded by church- men as fanatical enthusiasts rather than dissenters ; while their close relations with the Church repelled the favour of other sects. They suffered ridicule, but enjoyed toleration ; and, labouring in a new field, attracted multitudes to their communion.^
The revival of the religious spirit by the Methodists gradu- Revival of ally stimulated the older sects of nonconformists. Presby- ^'^^^"*' terians, Independents, and Baptists, awakened by Wesley and Whitefield to a sense of the spiritual wants of the people, strove, with all their energies, to meet them. And large numbers, whose spiritual care had hitherto been neglected alike by the Church and by nonconformists, were steadily swelling the ranks of dissent. The Church caught the same spirit more slowly. She was not alive to the causes which were under- mining her influence, and invading her proper domain — the religious teaching of the people — until chapels and meeting houses had been erected in half the parishes of England.^
The Church of Scotland, which in former reigns had often Church of been at issue with the civil power, had now fallen under the Scotland, rule of the moderate party, and was as tractable as the Church of England herself. She had ever been faithful to the Revolu-
^ Wesley's Works, viii. 205, 321 ; Centenary of Wesleyan Methodism, 183 ; Lord Mahon's Hist., ii. 365-366. Wesley himself said: " We are not seceders ; nor do we bear any resemblance to them " : and after his sect had spread itself over the land, he continually preached in the churches of the establishment.
2 Dr. Adam Clarke's Works, xiii. 257 ; Southey's Life of Wesley, ch. xxi. See also Lecky, Hist, of England, ch. ix.
3 Wesley's Works, iii. 84 ; Philip's Life of Whitefield, 195, etc. ; Southey's Life of Wesley, ch. xxv. ; Life of Countess of Huntingdon, 8vo, 1840.
* Southey's Life of Wesley, ch. xxix. ; Watson's Observations on Southey's Life, 138 ; Lord Mahon's Chapter on Methodism, Hist., ii. 354 ; Brook's Hist, of Relig. Lib., ii. 326-333.
* See infra, p. 272.
1 82 THE CONSTITUTIONAL HISTORY OF ENGLAND
Church of Ireland.
Gradual re- laxation of the penal code com- menced.
tion settlement, by which her own privileges were assured ; and, when free from persecution, had cast off much of her former puritanism. Her spirit had been tempered by learning, cultivation, society, and the gentle influences of the South, until she had become a stanch ally of the Crown and aristo- cracy.^
In Ireland, the Protestant Church had made no progress since the days of Elizabeth. The mass of the population were still Catholics. The clergy of the State Church, indifferent and supine, read the English liturgy in empty churches, while their parishioners attended mass in the Catholic chapels. Irish benefices afforded convenient patronage to the Crown and the great families. The Irish Church was a good rallying point for Protestant ascendency ; but instead of fulfilling the mission of a national establishment, it provoked religious animosity and civil dissensions. For the present, however, Protestant rule was absolute ; and the subjection of the Catholics undis- turbed.^
Such being the state of the Church, and other religious bodies, the gradual relaxation of the penal code was, at length, to be commenced. This code, the growth of more than two centuries, was wholly inconsistent with the policy of a free State. Liberty of thought and discussion was allowed to be a constitutional right : but freedom of conscience was inter- dicted. Religious unity was still assumed, while dissent was notorious. Conformity with the State Church was held to be a duty, the neglect of which was punishable with penalties and disabilities. Freedom of worship and civil rights were denied to all but members of the Church. This policy, ori- ginating in the doctrines of a Church pretending to infallibility, and admitted into our laws in the plenitude of civil and ec- clesiastical power, grew up amid rebellions and civil wars, in which religion became the badge of contending parties. Re- ligious intolerance was its foundation : political expediency its occasional justification. Long after the State had ceased to be threatened by any religious sect, the same policy was
^ Cunningham's Church Hist, of Scotland, ii. 491, 578, etc.
' Bishop Berkeley's Works, ii. 381 ; Wesley's Works, x. 209, etc. ; Mant's Hist, of the Church of Ireland, ii. 288-294, 421-429, etc. ; Lord Mahon's Hist. ii. 374-
RELIGIOUS LIBERTY 183
maintained on a new ground — the security of the established Church.
The penal code, with all its anomalies and inconsistencies, General char- admitted of a simple division. One part imposed restraints pgj^^2°j,Qjjg_ on religious worship : the other attached civil disabilities to faith and doctrine. The former was naturally the first to be reviewed. More repugnant to religious liberty, and more generally condemned by the enlightened thinkers of the age, it was not to be defended by those political considerations which were associated with the latter. Men, earnest in up- holding securities to our Protestant constitution, revolted from the persecution of conscience. These two divisions, however, were so intermixed in the tangled web of legislation : princi- ples had been so little observed in carrying out the capricious and impulsive policy of intolerance ; and the temper of Parlia- ment and the country was still so unsettled in regard to the doctrines of religious liberty, that the labour of revision pro- ceeded with no more system than the original code. Now a penalty affecting religion was repealed ; now a civil disability removed. Sometimes Catholics received indulgence ; and sometimes a particular sect of nonconformists. First one grievance was redressed, and then another: but Parliament continued to shrink from the broad assertion of religious liberty as the right of British subjects and the policy of the State. Toleration and connivance at dissent had already succeeded to active persecution : society had outgrown the law : but a century of strife and agitation had yet to pass be- fore the penal code was blotted out and religious liberty established. We have now to follow this great cause through its lengthened annals, and to trace its halting and unsteady progress.
Early in this reign, the broad principles of toleration were Corporation judicially affirmed by the House of Lords. The city of Lon- °^^°]^^^°^g don had perverted the Corporation Act into an instrument of senters, 3rd extortion, by electing dissenters to the office of sheriff, and ^ ' ^7°^* exacting fines when they refused to qualify. No less than ;^i 5,000 had thus been levied before the dissenters resisted this imposition. The law had made them ineligible : then how could they be fined for not serving ? The City Courts upheld the claims of the Corporation : but the dissenters appealed to
1^4 THE CONSTITUTIONAL HISTORY OF ENGLAND
the Court of Judges or commissioners' delegates, and obtained a judgment in their favour. In 1759, the Corporation brought the cause before the House of Lords, on a writ of error. The judges being consulted, only one could be found to support the claims of the Corporation ; and the House of Lords unani- mously affirmed the judgment of the Court below. In moving the judgment of the House, Lord Mansfield thus defined the legal rights of dissenters : " It is now no crime," he said, " for a man to say he is a dissenter ; nor is it any crime for him not to take the sacrament according to the rites of the Church of England : nay, the crime is if he does it, contrary to the dic- tates of his conscience ". And again : " The Toleration Act renders that which was illegal before now legal ; the dis- senters' way of worship is permitted and allowed by this Act. It is not only exempted from punishment, but rendered inno- cent and lawful ; it is established ; it is put under the protec- tion, and is not merely under the connivance, of the law." And in condemning the laws to force conscience, he said : "There is nothing certainly more unreasonable, more incon- sistent with the rights of human nature, more contrary to the spirit and precepts of the Christian religion, more iniquitous and unjust, more impolitic, than persecution. It is against natural religion, revealed religion, and sound policy." ^ In his views of toleration, the judge was in advance of the legis- lature. Subscription Several years elapsed before Parliament was invited to Ardcles^etlT^ ^°"^'*^*^'^ matters affecting the Church and dissenters. In 1772, Feb., 1772. Sir William Meredith presented a petition from several clergy- men and others, complaining that subscription to the Thirty- nine Articles was required of the clergy, and at the universities. So far as this complaint concerned the clergy, it was a question of comprehension and Church discipline : but subscription on matriculation affected the admission of dissenters to the Uni- versity of Oxford ; and subscription on taking the degrees of Doctor of Laws and Doctor of Medicine excluded dissenters from the practice of the civil law, as advocates, and the prac- tice of medicine, as physicians. In debate this complaint was
> Pari. Hist., xvi. 316. Horace Walpole unjustly sneers at this speech as " another Whig oration " of Lord Mansfield's. — Mem., ii. 414. Lord Campbell's Chief Justices, ii. 512 ; Brook's Hist, of Relig. Lib., ii. 432.
RELIGIOUS LIBERTY 185
treated chiefly as a question affecting the disciph'ne of the Church and universities : but sentiments were expressed that marked a growing spirit of toleration. It being objected that if subscription were relaxed, sectaries might gain admis- sion to the Church, Sir G. Savile said finely, " sectaries, Sir ! had it not been for sectaries, this cause had been tried at Rome. Thank God, it is tried here." The motion for bringing up the petition found no more than seventy-one supporters.-^ The University of Cambridge, however, made a concession to the complaints of these petitioners, by admitting bachelors of arts, on subscribing a declaration that they were bond-fide members of the Church of England, instead of requiring their subscrip- tion to the Thirty-nine Articles.^ Sir W. Meredith renewed the discussion in the two following years, but found little en- couragement.^
In 1772, Sir H. Hoghton brought in a bill, with little op- Subscription position, for relieving dissenting ministers and schoolmasters ^jjgtg"g^*"^ from the subscription required by the Toleration Act.* Dis-andschool- senters conceived it to be a just matter of complaint that the^^^^prll^ law should recognise such a test, after dissent had been ac- 1772- knowledged to be lawful. No longer satisfied with connivance at a breach of the law, they prayed for honourable immunity. Their representations were felt to be so reasonable by the Commons, that the bill was passed with little opposition. In the Lords it was warmly supported by Lord Chatham,^ the Duke of Richmond, Lord Camden, and Lord Mansfield : but was lost on the second reading by a majority of seventy-three.*
In the next year, Sir H. Hoghton introduced an amended 17th Feb., measure, and passed it through all its stages, in the Commons, ^773- by large majorities. Arguments were still heard that conniv- ance was all that dissenters could expect ; in reply to which, Mr. Burke exclaimed, " What, Sir, is liberty by connivance
^ Ayes, 71 ; Noes, 217 ; Pari. Hist,, xvii. 245 ; Clarke, iii. 261 ; Brook's Hist, of Relig. Lib., ii. 365 ; Walpole's Journal, i. 7.
^ Hughes' Hist., ii. 56.
^23rd Feb., 1773 ; 5th May, 1774; Pari. Hist., xvii. 742, 1326 ; Fox's Mem., i. 92.
* The 34th, 35th, 36th, and part of the 20th articles had been excepted by the Toleration Act, as expressing the distinctive doctrines of the Church.
'See outline of his speech, Chatham Corr., iv. 219.
^Contents, 29; Non-contents, 102; Pari. Hist., xvii. 431-446; Walpole's Journal, i. 93.
1 86 THE CONSTITUTIONAL HISTORY OF ENGLAND
Dissenting Ministers' Act, 1779.
Dissenters admitted to offices in Ire- land, 1779.
Prevalent opinions concerning Catholics.
but a temporary relaxation of slavery?" In the Lords, the bill met with the same fate as in the previous year.^
In 1779, however, Sir Henry Hoghton at length succeeded in passing his measure. Dissenters were enabled to preach and to act as schoolmasters without subscribing any of the Thirty-nine Articles. No other subscription was proposed to be substituted : but, on the motion of Lord North, a declara- tion was required to be made, that the person taking it was a Christian and a Protestant dissenter ; and that he took the Scriptures for the rule of his faith and practice. Except upon the question of this declaration, the Bill passed through both Houses with little opposition.^
In Ireland, a much greater advance was made, at this time, in the principles of toleration. An Act was passed admitting Protestants to civil and military offices who had not taken the sacrament — a measure nearly fifty years in advance of the policy of the British Parliament.^ It must, however, be con- fessed that the dissenters owed this concession less to an enlightened toleration of their religion, than to the necessity of uniting all classes of Protestants in the cause of Protestant ascendency.
At this period, the penal laws affecting Roman Catholics also came under review. By the Government, the English Catholics were no longer regarded with political distrust. The memory of Jacobite troubles had nearly passed away ; and the Catholics of this generation were not suspected of disloyalty. Inconsiderable in numbers, and in influence, they threatened no danger to Church or State. Their religion, however, was still held in aversion by the great body of the people ; and they received little favour from any political party. With the ex-
1 Walpole's Journal, i. 759-791. With reference to this bill Lord Chatham wrote : " I hear, in the debate on the dissenters, the Ministry avowed enslaving them, and to keep the cruel penal laws, like bloodhounds coupled up, to be let loose on the heels of these poor conscientious men, when Government pleases ; i.e. if they dare to dislike some ruinous measure, or to disobey orders at an election. Forty years ago, if any Minister had avowed such a doctrine, the Tower 1 the Tower ! would have echoed round the benches of the House of Lords ; but fuit Ilium, the whole constitution is a shadow." — Letter to Lord Shelburne, 14th April, 1773 ; Chatham Corr., iv. 259.
* Pari. Hist., xx. 239, 306-322. See 19 Geo. IIL c. 44 ; Clarke, iii. 269, 355 ; Brook's Hist, of Relig. Lib., ii. 369.
^ 19 & 20 Geo. III. c. 6 (Ireland),
RELIGIOUS LIBERTY 187
ception of Fox, Burke, and Sir G. Savile, few of the Whigs felt any sympathy for their grievances. The Whigs were a party strongly influenced by traditions and hereditary sym- pathies. In struggling for civil and religious liberty at the Revolution, they had been leagued with the Puritans against the Papists : in maintaining the House of Hanover and the Protestant succession, they had still been in alliance with the Church and dissenters, and in opposition to Catholics. Tolera- tion to the Catholics, therefore, formed no part of the tradi- tional creed of the Whig party.^ Still less indulgence was to be expected from the Tories, whose sympathies were wholly with the Church. Believing penal laws to be necessary to her interests, they supported them, indifferently, against dissenters and Catholics. But the growing enlightenment of the time made the more reflecting statesmen, of all parties, revolt against some of the penal laws still in force against the Catholics. They had generally been suffered to sleep : but could, at any time, be revived by the bigotry of zealots, or the cupidity of relatives and informers. Several priests had been prosecuted for saying mass. Mr. Maloney, a priest, having been informed against, was unavoidably condemned to perpetual imprisonment. The Government were shocked at this startling illustration of the law : and the king being afraid to grant a pardon, they ventured, on their own responsibility, to give the unfortunate priest his liberty.^ Another priest owed his acquittal to the ingenuity and tolerant spirit of Lord Mansfield.^ In many cases, Roman Catholics had escaped the penalties of the law by bribing informers not to enforce them.* Lord Camden had protected a Catholic lady from spoliation, under the law, by a private Act of Parliament.^
To avert such scandals as these, and to redeem the law Roman from the reproach of intolerance, Sir George Savile, in 17/8, Relief Act proposed a measure of relief for English Catholics. Its intro- 1778. duction was preceded by a loyal address to the king, signed
1 Fox's Mem., i. 176,203-204; Rockingham Memoirs,!. 228; Macaulay's Hist., iv. 118.
"^ Lord Shelburne's Speech, 25th May, 1773 ; Pari. Hist., xix. 1145 ; Butler's Hist. Mem., iii. 276.
^Holl., 176; Lord Campbell's Chief Justices, ii. 514.
^ Pari. Hist., xix. 1137-1145.
* Butler's Hist. Mem., iii. 284 ; Burke's Works, iii. 389,
1 88 THE CONSTITUTIONAL HISTORY OF ENGLAND
by ten Catholic Lords and one hundred and sixty-three Com- moners, giving assurance of their affection for His Majesty, and attachment to the civil constitution of the country ; and expressing sentiments calculated to conciliate the favour of Parliament and Ministers. When it was explained that the penalties, imposed in 1700, and now to be repealed, were the perpetual imprisonment of priests for officiating in the services of their Church, the forfeiture of the estates of Roman Catholic heirs, educated abroad, in favour of the next Protestant heir, and the prohibition to acquire land by purchase,^ the bill was allowed to be introduced without a dissentient voice ; and was afterwards passed through both Houses with general ap- probation.'' Such was the change in the feelings of the legis- lature since the beginning of the century ! Riots in Scot- But in its views of religious liberty, Parliament was far in land, 177 . advance of considerable classes of the people. The fanaticism of the Puritans was not yet extinct. Any favour extended to Roman Catholics, however just and moderate, aroused its latent flames. This bill extended to England only. The laws of Scotland relating to Roman Catholics, having been passed before its union with England, required further con- sideration, and a different form of treatment. The lord ad- vocate had, therefore, promised to introduce a similar measure applicable to Scotland in the ensuing session. But in the meantime, the violent fanatics of a country which had nothing to fear from Catholics were alarmed at the projected measure. They had vainly endeavoured to oppose the English bill, and were now resolved that, at least, no relief should be granted to their own fellow-countrymen. They banded together in " Pro- testant Associations " ; ^ and by inflammatory language incited the people to dangerous outrages. In Edinburgh the mob destroyed two Roman Catholic chapels, and several houses of reputed Papists. In Glasgow there were no chapels to des- troy : but the mob were able to show their zeal for religion by sacking the factory of a Papist. The Roman Catholics trembled for their property and their lives. Few in numbers
1 II & 12 Will. III. c. 4.
2 Pari. Hist., xix. 1137-1145; 18 Geo. III. c. 60; Butler's Hist. Mem., iii. 286-297.
^ Supra, p. 24.
RELIGIO US LIBER TV 189
they found little protection from Presbyterian magistrates ; and were at the mercy of the rioters. Preferring indemnity for their losses, and immediate protection for their persons, to a prospective relief from penal statutes, they concurred with the Government in the postponement of the contemplated measure till a more favourable occasion,^ In an admirable petition 18th March, to the House of Commons, they described the outrages which ^^^^' had been committed against them, and expressed their loyalty and attachment to the constitution. While they readily for- bore to press for a revision of the penal statutes, they claimed a present compensation for the damages inflicted upon their property. Such compensation was at once promised by the Government.'-^
The success of the fanatical rioters in Scotland, who had Riots in accomplished an easy triumph over the Roman Catholics 31-,^ London, 1780. the Government, encouraged the anti-Catholic bigotry in England. If it was wrong to favour Papists" in Scotland, the recent English Act was also an error, of which Parliament must now repent. The fanatics found a congenial leader in Lord George Gordon ; and the metropolis of England soon exceeded the two first cities of the North in religious zeal and outrage. London was in flames, and Parliament invested by the mob, because some penalties against Roman Catholics, condemned by sober men of all parties, had lately been re- pealed. The insensate cry of " No Popery " resounded in the streets, in the midst of plunder, and the torches of incendi- aries.^
Petitions praying for the repeal of the recent Act were met by resolutions of the House of Commons vindicating its provisions from misrepresentation.* One unworthy conces- sion, however, was made to the popular excitement. Sir George Savile, hitherto the foremost friend of toleration, con- sented to introduce a bill to restrain Papists from teaching the children of Protestants. It was speedily passed through the House of Commons.^ In the House of Lords, however, the Lord Chancellor inserted an amendment limiting the bill to
' 15th March, 1779 ; Pari. Hist., xx. 280 ; Ann. Reg., 1780, p. 26. 2 Pari, Hist., xx. 322. 3 See supra, p. 25.
* 20th June, 1780; Pari. Hist., xxi. 713. ' Ibid., 726.
1 90 THE CONSTITUTIONAL HISTORY OF ENGLAND
boarding-schools ; and this limitation being afterwards opposed by the Bishops, led to the loss of the bill.^
For several years the grievances of Catholics were per- mitted to rest in oblivion : but the claims of Protestant dissenters to further toleration elicited ample discussion. Corporation The grievances suffered by dissenters, under the Corpora-
Act8^f787 ^'^'^ ^^^ '^Q^t Acts, had not been urged upon Parliament since the days of Sir Robert Walpole : ^ but in 1787, the time seemed favourable for obtaining redress. In Mr. Pitt's struggle with the coalition, the dissenters having sided with the Min- ister, and contributed to his electoral triumphs, expected a recognition of their services at his hands.^ Having distributed a printed case,* in which the history and claims of nonconform- Mr. Beaufoy's ists were ably stated, they entrusted their cause to Mr. Beau- Marc°h'i787 ^^X' ^^° moved for a bill to repeal the Corporation and Test Acts. He showed how the patriotism of a nonconformist soldier might be rewarded with penalties and proscription ; and how a public-spirited merchant would be excluded from municipal offices, in the city which his enterprise had enriched, unless he became an apostate from his faith. The annual Indemnity Acts proved the inutility of penal laws, while they failed effectually to protect dissenters. Members were ad- mitted to both Houses of Parliament without any religious test : then why insist upon the orthodoxy of an exciseman ? No danger to the State could be apprehended from the ad- mission of dissenters to office. Who, since the Revolution, had been more faithful to the constitution and monarchy than they ? Was there danger to the Church ? The Church was in no danger from dissenters before the Test Act : the Church of Scotland was in no danger where no Test Act had ever existed : the Church of Ireland was in no danger now, though dissenters had for the last seven years been admitted to office in that country.^ But danger was to be apprehended from
' Pari. Hist., xxi. 754-766. In this year (1780) the Earl of Surrey, eldest son of the Duke of Norfolk, and Sir Thomas Gascoigne, abjured the Roman Catholic faith, and were immediately returned to Parliament. — Lord Mahon's Hist., vii. III.
2 Pari. Hist., ix. 1046.
' Tomline's Life of Pitt, ii. 254 ; Lord Stanhope's Life of Pitt, i. 337, etc
* Case of the Protestant Dissenters, with reference to the Test and Corpora- tion Acts. — Pari. Hist., xxvi. 780, n.
6 Supra, p. 186.
RELIGIOUS LIBERTY 191
oppressive laws which united different bodies of dissenters, otherwise hostile, in a common resentment to the Church. Howard, the philanthropist, in serving his country, had braved the penalties of an outlaw, which any informer might enforce. Even members of the Church of Scotland were disqualified for office in England. Belonging to the State Church, they were treated as dissenters. In conclusion, he condemned the pro- fanation of the Holy Sacrament itself: that rite should be ad- ministered to none unworthy to receive it ; yet it had become the common test of fitness for secular employments. Such was the case presented in favour of dissenters. Mr. Beaufoy was not in the first rank of debaters, yet from the force of truth and a good cause, his admirable speech puts to shame the arguments with which the first statesmen of the day then ventured to oppose him.
Lord North regarded the Test Act as " the great bulwark of the constitution, to which we owed the inestimable blessings of freedom, which we now happily enjoyed". He contended' that the exclusion of dissenters from office was still as necessary as when it was first imposed by the legislature ; and denied that it involved the least contradiction to the principles of toleration. The State had allowed all persons to follow their own religion freely : but might decline to employ them unless they belonged to the Established Church.
Mr. Pitt was no friend to the penal laws : his statesman- ship was superior to the narrow jealousies which favoured them.^ On this occasion he had been disposed to support the claims of the dissenters : but yielding to the opinion of the bishops,^ he was constrained to oppose the motion. His speech betrayed the embarrassment of his situation. His ac- customed force and clearness forsook him. He drew distinc- tions between political and civil liberty ; maintained the right of the State to distribute political power to whom it pleased ; and dwelt upon the duty of upholding the Established Church. Mr. Fox supported the cause of the dissenters ; and promised them success if they persevered in demanding the redress of
^ " To the mind of Pitt the whole system of penal laws was utterly abhorrent." — hord Stanhope's Life, ii. 276.
■■' See Tomline's Life of Pitt, ii. 255 ; Lord Stanhope's Life of Pitt, i. 337 Life of Bishop Watson, written by himself, i. 261.
192 THE CONSTITUTIONAL HISTORY OF ENGLAND
their grievances. The motion was lost by a majority of seventy-eight.^ Corporation In 1 789, Mr. Beaufoy renewed his motion: and to a re-
Acts 8t^h capitulation of his previous arguments, added some striking May, 1789. illustrations of the operation of the law. The incapacity of dissenters extended not only to Government employments, but to the direction of the Bank of England, the East India Com- pany, and other chartered companies. When the Pretender had marched to the very centre of England, the dissenters had taken up arms in defence of the king's Government : but in- stead of earning rewards for their loyalty, they were obliged to shelter themselves from penalties under the Act of Grace — intended for the protection of rebels.
Mr. Fox supported the motion with all his ability. Men were to be tried, he said, not by their opinions, but by their actions. Yet the dissenters were discountenanced by the State — not for their actions, which were good and loyal, but for their religious opinions, of which the State disapproved. No one could impute to them opinions or conduct dangerous to the State ; and Parliament had practically admitted the injustice of the disqualifying laws, by passing annual acts of indemnity. To one remarkable observation, later times have given unexpected significance. He said : " It would perhaps be contended that the repeal of the Corporation and Test Acts might enable the dissenters to obtain a majority. This he scarcely thought probable : but it appeared fully sufficient to answer, that if the majority of the people of England should ever be for the abolition of the Established Church, in such a case the abolition ought immediately to follow." ^
Mr. Pitt opposed the motion in a temperate speech. " Al- lowing that there is no natural right to interfere with religious opinions," he contended that " when they are such as may produce a civil inconvenience, the Government has a right to guard against the probability of the civil inconvenience being produced." He admitted the improved intelligence and loyalty of Roman Catholics, whose opinions had formerly been
^ Ayes, 98 ; Noes, 176 ; Pari. Hist., xxvi. 780-832.
^ '♦ If the dissenters from the establishment become a majority of the people, the establishment itself ought to be altered or qualified." — Foley's Moral and Political Philosophy, book vi. ch. x.
RELIGIOUS LIBERTY 193
dangerous to the State ; and did justice to the character of the dissenters : while he justified the maintenance of disqualifying laws, as a precautionary measure, in the interests of the Estab- lished Church. The motion was lost by the small majority of twenty.^
Encouraged by so near an approach to success, the dis- Corporation senters continued to press their claims, and at their earnest ^"^ ^^^^ solicitation, Mr. Fox himself undertook to advocate their cause. Mr. Fox's
In March, i 7qo, he moved the consideration of the Test and Cor- !?i°^'T' ^"*^ ' ' -^ ' . March, 1790
poration Acts, in a committee of the whole House. He re- ferred to the distinguished loyalty of the dissenters, in 171 5 and 1745, when the high-church party, who now opposed their claims, had been "hostile to the reigning family, and active in exciting tumults, insurrections, and rebellions ". He urged the repeal of the test laws, with a view to allay the jealousies of dissenters against the Church ; and went so far as to affirm that " if this barrier of partition were removed, the very name of dissenter would be no more ".
Mr. Pitt's resistance to concession was now more decided than on any previous occasion. Again he maintained the dis- tinction between religious toleration and the defensive policy of excluding from office those who were likely to prejudice the Established Church. No one had a right to demand public offices, which were distributed by the Government for the benefit of the State ; and which might properly be withheld from persons opposed to the constitution. The establishment would be endangered by the repeal of the test laws, as dis- senters, honestly disapproving of the Church, would use all legal means for its subversion.
Mr. Beaufoy replied to Mr. Pitt in a speech of singular force. If the test laws were to be maintained, he said, as part of a defensive policy, in deference to the fears of the Church, the same fears might justify the exclusion of dissenters from Parliament, their disqualification to vote at elections, their right to possess property, or even their residence within the realm. If political fears were to be the measure of justice and public policy, what extremities might not be justified?
Mr. Burke, who on previous occasions had absented himself
^Ayes, 102; Noes, 122; Pari. Hist., xxviii. 1-41. See Tomline's Life of Pitt, iii. 18.
VOL. IL 13
194 THE CONSTITUTIONAL HISTORY OF ENGLAND
from the House when this question was discussed, and who even now confessed "that he had not been able to satisfy himself altogether" on the subject, spoke with characteristic warmth against the motion. His main arguments were founded upon the hostility of the dissenters to the Established Church, of which he adduced evidence from the writings of Dr. Priestley and Dr. Price, and from two nonconformist cate- chisms. If such men had the power, they undoubtedly had the will to overthrow the Church of England, as the Church of France had just been overthrown. Mr. Fox, in reply, de- plored the opposition of Mr. Burke, which he referred to its true cause — a horror of the French Revolution — which was no less fatal to the claim of dissenters than to the general progress of a liberal policy. Mr. Fox's motion, which, in the previous year had been lost by a narrow majority, was now defeated by a majority of nearly three to one.^ Catholic The further discussion of the test laws was not resumed
^raf ^''^' ^°^ nearly forty years : but other questions affecting religious liberty were not overlooked. In 1791, Mr. Mitford brought in a bill for the relief of " Protesting Catholic Dissenters " — or Roman Catholics who protested against the pope's temporal authority, and his right to excommunicate kings and absolve subjects from their allegiance, as well as the right alleged to be assumed by Roman Catholics, of not keeping faith with heretics. It was proposed to relieve such persons from the penal statutes, upon their taking an oath to this effect. The proposal was approved by all but Mr. Fox, who, in accepting the measure, contended that the relief should be extended generally to Roman Catholics. Mr. Pitt also avowed his wish that many of the penal statutes against the Catholics should be repealed.^
The bill was open to grave objections. It imputed to the
J 294 to 105 ; Pari. Hist, xxviii. 387-452 ; Lord Sidmouth's Life, i. 73 ; Tom- line's Life of Pitt, iii. 99 ; Fox's Mem., ii. 361, 362. The subject gave rise, at this time, to much written controversy. Tracts by Bishops Sherlock and Hoadley were republished. One of the best pamphlets on the side of the dissenters was " The Rights of Protestant Dissenters, by a Layman, 1789 ". The Bishop of Oxford, writing to Mr. Peel in 1828, speaks of fourteen volumes on the subject, written in 1789 and 1790. — PeeVi Mem., i. 65.
2 Pari. Hist., xxviii. 1262, 1364 ; Tomline's Life of Pitt, iii. 249 ; Lord Stan- hope's Life of Pitt, ii. 100.
RELIGIO US LIBER TV 195
Catholics, as a body, opinions repudiated by the most en- lightened professors of their faith. Mr. Pitt received an ex- plicit assurance from several foreign universities that Catholics claimed for the pope no civil jurisdiction in England, nor any power to absolve British subjects from their allegiance ; and that there was no tenet by which they were justified in not keeping faith with heretics.^ Again, this proposed oath re- quired Catholics to renounce doctrines in no sense affecting the State. In the House of Lords, these objections were forcibly urged by the Archbishop of Canterbury and Dr. Horsley, Bishop of St. David's ; and to the credit of the episcopal bench, the latter succeeded in giving to the measure a more liberal and comprehensive character, according to the views of Mr. Fox. An oath was framed, not obnoxious to the general body of Catholics, the taking of which secured them complete freedom of worship and education ; exempted their property from in- vidious regulations ; opened to them the practice of the law in all its branches ; and restored to peers their ancient privilege of intercourse with the king.^
In the debates upon the Test Act, the peculiarity of the law. Test Act as affecting members of the Church of Scotland, had often been (^^o*^'^""^)' alluded to; and in 1791, a petition was presented from the isth April, General Assembly, praying for relief. On the loth of May, Siri79i- Gilbert Elliot moved for a Committee of the whole House upon the subject. To treat the member of an Established Church as a dissenter was an anomaly too monstrous to be defended, Mr. Dundas admitted that, in order to qualify himself for office, he had communicated with the Church of England, a ceremony to which members of his Church had no objection. It would have been whimsical indeed to contend that the Scotch were excluded from office by any law, as their undue share in the patronage of the State had been a popular subject of complaint and satire : but whether they enjoyed office by receiving the most solemn rites of a Church of which they were not members, or by the operation of acts of indemnity, their position was equally anomalous. But as their case formed part of the
^See his questions and the answers, Plowden's Hist., i. 199, App. No. 91 ; Butler's Hist. Mem., iv. 10.
'^ Pari. Hist., xxix. 113-115, 664; 31 Geo. HI. c. 32; Butler's Hist. Mem., iv. 44, 52; Quarterly Rev., Oct., 1852, p. 555.
13 *
196 THE CONSTITUTIONAL HISTORY OF ENGLAND
Restraints on Scotch Episco- palians repealed.
Penal
statutes respecting religious opinions (Unita- rians), nth May, 1792.
general law affecting dissenters, which Parliament was in no humour to entertain, the motion was defeated by a large majority.^
In 1792, Scotch Episcopalians were relieved from restraints which had been provoked by the disaffection of the Episcopalian clergy in the reigns of Anne and George II. As they no longer professed allegiance to the Stuarts, or refused to pray for the reigning king, there was no pretext for these invidious laws ; and they were repealed with the concurrence of all parties.'
In the same year Mr. Fox, despairing, for the present, of any relaxation of the test laws, endeavoured to obtain the re- peal of certain penal statutes affecting religious opinions. His bill proposed to repeal several Acts of this nature : '^ but his main object was to exempt the Unitarians, who had petitioned for relief, from the penalties specially affecting their particular persuasion. They did not pray for civil enfranchisement, but simply for religious freedom. In deprecating the prejudices excited against this sect, he said, " Dr. South had traced their pedigree from wretch to wretch, back to the devil himself. These descendants of the devil were his clients." He attri- buted the late riots at Birmingham, and the attack upon Dr. Priestley, to religious bigotry and persecution ; and claimed for this unpopular sect, at least the same toleration as other dis- senting bodies. Mr. Burke, in opposing the motion, made a fierce onslaught upon the Unitarians. They were hostile to the Church, he said, and had combined to effect its ruin : they had adopted the doctrines of Paine ; and approved of the revo- lutionary excesses of the French Jacobins. The Unitarians were boldly defended by Mr. William Smith, a constant advo- cate of religious liberty, who, growing old and honoured in that cause, lived to be the father of the House of Commons. Mr. Pitt declared his reprobation of the Unitarians, and opposed the motion, which was lost by a majority of seventy-nine.* Mr. Pitt and other statesmen, in withholding civil rights from dissenters, had been careful to admit their title to religious
^ Ayes, 62 ; Noes, 149 ; Pari. Hist., xxix. 488-510.
' Ihid.^ 1372.
3 Viz. 9 & 10 Will. III. c. 32 (for suppressing blasphemy and profaneness) ; I Edw. VI. c. I ; I Mary, c. 3 ; 13 Eliz. c. 2.
* Ayes, 63 ; Noes, 142 ; Pari. Hist., xxix. 1372 ; Tomline's Life of Pitt, iii. 317.
kELlClOUS LIBERTY i97
freedom : but this vote unequivocally declared that doctrines and opinions might justly be punished as an offence.
Meanwhile the perilous distractions of Ireland, and a for- Catholic midable combination of the Catholic body, forced upon thejjgj!^^^ attention of the Government the wrongs of Irish Catholics. 1792. The great body of the Irish people' were denied all the rights of citizens. Their public worship was still proscribed : their property, their social and domestic relations, and their civil liberties were under interdict : they were excluded from all offices, civil and military, and even from the professions of law and medicine.^ Already the penal code affecting the exercise of their religion had been partially relaxed : ^ but they still laboured under all the civil disqualifications which the jealousy of ages had imposed. Mr, Pitt not only condemned the injus- tice of such disabilities : but hoped by a policy of conciliation, to heal some of the unhappy feuds by which society was divided. Ireland could no longer be safely governed upon the exclusive principles of Protestant ascendency. Its people must not claim in vain the franchises of British subjects. And ac- cordingly in 1792, some of the most galling disabilities were removed by the Irish Parliament. Catholics were admitted to the legal profession on taking the oath of allegiance, and allowed to become clerks to attorneys. Restrictions on the education of their children, and on their intermarriages with Protestants, were also removed.^
In the next year more important privileges were conceded. Catholic All remaining restraints on Catholic worship and education, j^Jj^^^^j and the disposition of property, were removed. Catholics were 1793- admitted to vote at elections on taking the oaths of allegiance and abjuration : to all but the higher civil and military offices, and to the honours and emoluments of Dublin University. In the law they could not rise to the rank of king's counsel : nor in the army beyond the rank of colonel : nor in their own
1 Some restrictions had been added even in this reign. Butler's Hist. Mem., iii. 367 et seq., 467-477, 484; O'Conor's Hist, of the Irish Catholics; Sydney Smith's Works, i. 269 ; Goldwin Smith's Irish Hist., etc., 124.
" Viz. in 1774, 1778, and 1782 ; 13 & 14 Geo. HI. c. 35 ; 17 & 18 Geo. III. c. 49 ; 22 Geo. III. c. 24 (Irish) ; Parnell's Hist, of the Penal Laws, 84, etc. ; Butler's Hist. Mem., iii. 486.
*32 Geo. III. c. 21 (Irish) ; Debates (Ireland), xii. 39, etc.; Life of Grattan, "• 53-
198 THE CONSTITUTIONAL HISTORY OF ENGLAND
counties, could they aspire to the offices of sheriff and sub- sheriff:^ their highest ambition was still curbed; but they received a wide enfranchisement beyond their former hopes. Catholic In this year tardy justice was also rendered to the Roman
Scotland, Catholics of Scotland. All excitement upon the subject having ^793- passed away, a bill was brought in and passed without opposi-
tion, to relieve them, like their English brethren, from many grievous penalties to which they were exposed. In proposing the measure, the lord advocate stated that the obnoxious statutes were not so obsolete as might be expected. At that very time a Roman Catholic gentleman was in danger of being stripped of his estate — which had been in his family for at least a century and a half — by a relation having no other claim to it than that which he derived, as a Protestant, from the cruel provisions of the law.^ Quakers, The Quakers next appealed to Parliament for relief In
1796. ^" ' ^ 79^' ^^y presented a petition describing their sufferings on account of religious scruples ; and Mr. Sergeant Adair brought in a bill to facilitate the recovery of tithes from members of that sect, without subjecting them to imprisonment ; and to allow them to be examined upon affirmation in criminal cases. The remedy proposed for the recovery of tithes had already been pro- vided by statute in demands not exceeding £\o ;' and the sole object of this part of the bill was to ensure the recovery of all tithes without requiring the consent of the Quakers themselves, to which they had so strong a religious scruple, that they pre- ferred perpetual imprisonment. At that very time, seven of their brethren were lying in the gaol at York, without any prospect of relief The bill was passed by the Commons, but was lost in the Lords, upon the representation of the Arch- bishop of Canterbury that it involved a question of right of very great importance, which there was not then time to consider.*
1 33 Geo. III. c. 21 (Irish) ; Debates of Irish Parliament, xiii. 199 ; Plowden's Hist., ii. 421 ; Adolphus' Hist., vi. 249-256 ; Lord Stanhope's Life of Pitt, ii. 277 ; Butler's Hist. Mem., iv. 62 ; Life of Grattan, iv. 87 ; Parnell's Hist, of the Penal Laws, 124.
* Pari. Hist., xxx. 766 ; 33 Geo. III. c. 44; Butler's Hist. Mem., iv. 103.
» 7 & 8 Will. III. c. 34; I Geo. I. st 2, c. 6; Pari. Hist., ix. 1220.
*Ibid., xxxii. 1022.
RELIGIOUS LIBERTY 199
In the next session the bill was renewed,^ when it en- Quakers, countered the resolute opposition of Sir William Scott.^ " The ^^^^* opinions held by the Quakers," he said, " were of such a nature as to affect the civil rights of property, and therefore he con- sidered them as unworthy of legislative indulgence." If one man had conscientious scruples against the payment of tithes to which his property was legally liable, another might object to the payment of rent as sinful, while a third might hold it irreligious to pay his debts. If the principle of indulgence were ever admitted, "the sect of anti-tithe Christians would soon become the most numerous and flourishing in the king- dom ". He argued that the security of property in tithes would be diminished by the bill, and that "the tithe-owner would become an owner, not of property, but of suits". It was replied that the tithe-owner would be enabled by the bill to recover his demands by summary distress, instead of punish- ing the Quaker with useless imprisonment. The very remedy, indeed, was provided, which the law adopted for the recovery of rent. The bill was also opposed by the Solicitor-General, Sir John Mitford, who denied that Quakers entertained any conscientious scruples at all against the payment of tithes. The question for going into committee on the bill was decided by the casting vote of the Speaker : but upon a subsequent day the bill was lost by a majority of sixteen.^
Such had been the narrow jealousy of the State, that Catholics Roman Catholics and dissenters, however loyal and patriotic, ^jiitja* were not permitted to share in the defence of their country. They could not be trusted with arms, lest they should turn them against their own countrymen. In 1797, Mr. Wilber- force endeavoured to redress a part of this wrong by obtaining the admission of Roman Catholics to the militia. Supported by Mr. Pitt, he succeeded in passing his bill through the Com- mons. In the Lords, however, it was opposed by Bishop Horsley and other peers ; and its provisions being extended to dissenters, its fate was sealed.*
1 Pari. Hist., xxxii. 1206. 2 Afterwards Lord Stowell.
2 Pari. Hist., xxxii. 1508.
^ Wilberforce's Life, ii. 222. The debates are not to be found in the Parlia- mentary History. " No power in Europe, but yourselves, has ever thought, for these hundred years past, of asking whether a bayonet is Catholic, or Presby-
200 THE CONSTITUTIONAL HISTORV OF ENGLAND
Lord Fitz- william's policy, 1795.
Union with
Ireland, in
connection
with
Catholic
disabilities.
23rd Jan., 1799.
31st Jan.
The English Ministers were still alive to the importance of a liberal and conciliatory policy in the Government of Ireland. In 1795, Lord Fitzwilliam accepted the office of lord-lieutenant, in order to carry out such a policy. He even conceived him- self to have the authority of the Cabinet to favour an extensive enfranchisement of Catholics : but having committed himself too deeply to that party, he was recalled.^ There were, indeed, insurmountable difficulties in reconciling an extended toleration to Catholics, with Protestant ascendency in the Irish Parlia- ment.
But the union of Catholic Ireland with Protestant Great Britain, introduced new considerations of State policy. To admit Catholics to the Parliament of the United Kingdom would be a concession full of popularity to the people of Ireland, while their admission to a legislature comprising an overwhelming Protestant majority, would be free from danger to the Estab- lished Church, or to the Protestant character of Parliament. In such a union of the two countries, the two nations would also be embraced. In the discussions relating to the Union, the removal of Catholic disabilities, as one of its probable con- sequences, was frequently alluded to. Mr. Canning argued that the Union " would satisfy the friends of the Protestant ascendency, without passing laws against the Catholics, and without maintaining those which are yet in force ".^ And Mr. Pitt said : " No man can say that in the present state of things, and while Ireland remains a separate kingdom, full concessions could be made to the Catholics, without endangering the State, and shaking the constitution of Ireland to its centre ". . . . But "when the conduct of the Catholics shall be such as to make it safe for the Government to admit them to a participation of the privileges granted to those of the established religion, and when the temper of the times shall be favourable to such a measure, it is obvious that such a question may be agitated in a united Imperial Parliament, with much greater safety than it could be in a separate legislature."^ He also hinted at the
terian, or Lutheran ; but whether it is sharp and well-tempered." — Peter Plym- ley's Letters ; Sydney Smith's Works, iii. 63.
1 Pari. Hist., xxxiv. 672, etc. ; Plowden's Hist, ii. 467 ; Butler's Hist. Mem., iv. 65.
" Pari. Hist., xxxiv. 230 ; Lord Holland's Mem., i. 161.
3 Pari. Hist., xxxiv. 272.
RELIGIOUS LIBERTY 20 1
expediency of proposing some mode of relieving the poorer classes from the pressure of tithes, and for making a provision for the Catholic clergy, without affecting the security of the Protestant establishment.^
In securing the support of different parties in Ireland to the The Irish Union, the question of Catholic disabilities was one of great and^^Jj^e^^ delicacy. Distinct promises, which might have secured the Catholics hearty support of the Catholics, would have alienated the Pro- testants— by far the most powerful party — and endangered the success of the whole measure. At the same time, there was hazard of the Catholics being gained over to oppose the Union, by expectations of relief from the Irish Parliament.^ Lord Cornwallis, alive to these difficulties, appears to have met them with consummate address. Careful not to commit himself or the Government to any specific engagements, he succeeded in encouraging the hopes of the Catholics without alarming the Protestant party.^ The sentiments of the Government were known to be generally favourable to measures of relief: but Mr. Pitt had been forbidden by the king to offer any concessions whatever ; * nor had he himself determined upon the measures
^ Mr. Pitt and Lord Grenville agreed generally upon the Catholic claims. " Previously to the Union with Ireland, it had never entered into the mind of the latter that there could be any further relaxation of the laws against Papists : but from that time he had been convinced that everything necessary for them might be granted without the slightest danger to the Protestant interest." — Abstract of Lord Grenville's Letter to the Principal of Brazenose, 1810. — hord Colchester's Diary, ii. 224.
'^Cornwallis Corr., iii. 51.
3 2nd Jan., 1799, he writes: " I shall endeavour to give them (the Catholics) the most favourable impressions without holding out to them hopes of any re- laxation on the part of Government, and shall leave no effort untried to prevent an opposition to the Union being made the measure of that party ". — Corr., iii. 29.
And again, 28th Jan., 1799 : " I much doubt the policy of at present holding out to them any decided expectations : it might weaken us with the Protestants, and might not strengthen us with the Catholics, whilst they look to carry their question unconnected with Union ". — Corr., iii. 55. See also ibid., 63, 149, 327, 344. 347-
^ I ith June, 1798, the king writes to Mr. Pitt : " Lord Cornwallis must clearly understand that no indulgence can be granted to the Catholics farther than has been, I am afraid unadvisedly, done in former sessions, and that he must by a steady conduct effect in future the union of that kingdom with this".— Lord Stanhope's Life of Pitt, iii. App. xvi.
Again, 24th Jan., 1799, having seen in a letter from Lord Castlereagh "an idea of an established stipend by the authority of Government for the Catholic clergy of Ireland," he wrote : " I am certain any encouragement to such an idea must give real offence to the Established Church in Ireland, as well as to the true
202 THE CONSTITUTIONAL HISTORY OF ENGLAND
Conces- sions to Catholics proposed, after the Union.
which it would be advisable to propose.^ He was, therefore, able to deny that he had given any pledge upon the subject, or that the Catholics conceived themselves to have received any such pledge : ^ but he admitted that they had formed strong expectations of remedial measures after the Union, of which indeed there is abundant testimony.^
These expectations Mr. Pitt and his colleagues were pre- pared to satisfy. When the Union had been accomplished, they agreed that the altered relations of the two countries would allow them to do full justice to the Catholics, without any danger to the Established Church. They were of opinion that Catholics might now be safely admitted to office, and to the privilege of sitting in Parliament ; and that dissenters should, at the same time, be relieved from civil disabilities. It was also designed to attach the Catholic clergy to the State, by making them dependent upon public funds for a part of their provision, and to induce them to submit to superintend- ence.* It was a measure of high and prescient statesmanship, worthy of the genius of the great Minister who had achieved the Union.
But toleration, which had formerly been resisted by Parlia-
friends of our constitution ; for it is certainly creating a second Church establish- ment, which could not but be highly injurious." — Ibid., xviii.
' Mr. Pitt wrote to Lord Cornwallis, 17th Nov., 1788 : " Mr. Elliot, when he brought me your letter, stated very strongly all the arguments which he thought might induce us to admit the Catholics to Parliament and office, but I confess he did not satisfy me of the practicability of such a measure at this time, or of the propriety of attempting it. With respect to a provision for the Catholic clergy, and some arrangement respecting tithes, I am happy to find an uniform opinion in favour of the proposal, among all the Irish I have seen." — Lord Stan- hope's Life of Pitt, iii. 161. See also Castlereagh Corr., i. 73 ; Lord Colchester's Mem., i. 250, 511.
" Lord Camden told me that being a member of Mr. Pitt's Government in 1800, he knew that Mr. Pitt had never matured any plan for giving what is called emancipation to the Roman Catholics." — Lord Colchester^ s Diary, iii. 326.
'*25th March, 1801 ; Pari. Hist, xxxv. 1124; and see Cornwallis Corr., iii.
343-350-
■'Lord Liverpool's Mem., 128; Castlereagh Corr., iv. 11, 13, 34; Lord Stan- hope's Life of Pitt, iii. 263, 281-288, etc., App. xxiii. et seq, ; Lord Malmesbury's Corr., iv. i et seq. ; Cornwallis Corr., ii. 436 ; Butler's Hist. Mem., iv. 70. See also Edinb. Rev., Jan. 1858.
* Mr. Pitt's Letter to the King, 31st Jan., 1801 ; Lord Sidmouth's Life, i. 289 ; Lord Cornwallis's Corr., iii. 325, 335, 344 ; Court and Cabinets of Geo. IIL, iii. 129. The Irish Catholic Bishops had consented to allow the crown a veto on their nomination. — Butler's Hist. Mem., iv. 1 12-134.
RELIGIOUS LIBERTY 203
merit and the people, now encountered the invincible opposition Conces- of the king, who refused his assent to further measures of^'°^?,, concession, as inconsistent with the obligations of his coronation by the oath. To his unfounded scruples were sacrificed the rights of ^"^* millions, and the peace of Ireland. The measure was arrested at its inception. The Minister fell ; and in deference to the king's feelings, was constrained to renounce his own wise and liberal policy.^
But the question of Catholic disabilities, in connection with Critical the Government of Ireland, was too momentous to be set at condition
of Ireland, rest by the religious scruples of the king, and the respectful
forbearance of statesmen. In the rebellion of 1798, the savage hatred of Protestants and Catholics had aggravated the dangers of that critical period. Nor were the difficulties of administering the Government overcome by the Union. The abortive rebellion of Robert Emmett, in 1803, again exposed the alarming condition of Ireland ; and suggested that the social dislocation of that unhappy country needed a more statesmanlike treatment than that of Protestant ascendency and irritating disabilities. For the present, however, the general question was in abeyance in Parliament. Mr. Pitt The had been silenced by the king; and Mr. Addington's adminis-^^gg^^J^ j^^ tration was avowedly anti-Catholic. Yet in 1803, Catholics abeyance, obtained a further instalment of relief — being exempted from certain penalties and disabilities on taking the oath and sub- scribing the declaration prescribed by the Act of 1 791.2
In 1804, a serious agitation for Catholic relief commenced Mr. Pitt, in Ireland ; but as yet the cause was without hope. On Mr. ^ ^^'^' Pitt's restoration to power, he was still restrained, by his engagement to the king, from proposing any measure for the relief of Catholics himself; and was even obliged to resist their claims when advocated by others.^ In 1805, the discussion Catholic of the general question was resumed in Parliament by Lord P^^j^'^^j.^.^^ Grenville, who presented a petition from the Roman Catholics 1805. of Ireland, recounting the disabilities under which they still suffered.'*
On the loth May, his lordship moved for a committee of
^ Supra, vol. i. pp. 63-67, ^ ^^ Geo. III. c. 30.
^Lord Stanhope's Life of Pitt, iv. 297, 391. ■•Hans. Deb., ist Ser., iv. 97.
204 THE CONSTITUTIONAL HISTORY OF ENGLAND
Lord Gren- the whole House to consider this petition. He urged that motion three-fourths of the people of Ireland were Roman Catholics,
loth May, whose existence the State could not ignore. At the time of ^ °^* the Revolution they had been excluded from civil privileges,
not on account of their religion, but for their political adhesion to the exiled sovereign. In the present reign they had received toleration in the exercise of their religion, power to acquire land, the enjoyment of the elective franchise, and the right to fill many offices from which they had previously been excluded. Whatever objections might have existed to the admission of Roman Catholics to the Parliament of Ireland had been removed by the Union ; as in the Parliament of the United Kingdom there was a vast preponderance of Protestants, This argument had been used by those who had promoted the Union. It had encouraged the hopes of the Roman Catholics ; and now, for the first time since the Union, that body had appealed to Parliament. His lordship dwelt upon their loyalty, as frequently declared by the Irish Parliament, exonerated them from participation, as a body, in the Rebellion, combated the prejudice raised against them on account of the recent coronation of Napoleon by the Pope, and illustrated the feel- ings which their exclusion from lawful objects of ambition naturally excited in their minds. He desired to unite all classes of the people in the common benefits and common interests of the State.
This speech, which ably presented the entire case of the Roman Catholics, opened a succession of debates, in which all the arguments relating to their claims were elicited.^ As regards the high offices of State, it was urged by Lord Hawkesbury, that while the law excluded a Roman Catholic sovereign from the throne of his inheritance, it could scarcely be allowed that the councils of a Protestant king should be directed by Roman Catholics. Roman Catholics, it was argued, would not be fit persons to sit in Parliament, so long as they refused to take the oath of supremacy, which merely renounced foreign dominion and jurisdiction. In Ireland, their admission would increase the influence of the priesthood in elections, and array the property of the country on one side, and its religion and numbers on the other. The Duke of Cum-
' Hans. Deb., ist Ser., iv. 651-729, 742.
RELIGIOUS LIBERTY 205
berland opposed the prayer of the petition, as fatal to all the principles upon which the House of Hanover had been called to the throne. Every apprehension and prejudice which could be appealed to, in opposition to the claims of the Roman Catholics, was exerted in this debate. The Pope, their master, was the slave and tool of Napoleon. If entrusted with power, they would resist the payment of tithes, and overthrow the Established Church. Nay, Catholic families would reclaim their forfeited estates, which for five generations had been in the possession of Protestants, or had since been repurchased by Catholics. After two nights' debate, Lord Grenville's mo- tion was negatived by a majority of 129.^
Mr. Fox also offered a similar motion to the Commons, Mr. Fox's founded upon a petition addressed to that House. The people 1"°^^°" whose cause he was advocating, amounted, he said, to between Commons, a fourth and a fifth of the entire population of the United jg^^ ^^^^' Kingdom. So large a portion of his fellow-subjects had been excluded from civil rights, not on account of their religion, but for political causes which no longer existed. Queen Elizabeth had not viewed them as loyal subjects of a Pro- testant queen. The character and conduct of the Stuarts had made the people distrustful of the Catholics. At the time of the Revolution "it was not a Catholic, but a Jacobite, you wished to restrain ". In Ireland, again, the restrictions upon Catholics were political and not religious. In the civil war which had raged there, the Catholics were the supporters of James, and as Jacobites were discouraged and restrained. The Test Act of Charles II. was passed because the sovereign himself was suspected ; and Catholic officers were excluded, lest they should assist him in his endeavours to subvert the constitution. There was no fear, now, of a Protestant king being unduly influenced by Catholic Ministers. The danger of admitting Catholics to Parliament was chimerical. Did any one believe that twenty Catholic members would be returned from the whole of Ireland? 2 In reply to this question. Dr. Duigenan asserted that Ireland would return upwards of eighty Catholic members, and the English boroughs twenty more, thus forming
^ Contents, 49 ; Non-contents, 178 ; Hans. Deb., ist Ser., iv. 843. 2 Ihid., 834-854.
2o6 THE CONSTITUTIONAL HISTORY OF ENGLAND
a compact confederacy of lOO members, banded together for the subversion of all our institutions in Church and State.
He was answered eloquently, and in a liberal spirit, by Mr. Grattari, in the first speech addressed by him to the Imperial Parliament, The general discussion, however, was not dis- tinguished, on either side, by much novelty.
The speech of Mr. Pitt serves as a landmark, denoting the position of the question at that time. He frankly admitted that he retained his opinion, formed at the time of the Union, that Catholics might be admitted to the united Parliament, " under proper guards and conditions," without " any danger to the Established Church or the Protestant constitution ". But the circumstances which had then prevented him from pro- posing such a measure " had made so deep, so lasting an im- pression upon his mind, that so long as those circumstances continued to operate, he should feel it a duty imposed upon him, not only not to bring forward, but not in any manner to be a party in bringing forward, or in agitating this question ". At the same time, he deprecated its agitation by others, under circumstances most unfavourable to its settlement. Such a measure would be generally repugnant to members of the Established Church — to the nobility, gentry, and middle classes, both in England and Ireland — assuredly to the House of Lords, which had just declared its opinion ; ^ and, as he believed, to the great majority of the House of Commons. To urge for- ward a measure, in opposition to obstacles so insuperable, could not advance the cause ; while it encouraged delusive hopes, and fostered religious and political animosities.^
Mr. Windham denied that the general sentiment was against such a measure ; and scouted the advice that it should be post- poned until there was a general concurrence in its favour. " If no measure," he said, " is ever to pass in Parliament which has not the unanimous sense of the country in its favour, preju- dice and passion may for ever triumph over reason and sound policy." After a masterly reply by Mr. Fox, which closed a debate of two nights, the House proceeded to a division, when his motion was lost by a decisive majority of 112.^
1 The debate had been adjourned till the day after the decision in the Lords.
* Hans. Deb., ist Ser., iv. 1013.
' Ayes, 124 ; Noes, 236, ihid.^ 1060 ; Grattan's Life, v. 253-264.
RELIGIOUS LIBERTY 207
The present temper of Parliament was obviously unfavour- The Whig
able to the Catholic cause. The hopes of the Catholics, how- ^'"j^^"'^ °[
^ 1806 and the
ever, were again raised by the death of Mr. Pitt, and the Catholics, formation of the Whig Ministry of 1 806. The Cabinet com- prised Lord Grenville, Mr. Fox, and other statesmen who had advocated Catholic relief in 1801, and in the recent debates of 1805 ; and the Catholics of Ireland did not fail to press upon them the justice of renewing the consideration of their claims. This pressure was a serious embarrassment to Ministers, After the events of 1801, they needed no warning of the difficulty of their position, which otherwise was far from secure. No mea- sure satisfactory to the Catholics could be submitted to the king; and the bare mention of the subject was not without danger. They were too conscious not only of his Majesty's inflexible opinions, but of his repugnance to themselves. Mr. Fox perceived so clearly the impossibility of approaching the king, that he persuaded the Catholic leaders to forbear their claims for the present. They had recently been rejected, by large majorities, in both Houses ; arid to repeat them now, would merely embarrass their friends, and offer another easy triumph to their enemies.^ But it is hard for the victims of wrong to appreciate the difficulties of statesmen ; and the Catholics murmured at the apparent desertion of their friends. For a time they were pacified by the liberal administration of the Duke of Bedford in Ireland : but after Mr. Fox's death, and the dissolution of Parliament in 1 806, they again became impatient.^
At length Lord Grenville, hoping to avert further pressure Army and on the general question, resolved to redress a grievance which Bitl^iSo?!'*'^^ pressed heavily in time of war, not upon Catholics only, but upon the public service. By the Irish Act of 1793, Catholics were allowed to hold any commission in the army in Ireland, up to the rank of colonel : but were excluded from the higher staff appointments of commander-in-chief, master-general of the ordnance, and general of the staff. As this Act had not been extended to Great Britain, a Catholic officer in the king's service, on leaving Ireland, became liable to the penalties of the
'^ Lord Sidmouth's Life, ii. 436 ; Ann. Reg., 1806, p. 25 ; Lord Holland's Mem. of the Whig Party, i. 213 et seq, ; Butler's Hist. Mem., iv. 184-187. 2 Ibid., 188 ; Grattan's Life, v. 282-296, 334.
2o8 THE CONSTITUTIONAL HISTORY OF ENGLAND
Bill brought in by Lord Howick, 5 th March, 1807.
English laws. To remove this obvious anomaly, the Govern- ment at first proposed to assimilate the laws of both countries by two clauses in the Mutiny Act ; and to this proposal the king reluctantly gave his consent. On further consideration, however, this simple provision appeared inadequate. The Irish Act applied to Catholics only, as dissenters had been admitted, by a previous Act, to serve in civil and military offices ; and it was confined to the army, as Ireland had no navy. The ex- ceptions in the Irish Act were considered unnecessary ; and it was further thought just to grant indulgence to soldiers in the exercise of their religion. As these questions arose, from time to time, Ministers communicated to the king their correspond- ence with the lord-lieutenant, and explained the variations of their proposed measure from that of the Irish Act, with the grounds upon which they were recommended. Throughout these communications his Majesty did not conceal his general dislike and disapprobation of the measure : but was understood to give his reluctant assent to its introduction as a separate bill.i
In this form the bill was introduced by Lord Howick. He explained that when the Irish Act of 1793 had been passed, a similar measure had been promised for Great Britain. That promise was at length to be fulfilled : but as it would be un- reasonable to confine the measure to Catholics, it was proposed to embrace dissenters in its provisions. The Act of 1793 had applied to the army only: but it was then distinctly stated that the navy should be included in the Act of the British Parliament. If Catholics were admitted to one branch of the service, what possible objection could there be to their ad- mission to the other? He did not propose, however, to con- tinue the restrictions of the Irish Act, which disqualified a Catholic from the offices of commander-in-chief, master- general of the ordnance, or general on the staff. Such restrictions were at once unnecessary and injurious. The ap- pointment to these high offices was vested in the Crown, which would be under no obligation to appoint Roman Catholics ;
^ Explanations of Lord Grenville and Lord Howick, 26th March, 1807 ; Hans. Deb., 1st Ser., ix. 231, 261-279; Lord Castlereagh's Corr., iv. 374; Lord Sid- tnouth's Life, ii. 436 ; Lord Grenville's Letter, loth Feb., 1807 ; Court and Cabinets of George IIL, iv. 117 ; Lord Holland's Mem., ii. 159-199, App. 270; Lord Malmesbury's Corr., iv. p. 365 ; Wilberforce's Life, iii. 306.
RELIGIOUS LIBERTY 209
and it was an injury to the public service to exclude by law a man " who might be called by the voice of the army and the people " to fill an office for which he had proved his fitness by distinguished services. Lastly, he proposed to provide that all who should enter his Majesty's service should enjoy the " free and unrestrained exercise of their religion, so far as it did not interfere with their military duties. ^ Mr. Spencer Perceval sounded the note of alarm at these proposals, which, in his opinion, involved all the principles of complete emancipation. If military equality were conceded, how could civil equality be afterwards resisted? His apprehensions were shared by some other members : but the bill was allowed to be introduced without opposition.
Its further progress, however, was suddenly arrested by the Withdrawal king, who refused to admit Catholics to the staff, and to include °^jj ^f' ^"^ dissenters in the provisions of the bill.^ He declared that his Ministers, previous assent had been given to the simple extension of the Irish Act to Great Britain ; and he would agree to nothing more. Again a Ministry fell under the difficulties of the Catholic question, 2 The embarrassments of Ministers had undoubtedly been great. They had desired to maintain their own character and consistency, and to conciliate the Catholics, without shocking the well-known scruples of the king. Their scheme was just and moderate: it was open to no rational objection : but neither in the preparation of the measure itself, nor in their communications with the king, can they be ac- quitted of errors which were turned against themselves and the unlucky cause they had espoused.*
Again were the hopes of the Catholics wrecked, and with Anti-Catho- them the hopes of a Liberal Government in England, An J^^^^"*^"^ ^j^^ anti-Catholic administration was formed under the Duke of new Minis- Portland and Mr. Perceval; and cries of "No Popery," and'"^' " Church and King," were raised throughout the land.* Mr.
1 Hans. Deb., ist Ser., ix. 2-7. ^ Ihid., 149, 173.
5 The constitutional questions involved in their removal from office have been related elsewhere ; vol. i, p. 71.
*Hans. Deb., ist Ser., ix. 231, 247, 261, 340, etc.; Lord Holland's Mem., ii. 160 et seq. ; App. to vol. ii. 270 ; Lord Malmesbury's Corr., iv. 367, 379 ; Lord Sidmouth's Life, ii. 448-472 ; Bulwer's Life of Lord Palmerston, i. 62-76.
^ Mr. Henry Erskine said to the Duchess of Gordon : " It was much to be lamented that poor Lord George did not live in these times, when he would have
VOL. n. 14
2ro THE CONSTITUTIONAL HISTORY OF ENGLAND
Roman Catholic petitions, 1808.
Catholic
petitions
presented
by Earl
Grey,
22nd Feb.
i8io.
Perceval in his address to the electors of Northampton, on vacating his seat, took credit for "coming forward in the service of his sovereign, and endeavouring to stand by him at this important crisis, when he is making so firm and so neces- sary a stand for the religious establishment of the country".^ The Duke of Portland wrote to the University of Oxford, of which he was Chancellor, desiring them to petition against the Catholic Bill; and the Duke of Cumberland, Chancellor of the University of Dublin, sought petitions from that University. No pains were spared to arouse the fears and prejudices of Protestants. Thus Mr. Perceval averred that the measure recently withdrawn would not have "stopped short till it had brought Roman Catholic bishops to the House of Lords''.^ Such cries as these were re-echoed at the elections. An ultra- Protestant Parliament was assembled ; and the Catholic cause was hopeless. 2
The Catholics of Ireland, however, did not suffer their claims to be forgotten : but by frequent petitions, and the earnest support of their friends, continued to keep alive the interest of the Catholic question in the midst of more engross- ing subjects. But discussions, however able, which were un- fruitful of results, can claim no more than a passing notice. Petitions were fully discussed in both Houses in 1808.* And again, in 1 8 1 o. Earl Grey presented two petitions from Roman Catholics in England, complaining that they were denied many privileges which were enjoyed by their Roman Catholic brethren in other parts of the Empire. He stated that in Canada Roman Catholics were eligible to all offices, in common with their Pro- testant fellow-subjects. In Ireland, they were allowed to act as magistrates, to become members of lay corporations, to take degrees at Trinity College, to vote at elections, and to attain to every rank in the army except that of general of the staff In England, they could not be included in the commission of the
stood a chance of being in the Cabinet, instead of being in Newgate". — Romilly's Mem., ii. 193.
1 Ibid., 192. ' Hans. Deb., ist Ser., ix. 315.
3 Lord Malmesbury says : " The spirit of the whole country is with the king ; and the idea of the Church being in danger (perhaps not quite untrue), makes Lord Grenville and the Foxites most unpopular ". — Corr., iv. 394.
* Lords' Debates, 27th May, 1808 ; Commons' Debates, 25th May, 1808 ; Hans. Deb., ist Ser., xi. i, 30, 489, 549-638, 643-694 ; Grattan's Life, v. 376.
RELIGIO US LIBERTY 2 1 1
peace, nor become members of corporations, were debarred from taking degrees at the universities, and could not legally hold any rank in the army.^ The Roman Catholics of Ireland Mr. Grat- also presented petitions to the House of Commons through ^^^^^^^ Mr. Grattan in this session.- But his motion to refer them toiSth May, a committee was defeated, after a debate of three nights, by a'^ ^°* majority of 104.^
In the same session. Lord Donoughmore moved to refer Lord several petitions from the Roman Catholics of Ireland to a^°"°,g^ Committee of the House of Lords, But as Lord Grenville had motion, declined, with the concurrence of Lord Grey, to bring forward igio "*' the Catholic claims, the question was not presented under favourable circumstances ; and the motion was lost by a ma- jority of 86.*
One other demonstration was made during this session in Earl Grey's
support of the Catholic cause. Lord Grey, in his speech on ^j^^ ^^^^^
:he
ment of concessions to the Catholics, as a source of danger and ^ ^^ jj
motion on the sta the state of the nation, adverted to the continued postpone- of the
n _ June, weakness to the State in the conduct of the war ; and appealed 1810.
to Ministers to " unite the hearts and hands of all classes of the
people in defence of their common country ". An allusion to
this question was also made in the address which he proposed
to the Crown. ^
In the autumn of this year, an event fraught with sadness Approach
to the nation, once more raised the hopes of the Catholics, jggency.
The aged king was stricken with his last infirmity ; and a new
political era was opening, full of promise to their cause.
^ Hans. Deb., ist Sen, xv. 503. '27th Feb., ihid., 634.
^ Ihid., xvii. 17, 183, 235 ; Ayes, 109; Noes, 213 ; Grattan's Life, v. 410. ■' Contents, 68 ; Non-contents, 154 ; Hans. Deb., ist Ser., xvii. 353-440. ^ Ibid., 577.
14*
CHAPTER XIII.
History of Catholic claims from the Regency — Measures for the relief o Dissenters — Marriages of Catholics and Dissenters — Repeal of the Cor- poration and Test Acts in 1828 — Passing of the Catholic Relief Act in 1829 — Its results — Quakers, Moravians, and Separatists — Jewish disabilities.
Hopes of the The regency augured well for the commencement of a more appo^nted'^ liberal policy in Church and State. The venerable monarch, whose sceptre was now wielded by a feebler hand, had twice trampled upon the petitions of his Catholic subjects ; and, by his resolution and influence, had united against them Ministers, Parliament, and people. It seemed no idle hope that Tory Ministers would now be supplanted by statesmen earnest in the cause of civil and religious liberty, whose policy would no longer be thwarted by the influence of the Crown. The Prince himself, once zealous in the Catholic cause, had, indeed, been for some years inconstant — if not untrue — to it. His change of opinion, however, might be due to respect for his royal father, or the political embarrassments of the question. None could suspect him of cherishing intractable religious scruples.^ Assuredly he would not reject the liberal counsels of the Ministers of his choice. But these visions were soon to collapse and vanish, like bubbles in the air;^ and the weary struggle was continued, with scarcely a change in its prospects. Freedom of The first year of the regency, however, was marked by
worship to ^j^g consummation of one act of toleration. The Grenville
Roman Cath- olic soldiers. Ministry had failed to secure freedom of religious worship to
Catholic soldiers by legislation : ^ but they had partially
secured that object by a circular to commanding officers.
Orders to the same effect had since been annually issued by
1 Moore's Life of Sheridan, ii. 333 ; Lord Brougham's Statesmen, i. 186 ; Lord Holland's Mem., ii. 196.
* Vol. i. p. 8i. 'Supra, p. 209.
2Z2
I
RELIGIO US LIBERTY 2 1 3
the commander-in-chief. The articles of war, however, re- cognised no right in the soldier to absent himself from divine service ; and in ignorance or neglect of these orders, soldiers had been punished for refusing to attend the services of the Established Church. To repress such an abuse, the commander-in-chief issued general orders in January, 1811; and Mr. Parnell afterwards proposed a clause in the Mutiny nth March, Bill to give legal effect to them. The clause was not agreed '^^^^' to : but, in the debate, no doubt was left that, by the regula- tions of the service, full toleration would henceforth be en- joyed by Catholic soldiers in the exercise of their religion.^
Another measure, affecting dissenters, was conceived in a Protestant somewhat different spirit. Lord Sidmouth complained of the H'^^-^"^'",^ facility with which dissenting ministers were able to obtain Bill, 1811. certificates, under the Act of 1779,^ without any proof of their fitness to preach, or of there being any congregation requiring their ministrations. Some had been admitted who could not even read and write, but were prepared to preach by inspira- tion. One of the abuses resulting from this facility was the exemption of so many preachers from serving on juries, and from other civil duties. To correct these evils, he proposed certain securities, of which the principal was a certificate of fitness from six reputable householders, of the same persuasion as the minister seeking a license to preach.^ His bill met 9th May, with little favour. It was, at best, a trivial measure : but its ^ ^^' policy was in the wrong direction. It ill becomes a State, which disowns any relations with dissenters, to intermeddle with their discipline. The dissenters rose up against the bill ; and before the second reading, the House was overwhelmed with their petitions. The Government discouraged it : the Archbishop of Canterbury counselled its withdrawal : the lead- ing peers of the Liberal party denounced it ; and Lord Sidmouth, standing almost alone, was obliged to allow his ill- advised measure to be defeated, without a division.*
Lord Sidmouth's bill had not only alarmed the dissenters, Protestant but had raised legal doubts, which exposed them to further ^^^st^Jg.^
Bill, 1812. 1 Hans. Deb., ist Sen, xix. 350. ^ Supra, p. i86.
' Hans. Deb., ist Ser. xix. 1128-1140.
* Ibid., XX, 233 ; Lord Sidmouth's Life, Hi. 38-65 ; Brook's Hist, of Relig. Lib., ii. 386.
214 THE CONSTITUTIONAL HISTORY OF ENGLAND
Unitarians' relief, 1813.
Catholic petitions, 31st May, i8th June, 1811.
Catholic question, 1812.
State of Ireland.
31st Jan.
3rd Feb.
molestation.^ And, in the next year, another bill was passed, with the grateful approval of the dissenters, by which they were relieved from the oaths and declaration required by the Toleration Act, and the Act of 1779, and from other vexatious restrictions.^ And in the following year, Mr. W. Smith ob- tained for Unitarians that relief which, many years before, Mr. Fox had vainly sought from the legislature.^ i
Nothing distinguished the tedious annals of the Catholic question in 181 1, but a motion, in one House, by Mr. Grattan, and, in the other, by Lord Donoughmore, which met with their accustomed fate.* But, in 18 12, the aspect of the Cath- olic question was, in some degree, changed. The claims of the Catholics, always associated with the peace and good gov- ernment of Ireland, were now brought forward, in the form of a motion, by Lord Fitzwilliam, for a committee on the state of Ireland ; and were urged more on the ground of State policy than of justice. The debate was chiefly remarkable for a wise and statesmanlike speech of the Marquess Wellesley. The motion was lost by a majority of eighty-three.^ A few days afterwards, a similar motion was made in the House of Commons, by Lord Morpeth. Mr. Canning opposed it in a masterly speech — more encouraging to the cause than the support of most other men. Objecting to the motion in point of time alone, he urged every abstract argument in its favour ; declared that the policy of enfranchisement must be progressive ; and that since the obstacle caused by the king's conscientious scruples had been removed, it had become the duty of Ministers to undertake the settlement of a question, vital to the interests of the Empire.* The general tone of the discussion was also encouraging to the Catholic cause ; and after two nights' debate, the motion was lost by a majority of
^ Brook's Hist, of Relig. Lib., ii. 394.
^52 Geo. III. c. 155; Hans. Deb., ist Ser., xxiii. 994, 1105, 1247; Lord Sidmouth's Life, iii. 65 ; Brook's Hist, of Relig. Lib., ii. 394.
^53 Geo. III. c. 160; Brook's Hist, of Relig. Lib., ii. 395.
* Ayes, 83 ; Noes, 146, in the Commons; Hans. Deb., ist Ser., xx. 369-427; Contents, 62; Non-contents, 121, in the Lords; Hans. Deb., ist Ser., xx. 645-685 ; Grattan's Life, v. 376.
^ Hans. Deb., ist Ser., xxi. 408-83. The House adjourned at half-past six in the morning.
8 It was in this speech that he uttered bis celebrated exclamation, "repeal the Union! restore the Heptarchy!"
RELIGIO US LIBER TV 215
ninety-four — a number increased by the belief that the motion implied a censure upon the executive Government of Ireland.^
Another aspect in the Catholic cause is also observable in Protestant this year. Not only were petitions from the Catholics of^y"^P^^^' England and Ireland more numerous and imposing : but Pro- testant noblemen, gentlemen of landed property, clergy, com- mercial capitalists, officers in the army and navy, and the inhabitants of large towns, added their prayers to those of their Catholic fellow-countrymen.^ Even the universities of Oxford and Cambridge, which presented petitions against the Catholic claims, were much divided in opinion ; and minorities, considerable in academic rank, learning, and numbers, were ranged on the other side.^
Thus fortified, motions in support of the Catholic claims Lord Don- were renewed in both Houses ; and being now free from any ^"^^^^^^"'^^jgt implication of censure upon the Government, were offered April, 1812. under more favourable auspices. That of the Earl of Don- oughmore, in the House of Lords, elicited from the Duke of Sussex an elaborate speech in favour of the Catholic claims, which his Royal Highness afterwards edited with many learned notes. Who that heard the arguments of Lord Wel- lesley and Lord Grenville, could have believed that the settle- ment of this great question was yet to be postponed for many years ? Lord Grenville's warning was like a prophecy. " I ask not," he said, " what in this case will be your ultimate decision. It is easily anticipated. We know, and it has been amply shown in former instances — the cases of America and of Ireland have but too well proved it — how precipitately ne- cessity extorts what power has pertinaciously refused. We shall finally yield to these petitions. No man doubts it. Let us not delay the concession, until it can neither be graced by spontaneous kindness, nor limited by deliberative wisdom." The motion was defeated by a majority of seventy-two,*
Mr. Grattan . proposed a similar motion in the House of Mr. Grattan's Commons, in a speech more than usually earnest and impas-^pj.jl_ j8j2
^ Hans. Deb., ist Ser., xxi. 494, 605. The House adjourned at half-past five.
"^ Ibid., xxii. 452, 478, 482-706, etc.
' Ibid., 462, 507; Grattan's Life, v. 467.
* Contents, 102; Non-contents, 174; Hans. Deb., ist Ser., xxii. 509-703. The House divided at five in the morning.
21 6 THE CONSTITUTIONAL HISTORY OF ENGLAND
sioned In this debate, Mr. Brougham raised his voice in support of the Catholic cause — a voice ever on the side of free- dom.^ And now Mr. Canning supported the motion, not only with his eloquence, but with his vote ; and continued hence- forth one of the foremost advocates of the Catholic claims. After two nights' debate, Mr. Grattan's motion was submitted to the vote of an unusual number of members, assembled by a call of the House, and lost by a majority of eighty-five.^
But this session promised more than the barren triumphs of debate. On the death of Mr. Perceval, the Marquess Wellesley being charged with the formation of a new adminis- tration, assumed, as the very basis of his negotiation, the final adjustment of the Catholic claims. The negotiation failed, indeed : ^ but the Marquess and his friends, encouraged by so unprecedented a concession from the throne, sought to pledge Parliament to the consideration of this question in the next Mr. Canning's session. First, Mr. Canning, in the House of Commons, motion, 22nd gained an unexampled victory. For years past, every motion favourable to this cause had been opposed by large^ majorities : but now his motion for the consideration of the laws affecting his Majesty's Roman Catholic subjects in Great Britain and Ireland, was carried by the extraordinary majority of one hundred and twenty-nine.* Lord Welles- Shortly after this most encouraging resolution, the Mar- ist ^Ti^y **°"' quess Wellesley made a similar motion in the House of Lords,^ 1812. where the decision was scarcely less remarkable. The Lord
Chancellor had moved the previous question, and even upon that indefinite and evasive issue, the motion was only lost by a single vote.* The Catholic Another circumstance, apparently favourable to the cause, ^'^*^'''^'^^,.*" was also disclosed. The Earl of Liverpool's administration,
open question ^ '
in 1812. instead of uniting their whole force against the Catholic cause,
agreed that it should be an " open question " ; and this freedom of action, on the part of individual members of the Government,
^ Mr. Brougham had entered Parliament in 1810.
'Ayes, 215; Noes, 300; Hans. Deb., ist Ser., xxii. 728, 860. The House adjourned at half-past six in the morning. ' Supra, vol. i. p. 85.
* Ayes, 235 ; Noes, 106 ; Hans. Deb., ist Ser., xxiii. 633-710. ''Ibid., 711, 814. ^ Non-contents, 126 ; Contents, 125, ibid., 814-868.
RELIGIO US LIBER TV 217
was first exercised in these debates. The introduction of this new element into the contest, was a homage to the justice and reputation of the cause : but its promises were illusory. Had the statesmen who espoused the Catholic claims stead- fastly refused to act with Ministers who continued to oppose them, it may be doubted whether any competent Ministry could much longer have been formed upon a rigorous policy of ex- clusion. The influence of the Crown and Church might, for some time, have sustained such a Ministry : but the inevitable conflict of principles would sooner have been precipitated.
Alarmed by the improved position of the Catholic question Catholic in Parliament, the clergy and strong Protestant party hastened claims, 1812- to remonstrate against concession. The Catholics responded by a renewal of their reiterated appeals. In February, 1 8 1 3, Mr. Mr. Grattan's Grattan, in pursuance of the resolution of the previous session, peb'°i8n moved the immediate consideration of the laws affecting the Roman Catholics in a committee of the whole House. He was supported by Lord Castlereagh, and opposed by Mr. Peel. After four nights' debate, rich in maiden speeches, well suited to a theme which had too often tried the resources of more practised speakers, the motion was carried by a majority of forty. ^
In committee, Mr. Grattan proposed a resolution affirming gth March, that it was advisable to remove the civil and military disquali- ^^^^' fications of the Catholics, with such exceptions as may be necessary for preserving the Protestant succession, the Church of England and Ireland, and the Church of Scotland. Mr. Speaker Abbot, free, for the first time, to speak upon this oc- casion, opposed the resolution. It was agreed to by a majority of sixty-seven.^
The bill founded upon this resolution provided for the ad- Mr. Grattan's mission of Catholics to either House of Parliament on taking ' ^ ^^* one oath, instead of the oaths of allegiance, abjuration and supremacy, and the declarations against transubstantiation and the invocation of saints. On taking this oath, and without receiving the sacrament. Catholics were also entitled to vote at elections, to hold any civil and military office under the Crown, except that of lord-chancellor or lord-lieutenant of Ireland, and
^ Ayes, 264 ; Noes, 224; Hans. Deb., ist Ser., xxiv. 747, 849, 879, 985. *Ayes, 186; Noes, 119, ibid., 1194-1248.
2i8 THE CONSTITUTIONAL HISTORY OF ENGLAND
any lay corporate office. No Catholic was to advise the Crown, in the disposal of Church patronage. Every person exercising spiritual functions in the Church of Rome was required to take this oath, as well as another, by which he bound himself to approve of none but loyal bishops ; and to limit his intercourse with the pope to matters purely ecclesiastical. It was further provided, that none but persons born in the United Kingdom, or of British parents, and resident therein, should be qualified for the episcopal office.^
After the second reading,^ several amendments were intro- duced by consent,' mainly for the purpose of establishing a Government control over the Roman Catholic bishops, and for regulating the relations of the Roman Catholic Church with the see of Rome. These latter provisions were peculiarly distaste- ful to the Roman Catholic body, who resented the proposal as a surrender of the spiritual freedom of their Church in exchange for their own civil liberties. Bill defeated, The course of the bill, however — thus far prosperous — was i8i^ ^*^' ^^^'^ brought to an abrupt termination. The indefatigable Speaker, again released from his chair, moved, in the first clause, the omission of the words, " to sit and vote in either House of Parliament" ; and carried his amendment by a ma- jority of four.^ The bill having thus lost its principal provision was immediately abandoned ; and the Catholic question was nearly as far from a settlement as ever.^ Roman Cath- This session, however, was not wholly unfruitful of benefit RdiSB^r' ^° ^^ Catholic cause. The Duke of Norfolk succeeded in 1813. ' passing a bill, enabling Irish Roman Catholics t<y hold all such civil or military offices in England, as by the Act of 1 793 they were entitled to hold in Ireland. It removed one of the ob-
1 Hans. Deb., ist Ser., xxv. 1107; Peel's Mem., i. 354.
2 Hans. Deb., ist Ser., xxvi. 171 ; Ayes, 245 ; Noes, 203.
3 The bill as thus amended is printed in Hans. Deb., ist Set., xxvi. 271. ^ Ihid., 312-361 ; Ayes, 247 ; Noes, 251 ; Grattan's Life, v. 489-496.
' The Speaker, elated by his victory, could not forbear the further satisfaction of alluding to the failure of the bill, in his speech to the Prince Regent, at the end of the session — an act of indiscretion, if not disorder, which placed him in the awkward position of defending himself, in the chair, from a proposed vote of cen- sure. From this embarrassment he was delivered by the kindness of his friends, and the good feeling of the House, rather than by the completeness of his own defence. — Hans. Deb., 1st Ser., xxvi. 1224; ibid., xxvii. 465; Lord Colchester's Diary, ii. 453-458, 483-496 ; Romilly's Life, iii. 133.
RELIGIOUS LIBERTY 219
vious anomalies of the law, which had been admitted in 1 807, even by the king himself,^
This measure was followed, in 1817, bythe Military and Military and Naval Officers' Oaths Bill, which virtually opened all ranks in officers' the army and navy to Roman Catholics and dissenters.^ In- Oaths Bill, troduced by Lord Melville simply as a measure of regulation, ^ ^^' it escaped the animadversion of the Protestant party, ever on the watch to prevent further concessions to Catholics, A measure, denounced in 1807 as a violation of the constitution and the king's coronation oath, was now agreed to with the ac- quiescence of all parties. The Church was no longer in danger ; " no popery " was not even whispered. " It was some consola- tion for him to reflect," said Earl Grey, " that what was resisted, at one period, and in the hands of one man, as dangerous and disastrous, was adopted at another, and from a different quarter, as wise and salutary." ^
In 1 81 5, the Roman Catholic body in Ireland being at Catholic issue with their Parliamentary friends, upon the question of '^'^""^' ^^^^' "securities," their cause languished and declined.* Nor in the two following years did it meet with any signal successes.^
In 1 819, the general question of Catholic emancipation Declaration found no favour in either House ;^ and in vain Earl Grey sub- ^^^^'"^^g^^j^ji. mitted a modified measure of relief. He introduced a bill foration, 25th abrogating the declarations against the doctrines of transub- ^^' ^ ^^' stantiation and the invocation of saints, required to be taken "^ by civil and military officers, and members of both Houses of Parliament.^ This measure was offered on the ground that these declarations were simply tests of faith and doctrine, and independent of any question of foreign spiritual supremacy.
1 Hans. Deb., ist Ser., xxvi. 639; 53 Geo. III. c. 128.
2 57 Geo. III. c. 92 ; Hans. Deb., ist Ser., xxxvi. 1208 ; ihid.., xl. 24 ; Butler's Hist. Mem., iv. 257.
*ioth June, i8ig; Hans. Deb., ist Ser., xl. 1042.
* i8th and 30th May ; 8th June, 1815 ; Hans. Deb., ist Ser., xxxi. 258, 474, 666.
' 2ist May and 21st June, 1816 ; Hans. Deb., ist Ser., xxxiv. 655, 1239 ; gth and i6th May, 1817 ; ihid., xxxvi. 301, 600; Mr. Grattan's motion on 21st May, 1816, was the only one carried — by a majority of 31.
* Commons, 4th May, Ayes, 241; Noes, 243; Hans. Deb., ist Ser., xl. 6; Lords, 17th May, Contents, 106 ; Non-contents, 147, ibid., 386.
'' By 25 Car. II. c. 2 ; and 30 Car. II. st. 2, c. 2.
* Hans. Deb., ist Ser., xl. 748.
2 20 THE CONSTITUTIONAL HISTORY OF ENGLAND
It had been admitted, on all hands, that no one ought to be excluded from office merely on account of his religious belief, and that nothing would warrant such exclusion but political tenets connected with religion which were, at the same time, dangerous to the State. The oath of supremacy guarded against such tenets : but to stigmatise purely religious doc- trines as " idolatrous and superstitious," was a relic of offensive legislation, contrary to the policy of later times. As a prac- tical measure of relief the bill was wholly inoperative : but even this theoretical legislation — this assertion of a principle without legal consequences — was resisted, as fraught with danger to the constitution ; and the second reading of the bill was accordingly denied by a majority of fifty-nine.^ Death of The weary struggle for Catholic emancipation survived its
Grattan. foremost champion. In 1820, Mr. Grattan was about to re- sume his exertions in the cause when death overtook him. His last words bespoke his earnest convictions and sincerity. '* I wished," said he, " to go to the House of Commons to testify with my last breath my opinions on the question of Catholic emancipation : but I cannot. The hand of death is upon me." ..." I wish the question to be settled, because I believe it to be essential to the permanent tranquillity and happiness of the country, which are, in fact, identified with it." He also counselled the Catholics to keep aloof from the democratic agitations of that period.^ Mr. Plunket's The mantle of Mr. Grattan descended upon a fellow-country- p'b ^^821 "^^" °^ ^^"^^ eloquence and ability — Mr. Plunket, who had al- ready distinguished himself in the same cause. His first efforts were of happy augury. In February, 1 82 1 , in a speech replete with learning, argument, and eloquence, he introduced the familiar motion for a committee on the Roman Catholic oaths, which was carried by a majority of six.^ His bill, founded upon the resolutions of this committee,* provided for the abro- gation of the declarations against transubstantiation and the invocation of saints, and a legal interpretation of the oath of supremacy, in a sense not obnoxious to the consciences of
1 Contents, 82 ; Non-contents, 141 ; Hans. Deb., ist Ser., xl. 1034. ^ Statement by Mr. Becher, 14th June, 1820, ibid,^ 2nd Ser., 1065 ; Life of Grattan by his Son, v. 541, 544, 549.
^Ayes, 227 ; Noes, 221 ; Hans. Deb., 2nd Ser., iv. 961. ^Ihid., 1066.
RELIGIO US LIBER TV 221
Catholics. On i6th of March the bill, after an animated debate, illustrated by one of Mr. Canning's happiest efforts, and gener- ally characterised by moderation, was read a second time, by a majority of eleven.^ In committee, provisions were intro- duced to regulate the relations of the Roman Catholic Church with the State, and with the see of Rome,^ And at length, on the 2nd of April, the bill was read a third time, and passed by a majority of nineteen.^ The fate of this measure, thus far Rejected by successful, was soon determined in the House of Lords. The ^g^j^ and^th Duke of York stood forth as its foremost opponent, saying April, 1821. that " his opposition to the bill arose from principles which he had embraced ever since he had been able to judge for him- self, and which he hoped he should cherish to the last day of his life ". After a debate of two days, the second reading of the bill was refused by a majority of thirty-nine.*
Before the next session, Ireland was nearly in a state of Disturbed revolt ; and the attention of Parliament was first occupied ^*^*^ °x%z^ with urgent measures of repression — an Insurrection Bill, and the suspension of the Habeas Corpus Act. The Catholic Roman Cath- question was now presented in a modified and exceptional gjjj ^^^ form. A general measure of relief having failed again and again, it occurred to Mr. Canning that there were special cir- cumstances affecting the disqualification of Catholic peers, which made it advisable to single out their case for legislation. And accordingly, in a masterly speech — at once learned, argu- 30th April mentative, and eloquent — he moved for a bill to relieve Roman Catholic peers from their disability to sit and vote in the House of Lords. Peers had been especially exempted from taking Queen Elizabeth's oath of supremacy, because the queen was " otherwise sufficiently assured of the faith and loyalty of the temporal Lords of her high court of Parliament ".* The Catholics of that order had, therefore, continued to exercise their right of sitting in the Upper House unquestioned until the evil times of Titus Oates. The Act of 30 Charles II. was passed in the very paroxysm of excitement, which markfed
1 Hans. Deb., 2nd Ser., iv. 1269 ; Ayes, 254 ; Noes, 243.
"^ Ibid., I412-1489.
3 Ayes, 216 ; Noes, 197, ibid., 1523.
* Contents, 120 ; Non-contents, 159, ibid., v. 220, 279.
"5 Eliz. c. I, s. 17.
2 22 THE CONSTITUTIONAL HISTORY OF ENGLAND
that period. It had been chiefly directed against the Duke of York, who had escaped from its provisions ; and was forced upon the Lords by the earnestness and menaces of the Commons. Eighteen Catholic peers had been excluded by it, of whom five were under arrest on charges of treason ; and one, Lord Stafford, was attainted — in the judgment of history and posterity, unjustly. " It was passed under the same de- lusion, was forced through the House of Lords with the same impulse, as it were, which brought Lord Stafford to the block." It was only intended as a temporary Act; and with that understanding was assented to by the king, as being " thought fitting at that time ". Yet it had been suffered to continue ever since, and to deprive the innocent descendants of those peers of their right of inheritance. The Act of 1791 had already restored to Catholic peers their privilege of ad- vising the Crown, as hereditary councillors, of which the Act of Charles II. had also deprived them ; and it was now sought to replace them in their seats in Parliament. In referring to the recent coronation, to which the Catholic peers had been invited for the first time for upwards of 130 years, he pictured, in the most glowing eloquence, the contrast between their lofty position in that ceremony, and their humiliation in the senate, where " he who headed the procession of the peers to-day, could not sit among them as their equal on the morrow ". Other Catholics might never be returned to Parlia- ment : but the peer had the inherent hereditary right to sit with his peers ; and yet was personally and invidiously excluded on account of his religion. Mr. Canning was opposed by Mr. Peel, in an able and temperate argument, and supported by the accustomed power and eloquence of Mr. Plunket. It was obvious that his success would carry the out-works — if not the very citadel — of the Catholic question ; yet he obtained leave to bring in his bill by a majority of five.^
He carried the second reading by a majority of twelve;^ after which he was permitted, by the liberality of Mr. Peel, to pass the bill through its other stages, without opposition.' But the Lords were still inexorable. Their stout Protestantism was not to be beguiled even by sympathy for their own order ;
^Ayes, 249; Noes, 244; Hans. Deb., 2nd Sen, vii. 211. 'JWd., 475. 2/6»d., 673.
RELIGIOUS LIBERTY 223
and they refused a second reading to the bill by a majority of forty-two.^
After so many disappointments, the Catholics were losing Position of patience and temper. Their cause was supported by the niost^^gg^jQ^jj^j^"^ eminent members of the Government ; yet it was invariably 1823. defeated and lost. Neither argument nor numbers availed it. Mr. Canning was Secretary of State for Foreign Affairs, and leader of the House of Commons ; and Mr. Plunk et Attorney- General for Ireland. But it was felt that so long as Catholic emancipation continued to be an open question, there would be eloquent debates, and sometimes a promising division, but no substantial redress. In the House of Commons, one Se- cretary of State was opposed to the other ; and in the House of Lords, the Premier and the Chancellor were the foremost opponents of every measure of relief. The majority of the Cabinet, and the great body of the Ministerial party, in both Houses, were adverse to the cause. This irritation burst forth 17th April, on the presentation of petitions, before a motion of Mr. Plun- ^ ^^' ket's. Sir Francis Burdett first gave expression to it. He deprecated " the annual farce," which trifled with the feelings of the people of Ireland. He would not assist at its per- formance. The Catholics would obtain no redress until the Government were united in opinion as to its necessity. An angry debate ensued, and a fierce passage of arms between Mr. Brougham and Mr. Canning. At length, Mr. Plunket rose to make his motion ; when Sir Francis Burdett, ac- companied by Mr. Hobhouse, Mr. Grey Bennet, and several other members of the Opposition, left the House. Under these discouragements Mr. Plunket proceeded with his motion. At the conclusion of his speech, the House becoming impatient, refused to give any other members a fair hearing ; and after several divisions, ultimately agreed, by a majority of upwards of two hundred, to an adjournment of the House.^ This result, however unfavourable to immediate issue of the Catholic question, was yet a significant warning that so im- portant a measure could not much longer be discussed as an open question.
A smaller measure of relief was next tried in vain. Lxjrd
^ Hans. Deb., 2nd Sen, vii. 1216 ; Court and Cabinets of Geo. IV., i. 306. '^Ayes, 313; Noes, iii ; Hans. Deb., and Set., viii. 1070-1123.
2 24 THE CONSTITUTIONAL HISTORY OF ENGLAND
Lord Nu- gent's bill, 28th May, 1823.
Marriage law
amendment,
1819-27.
Mr. W. Smith's bill, i8th April, 1822.
Lord Lans- downe's bill, i2th June, 1823.
Nugent sought to extend to English Catholics the elective franchise, the commission of the peace, and other offices to which Catholics in Ireland were admissible by the Act of 1793. Mr. Peel assented to the justice and moderation of this proposal.^ The bill was afterwards divided into two^ — the one relating to the elective franchise, and the other to the magistracy and corporate offices.^ In this shape they were agreed to by the Commons, but both miscarried in the House of Lords.* In the following year, they were revived in the House of Lords by Lord Lansdowne, with no better success, though supported by five Cabinet Ministers.*
Ineffectual attempts were also made, at this period, to amend the law of marriage, by which Catholics and dissenters were alike aggrieved. In 1819,* and again in 1822, Mr. William Smith presented the case of dissenters, and particu- larly of Unitarians. Prior to Lord Hardwicke's Marriage Act, dissenters were allowed to be married in their own places of worship : but under that Act the marriages of all but Jews and Quakers were required to be solemnised in church, by ministers of the establishment, and according to its ritual. At that time the Unitarians were a small sect ; and had not a single place of worship. Having since prospered and mul- tiplied, they prayed that they might be married in their own way. They were contented, however, with the omission from the marriage service of passages relating to the Trinity ; and Mr. Smith did not venture to propose a more rational and complete relief — the marriage of dissenters in their own chapels.'^
In 1823, the Marquess of Lansdowne proposed a more comprehensive measure, embracing Roman Catholics as well as dissenters, and permitting the solemnisation of their mar- riages in their own places of worship. The chancellor, boast- ing "that he took as just a view of toleration as any noble Lord in that House could do," yet protested against "such mighty changes in the law of marriage ". The Archbishop of
> Hans. Deb., 2nd Sen, ix. 573. ^Ibid., 1031. ^ Ibid., 1341.
■• Ibid., 1476 ; Lord Colchester's Diary, iii. 292, 299.
<^24th May, 1824; Hans. Deb., and Ser., xi. 817, 842 ; Lord Colchester's Diary, iii. 326.
« i6th June, 1819 ; Hans. Deb., ist Ser., xl. 1200, 1503. ^ Ibid., 2nd Ser., vi. 1460.
RELIGIOUS LIBERTY 225
Canterbury regarded the measure in a more liberal spirit ; and merely objected to any change in the Church service, which had been suggested by Lord Liverpool. The second reading of the bill was refused by a majority of six.^
In the following session, relief to Unitarians was again Unitarian sought in another form. Lord Lansdowne introduced a bill damages, enabling Unitarians to be married in their own places of wor- ship, after publication of banns in church, and payment of the church fees. This proposal received the support of the Arch- Lord Lans- bishop of Canterbury and the Bishop of London : but the and'April.^th Chancellor, more sensitive in his orthodoxy, denounced it as May, 1824. " tending to dishonour and degrade the Church of England". To the Unitarians he gave just offence, by expressing a doubt whether they were not still liable to punishment, at common law, for denying the doctrine of the Trinity.^ The bill passed the second reading by a small majority : but was afterwards lost on going into committee by a majority of thirty-nine.^
Dr. Phillimore, with no better success, brought in another Roman bill to permit the solemnisation of marriages between Catholics, j^^*j.j.j°ggg by their own priests — still retaining the publication of banns or 13th April, licenses, and the payment of fees to the Protestant clergyman. ^ ^^' Such a change in the law was particularly desirable in the case of Catholics, on grounds distinct from toleration. In the poorer parishes, large numbers were married by their own priests : their marriages were illegal, and their children, being illegiti- mate, were chargeable on the parishes in which they were born.* This marriage law was even more repugnant to principles of toleration than the code of civil disabilities. It treated every British subject — whatever his faith — as a member of the Church of England — ignored all religious differences ; and imposed, with rigorous uniformity, upon all communions alike, the altar, the ritual, the ceremonies, and the priesthood of the State. And under what penalties ? — celibacy, or concubinage and sin !
^ Hans. Deb., 2nd Ser., ix. 967.
2 See also Rex v. Curl: Strange, 789; St. Tr., xvii. 154.
3 Hans. Deb., 2nd Ser., xi, 75, 434 ; Twiss's Life of Eldon, ii. 512. Mr. C. Wynn, writing to the Duke of Buckingham, 6th May, 1824, said: "You will, I am sure, though you doubted the propriety of the Unitarian Marriage Act, regret the triumphant majority of the intolerant party, who boast of it as a display of their strength, and a proof how little any power in the country can cope with them". — Court and Cabinets of Geo. IV., ii. 72.
* Hans. Deb., 2nd Ser., xi. 408.
VOL. n. 15
^26 THE CONSTITUTIONAL HISTORY OF ENGLAND
Lord Lans-
downe's Catholic relief bills, 24th May, 1824
Marshal, 1824.
Unitarian Three years later, Mr. W. Smith renewed his measure in
marriages, ^ ^^^ form. It permitted Unitarian dissenters, after the pub- lication of bann?, to be married before a magistrate — thus reviv- ing the principle of a civil contract, which had existed before Lord Hardwicke's Act of 1752. This bill passed the Com- mons : ^ but failed in the Lords, by reason of the approaching prorogation.^ And here the revision of the law of marriage was left to await a more favourable opportunity.^
In 1824, Lord Lansdowne vainly endeavoured to obtain for English Catholics the elective franchise, the right to serve as justices of the peace, and to hold offices in the revenue.* But in the same year Parliament agreed to one act of courtly acknowledgment to a distinguished Catholic peer. An Act Office of Earl was passed, not without opposition, to enable the Duke of Norfolk to execute his hereditary office of Earl Marshal, without taking the oath of supremacy, or subscribing the de- clarations against transubstantiation and the invocation of saints.^ Agitation in Meanwhile, the repeated failures of the Catholic cause had
^reland, ^823- ^j.^^^^ j ^ dangerous spirit of discontent in Ireland. The Ca- tholic leaders, despairing of success over majorities unconvinced and unyielding, were appealing to the excited passions of the people ; and threatened to extort from the fears of Parliament what they had vainly sought from its justice. To secure the peace of Ireland, the legislature was called upon, in 1825, to dissolve the Catholic Association : ^ but it was too late to check the progress of the Catholic cause itself by measures of repres- sion ; and Ministers disclaimed any such intention.
While this measure was still before Parliament, the discus- sion of the Catholic question was revived, on the motion of Sir Francis Burdett, with unusual spirit and effect. After de- bates of extraordinary interest, in which many members avowed their conversion to the Catholic cause,^ a bill was passed by
25
Sir Francis Burdett's motion, 28th Feb., 1825.
^ Hans. Deb., 2nd Ser., xvii. 1343. " Ihid., 1407, 1426 ; Lord Colchester's Diary, iii. 520. 2 Infra, p. 249.
* Hans. Deb., 2nd Ser., xi. 842 ; Twiss's Life of Eldon, ii. 518. " Hans. Deb., and Ser., xi. 1455, 1470, 1482 ; 5 Geo. IV. c. log ; Lord Col- chester's Diary, iii. 326 ; Twiss's Life of Eldon, ii. 521. ' Supra, p. 90. ^ 28th February, 19th and 21st April, loth May, 1825.
RELIGIOUS LIBERTY 227
the Commons, framing a new oath in lieu of the oath of supre- macy, as a qualification for office ; and regulating the inter- course of Roman Catholic subjects, in Ireland, with the see of Rome.^ On reaching the House of Lords, however, this bill met the same fate as its predecessors ; the second reading being refused by a majority of forty-eight.^
With a view to make the Catholic Relief Bill more ac- Irish 405. ceptable, and at the same time to remove a great electoral ^"^825 ° ^'^^' abuse, Mr, Littleton had introduced a measure for regulating the elective franchise in Ireland. Respecting vested interests, he proposed to raise the qualification of 40i". freeholders ; and to restrain the creation of fictitious voters, who were entirely in the power of their landlords. By some this bill was re- garded as an obnoxious measure of disfranchisement : but being supported by several of the steadiest friends of Ireland, and of constitutional rights, its second reading was agreed to. When the Catholic Relief Bill, however, was lost in the House of Lords, this bill was at once abandoned.^
In April of this year. Lord Francis Leveson Gower carried Lord F. Leve- a resolution, far more startling to the Protestant party than ®°" -^"^^^'f
' ° . motion, 29th
any measure of enfranchisement. He prevailed upon the Com- April, 1825. mons to declare the expediency of making provision for the secular Roman Catholic clergy exercising religious functions in Ireland.* It was one of those capricious and inconsequent decisions, into which the Commons were occasionally drawn in this protracted controversy, and was barren of results.
In 1827, the hopes of the Catholics, raised for a time by Mr. Canning's the accession of Mr. Canning to the head of affairs, were sud- death, denly cast down by his untimely death.
At the meeting of Parliament in 1828,^ the Duke ofxheDukeof Wellington's administration had been formed. Catholic eman- Wellington's
° aaministra-
cipation was still an open question : ° but the Cabinet, repre- tion.
sented in one House by the Duke, and in the other by Mr.
1 Hans. Deb., 2nd Ser., xii. 764, 1151 ; ihid., xiii. 21, 71, 486. The second reading was carried by a majority of 27, and the third reading by 21.
2 17th May. Contents, 130 ; Non-contents, 178 ; ihid.^ 662.
3 Ihid., 126, 176, etc., 902.
* Ayes, 205 ; Noes, 162 ; ibid., 308.
^ Lord Goderich's Ministry had been formed and dissolved during the recess.
" Peel's Mem., i. 12, 16.
15 *
2 28 THE CONSTITUTIONAL HISTORY OF ENGLAND
Peel, promised little for the cause of religious liberty. If com- pliance was not to be expected, still less was such a Govern- ment likely to be coerced by fear. The great soldier at its head retained, for a time, the command of the army ; and no Minister knew so well as he how to encounter turbulence or revolt. In politics he had been associated with the old Tory school ; and unbending firmness was characteristic of his temper and pro- fession. Yet was this Government on the very eve of ac- complishing more for religious liberty than all the efforts of its champions had effected in half a century. Corporation The dissenters were the first to assault the Duke's strong
Acts 1^28. citadel. The question of the repeal of the Corporation and Test Acts had slumbered for nearly forty years,^ when Lord John Russell worthily succeeded to the advocacy of a cause which had been illustrated by the genius of Mr. Fox. In 26th Feb., moving for a committee to consider these Acts, he ably recap- itulated their history, and advanced conclusive arguments for their repeal. The annual indemnity Acts, though offering no more than a partial relief to dissenters, left scarcely an argu- ment against the repeal of laws which had been so long virtu- ally suspended. It could not be contended that these laws were necessary for the security of the Church ; for they ex- tended neither to Scotland nor to Ireland. Absurd were the number and variety of offices embraced by the Test Act ; non- commissioned officers as well as officers, excisemen, tide- waiters, and even pedlars. The penalties incurred by these different classes of men were sufficiently alarming — forfeiture of the office — disqualification for any other — incapacity to maintain a suit at law, to act as guardian or executor, or to inherit a legacy; and, lastly, a pecuniary penalty of ;^500. Even if such penalties were never enforced, the law which im- posed them was wholly indefensible. Nor was it forgotten again to condemn the profanation of the holy sacrament, by reducing it to a mere civil form, imposed upon persons who either renounced its sacred character, or might be spiritually unfit to receive it. Was it decent, it was asked,
To make the symbols of atoning grace An office key, a pick-lock to a place ? *
* Supra, p. 193.
''' Cowper's Expostulation, Works, i. p. 80 (Pickering).
RELIGIOUS LIBERTY 229
Nor was this objection satisfactorily answered by citing Bishop Sherlock's version, that receiving the sacrament was not the qualification for office, but the evidence of qualification. The existing law was defended on the grounds so often re- peated : that the State had a right to disqualify persons on the ground of their religious opinions, if it were deemed ex- pedient : that there was an Established Church inseparable from the State, and entitled to its protection ; and that the admis- sion of dissenters would endanger the security of that Church.
Mr. Peel — always moderate in his opposition to measures for the extension of religious liberty — acknowledged that the maintenance of the Corporation and Test Acts was not neces- sary for the protection of the Church ; and opposed their repeal mainly on the ground that they were no practical grievance to the dissenters. After a judicious and temperate discussion on both sides, the motion was affirmed by a majority of forty- four.^ The bill was afterwards brought in, and read a second time without discussion.^
The Government, not being prepared to resign office in Concurrence consequence of the adverse vote of the Commons, endeavoured °^*^®^'^*^°P^" to avoid a conflict between the two Houses. The majority had comprised many of their own supporters, and attached friends of the Established Church ; and Mr. Peel undertook to communicate with the Archbishop of Canterbury and other prelates, in order to persuade them to act in concert with that party, and share in the grace of a necessary concession.^ These enlightened churchmen met him with singular liberality, and agreed to the substitution of a declaration for the sacramental test.^ Lord John Russell and his friends, though satisfied that no such declaration was necessary, accepted it as a pledge that this important measure should be allowed to pass, with the general acquiescence of all parties ; ^ and the bill now proceeded through the House without further opposition.^
In the House of Lords, the Archbishop of York, express- The bill in ing the opinion of the primate as well as his own, " felt bound, j^j^ April', on every principle, to give his vote for the repeal of an Act 1828. which had, he feared, led, in too many instances, to the pro-
1 Ayes, 237 ; Noes, 193 ; Hans. Deb., 2nd Ser., xviii. 676.
'^Ihid., 816, 1137. •'' Peel's Mem., i. 69, 79. * Ihid., 70-98.
5 Hans. Deb., 2nd Ser., xviii. ii8o. * IHd., 1330.
23© THE CONSTITUTIONAL HISTORY OF ENGLAND
fanation of the most sacred ordinance of our religion ". " Re- ligious tests imposed for political purposes, must in themselves be always liable, more or less, to endanger religious sincerity." His grace accepted the proposed declaration as a sufficient security for the Church. The bill was also supported, in the same spirit, by the Bishops of Lincoln, Durham, and Chester. But there were lay peers more alive to the interests of the Church than the bench of bishops. Lord Winchilsea foresaw dangers, which he endeavoured to avert by further securities ; and Lord Eldon denounced the entire principle of the bill. He had little expected " that such a bill as that proposed would ever have been received into their Lordships' House " ; and rated those who had abandoned their opposition to its progress in the Commons. This stout champion of the Church, however, found no supporters to the emphatic " Not content," with which he encountered the bill ; and its second reading was affirmed without a division.^
2ist and In committee, the declaration was amended by the inser-
24th April. ^JQp Qf ^Q words " on the true faith of a Christian " — an amendment which pointedly excluded the Jews, and gave rise to further legislation at a later period.^ Some other amendments were also made. Lord Winchilsea endeavoured to exclude Unitarians ; and Lord Eldon to substitute an oath for a de- claration, and to provide more effectual securities against the admission of Catholics : but these and other amendments, in- consistent with the liberal design of the measure, were rejected,
28th April, and the bill passed.^ The Lords' amendments, though little approved by the Commons, were agreed to, in order to set this
2nd May. long-vexed question at rest, by an act of enlightened tolera- tion.
The Act This measure was received with gratitude by dissenters ;
passed. ^^j^^^ ^^ grace of the concession was enhanced by the liberality
^ Hans. Deb., and Ser., xviii. 1450. Lord Eldon, in his private correspond- ence, called it " a most shameful bill" — "as bad, as mischievous, and as revolu- tionary as the most captious dissenter could wish it to be ". And again ; " The administration have, to their shame be it said, got the archbishops and most of the bishops to support this revolutionary bill ". — Tteiss's Life of Lord Eldon, iii. 37-45 ; Peel's Mem., i. 99.
'^ On the third reading Lord Holland desired to omit the words, but without success.
' Hans, Deb., 2nd Set., xviii. 1571 ; xix. 39, jio, 156, 186,
RELIGIOUS LIBERTY 231
of the bishops, and the candour and moderation of the leading statesmen, who had originally opposed it. The liberal policy of Parliament was fully supported by public opinion, which had undergone a complete revulsion upon this question. " Thirty years since," said Alderman Wood, " there were only two or three persons in the city of London favourable to the repeal : the other day, when the corporation met to petition for the repeal, only two hands were held up against the peti- tion."
The triumph of dissenters was of happy augury to the Catholic Catholic claims, which in a few days were again presented by^^^"^^' Sir Francis Burdett. The preponderance of authority as well Sir Francis as argument, was undeniably in favour of the motion. Several ^"^?^" | conversions were avowed ; and the younger members especially May, 1828. showed an increasing adhesion to the cause of religious liberty.^ After a debate of three nights, in which the principal sup- porters of the measure expressed the greatest confidence in its speedy triumph, the motion was carried by a majority of six.^ A resolution was agreed to, that it was expedient to consider the laws affecting Roman Catholics, with a view to a final and conciliatory adjustment. Resolutions of this kind had, on former occasions, preceded the introduction of bills which afterwards miscarried ; but Sir Francis Burdett resolved to avoid the repetition of proceedings so tedious and abortive. This resolution was accordingly communicated to the Lords at a conference.^ The Marquess of Lansdowne invited their gth June Lordships to concur in this resolution, in a most forcible^ ^ * speech ; and was supported in the debate by the Dukes of Sussex and Gloucester, by Lord Goderich, the Marquess of Londonderry, Lord Plunket, the Marquess of Wellesley, and other peers. It was opposed by the Duke of Cumberland, the powerful Chancellor — Lord Lyndhurst — the ever-consistent Lord Eldon, the Duke of Wellington, and an overpowering number of speakers. After two nights' debate, the Lords re- fused to concur in this resolution by a majority of forty-four.*
But while these proceedings seemed as illusory as those of State of Ire- former years, popular agitation was approaching a crisis in ^" ' ^ ^ '
^ Peel's Mem., i. 102.
*Ayes, 272; Noes, 266; Hans. Deb., 2nd Ser., xix. 375-675.
^Ibid., 680, 767. * Ibid., 1133, 1214.
232 THE CONSTITUTIONAL HISTORY OF ENGLAND
Clare election, June and July, 1828.
Doubtful fidelity of the Catholic soldiers in Ireland.
Catholic Association.
Ireland,^ which convinced the leading membersof the adminis- tration that concessions could no longer be safely withheld.^ Soon after this discussion, an event of striking significance marked the power and determination of the Irish people. Mr, Vesey Fitzgerald having vacated his seat for the county of Clare, on accepting office, found his re-election contested by an opponent no less formidable than Mr. O'Connell. Under other circumstances, he could have confidently relied upon his personal popularity, his uniform support of the Catholic claims, his public services, and the property and influence which he enjoyed in his own county. But now all his pretensions were unavailing. The people were resolved that he should succumb to the champion of the Catholic cause ; and, after scenes of excitement and turbulence which threatened a disturbance of the public peace, he was signally defeated.^
Perhaps no one circumstance contributed more than this election to extort concessions from the Government. It proved the dangerous power and organisation of the Roman Catholic party. A general election, while such excitement prevailed, could not be contemplated without alarm.* If riots should occur, the executive were not even assured of the fidelity of Catholic soldiers, who had been worked upon by their priests. They could not be trusted against rioters of their own faith,^ The Catholic Association, however, con- tinued to be the chief embarrassment to the Government. It had made Ireland ripe for rebellion. Its leaders had but to give the word : but, believing their success assured, they were content with threatening demonstrations.^ Out of an infantry
' Supra, p. 91. 2 Peel's Mem., i. 129.
^ Mr. Vesey Fitzgerald, writing to Sir R. Peel, 5th July, 1828, said : " I have polled all the gentry and all the fifty-pound freeholders — the gentry to a man ". . . . " All the great interests broke down, and the desertion has been universal. Such a scene as we have had ! such a tremendous prospect as it opens to us I "... " The conduct of the priests has passed all that you could picture to yourself." — Ibid., 113.
*Ibid., 117-122 et seq.
•' This business," wrote Lord Eldon, " must bring the Roman Catholic question, which has been so often discussed, to a crisis and a conclusion. The nature of that conclusion I do not think likely to be favourable to Protestant- ism."— Twiss's Life, iii. 54.
''Lord Anglesey's Letters, 20th and 26th July, 1828; Peel's Mem., i. 127, 158, 164.
8 Lord Anglesey's Letter, and July, 1828; ibid., 147; ibid., 207, 243-262; supra, p. 94.
RELIGIOUS LIBERTY 233
force of 30,000 men, no less than 25,500 were held in readi- ness to maintain the peace of Ireland.^ Such was the crisis, that there seemed no alternative between martial law and the removal of the causes of discontent. Nothing but open re- bellion would justify the one; and the Commons had, again and again, counselled the other.^
In the judgment of Mr. Peel, the settlement of the Catholic Necessity question had, at length, become a political necessity; and this "^jj^^ *^°'''^ conviction was shared by the Duke of Wellington, the Marquess acknow- of Anglesey, and Lord Lyndhurst^ But how were Ministers J^j^fg^g^s^ to undertake it? The statesmen who had favoured Catholic claims had withdrawn from the Ministry ; and Lord Anglesey had been removed from the government of Ireland.* It was reserved for the Protestant party in the Cabinet to devise a measure which they had spent their lives in opposing. They would necessarily forfeit the confidence, and provoke the hos- tility, of their own political adherents ; and could lay no claim to the gratitude or good will of the Catholics.
But another difficulty, even more formidable, presented Repugnance itself — a difficulty which, on former occasions, had alone suf- ° * ^ '"S . ficed to paralyse' the efforts of Ministers. The king evinced no less repugnance to the measure than his "revered and ex- cellent father " had displayed, nearly thirty years before ; ^ and had declared his determination not to assent to Catholic emancipation.^
The Duke of Wellington, emboldened by the success ofandofthe Mr. Peel's former communications with the bishops on the '^ °P^'
' Peel's Mem., i. 293.
"^ In each of " the five Parliaments elected since 1807, with one exception, the House of Commons had come to a decision in favour of a consideration of the Catholic question " ; and Mr. Peel had long been impressed with the great preponderance of talent and influence on that side. — Ihid.y 146 ; ihid., 61, 288, 289.
^Ihid., 180, 181, 188, 284.
^ The circumstances of his removal were fully discussed in the House of Lords, 4th May, 1829. — Hans. Deb., 2nd Ser., xx. 990.
' Peel's Mem., i. 274, 276. The king assured Lord Eldon that Mr. Canning had engaged that he would never allow his Majesty " to be troubled about the Roman Catholic question ". — Ibid., 275. But Sir R. Peel expresses his con- viction that no such pledge had been given by Mr. Canning (ibid.) ; and even Lord Eldon was satisfied that the king's statement was unfounded. — Twiss's Life of Eldon, iii. 82.
^ Lord Colchester's Diary, iii. 380, 473.
234 THE CONSTITUTIONAL HISTOR V OF ENGLAND
Embarrass- ment of Ministers.
Proffered resignation of Mr. Peel.
The king consents to the measure.
Govern- ment measures.
Sacramental Test, endeavoured to persuade them to support concessions to the Catholics. Their concurrence would secure the co-operation of the Church and the House of Lords, and influence the reluctant judgment of the king. But he found them resolutely opposed to his views ; and the Government were now alarmed, lest their opinions should confirm the objections of his Majesty.
It was under these unpromising circumstances that, in January, 1829, the time had arrived at which some definite course must be submitted to the king, in anticipation of the approaching session. It is not surprising that Mr. Peel should have thought such diflficulties almost insuperable. "There was the declared opinion of the king — the declared opinion of the House of Lords — the declared opinion of the Church — un- favourable to the measures we were about to propose ; " and, as he afterwards added, " a majority, probably, of the people of Great Britain was hostile to concession ".^
Mr. Peel, considering the peculiarity of his own position, had contemplated the necessity of retirement : ^ but viewing, with deep concern, the accumulating embarrassments of the Government, he afterwards placed his services at the com- mand of the Duke of Wellington.^
At length, an elaborate memorandum by Mr, Peel having been submitted to the king, his Majesty gave audience to those members of his Cabinet who had always opposed the Catholic claims ; and then consented that the Cabinet should submit their views on the state of Ireland, without pledging himself to concur in them, even if adopted unanimously.* A draft of the king's speech was accordingly prepared, referring to the state of Ireland, the necessity of restraining the Catholic Asso- ciation, and of reviewing the Catholic disabilities. To this draft the king gave a "reluctant consent";^ and it was, accordingly, delivered at the commencement of the session.
The Government projected three measures, founded upon this speech, the suppression of the Catholic Association, a Relief Bill, and a revision of the elective franchise in Ireland.
^ Peel's Mem., i. 278, 308,
2 Letter of Duke of Wellington, nth Aug,, 1828 ; ibid., 184.
3 Letter, 12th Jan., 1829; ibid., 283, 294, 295. * Ibid., 297. » Ibid., 310.
RELIGIOUS LIBERTY 235
The first measure submitted to Parliament was a bill for Associa- the suppression of dangerous associations or assemblies ing°"pj.gg_ Ireland. It met with general support. The opponents ofsion Bill, emancipation complained that the suppression of the associa- ^g^ ' tion had been too long delayed. The friends of the Catholic claims, who would have condemned it separately, as a restraint upon public liberty, consented to it, as a necessary part of the measures for the relief of the Catholics and the pacification of Ireland.^ Hence the bill passed rapidly through both Houses,^ But before it became law, the Catholic Association was dissolved. A measure of relief having been promised, its mission was accomplished.^
When this bill had passed the Commons, Mr. Peel accepted Mr. Peel the Chiltern Hundreds, in order to give his constituents atg°g^jio^\t Oxford an opportunity of expressing their opinion of his new Oxford, policy. The Protestant feeling of the university was unequi- vocally pronounced. He was defeated by Sir Robert Inglis, and obliged to take refuge at Westbury.
The civil disabilities of the Catholics were about to be con- Further sidered on the 5th of March,-, when an unexpected obstacle ^^j^^j^*^^ arose. On the 3rd, the king commanded the attendance of the king. Duke of Wellington, the Lord Chancellor, and Mr. Peel on the following day. He then desired a more detailed explanation of the proposed measure. On finding that it was proposed to alter the oath of supremacy, his Majesty refused his consent ; and his three Ministers at once tendered their resignation, which was accepted. Late the same evening, however, he desired them to withdraw their resignation, and gave his consent, in writing, to their proceeding with the proposed measure.*
This last obstacle being removed, Mr. Peel opened his Catholic measure of Catholic emancipation to the House of Commons. ?,h*M^ch' In a speech of four hours, he explained the various circum- 1829. stances already described, which, in the opinion of the Govern- ment, had made the emancipation of the Catholics a necessity. The measure itself was complete : it admitted Roman Catholics
1 Hans. Deb., 2nd Ser., xx. 177. * Ih'id., 280, 519, etc.
' On 24th Feb., Lord Anglesey said it was " defunct ".
* Peel's Mem., i. 343-349. The king gave Lord Eldon a different version of this intervievi^, evidently to excuse himself from consenting to a measure of which his old councillor disapproved so strongly. — Twwi's hife of Eldon, iii. 83.
236 THE CONSTITUTIONAL HISTORY OF ENGLAND
— on taking a new oath, instead of the oath of supremacy — to both Houses of Parliament, to all corporate offices, to all judicial offices, except in the ecclesiastical courts ; and to all civil and political offices, except those of regent, Lord Chan- cellor in England and Ireland, and Lord-Lieutenant of Ireland, Restraints, however, were imposed upon the interference of Roman Catholics in the dispensation of Church patronage. The Government renounced the idea of introducing any securi- ties, as they were termed, in regard to the Roman Catholic Church, and its relations to the State, When proposed at an earlier period, in deference to the fears of the opponents of emancipation,^ they had offended Roman Catholics, without allaying the apprehensions of the Protestant party. But it was proposed to prevent the insignia of corporations from being taken to any place of religious worship except the Established Church, to restrain Roman Catholic bishops from assuming the titles of existing sees, to prevent the admission of Jesuits to this country, to ensure the registration of those already there, and to discourage the extension of monastic orders. After two nights' debate, Mr. Peel's motion for going into Committee of the whole House was agreed to by a majority of iSS.'^ Such was the change which the sudden conversion of the Government, and the pressure of circumstances, had effected in the opinions of Parliament. Meanwhile, the Church and the Protestant party throughout the country, were in the greatest alarm and excitement. They naturally resented the sudden desertion of their cause by Ministers in whom they had con- fided.^ The press overflowed with their indignant remon- strances ; and public meetings, addresses, and petitions gave tokens of their activity. Their petitions far outnumbered those of the advocates of the measure ; * and the daily discussions upon their presentation served to increase the public excite- ment. The higher intelligence of the country approved the wise and equitable policy of the Government : but there can be little question that the sentiments of a majority of the people of Great Britain were opposed to emancipation. Church- ipen dreaded it as dangerous to their Church ; and dissenters
* In 1813. Supra, p. 217.
* Ayes, 348 ; Noes, 160; Hans. Deb., 2nd Ser., 727, 892. 3 Supra, vol, 5. p. 438. * See supra, vol. i. p. 353.
RELIGIOUS LIBERTY 237
inherited from their Puritan forefathers a pious horror of Papists. But in Parliament, the union of the Ministerial party with the accustomed supporters of the Catholic cause, easily overcame all opposition ; and the bill was passed through its further stages, in the Commons, by large majorities,^
On the second reading of the bill in the House of Lords, The bill in the Duke of Wellington justified the measure, irrespective ofandAprif' other considerations, by the necessity of averting a civil war, 1829. saying: " If I could avoid, by any sacrifice whatever, even one month of civil war in the country to which I am attached, I would sacrifice my life in order to do it ". He added, that when the Irish rebellion of 1798 had been suppressed, the Legislative Union had been proposed in the next year, mainly for the purpose of introducing this very measure of concession ; and that had the civil war, which he had lately striven to avert, broken out, and been subdued, still such a measure would have been insisted upon by one, if not by both Houses of Parlia- ment.
The bill was opposed by the Archbishop of Canterbury — Dr. Howley — in a judicious speech, in which he pointed out the practical evils to which the Church and the Protestant re- ligion might be exposed, by the employment of Roman Catho- lics as Ministers of the Crown, especially in the office of Secretary of State. It was also opposed in debate by the Archbishops of York and Armagh, the Bishops of Durham and London, and several lay peers. But of the Protestant party, Lord Eldon was still the leader. Surrounded by a converted senate, severed from all his old colleagues, deserted by the peers who had hitherto cheered and supported him, he raised his voice against a measure which he had spent a long life in resisting. Stand- ing almost alone among the statesmen of his age, there was a moral dignity in his isolation which commands our respect. The bill was supported by Mr. Peel's constant friend, the Bishop of Oxford, the Duke of Sussex, the Lord Chancellor, Lord Goderich, Earl Grey, Lord Plunket, and other peers. The second reading was affirmed by a majority of 105.2 The bill passed through committee without a single amendment : and
^ On the second reading — Ayes, 353 ; Noes, 173 ; Hans. Deb., 2nd Ser., xx. 1115-1290. On the third reading — Ayes, 320; Noes, 142; tWd., 1633. * Contents, 217; Non-contents, 112; ibid., xxi. 342-394.
238 THE CONSTITUTIONAL HISTORY OF ENGLAND
The royal assent.
Elective franchise in Ireland.
on the loth of April the third reading was affirmed by a ma- jority of 104.1
Meanwhile, the king, whose formal assent was still to be given, was as strongly opposed to the measure as ever ; and even discussed with Lord Eldon the possibility of preventing its further progress, or of refusing his assent. But neither the king nor his old Minister could seriously have contemplated so hazardous an exercise of prerogative ; and the royal assent was accordingly given without further remonstrance.^ The time had passed when the word of a king could overrule his Ministers and Parliament.
The third measure of the Government still remains to be noticed — the regulation of the elective franchise in Ireland. The abuses of the 40J. freehold franchise had already been exposed ; and were closely connected with Catholic emancipation.^ The Protestant landlords had encouraged the multiplication of small freeholds — being, in fact, leases held of middlemen — in order to increase the number of dependent voters, and extend their own political influence. Such an abuse would, at any time, have demanded correction : but now these voters had transferred their allegiance from the landlord to the Catholic priest. "That weapon," said Mr. Peel, "which the landlord has forged with so much care, and has heretofore wielded with such success, has broke short in his hand." To leave such a franchise without regulation was to place the county repre- sentation at the mercy of priests and agitators. It was there- fore proposed to raise the qualification of a freeholder from 4OJ. to ;^io, to require due proof of such qualification, and to introduce a system of registration.
So large a measure of disfranchisement was, in itself, open to many objections. It swept away existing rights without proof of misconduct or corruption, on the part of the voters. So long as they had served the purposes of Protestant land- lords, they were encouraged and protected : but when they asserted their independence, they were to be deprived of their franchise. Strong opinions were pronounced that the measure
395-
' Contents, 213 ; Non-contents, 109; Hans. Deb., 2nd Ser., xxi. 614-694. ^ Twiss's Life of Eldon, iii. 84 et seq. ; Court and Cabinets of Geo. IV., ii«
' Supra, p. 227, and Reports of Committees in Lords and Commons, 1825.
RELIGIOUS LIBERTY 239
should not be retrospective ; and that the bonA fide 40J. free- holders, at least, should be protected : ^ but the connection be- tween this and the greater measure, then in progress, saved it from any effective opposition ; and it was passed rapidly through both Houses.^ By one party, it was hailed as a necessary protection against the Catholic priests and leaders : and by the other, it was reluctantly accepted as the price of Catholic emancipation.
On the 28th April, the Duke of Norfolk, Lord Clifford, Roman and Lord Dormer came to the House of Lords, and claimed "^^j.^^^.^'j^g their hereditary seats among the peers, from which they had the oaths, been so long excluded ; and were followed, a few days after- \^^ jyj^^" ' wards, by Lord Stafford, Lord Petre, and Lord Stourton.^ 1829. Respectable in the antiquity of their titles, and their own character, they were an honourable addition to the Upper House ; and no one could affirm that their number was sijch as to impair the Protestant character of that assembly.
Mr. O'Connell, as already stated, had been returned in the Mr. O'Con- previous year for the county of Clare : but the privilege of the ^f ^^"^1 ^^^ new oath was restricted to members returned after the passing tions. of the Act. That Mr. O'Connell would be excluded from its immediate benefit had been noticed while the bill was in pro- gress ; and there can be little doubt that its language had been framed for that express purpose. So personal an exclusion was a petty accompaniment of this great remedial measure. By Mr. O'Connell it was termed "an outlawry" against him- 15th, i8th self He contended ably, at the bar, for his right of admission ; ^^y- but the Act was too distinct to allow of an interpretation in his favour. Not being permitted to take the new oath, and 19th, 21st refusing, of course, to take the oath of supremacy, a new writ ^^'^' was issued for the county of Clare.* Though returned again without opposition, Mr. O'Connell made his exclusion the subject of unmeasured invective ; and he entered the House of Commons embittered against those by whom he had been enfranchised,
^ See especially the speeches of Mr. Huskisson, Viscount Palmerston, and the Marquess of Lansdowne, Hans. Deb., 2nd Ser., xx. 1373, 1468 ; xxi. 407,
574.
^Ibid., XX. 1329. 3 Lords' Journ., Ixi. 402, 408.
*Hans. Deb., 2nd Ser., xxi. 1395, 1459, 1510.
240 THE CONSTITUTIONAL HISTORY OF ENGLAND
Emancipa- tion too long deferred.
Sequel of emancipa- tion.
Number of Catholic members in the House of Commons.
At length this great measure of toleration and justice was accomplished. But the concession came too late. Accom- panied by one measure of repression, and another of dis- franchisement, it was wrung by violence from reluctant and unfriendly rulers. Had the counsels of wiser statesmen pre- vailed, their political foresight would have averted the dangers before which the Government, at length, had quailed. By rendering timely justice, in a spirit of conciliation and equity, they would have spared their country the bitterness, the evil passions, and turbulence of this protracted struggle. But thirty years of hope deferred, of rights withheld, of discontents and agitation, had exasperated the Catholic population of Ire- land against the English Government. They had overcome their rulers ; and owing them no gratitude, were ripe for new disorders.^
Catholic emancipation, like other great measures, fell short of the anticipations, alike of supporters and opponents. The former were disappointed to observe the continued distractions of Ireland, the fierce contentions between Catholics and Orange- men, the coarse and truculent agitation by which the ill-will of the people was excited against their rulers, the perverse spirit in which every effort for the improvement of Ireland was re- ceived, and the unmanageable elements of Irish representation. But a just and wise policy had been initiated ; and henceforth statesmen strove to correct those social ills which had arrested the prosperity of that hopeful country. With the Catholic Relief Act commenced the regeneration of Ireland.
On the other hand, the fears of the anti-Catholic party for the safety of the Church and constitution were faintly realised. They dreaded the introduction of a dangerous proportion of Catholic members into the House of Commons. The result, however, fairly corresponded with the natural representation of the three countries. No more than six Catholics have sat, in any Parliament, for English constituencies. Not one has ever been returned for Scotland. The largest number representing Catholic Ireland, in any Parliament, amounted to fifty-one — or less than one-half the representation of that country — and the average, in the last seven Parliaments, to no more than thirty-
' See supra, p. 92.
RELIGIOUS LIBERTY
241
seven. 1 In these Parliaments again, the total number of Roman Catholic members may be computed at about one-sixteenth of the House of Commons. The Protestant character of that assembly was unchanged.
To complete the civil enfranchisement of dissenters, a few Quakers, supplementary measures were still required. They could only Moravians, claim their rights on taking an oath ; and some sects entertained ratists. conscientious objections to an oath in any form. Numerous statutes had been passed to enable Quakers to make affirma- tions instead of oaths ;2 and in 1833, the House of Commons, giving a wide interpretation to these statutes, permitted Mr. Pease — the first Quaker who had been elected for a hundred and forty years — to take his seat on making an affirmation.^ In the same year. Acts were passed to enable Quakers, Mora- vians, and Separatists, in all cases, to substitute an affirmation for an oath.* The same privilege was conceded, a few years later, to dissenters of more dubious denomination, who, having been Quakers or Moravians, had severed their connection with those sects, but retained their scruples concerning the taking of an oath.* Nor have these been barren concessions; for several members of these sects have since been admitted to Parliament ; and one, at least, has taken a distinguished part in its debates.
Relief to dissenters and Roman Catholics had been claimed Jewish on the broad ground that, as British subjects, they were entitled ^'sabihties. to their civil rights, without the condition of professing the
^ Number of Roman Catholic Members returned for England and Ireland since the year 1835 : from the Test Rolls of the House of Commons ; the earlier Test Rolls having been destroyed by fire in 1834.
|
ENGLAND |
IRELAND |
|
|
New Parliament 1835 Do. 1837 Do. 1841 Do. 1847 Do. 1852 Do. 1857 to 1858 Do. 1859 |
2 2 6 5 3 J 1 Arundel |
38 27 33 44 51 34 34 |
These numbers, including members returned for vacancies, are sometimes slightly in excess of the Catholics sitting at the same time.
^ 6 Anne, c. 23 ; i Geo. I. st. 2, c. 6 and 13 ; 8 Geo. I. c, 6 ; 22 Geo. II. c. 46. ^ See Report of the Select Committee on his Case, Sess. 1833, No. 6, * 3 & 4 Will. IV. c. 49, 82. » I & 2 Vict. c. 77.
VOL. II. 16
242 THE CONSTITUTIONAL HISTORY OF ENGLAND
Mr, R. Grant's motion, 5th April, 1830.
Arguments on either side.
religion of the State. And in 1830, Mr. Robert Grant en- deavoured to extend this principle to the Jews. The cruel persecutions of that race form a popular episode in the early history of this country : but at this time they merely suffered, in an aggravated form, the disabilities from which Christians had recently been liberated. They were unable to take the oath of allegiance, as it was required to be sworn upon the evangelists. Neither could they take the oath of abjuration, which contained the words, " on the true faith of a Christian ". Before the repeal of the Corporation and Test Acts they had been admitted to corporate offices, in common with dissenters, under cover of the annual Indemnity Acts : but that measure, in setting dissenters free, had forged new bonds for the Jew. The new declaration was required to be made "on the true faith of a Christian ". The oaths of allegiance and abjuration had not been designed, directly or indirectly, to affect the legal position of the Jews. The declaration had, indeed, been sanc- tioned with a forecast of its consequences : but was one of several amendments which the Commons were constrained to accept from the Lords to secure the passing of an important measure.^ The operation of the law was fatal to nearly all the rights of a citizen. A Jew could not hold any office, civil, military, or corporate. He could not follow the profession of the law, as barrister or attorney, or attorney's clerk : he could not be a schoolmaster or usher at a school. He could not sit as a member of either House of Parliament ; nor even exercise the elective franchise, if called upon to take the elector's oath. Mr. Grant advocated the removal of these oppressive disabilities in an admirable speech, embracing nearly every argument which was afterwards repeated, again and again, in support of the same cause. He was brilliantly supported, in a maiden speech, by Mr. Macaulay, who already gave promise of his future eminence. In the hands of his opponents, the ques- tion of religious liberty now assumed a new aspect. Those who had resisted, to the last, every concession to Catholics, had rarely ventured to justify their exclusion from civil rights, on the ground of their religious faith. They had professed them- selves favourable to toleration ; and defended a policy of exclu-
^ See suf>ra, p. 230.
RELIGIOUS LIBERTY 243
sion, on political grounds alone. The Catholics were said to be dangerous to the State — their numbers, their organisation, their allegiance to a foreign power, the ascendency of their priest- hood, their peculiar political doctrines, their past history, all testified to the political dangers of Catholic emancipation. But nothing of the kind could be alleged against the Jews. They were few in number, being computed at less than 30,000 in the United Kingdom. They were harmless and inactive in their relations to the State ; and without any distinctive politi- cal character. It was, indeed, difficult to conceive any political objections to their enjoyment of civil privileges, yet some were found. They were so rich, that, like the nabobs of the last century, they would buy seats in Parliament, an argument, as it was well replied, in favour of a reform in Parliament, rather than against the admission of Jews. If of any value, it applied with equal force to all rich men, whether Jews or Christians. Again, they were of no country, they were strangers in the land, and had no sympathies with its people. Relying upon the spiritual promises of restoration to their own Holy Land, they were not citizens, but sojourners, in any other. But if this were so, would they value the rights of citizenship, which they were denied ? Would they desire to serve a country in which they were aliens ? And was it the fact that they were indifferent to any of those interests by which other men were moved ? Were they less earnest in business, less alive to the wars, policy, and finances of the State ; less open to the refining influences of art, literature, and society ? How did they differ from their Christian fellow-citizens, " save these bonds " ? Political objections to the Jews were, indeed, felt to be unten- able ; and their claims were therefore resisted on religious grounds. The exclusion of Christian subjects from their civil rights had formerly been justified because they were not mem- bers of the Established Church. Now that the law had recog- nised a wider toleration, it was said that the State, its laws and institutions being Christian, the Jews, who denied Christ, could not be suffered to share, with Christians, the government of the State. Especially was it urged, that to admit them to Parlia- ment would unchristianise the legislature.
The House of Commons, which twelve months before had passed the Catholic Relief Bill by vast majorities, permitted
16*
244 THE CONSTITUTIONAL HISTORY OF ENGLAND
Jewish Relief Bill lost on second reading.
17th May, 1830.
Jewish disabilities bills, 1833-34-
Jews ad- mitted to cor- porations.
Mr, Grant to bring in his bill by a majority of eighteen only ; ^ and afterwards refused it a second reading by a majority of sixty-three.2 The arguments by which it was opposed were founded upon a denial of the broad principle of religious liberty ; and mainly on that ground were the claims of the Jews for many years resisted. But the history of this long and tedious controversy must be briefly told. To pursue it through its weary annals were a profitless toil.
In 1833, Mr. Grant renewed his measure ; and succeeded in passing it through the Commons : but the Lords rejected it by a large majority.^ In the next year, the measure met a similar fate.* The determination of the Lords was clearly not to be shaken ; and, for some years, no further attempts were made to press upon them the reconsideration of similar measures. The Jews were, politically, powerless : their race was unpopular, and exposed to strongly-rooted prejudice ; and their cause — however firmly supported on the ground of religious liberty — had not been generally espoused by the people as a popular right.
But while vainly seeking admission to the legislature, the Jews were relieved from other disabilities. In 1839, by a clause in Lord Denman's Act for amending the laws of evidence, all persons were entitled to be sworn in the form most binding on their conscience,^ Henceforth the Jews could swear upon the Old Testament the oath of allegiance, and every other oath not containing the words "on the true faith of a Christian". These words, however, still excluded them from corporate offices, and from Parliament. In 1841, Mr. Divett succeeded in passing through the Commons a bill for the admission of Jews to corporations : but it was rejected by the Lords.^ In 1845, however, the Lords, who had rejected this bill, accepted
* Hans. Deb., 2nd Ser., xxiii. 1287.
^Ibid., xxiv. 785. See also Macaulay's Essays, i. 308; Goldsmid's Civil Disabilities of British Jews, 1830 ; Blunt's Hist, of the Jews in England ; First Report of Criminal Law Commission, 1845, p. 13.
* Contents, 54 ; Non-contents, 104 ; Hans. Deb., 3rd Ser., xvii. 205 ; xviii. 59 ; XX. 249.
* The second reading was lost in the Lords by a majority of 92 ; ibid., xxii. 1372 ; ibid., xxiii. 1158, 1349 ; ibid., xxiv. 382, 720.
' I & 2 Vict. c. 105.
^ Hans. Deb., 3rd Ser., Ivi. 504; Ivii. 99 ; Iviii. 1458.
kBLlGtOUS UBEkTY i\%
another, to the same effect, from the hands of Lord Lynd- hurst.^
ParHament alone was now closed against the Jews. In 1848, efforts to obtain this privilege were renewed without effect. The Lords were still inexorable. Enfranchisement by legislative authority appeared as remote as ever ; and attempts were therefore made to bring the claims of Jewish subjects to an issue in another form.
In 1 847, Baron Lionel Nathan de Rothschild was returned Baron as one of the members for the city of London. The choice of Rothschild a Jew to represent such a constituency attested the state of returned public opinion upon the question in dispute between the two city of Houses of Parliament. It may be compared to the election London, of Mr. O'Connell, twenty years before, by the county of Clare. It gave a more definite and practical character to the contro- versy. The grievance was no longer theoretical : there now sat below the bar a member legally returned by the wealthiest and most important constituency in the kingdom : yet he was looked on as a stranger. None could question his return : no law affirmed his incapacity ; then how was he excluded ? By an oath designed for Roman Catholics, whose disabilities had been removed. He sat there, for four sessions, in expectation of relief from the legislature : but being again disappointed, he resolved to try his rights under the existing law. Accord- ingly, in 1850, he presented himself at the table, for the Claims to purpose of taking the oaths. Having been allowed, after 25th^2g"h discussion, to be sworn upon the Old Testament — the form 30th July, most binding upon his conscience — he proceeded to take the ^ ^ jg-^ oaths. The oaths of allegiance and supremacy were taken in the accustomed form : but from the oath of abjuration he omitted the words "on the true faith of a Christian," as not binding on his conscience. He was immediately directed to withdraw ; when, after many learned arguments, it was resolved that he was not entitled to sit or vote until he had taken the oath of abjuration in the form appointed by law.^
In 185 1, a more resolute effort was made to overcome the
1 8 & 9 Vict. c. 52 ; Hans. Deb., 3rd Ser., Ixxviii. 407, 415 ; First Report of Criminal Law Commission, 1845 (Religious Opinions), 43.
* Commons' Journ., cv. 584, 590, 612 ; Hans. Deb., 3rd Ser., cxiii. 297, 396, 486, 769.
246 THE CONSTITUTIONAL HISTORY OF ENGLAND
Mr. Alder- man
Salomons, i8th July, 1851.
Further
legislative
efforts.
obstacle offered by the oath of abjuration. Mr. Alderman Salomons, a Jew, having been returned for the borough of Greenwich, omitted from the oath the words which were the Jews' stumbling block. Treating these words as immaterial, he took the entire substance of the oath, with the proper solemnities. He was directed to withdraw : but on a later day, while his case was under discussion, he came into the House, and took his seat within the bar, whence he declined to withdraw, until he was removed by the Sergeant-at-Arms. The House agreed to a resolution, in the same form as in the case of Baron de Rothschild. In the meantime, however, he had not only sat in the House, but had voted in three di- visions ; ^ and if the House had done him an injustice, there was now an opportunity for obtaining a judicial construction of the statutes by the courts of law. By the judgment of the Court of Exchequer, affirmed by the Court of Exchequer Chamber, it was soon placed beyond further doubt, that no authority, short of a statute, was competent to dispense with those words which Mr. Salomons had omitted from the oath of abjuration.
There was now no hope for the Jews but in overcoming the steady repugnance of the Lords ; and this was vainly attempted year after year. Recent concessions, however, had greatly strengthened the position of the Jews. When the Christian character of our laws and constitution were again urged as conclusive against their full participation in the rights of British subjects,^ Lord John Russell and other friends of religious liberty were able to reply : Let us admit to the fullest extent that our country is Christian — as it is ; that our laws are Christian — as they are ; that our Government, as represent- ing a Christian country, is Christian — as it is — what then? Will the removal of civil disabilities from the Jews un- christianise our country, our laws, and our Government ? They will all continue the same, unless you can argue that because there are Jews in England, therefore the English people are not Christian ; and that because the laws permit
1320
1 Commons' Journ., cvi. 372, 373, 381, 407 ; Hans. Deb., 3rd Ser., cxviii. 979,
*See especially the speeches of Mr. Whiteside and Mr. Walpole, 15th April, 1853, on this view of the question ; ibid., cxxv. 1230, 1263.
RELIGIOUS LIBERTY 247
Jews to hold land and houses, to vote at elections, and to enjoy municipal offices, therefore our laws are not Christian. We are dealing with civil rights; and if it be unchristian to allow a Jew to sit in Parliament — not as a Jew, but as a citizen — it is equally unchristian to allow a Jew to enjoy any of the rights of citizenship. Make him once more an alien, or cast him out from among you altogether.^
Baron de Rothschild continued to be returned again and Attempt to again for the city of London — a testimony to the settled pur- Tg^g ^ a pose of his constituents : but there appeared no prospect of declaration, relief^ In 1857, however, another loophole of the law was^g "^■' discovered, through which a Jew might possibly find his way into the House of Commons. The annual bill for the removal of Jewish disabilities had recently been lost, as usual, in the House of Lords, when Lord John Russell called attention to the provisions of a statute,^ by which it was contended that the Commons were empowered to substitute a new form of declaration for the abjuration oath. If this were so, the words " on the true faith of a Christian," might be omitted ; and the Jew would take his seat, without waiting longer for the concurrence of the Lords.* But a committee, to whom the matter was referred, did not support this ingenious con- struction of the law ; ^ and again the case of the Jews was remitted to legislation.
In the following year, however, this tedious controversy Jewish was nearly brought to a close. The Lords, yielding to the ^^^^^ *^*' persuasion of the Conservative Premier, Lord Derby, agreed to a concession. The bill, as passed by the Commons, at once removed the only legal obstacle to the admission of the Jews to Parliament. To this general enfranchisement the Lords declined to assent : but they allowed either House, by resolu- tion, to omit the excluding words from the oath of abjuration. The Commons would thus be able to admit a Jewish member — the Lords to exclude a Jewish peer. The immediate object of the law was secured : but what was the principle of this
1 See especially Lord J. Russell's speech, 15th April, 1853 ; Hans. Deb., 3rd Ser., cxxv. 1283.
^ In 1849, and again in 1857, he placed his seat at the disposal of the electors, by accepting the Chiltern Hundreds, but was immediately re-elected. — Comtnons* yourn., cxii. 343 ; Ann. Reg., Chron., p. 141.
* 5 & 6 Will. IV. c. 62. ■* Hans. Deb., 3rd Ser,, clvii. 933.
* Report of Committee, Sess. 2, 1857, No. 253.
^48 THE CONSTITUTIONAL HISTORY OF ENGLAND
compromise? Other British subjects held their rights under the law : the Jews were to hold them at the pleasure of either House of Parliament. The Commons might admit them to-day, and capriciously exclude them to-morrow. If the Crown should be advised to create a Jewish peer, assuredly the Lords would deny him a place amongst them. On these grounds, the Lords' amendments found little favour with the Commons : but they were accepted, under protest, and the bill was passed.^ The evils of the compromise were soon apparent. The House of Commons was, indeed, open to the Jew : but he came as a suppliant. Whenever a resolution was proposed, under the recent Act 2 — invidious discussions were renewed — the old sores were probed. In claiming his new franchise, the Jew might still be reviled and insulted. Two years later, this scandal was corrected ; and the Jew, though still holding his title by a standing order of the Commons, and not under the law, acquired a permanent settlement.^ Few of the ancient race have yet profited by their enfranchise- ment: but their wealth, station, abilities, and character have amply attested their claims to a place in the legislature.
1 21 & 22 Vict. c. 48, 49; Com. Journ., cxiii. 338; Hans. Deb,, 3rd Ser., cli. 1905.
"^ A resolution was held not to be in force after a prorogation ; Report of Committee, Sess. i, 1859, No. 205.
'23 & 24 Vict. c. 63. By the 29 & 30 Vict. c. 19, a new form of oath was established, from which the words " on the true faith of a Christian " were omitted ; and thus, at length, all distinctions between the Jews and other mem- bers were obliterated.
CHAPTER XIV.
Further measures of relief to dissenters — Church rates — Later history of the Church of England — Progress of dissent — The papal aggres- sion, 1850 — The Church of Scotland — The patronage question — Con- flict of civil and ecclesiastical jurisdictions — The secession, 1843 — The Free Church of Scotland — The Church of Ireland.
The code of civil disabilities had been at length condemned : Other ques- but during the protracted controversy which led to this result, f^^l^^ ^'^^' many other questions affecting religious liberty demanded a Church and solution. Further restraints upon religious worship were re- ^^ 'S'O"- nounced ; and the relations of the Church to those beyond her communion reviewed in many forms. Meanwhile, the later history of the Established Churches, in each of the three king- doms, was marked by memorable events, affecting their influ- ence and stability.
When Catholics and dissenters had shaken off their civil Dissenters' disabilities, they were still exposed to grievances affecting the^j*^ g' g^^^' exercise of their religion and their domestic relations, far more burials, galling, and savouring more of intolerance. Their marriages were announced by the publication of banns in the parish church ; and solemnised at its altar, according to a ritual which they repudiated. The births of their children were without legal evidence, unless they were baptised by a clergyman of the Church, with a service obnoxious to their consciences ; and even their dead could not obtain a Christian burial except by the offices of the Church. Even apart from religious scruples upon these matters, the enforced attendance of dissenters at the services of the Church was a badge of inferiority and de- pendence in the eye of the law. Nor was it without evils and embarrassments to the Church herself. To perform her sacred offices for those who denied their sanctity was no labour of love to the clergy. The marriage ceremony had sometimes provoked remonstrances ; and the sacred character of all these
249
iSo THE CONSTITUTIONAL HISTORY OF ENGLAND
Dissenters' Marriage Bill,
25th Feb., 1834.
Sir Robert
Peel's
Dissenters'
Bill,
17th March,
1835.
services was impaired when addressed to unwilling ears, and used as a legal form, rather than a religious ceremony. It is strange that such grievances had not been redressed even before dissenters had been invested with civil privileges. The law had not originally designed to inflict them : but simply assum- ing all the subjects of the realm to be members of the Church of England, had made no provision for exceptional cases of conscience. Yet when the oppression of the marriage law had been formerly exposed,^ intolerant Parliaments had obstinately refused relief It was reserved for the reformed Parliament to extend to all religious sects entire freedom of conscience, coupled with great improvements in the general law of registra- tion. As the Church alone performed the religious services incident to all baptisms, marriages, and deaths ; so was she en- trusted with the sole management and custody of the registers. The relief of dissenters, therefore, involved a considerable inter- ference with the privileges of the Church, which demanded a judicious treatment.
The marriage law was first approached. In 1834, Lord John Russell — to whom dissenters already owed so much — introduced a bill to permit dissenting ministers to celebrate marriages in places of worship licensed for that purpose. It was proposed, however, to retain the accustomed publication of banns in church, or a licence. Such marriages were to be registered in the chapels where they were celebrated. There were two weak points in this measure — of which Lord John himself was fully sensible — the publication of banns and the registry. These difficulties could only be completely overcome by regarding marriage, for all legal purposes, as a civil contract, accompanied by a civil registry : but he abstained from making such a proposal, in deference to the feelings of the Church and other religious bodies. ^ The bill, in such a form as this, could not be expected to satisfy dissenters ; and it was laid aside, ^ It was clear that a measure of more extensive scope would be required to settle a question of so much delicacy.
In the next session. Sir Robert Peel, having profited by this unsuccessful experiment, offered another measure, based on different principles. Reverting to the principle of the law,
^ Supra, p. 224. ' Hans. Deb., 3rd Ser., xxi. 776.
^ Com. Journ., Ixxxix. 226.
kEUGlOVS LiBEkTY 2$!
prior to Lord Hardwicke's Act of 1754, which viewed marriage, for certain purposes at least, as a civil contract, he proposed that dissenters objecting to the services of the Church should enter into a civil contract of marriage, before a magistrate, to be followed by such religious ceremonies elsewhere as the parties might approve. For the publication of banns he pro- posed to substitute a notice to the magistrate, by whom also a certificate was to be transmitted to the clergyman of the parish for registration. The liberal spirit of this measure secured it a favourable reception : but its provisions were open to insuper- able objections. To treat the marriage of members of the Church as a religious ceremony, and the marriage of dissenters as a mere civil contract, apart from any religious sanction, raised an offensive distinction between the two classes of marriages. And again, the ecclesiastical registry of a civil contract, entered into by dissenters, was a very obvious anomaly. Lord John Russell expressed his own conviction that no measure would be satisfactory until a general system of civil registration could be established, a subject to which he had already directed his attention.^ The progress of this bill was interrupted by the resignation of Sir R. Peel. The new Ministry, having con- 22nd May, sented to its second reading, allowed it to drop : but measures ^^35- were promised in the next session for the civil registry of 29th June, births, marriages, and deaths, and for the marriage of dis- senters.^
Early in the next session, Lord John Russell introduced Register two bills to carry out these objects. The first was for the^^^J.^ ^'^ registration of births, marriages, and deaths. Its immediate and deaths, purpose was to facilitate the granting of relief to dissenters : but jgL^ ^ ** it also contemplated other objects of State policy, of far wider operation. An accurate record of such events is important as evidence in all legal proceedings ; and its statistical and scien- tific value cannot be too highly estimated. The existing registry, being ecclesiastical, took no note of births, but em- braced the baptisms, marriages, and burials which had engaged the services of the Church. It was now proposed to establish a civil registration of births, marriages, and deaths, for which the officers connected with the new poor law administration
1 Hans. Deb., 3rd Ser., xxvi. 1073. '^ Ibid., xxix. II.
252 THE CONSTITUTIONAL HISTORY OF ENGLAND
Dissenters' Marriage Bill, i2th Feb., 1836.
Dissenters' burials.
afforded great facilities. The record of births and deaths was to be wholly civil ; the record of marriages was to be made by the minister performing the ceremony, and transmitted to the registrar. The measure further provided for a general register office in London, and a division of the country into registration districts.^
The Marriage Bill was no less comprehensive. The mar- riages of members of the Church of England were not affected, except by the necessary addition of a civil registry. The publication of banns, or licence, was continued, unless the parties themselves preferred giving notice to a registrar. The marriages of dissenters were allowed to be solemnised in their own chapels, registered for that purpose, after due notice to the registrar of the district ; while those few dissenters who desired no religious ceremony, were enabled to enter into a civil contract before the superintendent registrar.^ Measures so comprehensive and well considered could not fail to obtain the approval of Parlia- ment. Every religious sect was satisfied : every object of State policy attained. The Church, indeed, was called upon to make sacrifices : but she made them with noble liberality. Her clergy bore their pecuniary losses without a murmur for the sake of peace and concord. Fees were cheerfully renounced with the services to which they were incident. The concessions, so gracefully made, were such as dissenters had a just right to claim, and the true interests of the Church were concerned no longer in withholding.
In baptism and marriage the offices of the Church were now confined to her own members, or to such as sought them willingly. But in death, they were still needed by those beyond her communion. The Church claimed no jurisdiction over the graves of her nonconformist brethren : but every parish burial- place was hers. The churchyard, in which many generations of churchmen slept, was no less sacred than the village church itself; yet here only could the dissenter find his last resting place. Having renounced the communion of the Church while living, he was restored to it in death. The last offices of Christian
^ Hans. Deb., 3rd Ser., xxxi. 367.
» Ibid. ; 6 & 7 Will. IV. c. 85, 86, amended by i Vict. c. 22. In 1852 the registration of chapels for all other purposes as well as marriages was transferred to the registrar-general. — 15 & 16 Vict. c. 36.
RELIGIOUS LIBERTY 253
burial were performed over him, in consecrated ground, by the clergyman of the parish, and according to the ritual of the Church. Nowhere was the painfulness of schism more deeply felt on either side. The clergyman reluctantly performed the solemn service of his Church, in presence of mourners who seemed to mock it, even in their sorrow. Nay, some of the clergy — having scruples, not warranted by the laws of their Church — even refused Christian burial to those who had not received baptism at the hands of a priest in holy orders.^ On his side the dissenter recoiled from the consecrated ground and the offices of the Church. Bitterness and discord followed him to the grave, and frowned over his ashes.
In country parishes this painful contact of the Church with nonconformity was unavoidable : but in populous towns, dis- senters were earnest in providing themselves with separate burial grounds, and unconsecrated parts of cemeteries. ^ And latterly they have further sought, for their own ministers, the privilege of performing the burial service in the parish church- yard, with the permission of the incumbent.^ In Ireland ministers of all denominations have long had access to the parish burial grounds.* Such a concession was necessary to meet the peculiar relations of the population of that country to the Church ; but in England it has not hitherto found favour with the legislature.
In 1834, another conflict arose between the Church and Admission dissenters, when the latter claimed to participate, with church- °^ fhe^ ^j^"^ men, in the benefits of those great schools of learning and versities, orthodoxy — the English universities. The position of dissenters ^ ^^' was not the same in both universities. At Oxford, subscrip- tion to the Thirty-nine Articles had been required on matricula- tion since 1581 ; and dissenting students had thus been wholly excluded from that university. It was a school set apart for members of the Church. Cambridge had been less exclusive.
'Kemp V. Wickes, i8og, Phil., iii. 264; Escott v. Masten, 1842; Notes of Eccl. Cases, i. 552 ; Titchmarsh v. Chapman, 1844 ; ihid., iii. 370.
"^ Local Cemetery Acts, and 16 & 17 Vict. c. 134, s. 7. The Bishop of Car- lisle having refused to consecrate a cemetery unless the unconsecrated part was separated by a wall, the legislature interfered to prevent so invidious a separation. — 20 & 21 Vict. c. 81, s. II.
2 19th Feb. and 24th April, 1861 (Sir Morton Peto) ; Hans. Deb., 3rd Ser., clxi. 650 ; clxii. 105 1 ; 2nd May, 1862 ; ibid.., clxvi. iiSg.
* 5 Geo. IV. c. 25.
254 THE CONSTITUTIONAL HISTORY OF ENGLAND
Petitions to both Houses
It had admitted nonconformists to its studies, and originally even to its degrees. But since 1616, it had required subscrip- tion on proceeding to degrees. Dissenters, while participating in all its studies, were debarred from its honours and endow- ments, its scholarships, degrees, and fellowships, and from any share in the government of the university. From this exclusion resulted a quasi civil disability, for which the uni- versities were not responsible. The inns of court admitted graduates to the bar in three years, instead of five ; graduates articled to attorneys were admitted to practice after three years ; the Colleges of Physicians and Surgeons admitted none but graduates as fellows. The exclusion of dissenters from universities was confined to England. Since 1793, the Uni- versity of Dublin had been thrown open to Catholics and dissenters, ■^ who were admitted to degrees in arts and medicine ; and in the universities of Scotland there was no test to exclude dissenters.
Several petitions concerning these claims elicited full dis- cussion in both Houses. Of these petitions, the most remark- able was signed by sixty-three members of the senate of the University of Cambridge, distinguished in science and literature, and of eminent position in the university. It prayed that dis- senters should be admitted to take the degrees of bachelors, masters, or doctors in arts, law, and physic. Earl Grey, in presenting it to the House of Lords, opened the case of the dissenters in a wise and moderate speech, which was followed by a fair discussion of the conflicting rights of the Church and 24th March, dissenters.^ In the Commons, Mr. Spring Rice ably repre- sented the case of the dissenters, which was also supported by Mr. Secretary Stanley and Lord Palmerston, on behalf of the Government ; and opposed by Mr. Goulburn, Sir R. Inglis, and Sir Robert Peel. ^ Petitions against the claims of dissenters were also discussed, particularly a counter-petition, signed by 259 resident members of the University of Cambridge. *
Apart from the discussions to which these petitions gave rise, the case of the dissenters was presented in the more definite shape of a bill, introduced by Mr. George Wood.^
^33 Geo. III. c, 21 (Irish). 'Hans. Deb., 3rd Set., xxii. 497.
3 Ibid., 570, 623, 674. * /Wrf., 1009.
^ Ibid., 900; Ayes, 185 ; Noes, 44. Colonel Williams having moved for an address, the bill was ordered as an amendment to that question.
2ist March, 1834.
Universities Bill, 17th April, 1834.
RELIGIOUS LIBERTY 255
Against the admission of dissenters, it was argued that the religious education of the universities must either be interfered with or else imposed upon dissenters. It would introduce religious discord and controversies, violate the statutes of the universities, and clash with the internal discipline of the dif- ferent colleges. The universities were instituted for the religious teaching of the Church of England ; and were corporations enjoying charters and Acts of Parliament, under which they held their authority and privileges for that purpose. If the dissenters desired a better education for themselves, they were rich and zealous, and could found colleges of their own, to vie with Oxford and Cambridge in learning, piety, and distinction. On the other hand, it was contended that the admission of dissenters would introduce a better feeling between that body and the Church. Their exclusion was irritating and invidious. The religious education of the universities was one of learning rather than orthodoxy ; and it was more probable that dis- senters would become attracted to the Church, than that the influence of the Church and its teaching would be impaired by their presence in the universities. The experience of Cam- bridge proved that discipline was not interfered with by their admission to its studies ; and the denial of degrees to students who had distinguished themselves was a galling disqualification, upon which churchmen ought not to insist. The example of Dublin University was also relied on, whose Protestant character had not been affected, nor its discipline interfered with, by the admission of Roman Catholics. This bill being 20th June, warmly espoused by the entire Liberal party, was passed by the Commons, with large majorities.^ In the Lords, however, 28th July, it was received with marked disfavour. It was strenuously jgj ^ug opposed by the Archbishop of Canterbury, the Duke of Glou- cester, the Duke of Wellington, and the Bishop of Exeter ; and even the new Premier, Lord Melbourne, who supported the second reading, avowed that he did not entirely approve of the measure. In his opinion its objects might be better effected by a good understanding and a compromise between both parties, than by the force of an Act of Parliament. The bill was refused a second reading by a majority of 102.^
^ On second reading — Ayes, 321 ; Noes, 147. On third reading — Ayes, 164 ; Noes, 75 ; Hans. Deb., 3rd Ser., xxiii. 632, 635.
2 Contents, 85 ; Non-contents, 187 ; »6id., xxv. 815.
256 THE CONSTITUTIONAL HISTORY OF ENGLAND
London Not long afterwards, however, the just claims of dissenters
estabHshed ^^ academical distinction were met, without trenching upon 1836. the Church, or the ancient seats of learning, by the foundation
of the University of London — open to students of every creed. ^ Oxford and Some years later, the education, discipline, and endowments of
Cambridge ^^ older universities called for the interposition of Parliament ; Universities '^ '
Act. and in considering their future regulation, the claims of dis-
senters were not overlooked. Provision was made for the opening of halls, for their collegiate residence and discipline ; and the degrees of the universities were no longer withheld from their honourable ambition.''' Dissenters' The contentions hitherto related have been between the
1844^^ ^ ' ' Church and dissenters. But rival sects have had their contests : and in 1844 the legislature interposed to protect the endow- ments of dissenting communions from being despoiled by one another. Decisions of the Court of Chancery and the House of Lords, in the case of Lady Hewley's charity, had disturbed the security of all property held in trust by nonconformists for religious purposes. The faith of the founder, not expressly defined by any will or deed, but otherwise collected from evi- dence, was held to be binding upon succeeding generations of dissenters. A change or development of creed forfeited the endowment ; and what one sect forfeited, another might claim. A wide field was here opened for litigation. Lady Hewley's trustees had been dispossessed of their property, after a ruinous contest of fourteen years. In the obscure annals of dissent, it was difficult to trace out the doctrinal variations of a religious foundation ; and few trustees felt themselves secure against the claims of rivals, encouraged at once by the love of gain and by religious hostility. An unfriendly legislature might have looked with complacency upon endowments wasted and rivalries em- bittered. Dissent might have been put into chancery without a helping hand. But Sir Robert Peel's enlightened Chancellor, Lord Lyndhurst, came forward to stay further strife. His measure provided that where the founder had not expressly
1 Debates, 26th March, 1835 ; Hans. Deb., 3rd Ser., xxvii. 279 ; London University Charters, Nov., 1836, and Dec, 1837.
2 Oxford University Act, 17 & 18 Vict. c. 81, s. 43, 44, etc.; Cambridg-e University Act, 19 & 20 Vict. c. 88, s. 45, etc. These degrees, however, did not entitle them to offices hitherto held by Churchmen.
RELIGIOUS LIBERTY 257
defined the doctrines or form of worship to be observed, the usage of twenty-five years should give trustees a title to their endowment ; ^ and this solution of a painful difficulty was ac- cepted by Parliament. It was not passed without strong op- position on religious grounds, and fierce jealousy of Unitarians, whose endowments had been most endangered : but it was, in truth, a judicious legal reform rather than a measure affecting religious liberty. ^
In the same spirit. Parliament has empowered the trustees Endowed of endowed schools to admit children of different religious jgg°°^^ ^'^*' denominations, unless the deed of foundation expressly limited the benefits of the endowment to the Church, or some other religious communion.^
Long after Parliament had frankly recognised complete Repeal of freedom of religious worship, many intolerant enactments still jgi^^jQug °" bore witness to the rigour of our laws. Liberty had been con- worship, ceded so grudgingly, and clogged with so many conditions, that the penal code had not yet disappeared from the statute- book. In 1845, the Criminal Law Commission enumerated the restraints and penalties which had hitherto escaped the vigilance of the legislature.* And Parliament has since blotted out many repulsive laws affecting the religious worship and education of Roman Catholics, and others not in communion with the Church.^
The Church honourably acquiesced in those just and Church necessary measures which secured to dissenters liberty in their '^^*^®* religious worship and ministrations, and exemption from civil disabilities. But a more serious contention had arisen affect- ing her own legal rights, her position as the national estab- lishment, and her ancient endowments. Dissenters refused payment of church rates. Many suffered imprisonment, or distraint of their goods, rather than satisfy the lawful demands
' Hans. Deb,, 3rd Ser., Ixxiv. 579, 821.
'^Ibid., Ixxv. 321, 383 ; Ixxvi. ii6; 7 & 8 Vict. c. 45.
2 23 Vict. c. II.
* First Report of Crim. Law Commission (Religious Opinions), 1845.
* See 2 & 3 Will. 4, s. 115 (Catholic Chapels and Schools); 7 & 8 Vict. c. 102; Hans. Deb., 3rd Ser., Ixxiv. 691; ixxvi. 1165 ; 9 & 10 Vict. c. 59; ibid., Ixxxiii. 495. Among the laws repealed by this Act was the celebrated statute or ordinance of Henry HI., "pro expulsions Judaeorum". — 18 & 19 Vict. c. 86 (Registration of Chapels).
VOL. n. 17
involved.
258 THE CONSTITUTIONAL HISTORY OF ENGLAND
of the Church.^ Others, more practical and sagacious, attended vestries, and resisted the imposition of the annual rate upon the parishioners. And during the progress of these local con- tentions. Parliament was appealed to by dissenters for legis- lative relief. Principles The principles involved in the question of church rate,
while differing in several material points from those concerned in other controversies between the Church and dissenters, may yet be referred to one common origin — the legal recognition of a national Church, with all the rights incident to such an estab- lishment, in presence of a powerful body of nonconformists. By the common law, the parishioners were bound to maintain the fabric of the parish church, and provide for the decent cele- bration of its services. The edifice consecrated to public worship was sustained by an annual rate, voted by the parish- ioners themselves assembled in vestry, and levied upon all occupiers of land and houses within the parish, according to their ability. 2 For centuries the parishioners who paid this rate were members of the Church. They gazed with reverence on the antique tower ; hastened to prayers at the summons of the Sabbath bells ; sat beneath the roof which their contribu- tions had repaired ; and partook of the sacramental bread and wine which their liberality had provided. The rate was ad- ministered by lay churchwardens of their own choice ; and all cheerfully paid what was dispensed for the common use and benefit of all. But times had changed. Dissent had grown and spread and ramified throughout the land. In some parishes, dissenters even outnumbered the members of the Church. Supporting their own ministers, building and repairing their own chapels, and shunning the services and clergy of the parish church, they resented the payment of church rate as at once an onerous and unjust tax, and an offence to their consciences. They insisted that the burden should be borne exclusively by members of the Church. Such, they contended, had been the original design of church rate ; and this principle should again
1 See debates, 30th July, 1839 ; 24th July, 1840 (Thorogood's case) ; Hans. Deb., 3rd Ser., xHx. 998 ; Iv. 939 ; Appendix to Report of Committee on Church Rates, 1851, pp. 606-645.
'^Lyndwood, 53; Wilkins' Concil., i. 253; Coke's 2nd Inst., 489, 653; 13 Edw. I. (statute, Circumspecte agatis) : Sir J. Campbell's letter to Lord Stanley, 1837; Report of Commission on Eccl. Courts, 1832.
RELIGIOUS LIBERTY 259
be recognised, under altered conditions, by the State. The Church stood firmly upon her legal rights. The law had never acknowledged such a distinction of persons as that contended for by dissenters ; nay, the tax was chargeable, not so much upon persons, as upon property ; and having existed for cen- turies, its amount was, in truth, a deduction from rent. If dissenting tenants were relieved from its payment, their land- lords would immediately claim its equivalent in rental. But, above all, it was maintained that the fabric of the Church was national property — an edifice set apart by law for public wor- ship, according to the religion of the State, open to all, inviting all to its services — and as much the common property of all, as a public museum or picture-gallery, which many might not care to enter, or were unable to appreciate.
Such being the irreconcilable principles upon which each Lord party took its stand, contentions of increasing bitterness be- A''^^°''P's came rife in many parishes, painful to churchmen, irritating tOofcom- dissenters, and a reproach to religion. In 1834, Earl Grey's "^"*^^'°".' Ministry, among its endeavours to reconcile, as far as possible, 1834. all differences between the Church and dissenters, attempted a solution of this perplexing question. Their scheme, as ex- plained by Lord Althorp, was to substitute for the existing church rate an annual grant of ;^2 50,000 from the consolidated fund, for the repair of churches. This sum, equal to about half the estimated rate, was to be distributed rateably to the several parishes. Church rate, in short, was to become national instead of parochial. This expedient found no favour with dissenters, who would still be liable to pay for the support of the Church in another form. Nor was it acceptable to church- men, who deemed a fixed Parliamentary subsidy, of reduced amount, a poor equivalent for their existing rights. The bill was, therefore, abandoned, having merely served to exemplify the intractable difficulties of any legislative remedy.^
In 1837, Lord Melbourne's Government approached this Mr. Spring
embarrassing question with no better success. Their scheme ^',^^'^ .
° ^ r 1 1 c scheme for
provided a fund for the repair of churches out of surplus settling
revenues, to arise from an improved administration of Church '^^"'^'^^
lands.^ This measure might well satisfy dissenters: but was 3rd March,
1837- ^ Hans. Deb., 3rd Ser., xx. 1012 : Comm. Journ., Ixxxix. 203, 207. 2 Hans. Deb., 3rd Set., xxxvi. 1207; xxxviii. 1073. 17 *
26o THE CONSTITUTIONAL HISTORY OF ENGLAND
The first Braintree case.
The second Braintree case, 1841-53-
wholly repudiated by the Church.^ It abandoned church rates, to which she was entitled ; and appropriated her own revenues to purposes otherwise provided for by law. She enjoyed both sources of income, and it was simply proposed to deprive her of one. If her revenues could be improved, she was herself entitled to the benefit of that improvement for other spiritual objects. If church rates were to be surrendered, she claimed from the State another fund as a reasonable equivalent.
But the legal rights of the Church, and the means of en- forcing them, were about to be severely contested by a long course of litigation. In 1 837, a majority of the vestry of Brain- tree having postponed a church rate for twelve months, the churchwardens took upon themselves, of their own authority, and in defiance of the vestry, to levy a rate. In this strange proceeding they were supported, for a time, by the Consistory Court,^ on the authority of an obscure precedent.^ But the Court of Queen's Bench restrained them, by prohibition, from collecting a rate, which Lord Denman emphatically declared to be "altogether invalid, and a church rate in nothing but the name".* In this opinion the Court of Exchequer Chamber concurred.* Chief Justice Tindal, however, in giving the judg- ment of this court, suggested a doubt whether the church- wardens, and a minority of the vestry together, might not concur in granting a rate at the meeting of the parishioners assembled for that purpose. This suggestion was founded on the principle that the votes of the majority, who refused to perform their duty, were lost or thrown away ; while the minority, in the performance of the prescribed duty of the meeting, represented the whole number.
This subtle and technical device was promptly tried at Braintree. A rate being again refused by the majority, a monition was obtained from the Consistory Court, command- ing the churchwardens and parishioners to make a rate accord- ing to law.^ In obedience to this monition, another meeting
1 Ann. Reg., 1837, p. 85.
2 Veley v. Burder, 15th Nov., 1857; App. to Report of Church Rates Co., 1851, p. 601.
^ Gaudern v. Selby in the Court of Arches, 1799.
* Lord Dennian's Judgment, ist May, 1840 ; Burder v. Veley ; Adolph. and Ellis, xii. 244.
' 8th Feb., 1841 ; ibid., 300. ' 22nd June, 1841.
kELIGIOUS LlBEkTV 261
was assembled ; and a rate being again refused by the majority, it was immediately voted in their presence by the church- wardens and the minority.^ A rate so imposed was of course resisted. The Consistory Court pronounced it illegal : the Court of Arches adjudged it valid. The Court of Queen's Bench, which had scouted the authority of the churchwardens, respected the right of the minority — scarcely less equivocal — to bind the whole parish ; and refused to stay the collection of the rate by prohibition. The Court of Exchequer Chamber affirmed this decision. But the House of Lords — superior to the subtilties by which the broad principles of the law had been set aside — asserted the unquestionable rights of a majority. The Braintree rate which the vestry had refused, and a small minority had assumed to levy, was pronounced invalid.^
This construction of the law gravely affected the relations its effect of the Church to dissenters. From this time, church rates HP°"g'^j^ could not practically be raised in any parish in which a majority the Church, of the vestry refused to impose them. The Church, having an abstract legal title to receive them, was powerless to enforce it. The legal obligation to repair the parish church continued : but church rates assumed the form of a voluntary contribu- tion, rather than a compulsory tax. It was vain to threaten parishioners with the censures of ecclesiastical courts, and a whole parish with excommunication.^ Such processes were out of date. Even if vestries had lost their rights, by any forced construction of the law, no rate could have been col- lected against the general sense of the parishioners. The example of Braintree was quickly followed. Wherever the dissenting body was powerful, canvassing and agitation were actively conducted, until, in 1859, church rates had been re- fused in no less than 1,525 parishes or districts.* This was a serious inroad upon the rights of the Church.
While dissenters were thus active and successful in their Bills for the
local resistance to church rates, they were no less strenuous in abolition of
' •' church rates.
1 15th July, 1841.
"^ Jurist, xvii. 939 ; Clark's House of Lords' Cases, iv. 679-814.
* Church Rates Committee, 1851 : Dr. Lushington's Ev., Q. 2358-2365 ; Courtald's Ev., 489-491 ; Pritchard's Ev., Q. 660, 661 ; Terrell's Ev., Q. 1975- 1982 ; Dr. Lushington's Ev. before Lords' Committee, 1859.
^ Pari. Return, Sess. 2, 1359, No. 7.
2 62 THU CONSTITUTIONAL HISTORY OF ENGLAND
their appeals to Parliament for legislative relief. Government having vainly sought the means of adjusting the question, in any form consistent with the interests of the Church, the dissenters organised an extensive agitation for the total repeal of church rates. Proposals for exempting dissenters from payment were repudiated by both parties.^ Such a compro- mise was regarded by churchmen as an encouragement to dissent, and by nonconformists as derogatory to their rights and pretensions, as independent religious bodies. The first bill for the abolition of church rates was introduced in 1841 by Sir John Easthope, but was disposed of without a division.^ For several years similar proposals were submitted to the Commons without success.^ In 1855, and again in 1856, bills for this purpose were read a second time by the Commons,* but proceeded no farther. In the latter year Sir George Grey, on behalf of Ministers, suggested as a compromise between the contending parties, that where church rates had been discon- tinued in any parish for a certain period — sufficient to indicate the settled purpose of the inhabitants — the parish should be exempted from further liability.^ This suggestion, however, founded upon the anomalies of the existing law, was not sub- mitted to the decision of Parliament. The controversy con- tinued; and at length, in 1858, a measure, brought in by Sir John Trelawny, for the total abolition of church rates, was passed by the Commons and rejected by the Lords. ^ In 1859, another compromise was suggested, when Mr. Secretary Walpole brought in a bill to facilitate a voluntary provision for church rates ; but it was refused a second reading by a large
1 On nth Feb., 1840, a motion by Mr. T. Buncombe to this effect was negatived by a large majority — Ayes, 62 ; Noes, 117 ; Comm. Journ., xcv. 74. Again, on 13th March, 1849, an amendment to the same purpose found only twenty supporters. In 1852 a bill to relieve dissenters from the rate, brought in by Mr. Packe, was withdrawn.
" 26th May, 1841 ; Comm. Journ., xcvi. 345, 414.
3 1 6th June, 1842; ibid., xcvii. 385; 13th March, 1849; ibid., civ. 134; 26th May, 1853; ibid., cviii. 516.
4 i6th May, 1855— Ayes, 217; Noes, 189. 8th Feb., 1856— Ayes, 221; Noes, 178.
* 5th March, 1856 ; Hans. Deb., 3rd Ser., cxl. 1900.
* The third reading of this bill was passed on 8th June by a majority of 63 — Ayes, 266 ; Noes, 203 ; Comm. Journ., cxiii. 216.
RELIGIO US LIBERTY 2 63
majority.^ In i860, another abolition bill was passed by one
House and rejected by the other. ^
Other compromises were suggested by friends of the Reaction in
Church:'^ but none found favour, and total abolition was still 1^^°"'.°^*''*
' Church.
insisted upon by a majority of the Commons. With Ministers it was an open question ; and between members and their constituents, a source of constant embarrassment. Meanwhile, an active counter-agitation, on behalf of the Church, began to exercise an influence over the divisions ; and from 1858 the ascendency of the anti-church-rate party sensibly declined.^ Such a reaction was obviously favourable to the final adjust- ment of the claims of dissenters, on terms more equitable to the Church : but as yet the conditions of such an adjustment baffled the sagacity of statesmen.
While these various contentions were raging between the state of the Church and other religious bodies, important changes were in en(j^ona°t*^^ progress in the Church, and in the religious condition of the century, people. The Church was growing in spiritual influence and temporal resources. Dissent was making advances still more remarkable.
For many years after the accession of George III. the Church continued her even course, with little change of con- dition or circumstances.^ She was enjoying a tranquil, and apparently prosperous, existence. Favoured by the State and society : threatened by no visible dangers : dominant over Catholics and dissenters ; and fearing no assaults upon her power or privileges, she was contented with the dignified se- curity of a national establishment. The more learned church- men devoted themselves to classical erudition and scholastic theology : the parochial clergy to an easy, but generally de- corous, performance of their accustomed duties. The discipline of the Church was facile and indulgent. Pluralities and non- residence were freely permitted, the ease of the clergy being more regarded than the spiritual welfare of the people. The
' gth March, 1859 — Ayes, 171 ; Noes, 254 ; Comm. Journ. cxiv. 66.
2 The third reading of this bill was passed by a majority of nine only — Ayes, 235 ; Noes, 226 ; ibid., cv. 208.
^ Viz. the Archbishop of Canterbury, Mr. Alcock, Mr. Cross, Mr. Newdegate, and Mr. Hubbard.
■* In 1861 the annual bill was lost on the third reading by the casting vote of the Speaker ; in 1S62, by a majority of 17 ; and in 1863, by a majority of 10.
^ Supra, p. 180.
264 THE CONSTITUTIONAL HISTORY OF ENGLAND
Changes in
parson farmed, hunted, shot the squire's partridges, drank his port wine, joined in the friendly rubber, and frankly entered into all the enjoyments of a country life. He was a kind and hearty man ; and if he had the means, his charity was open- handed. Ready at the call of those who sought religious con- solation, he was not earnest in searching out the spiritual needs of his flock. Zeal was not expected of him : society was not yet prepared to exact it.
While ease and inaction characterised the Church, a great o^^he"'eo°le <^h^"S<^ ^^^ coming over the religious and social condition of the people. The religious movement, commenced by Wesley and Whitefield,^ was spreading widely among the middle and humbler classes. An age of spiritual lethargy was passing away ; and a period of religious emotion, zeal, and activity commencing. At the same time, the population of the country was attaining an extraordinary and unprecedented develop- ment. The Church was ill prepared to meet these new con- ditions of society. Her clergy were slow to perceive them ; and when pressed by the exigencies of the time, they could not suddenly assume the character of missionaries. It was a new calling, for which their training and habits unfitted them ; and they had to cope with unexampled difficulties. A new society was growing up around them with startling sudden- ness. A country village often rose, as if by magic, into a populous town : a town was swollen into a huge city. Artisans from the loom, the forge, and the mine were peopling the lone valley and the moor. How was the Church at once to embrace a populous and strange community in her ministrations? The parish church would not hold them if they were willing to come : the parochial clergy were unequal, in number and in means, to visit them in their own homes. Spoliation and neglect had doomed a large proportion of the clergy to poverty ; and neither the State nor society had yet come to their aid. If there were shortcomings on their part, they were shared by the State and the laity. There was no or- ganisation to meet the pressure of local wants, while popula- tion was outgrowing the ordinary agencies of the Church. The field which was becoming too wide for her was entered
Sudden growth of population
1 Supra, p. 180.
RELIGIOUS LIBERTY 265
upon by dissent ; and hitherto it has proved too wide for both.i
In dealing with rude and industrial populations, the clergy Causes ad- laboured under many disadvantages compared with other sects ^j j^^ — particularly the Methodists — by whom they were environed, presence of However earnest in their calling, they were too much above working men in rank and education to gain their easy con- fidence. They were gentlemen, generally allied to county families, trained at the universities, and mingling in refined society. They read the services of the Church with grave pro- priety, and preached scholarlike discourses without emphasis or passion. Their well-bred calmness and good taste minis- tered little to religious excitement. But hard by the village church, a Methodist carpenter or blacksmith would address his humble flock with passionate devotion. He was one of them- selves, spoke their rough dialect, used their wonted phrases ; and having been himself converted to Methodism, described his own experience and consolations. Who can wonder that numbers forsook the decorous monotony of the Church service for the fervid prayers and moving exhortations of the Method- ist? Among the more enlightened population of towns, the clergy had formidable rivals in a higher class of nonconformist ministers, who attracted congregations, not only by doctrines congenial to their faith and sentiments, but by a more im- passioned eloquence, greater warmth and earnestness, a plainer language, and closer relations with their flocks. Again, in the visitation of the sick, dissent had greater resources than the Church. Its ministers were more familiar with their habits and religious feelings ; were admitted with greater freedom to their homes ; and were assisted by an active lay agency, which the Church was slow to imitate.
Social causes further contributed to the progress of dissent. Social causes Many were not unwilling to escape from the presence of their °^ ^'^^^"^' superiors in station. Farmers and shopkeepers were greater
^It is computed that on the census Sunday, 1851, 5,288,294 persons able to attend religious worship once at least, were wholly absent. And it has been reckoned that in Southwark 68 per cent, of the population attend no place of worship whatever ; in Sheffield, 62 ; in Oldham, 61 J. In thirty-four great towns, embracing a population of 3,993,467, no less than 2,197,388, or 52J per cent., are said to attend no places of worship. — Dr. Hume's Ev. before Lords' Com. on Church Rates, 1859, Q. 1290-1300.
2 66 THE CONSTITUTIONAL tilSTORV OF ENGLAND
Dissent in Wales.
men in the meeting house, than under the shadow of the pulpit and the squire's pew. Working men were glad to be free, for one day in the week, from the eye of the master. It was a comfort to be conscious of independence, and to enjoy their devotions — like their sports — among themselves, without re- straint or embarrassment. Even their homely dress tempted them from the church ; as rags shut out a lower grade from public worship altogether.
In Wales, there was yet another inducement to dissent. Like the Irish at the Reformation, the people were ignorant of the language in which the services of the Church were too often performed. In many parishes, the English liturgy was read, and English sermons preached to Welshmen. Even religious consolations were ministered with difficulty in the only language familiar to the people. Addressed by noncon- formist teachers in their own tongue, numbers were soon won over. Doctrines and ceremonies were as nothing compared with an intelligible devotion. They followed Welshmen, rather than dissenters : but found themselves out of com- munion with the Church.^
From these combined causes — religious and social — dissent ii?hT(x;ieS!^ marched onwards. The Church lost numbers from her fold ; and failed to embrace multitudes among the growing popula- tion beyond her ministrations. But she was never forsaken by the rank, wealth, intellect, and influence of the country ; and the poor remained her uncontested heritage. Nobles, and proprietors of the soil, were her zealous disciples and champions : the professions, the first merchants and employers of labour continued faithful. English society held fast to her. Aspir- ants to respectability frequented her services. The less opulent of the middle classes, and the industrial population, thronged the meeting-house : men who grew rich and prosperous for- sook it for the Church. Regeneration It was not until early in the present century that the rulers ofthe Church. ^j^(j clergy of the Church were awakened to a sense of their responsibilities under these new conditions of society and re- ligious feeling. Startled by the outburst of infidelity in France, and disquieted by the encroachments of dissent, they at length
' For an account of the condition of the Church and dissent in Wales, see < Wales, by Sir T. Phillips, ch. v., vi.
The Church
k^LlGlOVS LIBERTY i^l
discovered that the Church had a new mission before her. More zeal was needed by her ministers ; better discipline and organisation in her government ; new resources in her estab- lishment. The means she had must be developed ; and the co-operation of the State and laity must be invoked to combat the difficulties by which she was surrounded. The Church of the sixteenth century must be adapted to the population and needs of the nineteenth.
The first efforts made for the regeneration of the Church were not very vigorous, but they were in the right direction. In 1803, measures were passed to restrain clerical farming, to enforce the residence of incumbents, and to encourage the building of churches.^
Fifteen years later, a comprehensive scheme was devised Church for the building and endowment of churches in populous ^"t'^isfs places. The disproportion between the means of the Church and the growing population was becoming more and more evident ; ^ and in 1 8 1 8, provision was made by Parliament for a systematic extension of church accommodation. Relying mainly upon local liberality, Parliament added contributions from the public revenue, in aid of the building and endow- ment of additional churches.^ Further encouragement was also given by the remission of duties upon building materials.*
The work of church extension was undertaken with ex- church emplary zeal. The piety of our ancestors, who had raised |''^*^"^^'^"' churches in every village throughout the land, was emulated by the laity in the present century, who provided for the spiritual needs of their own time. New churches arose every- where among a growing and prosperous population ; parishes were divided ; and endowments found for thousands of ad- ditional clergy.^
^43 Geo. III. c. 84, 108 ; and see Stephen's Ecclesiastical Statutes, 892, 985.
^ Lord Sidmouth's Life, iii. 138 ; Returns laid before the House of Lords, 1811.
^58 Geo. III. c. 45 ; 3 Geo. IV. c. 72, etc. One million was voted in 1813, and ;^5oo,ooo in 1824. Exchequer bill loans to about the same amount were also made. — Porter's Progress, 619.
* In 1837 these remissions had amounted to ;;f 170,561 ; and from 1837 to 1845, to £165,778.— Pari. Papers, 1838, No. 325 ; 1845, No. 322.
* Between 1801 and 1831 about 500 churches were built at an expense of £3,000,000. In twenty years, from 183 1 to 1851, more than 2,000 new churches were erected at an expense exceeding £6,000,000. In this whole period
268 THE CONSTITUTIONAL HISTORY OF ENGLAND
Other endow- The poorer clergy have also received much welcome assist"
mentsofthe ance from augmentations of the fund known as Queen Anne's Church. , -KT . • , r , , ,
bounty.! Nor is it unworthy of remark, that the general
opulence of the country has contributed, in another form, to the poorer benefices. Large numbers of clergy have added their private resources to the scant endowments of their cures ; and with a noble spirit of devotion and self-sacrifice, have dedi- cated their lives and fortunes to the service of the Church. Ecclesiastical While the exertions of the Church were thus encouraged revenues. \^y public and private liberality, the legislature was devising means for developing the existing resources of the establish- ment. Its revenues were large, but ill administered, and un- equally distributed. Notwithstanding the spoliations of the sixteenth century, the net revenues amounted to ;^3, 490,497 ; of which ;^43 5,046 was appropriated by the bishops and other dignitaries ; while many incumbents derived a scanty pittance Ecclesiastical from the ample patrimony of the Church.- Sound policy, and S's™.'"'^^'""' ^^ interests of the Church herself, demanded an improved management and distribution of this great income ; and in
1835, ^ commission was constituted, which, in five successive reports, recommended numerous ecclesiastical reforms. In
1836, the ecclesiastical commissioners were incorporated,^ with power to prepare schemes for carrying these recommendations into effect. Many reforms in the Church establishment were afterwards sanctioned by Parliament. The boundaries of the several dioceses were revised : the sees of Gloucester and Bristol were consolidated, and the new sees of Manchester and Ripon created : the episcopal revenues and patronage were
of fifty years 2,529 churches were built at an expense of ;^9,o87,ooo, of which £1,663,429 were contributed from public funds, and;^7,423,57i from private bene^ factions. — Census, 1851, Religious Worship, p. xxxix. ; see also Lords' Debate, nth May, 1854; Hans. Deb., srd^Ser., cxxxiii. 153. Between 1801 and 1858, it appears that 3,150 churches had been built at an expense of ;^ii, 000,000. — Lords^ Report on Spiritual Destitution, 1858; Cotton's Ev., Q. 141.
^ 2 & 3 Anne, c. 11 ; i Geo. I. st. 2, c. 10; 45 Geo. III. c. 84 ; i & 2 Will. IV. c. 45, etc. From i8og to 1820, the governors of Queen Anne's bounty dis- tributed no less than ;f 1,000,000 to the poorer clergy. From 5th April, 1831, to 31st Dec, 1835, they disbursed ;^687,342. From 1850 to i860 inclusive, they distributed ;;f2,502,747.
- Report of Ecclesiastical Duties and Revenues Comm., 1831.
3 6 & 7 Will. IV. c. 77. The constitution of the commissioners was altered in 1840 by 3 & 4 Vict. c. 113 ; 14 & 15 Vict. c. 104 ; 23 & 24 Vict. c. 124.
RELIGIOUS LIBERTY 269
re-adjusted.^ The establishments of cathedral and 'collegiate churches were reduced, and their revenues appropriated to the relief of spiritual destitution. And the surplus revenues of the Church, accruing from all these reforms, have since been applied, under the authority of the commissioners, to the aug- mentation of small livings, and other purposes designed to in- crease the efficiency of the Church,'^ At the same time plur- alities were more effectually restrained, and residence enforced, among the clergy.^
In extending her ministrations to a growing community, Private the Church has further been assisted from other sources. '"""*^^^"^^' Several charitable societies have largely contributed to this good work,^ and private munificence — in an age not less re- markable for its pious charity than for its opulence — has nobly supported the zeal and devotion of the clergy.
The principal revenues of the Church, however, were de- Tithes rived from tithes ; and these continued to be collected by the commutation,
^ England.
clergy, according to ancient usage, " in kind ". The parson was entitled to the farmer's tenth wheat-sheaf, his tenth pig, and his tenth sack of potatoes ! This primitive custom of the Jews was wholly unsuited to a civilised age. It was vexatious to the farmer, discouraging to agriculture, and invidious to the clergy. A large proportion of the land was tithe-free ; and tithes were often the property of lay impropriators : yet the Church sustained all the odium of an antiquated and anomalous
1 See 6 & 7 Will. IV. c. 77 ; 3 & 4 Vict. c. 113. Originally the sees of St. Asaph and Bangor were also united ; but the 10 & 1 1 Vict. c. 108, which constituted the bishopric of Manchester, repealed the provisions concerning the union of these sees.
2 In i860, no less than 1,388 benefices and districts had been augmented and endowed, out of the common fund of the commissioners, to the extent of ;£^g8,9oo a year ; to which had been added land and tithe rent-charge amounting to ;^9,6oo a year. — i^th Report of Commissioners, p. 5.
2 I & 2 Vict. c. 106.
* In twenty-five years the Church Pastoral Aid Society raised and expended ;^7i5,624, by which 1,015 parishes were aided. In twenty-four years the Addi- tional Curates Society raised and expended ;^53i,iio. In thirty-three years the Church Building Society expended ;^68o,233, which was met by a further ex- penditure, on the part of the public, of ;f4,45i,405. — Reports of these Societies for 1861.
Independently of diocesan and other local societies, the aggregate funds of religious societies connected with the Church amounted, in 1851, to upwards of ^400,000 a year, of which ;^25o,ooo was applied to foreign missions. — Census of 185 1, Religious Worship, p. xli.
270 THE CONSTITUTIONAL HISTORY OF ENGLAND
law. The evil had long been acknowledged. Prior to the Acts of Elizabeth restraining alienations of Church property/ landowners had purchased exemption from tithes by the transfer of lands to the Church ; and in many parishes a particular custom prevailed, known as a modus, by which payment of tithes in kind had been commuted. The Long Parliament had designed a more general commutation.'* Adam Smith and Paley had pointed out the injurious operation of tithes ; and the latter had recommended their conversion into corn-rents.^ This suggestion having been carried out in some local inclosure bills, Mr. Pitt submitted to the Archbishop of Canterbury, in 1791, the propriety of its general adoption: but unfortunately for the interest of the Church, his wise counsels were not accepted.* It was not for more than forty years afterwards that Parliament perceived the necessity of a general measure of commutation. In 1833 ^^^ 1834, Lord Althorp submitted imperfect schemes for consideration ; ^ and in 1835, Sir Robert Peel proposed a measure to facilitate voluntary commutation, which was obviously inadequate.^ But in 1836, a measure, more comprehensive, was framed by Lord Melbourne's Government, and accepted by Parliament. It provided for the general commutation of tithes into a rent- charge upon the land, payable in money, but varying according to the average price of corn, for seven preceding years. Volun- tary agreements upon this principle were first encouraged ; and where none were made, a compulsory commutation was effected by commissioners appointed for that purpose.'^ The success of this statesmanlike measure was complete. In fifteen years the entire commutation of tithes was accomplished in nearly every parish in England and Wales. ^ To no measure,
^ I Eliz. c. 19 ; 13 Eliz, c. 10. ''Collier's Eccl. Hist., ii. 861.
3 Moral and Political Philosophy, ch. xii.
*Lord Stanhope's Life of Pitt, ii. 131.
'i8th April, 1833; 15th April, 1834; Hans. Deb., 3rd Ser., xvii. 281; xxii.
834.
« 24th March, 1835 ; ibid, xxvii. 183.
7 9th Feb., 1836 ; ibid., xxxi. 185 ; 6 & 7 Will. IV. c. 71 ; 7 Will. IV. and I Vict. c. 69 ; I & 2 Vict. c. 64 ; 2 & 3 Vict. c. 32 ; 5 & 6 Vict. c. 54 ; 9 & 10 Vict. c. 73 ; 10 & II Vict. c. 104; 14 & 15 Vict. c. 53.
*In Feb., 1851, the commissioners reported that "the great work of com- mutation is substantially achieved". — 1851, No. [1325]. In 1852, they speak of formal difficulties in about one hundred cases. — 1852, No. [1447]-
RE LI G 10 US LIBER TV 271
since the Reformation, has the Church owed so much peace and security. All disputes between the clergy and their parishioners, in relation to tithes, were averted ; while their rights, identified with those of the lay impropriators, were secured immutably upon the land itself.
Throughout the progress of these various measures the Continued Church was gaining strength and influence by her own spirit- Qhurch. ual renovation. While the judicious policy of the legislature had relieved her from many causes of jealousy and ill-will, and added to her temporal resources, she displayed a zeal and ac- tivity worthy of her high calling and destinies. Her clergy — earnest, intellectual, and accomplished — have kept pace with the advancing enlightenment of their age. They have laboured, with all their means and influence, in the education of the people ; and have joined heartily with laymen in promoting, by secular agencies, the cultivation and moral welfare of society. At one time there seemed danger of further schisms, springing from controversies which had been fruitful of evil at the Refor- mation. The high-church party leaning, as of old, to the imposing ceremonial of Catholic worship, aroused the appre- hensions of those who perceived in every symbol of the Romish church a revival of her errors and superstitions. But the ex- travagance of some of the clergy was happily tempered by the moderation of others, and by the general good sense and judgment of the laity ; and schism was averted. Another schism, arising out of the Gorham controversy, was threatened by members of the evangelical, or low-church party : but was no less happily averted. The fold of the Church has been found wide enough to embrace many diversities of doctrine and ceremony. The convictions, doubts, and predilections of the sixteenth century still prevail, with many of later growth : but enlightened churchmen, without absolute identity of opinion, have been proud to acknowledge the same religious communion — ^just as citizens, divided into political parties, are yet loyal and patriotic members of one State. And if the founders of the Reformed Church erred in prescribing too strait a uniformity, the wisest of her rulers, in an age of active thought and free discussion, have generally shown a tolerant and cautious spirit in dealing with theological controversies. The ecclesiastical courts have also striven to give breadth to
272 THE CONSTITUTIONAL HISTORY OF ENGLAND
Progress of dissent.
Statistics of dissent.
her articles and liturgy. Never was comprehension more politic. The time has come when any serious schism might bring ruin on the Church.
Such having been the progress of the Church, what have been the advances of dissent ? We have seen how wide a field lay open to the labours of pious men. A struggle had to be maintained between religion and heathenism in a Christian land ; and in this struggle dissenters long bore the foremost part. They were at once preachers and missionaries. Their work prospered, and in combating ignorance and sin, they grew into formidable rivals of the Church. The old schisms of the Reformation had never lost their vitality. There had been persecution enough to alienate and provoke nonconformists : but not enough to repress them. And when they started on a new career, in the last century, they enjoyed toleration. The doctrines for which many had formerly suffered, were now freely preached, and found crowds of new disciples. At the same time, freedom of worship and discussion favoured the growth of other diversities of faith, ceremonial, and discipline.
The later history of dissent — of its rapid growth and develop- ment, its marvellous activity and resources — is to be read in its statistics. The Church in extending her ministrations had been aided by the State ; and by the liberality of her wealthy flocks. Dissent received no succour or encouragement from the State ; and its disciples were generally drawn from the less opulent classes of society. Yet what has it done for the religious in- struction of the people? In 1801, the Wesleyans had 825 chapels or places of worship : in 185 1, they had the extraordi- nary number of 11,007, with sittings for 2, 194,298 persons! The original connection alone numbered 1,034 ministers, and upwards of 13,000 lay or local preachers. In 1801, the Independents had 914 chapels: in 1851, they had 3,244, with sittings for 1,067,760 members. In 1801, the Baptists had 652 places of worship: in 185 1, they had 2,789, with sittings for 752,346. And numerous other religious denominations swelled the ranks of Protestant dissent.
The Roman Catholics — forming a comparatively small body — have yet increased of late years in numbers and activity. Their chapels grew from 346 in 1824, to 574 in 1851, with accommodation for 186,111 persons. Between 1841 and 185;
RELIGIOUS LIBERTY 2731
fheir religious houses were multiplied from 17 to 88 ; and their priests from 557 to 875. Their flocks have naturally been en- larged by considerable numbers of Irish and foreigners who have settled, with their increasing families, in the metropolis and other large towns.
For the population of England and Wales, amounting in statistics of 1 85 1 to 17,927,609, there were 34,467 places of worship, ofP'^"^j,°' which 14,077 belonged to the Church of England. Ac- commodation was provided for 9,467,738 persons, of whom 4,922,412 were in the establishment. On the 30th of March, 4,428,338 attended morning service, of whom 2,371,732 were members of the Church.^ Hence it has been computed that there were 7,546,948 members of the establishment habitually attending religious worship ; and 4,466,266 nominal members rarely, if ever, attending the services of their Church. These two classes united, formed about 6^ per cent, of the population. The same computation reckoned 2,264,324 Wesleyans, and 610,786 Roman Catholics.^ The clergy of the Established Church numbered 17,320: ministers of other communions, 6,405.2
So vast an increase of dissent has seriously compromised Relations of the position of the Church as a national establishment. Nearly [q ^dissent, one-third of the present generation have grown up out of her communion. But her power is yet dominant. She holds her proud position in the State and society : she commands the parochial organisation of the country : she has the largest share in the education of the people ; * and she has long been straining every nerve to extend her influence. The traditions and sentiment of the nation are on her side. And while she comprises a united body of faithful members, dissenters are
^Census of Great Britain, 185 1, Religious Worship, The progressive in- crease of dissent is curiously illustrated by a return of temporary and permanent places of worship registered in decennial periods. — Pari. Paper, 1853, No. 156.
2 Dr. Hume's Ev. before Lords' Com, on Church Rates, 1859, Q. 1291, and map. Independents and Baptists together are set down as gf per cent., and other sects 6J on the population.
^Census, 1851 : occupations, table 27.
•• In i860 she received about 77 per cent, of the education grant from the Privy Council; and of 1,549,312 pupils in day-schools, she had no less than 1,187,086 ; while of Sunday-school pupils dissenters had a majority of 200,000. — Rep. of Education Com., 1861, pp. 593, 594 ; Bishop of London's Charge, 1862, P- 35-
VOL. n. 18
i74 THE CONSTITUTIONAL HISTORY OF ENGLAND
divided into upwards of one hundred different sects, or con» gregations, without sympathy or cohesion, and differing in doctrines, polity, and forms of worship. Sects, not bound by subscription to any articles of faith, have been rent asunder by schisms. The Wesleyans have been broken up into nine di- visions : ^ the Baptists into five.'^ These discordant elements of dissent have often been united in opposition to the Church for the redress of grievances common to them all. But every Act of toleration and justice, on the part of the State, has tended to dissolve the combination. The odium of bad laws Weighed heavily upon the Church ; and her position has been strengthened by the reversal of a mistaken policy. Nor has the Church just cause of apprehension from any general senti- ment of hostility on the part of Protestant nonconformists. Numbers frequent her services, and are still married at her altars.^ The Wesleyans, dwelling just outside her gates, are friends and neighbours, rather than adversaries. The most formidable and aggressive of her opponents are the Inde- pendents. With them the "voluntary principle" in religion is a primary article of faith. They condemn all Church estab- lishments ; and the Church of England is the foremost example to be denounced and assailed. Relations of Whatever the future destinies of the Church, the gravest
the Church to reflections arise out of the later development of the Reforma- tion. The Church was then united to the State. Her convo- cation, originally dependent, has since lost all but a nominz place in the ecclesiastical polity of the realm. And what hav< become the component parts of the legislature which direct the government, discipline, revenues, nay even the doctrines| of the Church? The Commons, who have attained a domi^ nant authority, are representatives of England — one-thirc Nonconformists, — of Presbyterian Scotland, and of Catholic Ireland. In the union of Church and State no such anomalj had been foreseen ; yet has it been the natural consequence oH
^ The Original Connexion, New Connexion, Primitive Methodists, Bibl^ Christians, Wesleyan Methodist Association, Independent Methodists, Wesleys Reformers, Welsh Calvinistic Methodists, and Countess of Huntingdon's Con nexion.
^ General, Particular, Seventh-day, Scotch, New Connexion General.
' Eighty per cent, of all marriages are celebrated by the Church. — Rep. Registrar-Gen., 1862, p. viii.
RELIGIOUS LIBERTY ^75
the Reformation, followed by the consolidation of these realms, and the inevitable recognition of religious liberty in a free State.
However painful the history of religious schisms and con- Influence of flicts, they have not been without countervailing uses. They pJj^^/^*^"P°" have extended religious instruction ; and favoured political liberty, liberty. If the Church and dissenters, united, have been un- equal to meet the spiritual needs of this populous land, what could the Church, alone and unaided, have accomplished? Even if the resources of dissent had been placed in her hands, rivalry would have been wanting, which has stimulated the zeal of both. Liberty owes much to schism. It brought down the high prerogatives of the Tudors and Stuarts ; and in later times, has been a powerful auxiliary in many popular movements. The undivided power of the Church, united to that of the Crown and aristocracy, might have proved too strong for the people. But while she was weakened by dis- sent, a popular party was growing up, opposed to the close political organisation with which she was associated. This party was naturally joined by dissenters ; and they fought side by side in the long struggle for civil and religious liberty.
The Church and dissenters, generally opposed on political The Papal questions affecting religion, have been prompt to make com- aggression, mon cause against the Church of Rome. The same strong spirit of Protestantism which united them in resistance to James II. and his House, has since brought them together on other occasions. Dissenters, while seeking justice for them- selves, had been no friends to Catholic emancipation ; and were far more hostile than churchmen to the endowment of Maynooth.^ And in 1851, they joined the Church in resenting an aggressive movement of the Pope, which was felt to be an insult to the Protestant people of England.
For some time irritation had been growing, in the popular mind, against the Church of Rome. The activity of the priesthood was everywhere apparent. Chapels were built, and religious houses founded.^ A Catholic cathedral was erected in London. Sisters of mercy, in monastic robes, offended the eyes of Protestants. Tales of secret proselytism abounded. No family was believed to be safe from the designs of priests
' See »»/"ra, p. 304. *See supra, p. 272.
18*
276 THE CONSTITUTIONAL HISTORY OF ENGLAND
The Pope's brief, 1850.
Cardinal
Wiseman's
pastoral.
and Jesuits. Protestant heiresses had taken the veil, and endowed convents : wives of Protestant nobles and gentlemen had secretly renounced the faith in which their marriage vows were given : fathers, at the point of death, had disinherited their own flesh and blood to satisfy the extortion of confes- sors. Young men at Oxford, in training for the Church, had been perverted to Romanism. At the same time, in the Church herself, the tractarian, or high-church clergy, were re- verting to ceremonies associated with that faith ; and several had been gained over to the Church of Rome. While Protest- ants, alarmed by these symptoms, were disposed to overesti- mate their significance, the ultramontane party among the Catholics, encouraged by a trifling and illusory success, con- ceived the extravagant design of reclaiming Protestant England to the fold of the Catholic Church.
In September, 1850, Pope Pius IX., persuaded that the time had come for asserting his ancient pretensions within this realm, published a brief, providing for the ecclesiastical government of England. Hitherto the Church of Rome in England had been superintended by eight vicars apostolic : but now the Pope, considering the " already large number of Catholics," and "how the hindrances which stood in the way of the spreading of the Catholic faith are daily being removed," saw fit to establish " the ordinary form of episcopal rule in that kingdom"; and accordingly divided the country^ into one metropolitan, and twelve episcopal sees. And to hig archbishop and bishops he gave " all the rights and privilege which the Catholic archbishops and bishops, in other StatesjJ have and use, according to the common ordinances of the sacred canons and apostolic constitutions". Nor did the brief omit to state that the object of this change was ** the well- being and advancement of Catholicity throughout England ".^
This was followed by a pastoral of Cardinal Wiseman, on his appointment as Archbishop of Westminster, exulting in the supposed triumph of his Church. " Your beloved country," said he, " has received a place among the fair churches which, normally constituted, form the splendid aggregate of Catholic communion : Catholic England has been restored to its orbit in the ecclesiastical firmament, from which its light had long > Papal Brief, 30th Sept., 1850 ; Ann. Reg., 1850, App., 405.
RELIGIOUS LIBERTY 277
vanished, and begins now anew its course of regularly adjusted action round the centre of unity, the source of jurisdiction, of light, and of vigour." ^
The enthronisation of the new bishops was celebrated with Catholic great pomp ; and exultant sermons were preached on the re- '^'shops vival of the Catholic Church. In one of these. Dr. Newman — himself a recent convert — declared that " the people of Eng- land, who for so many years had been separated from the See of Rome, are about, of their own will, to be added to the Holy Church ".
No acts or language could have wounded more deeply the Popular traditional susceptibilities of the English people. For three '"^'S"''^^'°"' hundred years the papal supremacy had been renounced, and the Romish faith held in abhorrence. Even diplomatic rela- tions with the sovereign of the Roman States — as a temporal prince — had until lately been forbidden.^ And now the Pope had assumed to parcel out the realm into Romish bishoprics ; and to embrace the whole community in his jurisdiction. Never, since the Popish plot, had the nation been so stirred with wrath and indignation. Early in November, Lord John Russell, the Premier, increased the public excitement by a letter to the Bishop of Durham, denouncing the " aggression of the Pope as insolent and insidious," and associating it with the practices of the tractarian clergy of the Church of England.^ Clergy and laity, churchmen and dissenters, vied with one another in resentful demonstrations ; and in the bonfires of the 5th of November — hitherto the sport of children — the obnoxious effigies of the Pope and Cardinal Wiseman were immolated, amidst the execrations of the multitude. No one could doubt the Protestantism of England. Calm ob- servers saw in these demonstrations ample proof that the papal pretensions, however insolent, were wholly innocuous ; and Cardinal Wiseman, perceiving that in his over-confidence he had mistaken the temper of the people, sought to moderate their anger by a conciliatory address. The ambitious epis- copate now assumed the modest proportions of an arrange-
1 Pastoral, 7th Oct., 1850; Ann. Reg., 1850, App., 411.
"^ In 1848 an Act was passed, with some difficulty, to allow diplomatic rela- tions with the sovereign of the Roman States. — 11 & 12 Vict. c. 108; Hans. Deb., 3rd Ser., xcvi. 169; ci. 227, 234.
'4th Nov., 1850; Ann. Reg,, 1850, p. 198.
of the case.
278 THE CONSTITUTIONAL HISTORY OF ENGLAND
ment for the spiritual care of a small body of Roman Catholics. Difficulties Meanwhile, the Government and a vast majority of the
people were determined that the papal aggression should be repelled; but how? If general scorn and indignation could repel an insult, it had already been amply repelled : but action was expected on the part of the State ; and how was it to be taken ? Had the laws of England been violated ? The Catholic Relief Act of 1829 forbade the assumption of any titles belonging to the bishops of the Church of England and Ireland : ^ but the titles of these new bishops being taken from places not appropriated by existing sees, their assumption was not illegal. Statutes, indeed, were still in force prohibiting the introduction of papal bulls or letters into this country.^ But they had long since fallen into disuse ; and such communica- tions had been suffered to circulate, without molestation, as natural incidents to the internal discipline of the Church of Rome. To prosecute Cardinal Wiseman for such an offence would have been an act of impotent vengeance. Safe from punishment, he would have courted martyrdom. The queen's supremacy in all matters, ecclesiastical and temporal, was un- doubted : but had it been invaded ? When England professed the Catholic faith, the jurisdiction of the Pope had often conflicted with that of the Crown. Both were concerned in the government of the same Church : but now the spiritual supremacy of the Crown was exercised over the Church of England only. Roman Catholics — in common with all other subjects not in communion with the Church — enjoyed full toleration in their religious worship ; and it was an essential part of their faith and polity to acknowledge the spiritual authority of the Pope. Could legal restraints, then, be im- posed upon the internal government of the Church of Rome without an infraction of religious toleration ? True, the papal brief, in form and language, assumed a jurisdiction over the whole realm ; and Cardinal Wiseman had said of himself, " We govern, and shall continue to govern, the counties of Middlesex, Hertford, and Essex ". But was this more than an application
^ 10 Geo. IV. c. 7, s. 24.
2 In 1846, that part of the 13th EHz. which attached the penalties of treason to this offence had been repealed, but the law continued in force.
RELIGIOUS LIBERTY 279
of the immutable forms of the Church of Rome to altered cir- cumstances ? In governing Roman Catholics, did the Pope wrest from the queen any part of her ecclesiastical supremacy ?
Such were the difficulties of the case ; and Ministers en- Ecclesias- deavoured to solve them by legislation. Drawinsf a broad ^^'^^ Titles distmction between the spiritual jurisdiction of the Pope over Feb., 1851. the members of his Church, and an assumption of sovereignty over the realm, they proposed to interdict all ecclesiastical titles derived from places ia the United Kingdom, Let the Catholics, they argued, be governed by their own bishops : let the Pope freely appoint them : leave entire liberty to Catholic worship and polity : but reserve to the civil government of this country alone, the right to create territorial titles. Upon this principle a bill was introduced into the House of Commons by Lord John Russell. The titles assumed by the Catholic bishops were prohibited : the brief or rescript creating them was de- clared unlawful : the acts of persons bearing them were void ; and gifts or religious endowments acquired by them, forfeited to the Crown. ^ These latter provisions were subsequently omitted by Ministers ; ^ and the measure was confined to the prohibition of territorial titles. It was shown that in no country in Europe — whether Catholic or Protestant — would the Pope be suffered to exercise such an authority without the consent of the State ; and it was not fit that England alone should sub- mit to his encroachments upon the civil power. But as the bill proceeded, the difficulties of legislation accumulated. The bill embraced Ireland, where such titles had been permitted, without objection, since the Relief Act of 1829. It would, therefore, withdraw a privilege already conceded to Roman Catholics, and disturb that great settlement. Yet, as the measure was founded upon the necessity of protecting the sovereignty of the Crown, no part of the realm could be ex- cepted from its operation. And thus, for the sake of repelling an aggression upon Protestant England, Catholic Ireland was visited with this new prohibition.
The bill encountered objections the most opposite and con- objections tradictory. On one side, it was condemned as a violation of to the bill, religious liberty. The Catholics, it was said, were everywhere
17th Feb., 1851 ; Hans. Deb., 3rd Ser., cxiv. 187. 27th March; ihid., 1123.
28o THE CONSTITUTIONAL HISTOR Y OF ENGLAND
governed by bishops, to whom districts were assigned, uni- versally known as dioceses, and distinguished by some local designation. To interfere with the internal polity of the Church of Rome was to reverse the policy of toleration, and might eventually lead to the revival of penal laws. If there was insolence in the traditional language of the court of Rome, let it be repelled by a royal proclamation, or by addresses from both Houses, maintaining her Majesty's undoubted preroga- tives : but let not Parliament renew its warfare with religious liberty. On the other hand, it was urged that the encroach- ments of the Church of Rome upon the temporal power de- manded a more stringent measure than that proposed, severer penalties, and securities more effectual.
These opposite views increased the embarrassments of the Government, and imperilled the success of the measure. For a time Ministers received the support of large majorities who, dif- fering upon some points, were yet agreed upon the necessity of a legislative condemnation of the recent measures of the Church of Rome. But on the report of the bill, amendments were proposed, by Sir F. Thesiger, to increase the stringency of its provisions. They declared illegal, not only the particular brief, but all similar briefs ; extended to every person the power of prosecuting for offences, with the consent of the attorney- general ; and made the introduction of bulls or rescripts a penal offence.
Such stringency went far beyond the purpose of Ministers, and they resisted the amendments : but a considerable number of members — chiefly Roman Cathoh'cs — hoping that Ministers, if overborne by the Opposition, would abandon the bill, retired from the House and left Ministers in a minority. The amend- ments, however, were accepted, and the bill was ultimately passed.^ Results of It was a protest against an act of the Pope which had out-
raged the feelings of the people of England : but as a legis- lative measure, it was a dead letter. The Church of Rome receded not a step from her position ; and Cardinal Wiseman and the Catholic bishops — as well in England as in Ireland — continued to bear, without molestation, the titles conferred
1 14 & 15 Vict. c. 60 ; Hans. Deb., 3rd Ser., cxiv., cxv., cxvi., pasnm ; Ann. Keg., 1851, ch. ii., iii.
the bill.
RELIGIOUS LIBERTY 281
upon them by the Pope. The excitement of the people, and acrimonious discussions in Parliament, revived animosities which recent legislation had tended to moderate : yet these events were not unfruitful of good. They dispelled the wild visions of the ultramontane party : checked the tractarian movement in the Church of England; and demonstrated the sound and faithful Protestantism of the people. Nor had the ultramontane party any cause of gratulation, in their apparent triumph over the State. They had given grave offence to the foremost champions of the Catholic cause : their conduct was deplored by the laity of their own Church ; and they had in- creased the repugnance of the people to a faith which they had scarcely yet learned to tolerate.
The Church of Scotland, like her sister Church of England, church of
has also been rent by schisms. The protracted efforts of the Scotland : T-.1.1/- • • -I schisms
English Government to sustani episcopacy in the establish- and dissent,
ment,^ resulted in the foundation of a distinct Episcopalian
Church. Comparatively small in numbers, this communion
embraced a large proportion of the nobility and gentry who
affected the English connexion, and disliked the democratic
spirit and constitution of the Presbyterian Church. In 1732,
the establishment was further weakened by the retirement of
Ebenezer Erskine, and an ultra-puritanical sect, who founded
the Secession Church of Scotland.^ This was followed by the
foundation of another seceding Church, called the Presbytery
of Relief, under Gillespie, Boston, and Colier ; ^ and by the
growth of independents, voluntaries, and other sects. But
the widest schism is of recent date ; and its causes illustrate
the settled principles of Presbyterian polity ; and the relations
of the Church of Scotland to the State.
Lay patronage had been recognised by the Catholic Church History of
in Scotland, as elsewhere ; but the Presbyterian Church soon Patronage.
evinced her repugnance to its continuance. Wherever lay
patronage has been allowed, it has been the proper office of
1 Supra, p. 171.
2 Cunningham's Church Hist, of Scotland, ii. 427-440, 450-455; Moncrieff's Life of Erskine ; Eraser's Life of Erskine ; Thomson's Hist, of the Secession Church.
3 Cunningham's Church Hist, ii. 501, 513. In 1847 the Secession Church and the Relief Synod were amalgamated under the title of the " United Presby- terian Church ".
282 THE CONSTITUTIONAL HISTORY OF ENGLAND
the Church to judge of the qualifications of the clergy, pre- sented by patrons. The patron nominates to a benefice ; the Church approves and inducts the nominee. But this limited function, which has ever been exercised in the Church of Eng- land, did not satisfy the Scottish reformers, who, in the spirit of other Calvinistic Churches, claimed for the people a voice in the nomination of their own ministers. Knox went so far as to declare, in his First Book of Discipline — which, however, was not adopted by the Church — " that it apper- taineth unto the people, and to every several congregation, to elect their minister".^ The Second Book of Discipline, adopted as a standard of the Church in 1578, qualified this doctrine : but declared " that no person should be intruded in any offices of the kirk contrary to the will of the congregation, or without the voice of the eldership".^ But patronage being a civil right, the State undertook to define it, and to prescribe the functions of the Church. In 1567 the Parliament de- clared that the presentation to benefices " was reserved to the just and ancient patrons," while the examination and admission of ministers belonged to the Church. Should the induction of a minister be refused, the patron might appeal to the General Assembly.^ And again, by an Act of 1592, Presbyteries were required to receive and admit whatever qualified minister was presented by the Crown or lay patrons.'* In the troublous times of 1649, the Church being paramount. Parliament swept away all lay patronage as a "popish custom".^ On the Re- storation it was revived, and rendered doubly odious by the persecutions of that period. The Revolution restored the ascendency of the Presbyterian Church and party ; and again patronage was overthrown. By an Act of 1690, the elders and heritors were to choose a minister for the approval of the congregation ; and if the latter disapproved the choice, they were to state their reasons to the Presbytery, by whom the matter was to be determined.^ Unhappily this settlement, so congenial to Presbyterian traditions and sentiment, was not
^ A.D. 1560, ch. iv. s. ii. Robertson's Auchterarder Case, i. 22 (Mr. Whigham's argument), etc. ; Buchanan's Ten Years' Conflict, i. 47.
- Ch. iii. s. 4 & 5 ; and again, in other words, ch. xii. s, 9 & 10. ^ Scots Acts, 1567, c, 7. ■•James VI., Pari., xii. c. 116.
' Scots Acts, 1649, c. 171 ; Buchanan, i. 98-105. ' Scots Acts, 1690, c. 23.
RELIGIOUS LIBERTY 283
suffered to be permanent. At the Union, the constitution and existing rights of the Church of Scotland were guaranteed : yet within five years, the heritors determined to reclaim their patronage. The time was favourable : Jacobites and high- church Tories were in the ascendant, who hated Scotch Pres- byterians no less than English dissenters ; and an Episcopalian Parliament naturally favoured the claims of patrons. An Act was therefore obtained in 17 12, repealing the Scotch Act of 1690, and restoring the ancient rights of patronage.^ It was an untoward act, conceived in the spirit of times before the Revolution. The General Assembly then protested against it as a violation of the treaty of Union ; and long con- tinued to record their protest.^ The people of Scotland were outraged. Their old strife with Episcopalians was still raging ; and to that communion most of the patrons belonged. For some time patrons did not venture to exercise their rights : ministers continued to be called by congregations ; and some who accepted presentations from lay patrons were degraded by the Church.^ Patronage, at first a cause of contention with the State and laity, after- wards brought strifes into the Church herself. The Assembly was frequently at issue with Presbyteries concerning the in- duction of ministers. The Church was also divided on the question of presentations ; the moderate party, as it was called, favouring the rights of patrons, and the popular party the calls of the people. To this cause was mainly due the secession of Ebenezer Erskine * and Gillespie,^ and the founda- tion of their rival churches. But from about the middle of the last century the moderate party, having obtained a majority in the Assembly, maintained the rights of patrons ; and thus, without any change in the law, the Act of 171 2 was, at length,
^ 10 Anne, c. 12.
'^Carstares State Papers, App., 796-800; Cunningham's Church Hist, of Scotland, ii. 362 ; Claim of Rights of the Church of Scotland, May, 1842, p. 9 ; D'Aubigne's Germany, England, and Scotland, 377-385 ; Buchanan's Ten Years' Conflict, i. 124-133.
^Cunningham's Church Hist., ii. 420.
* Ibid., 419-446, 450-455; Thomson's History of the Secession Church; MoncriefTs Life of Erskine ; Eraser's Life of Erskine,
^ Cunningham's Church Hist., ii. 501, 513.
284 THE CONSTITUTIONAL HISTORY OF ENGLAND
consistently enforced^ A call by the people had always formed part of the ceremony of induction ; and during the periods in which lay patronage had been superseded, it had unquestionably been a substantial election of a minister by his congregation.'^ A formal call continued to be recognised : but Presbyteries did not venture to reject any qualified person duly presented by a patron. At the end of the century, the patron- age question appeared to have been set at rest.^ Lay patron- But the enforcement of this law continued to be a fertile
ofdissent^^ cause of dissent from the establishment. When a minister was forced upon a congregation by the authority of the Presbytery or General Assembly, the people, instead of sub- mitting to the decision of the Church, joined the Secession Church, the Presbytery of Relief, or the Voluntaries.'* No people in Christendom are so devoted to the pulpit as the Scotch. There all the services of their Church are centred. No liturgy directs their devotion : the minister is all in all to them, in prayer, in exposition, and in sermon. If acceptable to his flock, they join devoutly in his prayers, and are never weary of his discourses : if he finds no favour, the services are without interest or edification. Hence a considerable party in the Church were persuaded that a revival of the ancient prin- ciples of their faith, which recognised the potential voice of the people in the appointment of ministers, was essential to the security of the establishment. The Veto Hostility to lay patronage was continually increasing, and
Act, 1834. found expression in petitions and Parliamentary discussion.^ Meanwhile, the " non-intrusion party," led by Dr. Chalmers, were gaining ground in the General Assembly : in 1834, they had se- cured a majority ; and, without awaiting remedial measures from Parliament, they succeeded in passingthe celebrated " VetoAct ".•
^Cunningham's Church Hist, of Scotland, ii. 491-500, 511, 537, 558; D'Aubignd's Germany, England, and Scotland, 388-390; Judgments in first Auchterarder Case; Buchanan's Ten Years' Conflict, i. 145-165.
'Judgments of Lord Brougham and the Lord Chancellor in the first Auchterarder Case, pp. 239, 334, 335.
3 Cunningham's Church Hist, of Scotland, ii. 581.
* Ihid. ; Report on Church Patronage (Scotland), 1834, Evidence.
* i6th July, 1833, on Mr. Sinclair's motion ; Hans. Deb., 3rd Ser., xix. 704.
8 For a full narrative of all the circumstances connected with the state of parties in the Church, and the passing of this Act, see Buchanan's Ten Years' Conflict, i. 174-296.
RELIGIOUS LIBERTY 285
This Act declared it to " be a fundamental law of the Church that no pastor shall be intruded on a congregation, contrary to the will of the people"; and provided that if, without any special objections to the moral character, doctrine, or fitness of a presentee, the majority of the male heads of families signified their dissent, the Presbytery should, on that ground alone, reject him. Designed, in good faith, as an amendment of the law and custom of the Church, which the Assembly was competent to make, it yet dealt with the rights already defined by Parliament. Patronage was border land, which the Church had already contested with the State ; and it is to be lamented that the Assembly — however well advised as to its own con- stitutional powers ^ — should thus have entered upon it, with- out the concurrence of Parliament. Never was time so pro- pitious for the candid consideration of religious questions. Reforms were being introduced into the Church ; the griev- ances of dissenters were being redressed ; a popular party were in the ascendant ; and agitation had lately shown its power over the deliberations of the legislature. A Veto Act, or other compromise sanctioned by Parliament, would have brought peace to the Church. But now the State had made one law : the Church another ; and how far they were compatible was soon brought to a painful issue.
In the same year, Lord Kinnoull presented Mr. Young to Auchter- the vacant parish of Auchterarder : but a majority of the male ^'^^^^ '^^®^' heads of families having objected to his presentation, without stating any special grounds of objection, the Presbytery refused to proceed with his trials, in the accustomed form, and judge of his qualifications. Mr. Young appealed to the Synod of Perth and Stirling, and thence to the General Assembly ; and the Presbyter}^ being upheld by both these courts, rejected Mr. Young.
Having vainly appealed to the superior Church courts. Lord Adverse
Kinnoull and Mr. Young claimed from the Court of Session an J"^?'"^?^^, ° of the civil
enforcement of their civil rights. They maintained that the courts.
Presbytery, as a Church court, were bound to adjudge the fitness
of the presentee, and not to delegate that duty to the people,
whose right was not recognised by law ; and that his rejection,
' The jurisdiction of the Assembly had been supported by the opinion of the law officers of the Crown in Scotland.— Bwc/mwan, i. 442.
286 THE CONSTITUTIONAL HISTORY OF ENGLAND
Resistance of the General Assembly.
on account of the veto, was illegal. The Presbytery contended that admission to the pastoral office being the function of the Church, she had a right to consider the veto of the congrega- tion as a test of fitness, and to prescribe rules for the guidance of Presbyteries. In the exercise of such functions the juris- diction of the Church was supreme, and beyond the con- trol of the civil tribunals. The court, however, held that neither the law of the Church, prior to the Veto Act, nor the law of the land, recognised the right of a congregation to reject a qualified minister. It was the duty of the Presbytery to judge of his fitness, on grounds stated and examined ; and the Veto Act, in conferring such a power upon congregations, violated the civil and patrimonial rights of patrons, secured to them by statute, and hitherto protected by the Church herself Upon the question of jurisdiction, the court maintained its unquestionable authority to give redress to suitors who com- plained of a violation of their civil rights ; and while admitting the competency of the Church to deal with matters of doctrine and discipline, declared that in trenching upon civil rights she had transgressed the limits of her jurisdiction. To deny the right of the Court of Session to give effect to the provisions of the statute law, when contravened by Church courts, was to establish the supremacy of the Church over the State. ^ From this decision the Presbytery appealed to the House of Lords, by whom, after able arguments at the bar, and masterly judg- ments from Lord Chancellor Cottenham and Lord Brougham, it was, on every point, affirmed. 2
Submission to the law, even under protest, and an appeal to the remedial equity of Parliament, might now have averted an irreconcilable conflict between the civil and ecclesiastical powers, without an absolute surrender of principles for which the Church was contending. But this occasion was lost. The Assembly, indeed, suspended the operation of the Veto Act for a year ; and agreed that, so far as the temporalities of Auch- terarder were concerned, the case was concluded against the Church. The manse, the glebe, and the stipend should be given up : but whatever concerned the duties of a Presbytery,
^ Robertson's Report of the Auchterarder Case, 2 vols. 8vo, 1838 ; Buchanan, i. 340-487.
' Maclean and Robinson's Cases decided in the House of Lords, 1839, i. 220.
RELIGIOUS LIBERTY 287
in regard to the cure of souls, and the ministry of the gospel, was purely ecclesiastical and beyond the jurisdiction of any civil court. A Presbytery, being a Church court, exercising spiritual powers, was amenable to the Assembly only, and was not to be coerced by the civil power. On these grounds it was determined to refuse obedience to the courts ; and the hopeless strife continued between the two jurisdictions, em- bittered by strong party differences in the Assembly, and among the laity of Scotland. Parliament alone could have stayed it : but the resistance of the Church forbade its inter- position ; and a compromise, proposed by Lord Aberdeen, was rejected by the Assembly.
The judgment of the Court of Session having been affirmed. Second
the Presbytery were directed to make trial of the qualifications ^"'^^^^'■^'■" •' ■' . ^ der case.
of Mr. Young : but they again refused. For this refusal Lord Kinnoull and Mr. Young brought an action for damages, in the Court of Session, against the majority of the Presbytery ; and obtained a unanimous decision that they were entitled to pecuniary redress for the civil wrongs they had sustained. On appeal to the House of Lords, this judgment also was unani- mously affirmed. 1 Li other cases, the Court of Session inter- fered in a more peremptory form. The Presbytery of Dunkeld, Lethendy having inducted a minister to the parish of Lethendy, in defi- '^^^^* ance of an interdict from the Court of Session, were brought up before that court, and narrowly escaped imprisonment.^ The Crown presented Mr. Mackintosh to the living of Daviot Daviot case, and Dunlichity : when several parishioners, who had been can- ^7th Dec, vassing for another candidate, whose claims they had vainly pressed upon the Secretary of State, prepared to exercise a veto. But as such a proceeding had been pronounced illegal by the House of Lords, Mr. Mackintosh obtained from the Court of Session a decree interdicting the heads of families from appearing before the Presbytery, and declaring their dis- sent without assigning special objections.^
While this litigation was proceeding, the civil and ecclesias- The Strath- tical authorities were brought into more direct and violent ^°S^® ^^®^^* collision. Mr. Edwards was presented, by the trustees of Lord Fife, to the living of Marnoch, in the Presbytery of Strathbogie :
1 nth July, 1842 ; Bell's Cases decided in the House of Lords, i. 662.
2 Buchanan, ii. 1-17. » Dunlop, Bell, and Murray's Reports, ii. 253.
288 THE CONSTITUTIONAL HISTORY OF ENGLAND
but a majority of the male heads of families having signified their veto, the seven ministers constituting the Presbytery, in obedience to the law of the Church and an order of the General Assembly, refused to admit him to his trials. Mr. Edwards appealed to the Court of Session, and obtained a decree directing the Presbytery to admit him to the living, if found qualified. The ministers of the Presbytery were now placed in the pain- ful dilemma of being obliged to disobey either the decree of the civil court, or the order of the supreme court of the Church. In one case they would be punished for contempt ; in the other for contumacy. Prohibited by a commission of Assembly from proceeding further, before the next General Assembly, they nevertheless resolved, as ministers of the Established Church, sworn to pay allegiance to the Crown, to render obedi- ence to the law, constitutionally interpreted and declared. For this offence against the Church they were suspended by the commission of Assembly ; and their proceedings as a Presby- tery were annulled.^ The Strath- The Court of Session, thus defied by the Church, sus-
bogie minis- pended the execution of the sentence of the commission of
ters, 14th \ . , , . . 1 -1 • 1 1
Feb., 1840. Assembly agamst the suspended mmisters, prohibited the service of the sentence of suspension, and forbade other minis- ters from preaching or intruding into their churches or schools,^ These proceedings being reported to the General Assembly, that body approved of the acts of the commis- sion, further suspended the ministers, and again provided for the performance of their parochial duties. Again the Court of Session interfered, and prohibited the execution of these acts of the Assembly, which were in open defiance of its previous interdicts.^ The Church was in no mood to abate her pretensions. Hitherto the members of the Strath- bogie Presbytery had been under sentence of suspension only. They had vainly sought protection from Parliament ; and on the 27th of May, 1841, the General Assembly deposed
' iilh Dec, 1839.
''Dunlop, Bell, and Murray's Reports, ii. 258, 585. Lord Gillies on the question of jurisdiction, said: "The pretensions of the Church of Scotland, at present, are exactly those of the Papal See a few centuries ago. They not only decline the jurisdiction of the civil courts, but they deny that Parliament can bind them by a law which they choose to say is inconsistent with the law of Christ."
=»iith June, 1840; ibid., 1047, 1380.
RELIGIOUS LIBERTY 289
them from the ministry. Dr. Chalmers, in moving their de- position, betrayed the spirit which animated that Assembly, and the dangers which were now threatening the establishment. "The Church of Scotland," he said, "can never give way, and will sooner give up her existence as a national establishment, than give up her powers as a self-acting and self-regulating body, to do what in her judgment is best for the honour of the Redeemer, and the interest of His kingdom upon earth." ^ It was evident that the ruling party in the Assembly were pre- pared to resist the civil authority at all hazards.
The contest between the civil and ecclesiastical jurisdictions The Strath- was now pushed still further. The majority of the Presbytery ^j^l^^^^g^' of Strathbogie, who had been deposed by the General As- sembly, but reinstated by the Court of Session, elected com- missioners to the General Assembly : the minority elected others. The Court of Session interdicted the commissioners elected by the minority from taking their seats in the As- sembly.^ And in restraining the contumacy of these refractory commissioners, the civil court was forced to adjudge the con- stitution and rights of the Ecclesiastical Assembly. All these decisions were founded on the principle that ministers and members of the Church of Scotland were not to be permitted to refuse obedience to the decrees of the civil courts of the realm, or to claim the exercise of rights which those courts had pronounced illegal. The Church regarded them as en- croachments upon her spiritual functions.
It was plain that such a conflict of jurisdictions could not Claim and endure much longer. One or the other must yield: or the^J^g'^gJ^ legislature must interfere to prevent confusion and anarchy. Assembly, In May, 1 842, the General Assembly presented to her Majesty ^*^' '^'^' a claim, declaration, and protest, complaining of encroachments by the Court of Session ; and also an address, praying for the abolition of patronage. These communications were followed by a memorial to Sir Robert Peel and the other members of his
1 Ann. Reg., 1841, pp. 71-73; Hans. Deb., 3rd Ser., Ivii. 1377; Iviii. 1503 ; Buchanan, ii. 17-285.
2 27th May, 1842. Dunlop, Bell, and Murray's Reports, iv, 1298. Lord Fullerton, who differed from the majority of the court, said: " According to my present impression, this court has no more right to grant such an interdict, than to interdict any persons from taking their seats and acting and voting as mem- bers of the House of Commons ". — Ihid,
VOL. n. 19
ago THE CONSTITUTIONAL HISTORY OF ENGLAND
Answer ot Sir James Graham, 4th Jan., 1843.
Quoad sacra ministers, 20th Jan., 1843.
Government, praying for an answer to the complaints of the Church, which, if not redressed, would inevitably result in the disruption of the establishment On behalf of the Govern- ment, Sir James Graham, Secretary of State for the Home Department, returned a reply, stern and unbending in tone, and with more of rebuke than conciliation. The aggression, he said, had originated with the Assembly, who had passed the illegal Veto Act, which was incompatible with the rights of patrons as secured by statute. By the standards of the Church, the Assembly were restrained from meddling with civil jurisdiction : yet they had assumed to contravene an Act of Parliament, and to resist the decrees of the Court of Session, the legal expositor of the intentions of the legislature. The existing law respected the rights of patrons to present, of the congregation to object, and of the Church courts to hear and judge — to admit or reject the candidate. But the Veto Act de- prived the patrons of their rights, and transferred them to the congregations. The Government were determined to uphold established rights, and the jurisdiction of the civil courts : and would certainly not consent to the abolition of patronage. To this letter the General Assembly returned an answer of ex- traordinary logical force : but the controversy had reached a point beyond the domain of argument.^
The Church was hopelessly at issue with the civil power. Nor was patronage the only ground of conflict The General Assembly had admitted the ministers of quoad sacra parishes and chapels of ease to the privileges of the parochial clergy, including the right of sitting in the Assembly, and other Church courts.^ The legality of the acts of the assembly was called in question ; and in January, 1843, the Court of Session adjudged them to be illegal.^ On the meeting of the Assembly on the 31st of January, a motion was made, by Dr. Cook, to exclude the quoad sacra ministers from that body, as disqualified by law : but it was lost by a majority of 92. Dr. Cook, and the minority, protesting against the illegal constitution of the Assembly, withdrew ; and the quoad sacra ministers retained their seats, in defiance of the Court of Session. The conflict
^ Papers presented in answer to addresses of the House of Commons, gth and loth Feb., 1843 ; Buchanan, ii. 357.
" Acts of Assembly, 1833, 1834, 1837, and 1839. 'Stewarton Case, Bell, Murray, etc., Reports, iv. 427.
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was approaching its crisis ; and, in the last resort, the Assembly agreed upon a petition to Parliament, complaining of the en- croachments of the civil courts upon the spiritual jurisdiction of the Church, and of the grievance of patronage.
This petition was brought under the consideration of the Petition of Commons by Mr. Fox Maule. He ably presented the entire 2^"^^^ case for the Church ; and the debate elicited the opinions of 7th March, ministers, and the most eminent members of all parties. Amid ^ '*^* expressions of respect for the Church, and appreciation of the learning, piety, and earnestness of her rulers, a sentiment pre- vailed that until the General Assembly had rescinded the Veto Act, in deference to the decision of the House of Lords, the interposition of Parliament could scarcely be claimed on her behalf She had taken up her position, in open defiance of the civil authority ; and nothing would satisfy her claims but sub- mission to her spiritual jurisdiction. Some legislation might yet be possible : but this petition assumed a recognition of the claims of the Church, to which the majority of the House were not prepared to assent. Sir Robert Peel regarded these claims as involving " the establishment of an ecclesiastical domina- tion, in defiance of law," which " could not be acceded to with- out the utmost ultimate danger, both to the religious liberties and civil rights of the people ". The House concurred in this opinion, and declined to entertain the claims of the Church by a majority of 135.^
This decision was accepted by the non-intrusion party as The conclusive ; and preparations were immediately made for their ^g^^^^°"* secession from the Church.^ The General Assembly met on 1843. the 1 8th May, when a protest was read by the moderator, signed by 169 commissioners of the Assembly, including ^«<7a^ sacra ministers and lay elders. This protest declared the juris- diction assumed by the civil courts to be " inconsistent with Christian liberty, and with the authority which the Head of the Church hath conferred on the Church alone". It stated that the word and will of the State having recently been declared that submission to the civil courts formed a condition of the
^ Ayes, 76 ; Noes, 2ii ; Hans. Deb., 3rd Ser., Ixvii. 354, 441. See also de- bate in the Lords on Lord Campbell's resolutions, 31st March ; ibid., Ixviii. 218; debate on quoad sacra ministers, 9th May ; ihid., Ixix. 12.
* Minute of Special Commission of the General Assembly, 20th March ; Ann. Reg., 1843, p. 245 ; Buchanan, ii. 427.
19 *
292 THE CONSTITUTIONAL HISTORY OF ENGLAND
Veto Act rescinded.
The Free Church of Scotland.
establishment, they could not, without sin, continue to retain the benefits of the establishment to which such condition was attached, and would therefore withdraw from it, retaining, however, the confession of faith and standards of the Church. After the reading of this protest, the remonstrants withdrew from the Assembly ; and, joined by many other ministers, con- stituted the " Free Church of Scotland ". Their schism was founded on the first principles of the Presbyterian polity — re- pugnance to lay patronage, and repudiation of the civil juris- diction in ecclesiastical affairs. These principles — at issue from the very foundation of the Church — had now torn her asunder. 1
A few days afterwards, the General Assembly rescinded the Veto Act, and the Act admitting quoad sacra ministers to that court ; and annulled the sentences upon the Strathbogie ministers. The seceders were further declared to have ceased to be members of the Church, and their endowments were pronounced vacant.'^ The Church thus' submitted herself, once more, to the authority of the law ; and renewed her loyal alliance with the State.
The secession embraced more than a third of the clergy of the Church of Scotland, and afterwards received considerable accessions of strength.^ Some of the most eminent of the clergy — including Dr. Chalmers and Dr. Candlish — were its leaders. Their eloquence and character insured the popularity of the movement ; and those who denied the justice of their cause, and blamed them as the authors of a grievous schism, could not but admire their earnestness and noble self-denial. Men highly honoured in the Church had sacrificed all they most valued to a principle which they conscientiously believed to demand that sacrifice. Their once crowded churches were surrendered to others, while they went forth to preach on the hill-side, in tents, in barns, and stables. But they relied, with just confidence, upon the sympathies and liberality of their
1 Sydow's Scottish Church Question, 1845 ; D'Aubigne's Germany, England, and Scotland, 377-459 ; Buchanan's Ten Years' Conflict, 433-449.
^ Ann. Reg., 1843, p. 250; D'Aubigne's Germany, England, and Scotland,
443-459-
'Of 947 parish ministers, 214 seceded ; and of 246 quoad sacra ministers, 144 seceded ; Ann. Reg., 1843, p. 255; speech of Lord Aberdeen, 13th June, 1843; Hans. Deb., 3rd Ser., Ixix. 1414 ; Buchanan, ii. 464,468; Hanna's Life of Dr. Chalmers.
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flocks ; ^ and in a few years the spires of their free kirks were to be seen in most of the parishes of Scotland.
When this lamentable secession had been accomplished, Patronage the Government at length undertook to legislate upon the '^'' ^ '^^' vexed question of patronage. In 1840, Lord Aberdeen had proposed a bill, in the vain hope of reconciling the conflicting views of the two parties in the Church ; and this bill he now offered, with amendments, as a settlement of the claims of patrons, the Church, and the people. The Veto Act had been pronounced illegal, as it delegated to the people the func- tions of the Church courts ; and in giving the judgment of the House of Lords it had been laid down that a Presbytery in judging of the qualifications of a minister were restricted to an inquiry into his " life, literature, and doctrine ". The bill, while denying a capricious veto to the people, recognised their right of objecting to a presentation, in respect of " ministerial gifts and qualities, either in general, or with reference to that particular parish " ; of which objections the Presbytery were to judge. In other words, they might show that a minister, what- ever his general qualifications, was unfitted for a particular parish. He might be ignorant of Gaelic, among a Gaelic popu- lation : or too weak in voice to preach tin a large church: or too infirm of limb to visit the sick in rough Highland glens. It was argued, that with so wide a field of objection, the veto was practically transferred from the people to the Presbytery ; and that the bill being partly declaratory, amounted to a partial reversal of the judgment of the Lords in the Auchter- arder case. But after learned discussions in both Houses, it was passed by Parliament, in the hope of satisfying the reason- able wishes of the moderate party in the Church, who respected the rights of patrons, yet clung to the Calvinistic principle which recognised the concurrence of the people.^ To the people was now given the full privilege of objection ; and to the Church judicatories the exclusive right of judgment.
1 In eighteen years they contributed ;£"i,25i,458 for the building of churches, manses, and schools ; and for all the purposes of their new establishment no less a sum than ;^5,22g,63i. — Tabular abstracts of sums contributed to Free Church of Scotland to 1858-1859, with MS. additions for the two following years, obtained through the kindness of Mr. Dunlop, M.P.
'Lords' Deb., 13th June, 3rd and 17th July, 1843; Hans. Deb., 3rd Ser., Ixix. 1400; Ixx. 534, 1202; Commons' Deb., 31st July, loth Aug., 1843; Hans. Deb., Ixxi. 10, 517 ; 6 & 7 Vict, c. 61 ; Buchanan, ii. 458.
294 THE CONSTITUTIONAL HISTORY OF ENGLAND
Religious disunion in Scotland.
Church in Ireland.
Resistance to tithes.
The secession of 1843, following prior schisms, augmented the religious disunion of Scotland ; and placed a large ma- jority of the people out of communion with the State Church — which the nation itself had founded at the Reformation.^
Let us now turn, once more, to the history of the Church in Ireland. Originally the Church of a minority, she had never extended her fold. On the contrary, the rapid multiplication of the Catholic peasantry had increased the disproportion between the members of her communion and a populous na- tion. At the Union, indeed, she had been united to her powerful sister Church in England ; ^ and the weakness of one gained support from the strength of the other. The law had joined them together ; and constitutionally they became one Church. But no law could change the essential character of the Irish Establishment, or its relations to the people of that country. In vain were English Protestants reckoned among its members. No theory could disturb the proportion of Protestants and Catholics in Ireland. While the great body of the people were denied the rights of British subjects, on account of their religion, that grievance had caused the loudest complaints. But in the midst of the sufferings and discontents of that unhappy land, jealousy of the Protestant Church, aversion to her endowed clergy, and repugnance to contribute to the maintenance of the established religion, were ever proclaimed as prominent causes of disaffection and outrage.
Foremost among the evils by which the Church and the people were afflicted was the law of tithes. However impolitic in England,^ its policy was aggravated by the peculiar condi- tion of Ireland. In the one country, tithes were collected from a few thriving farmers — generally members of the Church : in the other, they were levied upon vast numbers of cottier tenants miserably poor, and generally Catholics.* Hence,
^ In 1851, of 3,395 places of worship, 1,183 belonged to the Esublished Church; 889 to the Free Church ; 465 to the United Presbyterian Church ; 112 to the Episcopal Church ; 104 to Roman Catholics ; and 642 to other religious denominations, embracing most of the sects of English dissenters. On the census Sunday 228,757 attended the morning service of the Established Church ; and no less than 255,482 that of the Free Church (Census Returns, 1851). In i860, the latter had 234,953 communicants.
* Act of Union, Art. 5. ^ Supra, p. 269.
* In one parish ;^200 were contributed by 1,600 persons ; in another ;^7oo by no less than 2,000. — Second Report of Commons* Committee, 1832. In a
RELIGIOUS LIBERTY 295
the levy of tithes, in kind, provoked painful conflicts between the clergy and the peasantry. Statesmen had long viewed the law of tithes with anxiety. So far back as 1786, Mr. Pitt had suggested the propriety of a general commutation, as a measure calculated to remove grievances and strengthen the interests of the Church.^ In 1807, the Duke of Bedford, attributing most of the disorders of the country to the rigid exaction of tithes, had recommended their conversion into a land tax, and ultimately into land.^ Repeated discussions in Parliament had revealed the magnitude of the evils incident to the law. Sir John Newport, in 1822,^ and Sir Henry Parnell, in 1823,'* had exposed them. In 1824, Lord Althorp and Mr. Hume had given them a pro- minent place among the grievances of Ireland.^ The evils were notorious, and remaining without correction, grew chronic and incurable. The peasants were taught by their own priest- hood, and by a long course of political agitation, to resent the demands of the clergy as unjust : their poverty aggravated the burden ; and their numbers rendered the collection of tithes not only difficult but dangerous. It could only be attempted by tithe-proctors — men of desperate character and fortunes, whose hazardous services hardened their hearts against the people, and whose rigorous execution of the law increased its unpopu- larity. To mitigate these disorders, an Act was passed, in 1 824, for the voluntary composition of tithes : but the remedy was partial ; and resistance and conflicts continued to increase with the bitterness of the strife that raged between Pro- testants and Catholics. At length, in 1831, the collection of tithes in many parishes became impracticable. The clergy re- ceived the aid of the police, and even of the military : but in vain. Tithe-proctors were murdered ; and many lives were lost in collisions between the police and the peasantry. Men, not unwilling to pay what they knew to be lawful, were intimi- dated and coerced by the more violent enemies of the Church.
parish in the county of Carlow, out of 446 tithe-payers 221 paid sums under qd. ; and out of a body of 7,005, in several parishes, one-third paid less than gd. each. — Mr. Littleton's Speech, 20th Feb., 1834.
1 Letter to the Duke of Rutland ; Lord Stanhope's Life, i. 319. See also Lord Castlereagh's Corr., iv. 193 (1801).
2 Speech of Lord J. Russell, 23rd June, 1834 ; Hans. Deb,, 3rd Ser., xxiv. 798. ^ Ibid., 2nd Ser., vi. 1475; Mr. Hume also, 4th March, 1823; ibid., viii.
367-
* Ibid., ix. 1 175. • Ibid., xi. 547, 660.
296 THE CONSTITUTIONAL HISTORY OF ENGLAND
Tithes could only be collected at the point of the bayonet ; and a civil war seemed impending over a country which for centuries had been wasted by conquests, rebellions, and internecine strife. The clergy shrank from the shedding of blood in their service ; and abandoned their claims upon a refractory and desperate people. Provision for The law was at fault ; and the clergy, deprived of their the clergy, legal maintenance, were starving, or dependent upon private charity.^ That the law must be reviewed was manifest; but in the meantime, immediate provision was needed for the clergy. The State, unable to protect them in the enforcement of their rights, deemed itself responsible for their sufferings, and extended its helping hand. In 1832, the lord-lieutenant was empowered to advance ;^6o,ooo to the clergy who had been unable to collect the tithes of the previous year ; ^ and the Government rashly undertook to levy the arrears of that year in repayment of the advance. Their attempt was vain and hopeless. They went forth, with an array of tithe- proctors, police, and military : but the people resisted. Desperate con- flicts ensued : many lives were lost : the executive became as hateful as the clergy : but the arrears were not collected. Of ;^i 00,000, no more than ;^i 2,000 were recovered, at the cost of tumults and bloodshed.'^ The people were in revolt against the law, and triumphed. The Government, confessing their failure, abandoned their fruitless efforts ; and in 1833, obtained from Parliament the advance of a million, to maintain the desti- tute clergy, and cover the arrears of tithes, for that and the two previous years. Indemnity for this advance, however, was sought in the form of a land tax, which, it needed little fore- sight to conjecture, would meet with the same resistance as tithes.* These were temporary expedients, to meet the im- mediate exigencies of the Irish clergy ; and hitherto the only general measure which the legislature had sanctioned, was one for making the voluntary tithe compositions compulsory and permanent.*
' Reports of Committees in Lords and Commons, 1832; Ann. Reg., 1831, p. 324 ; 1832, p. 281.
2Act2&3 Will. IV. c. 41.
3 Speech of Mr. Littleton ; Hans. Deb., 3rd Ser., xx. 342.
*3 & 4 Will. IV. c. 100; ibid., 350.
»2&3 Will. IV.c. iig.
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Meanwhile, the difficulties of the tithe question were Irish Church bringing into bold relief the anomalous condition of the Irish ^^ °^^' Church. Resistance to the payment of tithes was accom- panied by fierce vituperation of the clergy, and denuncia- tions of a large Protestant establishment in the midst of a Catholic people. The Catholic priests and agitators would have trampled upon the Church as an usurper : the Pro- testants and Orangemen were prepared to defend her rights with the sword. Earl Grey's Government, leaning to neither extreme, recognised the necessity of extensive reforms and reductions in the establishment. Notwithstanding the spolia- tions of Henry VIII. and Elizabeth, its endowments were on the ambitious scale of a national Church. With fewer members than a moderate diocese in England, it was governed by no less than four archbishops and eighteen bishops. Other dignitaries enjoyed its temporalities in the same proportion ; and many sinecure benefices were even without Protestant flocks.
Such an establishment could not be defended ; and in Church Tem-
1833, Ministers introduced an extensive measure of reform. P°"^^^'*'j.^o.,, '^^' (Ireland) Bill,
It suppressed, after the interests of existing incumbents, two 1833. archbishoprics, and eight separate sees ; and reduced the in- comes of some of the remaining bishops. All sinecure stalls in cathedrals were abolished, or associated with effective duties. Livings, in which no duties had been performed for three years, were not to be filled up. First fruits were abolished. Church cess — an unpopular impost, similar to Church rates in England, levied upon Catholics, but managed by Protestant vestries — was discontinued ; and the repair of churches provided for out of a graduated tax upon the clergy. Provision was made for the improvement of Church lands ; for the augmentation of small livings, and for the building of churches and glebe houses, under the superintendence of a commission, by whom the surplus revenues of the Church were to be administered.^
So bold were these reforms, that even Mr. O'Connell at first expressed his satisfaction : yet while they discontinued the most prominent abuses of the establishment, they increased its general efficiency. In the opinion of some extreme Tories, indeed, the measure was a violation of the coronation oath, and the stipulations of the Union with Ireland : it was an act
* Lord Althorp's Speech, 12th Feb., 1833 ; Hans. Deb., 3rd Ser., xv. 561.
298 THE CONSTITUTIONAL HISTORY OF ENGLAND
Principle of appropria- tion.
2i8t June, 1833-
of spoliation : its principles were revolutionary. But by men of more moderate views, its justice and necessity were gener- ally recognised.^
One principle, however, involved in the scheme became the ground of painful controversy ; and long interfered with the progress of other measures conceived in the interests of the Church. A considerable sum was expected to be derived from the grant of perpetual leases of Church lands ; and the question was naturally raised, how was it to be disposed of? Admitting the first claims of the Church — what was to become of any surplus, after satisfying the needs of the establishment ? On one side, it was maintained that the property of the Church was inalienable ; and that nothing but its redistribution, for ecclesiastical purposes, could be suffered. On the other, it was contended that the Church had no claim to the increased value given to her lands by an Act of Parliament ; and that, in any case, the legislature was free to dispose of Church re- venues for the public benefit. The bill provided that the monies accruing from the grant of these perpetuities should be applied, in the first instance, in redemption of charges upon parishes, for building churches ; and any surplus, to such pur- poses as Parliament might hereafter direct.^ Ministers, fearing that the recognition of this principle of appropriation, even in so vague a form, would endanger their measure in the House of Lords, abandoned it in committee — to the disgust of Mr. O'Connell and his followers, and of many members of the Liberal party. Mr. O'Connell asked what benefit the Irish people could now hope to derive from the measure, beyond the remission of the Church cess? The Church establishment would indeed be reduced ; but the people would not save a single shilling by the reduction." In truth, however, the clause had not expressly declared that the revenues of the Church were applicable to State purposes. Its retention would not have affirmed the principle : its omission did not surrender any rights, which the legislature might, hereafter, think fit to exercise. Whenever the surplus should actually arise, Parlia- ment might determine its appropriation. Yet both parties otherwise interpreted its significance ; and it became the main
^ Debate on second reading, 6th May; Hans. Deb., 3rd Ser., xvii. 965.
« Clause 147. ' Hans. Deb., 3rd Ser., xviii. 1073 ; Ann. Reg. 1833, P- 104-
RELIGIOUS LIBERTY 299
question at issue between the friends and opponents of the Church, who each foresaw, in the recognition of an abstract principle, the ultimate alienation of the revenues of the Irish establishment. For the present, a concession being made to the fears of the Church party, the bill was agreed to by both Houses.^ But the conflict of parties, upon the controverted principle, was by no means averted.
In the next session, Mr. Ward, in a speech of singular Church in ability, called upon the House of Commons to affirm a reso- ^^^^^ '^^j.^ lution that the Church establishment in Ireland exceeded the motion, 27th spiritual wants of the Protestant population ; and that it being ^^' ^ ^'^* the right of the State to regulate the distribution of Church property, the temporal possessions of the Church in Ireland ought to be reduced.^ This resolution not only asserted the principle of appropriation : but disturbed the recent settlement of the ecclesiastical establishment in Ireland. It was fraught with political difficulties. The Cabinet had already been di- vided upon the principles involved in this motion ; and the discussion was interrupted for some days by the resignation of Mr. Stanley, Sir James Graham, the Duke of Richmond, and the Earl of Ripon, The embarrassment of Ministers was increased by a personal declaration of the king against inno- vations in the Church, in reply to an address of the Irish bishops and clergy.^ The motion, however, was successfully Superseded met by the appointment of a commission to inquire into the ^g^PP°'"*' revenues and duties of the Church, and the general state of commission, religious instruction in Ireland. Hitherto there had been no 1L4 "^' certain information either as to the revenues of the Church or the numbers of different religious communions in the country ; and Ministers argued that, until these facts had been ascertained, it could not with propriety be affirmed that the establishment was excessive. At the same time, the appoint- ment of the commission implied that Parliament would be prepared to deal with any surplus which might be proved to exist, after providing for the wants of the Protestant population. On these grounds the previous question was moved, and carried by a large majority.*
^ Church Temporalities (Ireland) Act, 3 & 4 Will. IV. c. 37.
2 Hans. Deb., 3rd Ser., xxiii. 1368. ' 28th May, 1834 ; Ann. Reg., 1834, p. 43.
* For the motion, 120 ; for the previous question, 396 ; Hans. Deb., 3rd Ser.,
XXIV. 10.
300 THE CONSTITUTIONAL HISTORY OF ENGLAND
Irish tithes associated with appro- priation.
Lords' debate A few days afterwards, the propriety of issuing this com- °" ^PP^P"^' mission, and the rights of the State over the distribution of June, 1834. Church property, were warmly debated in the House of Lords. While one party foresaw spoliation as the necessary result of the proposed inquiry, and the other disclaimed any intentions hostile to the Church, it was agreed on all sides that such an inquiry assumed a discretionary power in the State, over the appropriation of Church property.^ Earl Grey boldly avowed, that if it should appear that there was a con- siderable excess of revenue, beyond what was required for the efficiency of the Church and the propagation of divine truth, " the State would have a right to deal with it with a view to the exigencies of the State and the general interests of the country ".^
Meanwhile, the difficulties of the question of Irish tithes were pressing. Ministers had introduced a bill, early in the session, for converting tithes into a land tax, payable to the Government by the landlords, and subject to redemption. When redeemed, the proceeds were to be invested in land for the benefit of the Church.^ The merits of this measure were repeatedly discussed, and the scheme itself materially modified in its progress : but the question of appropriation bore a foremost place in the discussions. Mr. O'Connell viewed with alarm a plan securing to the Church a perpetual vested interest in tithes, which could no longer be collected ; and threatened the landlords with a resistance to rent, when it embraced a covert charge for the maintenance of the Protest- ant Church. Having opposed the measure itself, on its own merits, he endeavoured to pledge the House to a resolution, that any surplus of the funds to be raised in lieu of tithes, after providing for vested interests and the spiritual wants of the Church, should be appropriated to objects of public utility.* Disclaiming any desire to appropriate these funds for Catholic or other religious uses, he proposed that they should be applied to purposes of charity and education. On the part of Ministers, Lord Althorp and Lord John Russell again upheld the right of the State to review the distribution
' Hans. Deb., 3rd Ser., xxiv. 243. ' Ihid., 254.
^Mr. Littleton's Explanation, 20th Feb., 1834; ihid.y xxi. 572. ^ Amendment on going into committee ; ibid.^ xxiv. 734.
23rd June, 1834.
RELIGIOUS LIBERTY 301
of Church property, and apply any surplus according to its discretion. Nor did they withhold their opinion, that the proper appropriation would be to kindred purposes, connected with the moral and religious instruction of the people. But they successfully resisted the motion as an abstract proposi- tion, prematurely offered.^ Soon afterwards, Lord Grey's ad- ministration was suddenly dissolved : but the Tithe Bill was continued by Lord Melbourne. Many amendments, however, were made — including one forced upon Ministers by Mr. O'Connell, by which the tithe-payer was immediately relieved to the extent of 40 per cent. After all these changes, the bill was rejected, on the second reading, by the House of Lords.^ Again the clergy were left to collect their tithes, under in- creased difficulties and discouragement.
In the next session. Sir Robert Peel had succeeded to the Sir Robert embarrassments of Irish tithes and the appropriation question, measure for As to the first, he offered a practical measure for the com- commuting mutation of tithes into a rent-charge upon the land, with a jg^s. ' ^' deduction of 25 per cent. Provision was also made for its redemption, and the investment of the value in land, for the benefit of the Church. He further proposed to make up the arrears of tithes in 1834, out of the million already advanced to the clergy.^ But the commutation of tithes was not yet destined to be treated as a practical measure. It had been associated, in the late session, with the controverted principle of appropriation, which now became the rallying point of parties. It had severed from Lord Grey some of his ablest colleagues, and allied them with the opposite party.
Sir Robert Peel, on accep;ting office, took an early oppor- Appropriation tunity of stating that he would not give his " consent to the adopted by alienation of Church property, in any part of the United the Whigs in Kingdom, from strictly ecclesiastical purposes ". On the 18^5°^' '°"' other hand, in the first discussion upon Irish tithes, Lord John Russell expressed his doubts whether any advantage would result from the abolition of tithes, without a prior decision of the appropriation question : and Mr. O'Connell proclaimed
1 It was negatived by a majority of 261 — Ayes, 99 ; Noes, 360 ; Hans. Deb., 3rd Ser., xxiv. 805.
2 nth Aug., 1834; ibid., xxv. 1143. '■'Ibid., xxvii. 13.
302 THE CONSTITUTIONAL HISTORY OF ENGLAND
Appropria- tion under Lord Mel- bourne.
Revenues of the Church of Ireland.
that the word " appropriation would exert a magical influence in Ireland". The Whigs, exasperated by their sudden dis- missal/ were burning to recover their ground : but the liberal measures of the new Ministry afforded few assailable points. Sir Robert Peel, however, had taken his stand upon the inviol- ability of Church property ; and the assertion of the contrary doctrine served to unite the various sections of the Opposition. The Whigs, indeed, were embarrassed by the fact that they had themselves deprecated the adoption of any resolution, until the commission had made its report ; and this report was not yet forthcoming. But the exigencies of party demanded a prompt and decisive trial of strength. Lord John Russell, therefore, pressed forward with resolutions af- firming that any surplus revenues of the Church of Ireland, not required for the spiritual care of its members, should be applied to the moral and religious education of all classes of the people ; and that no measure on the subject of tithes would be satisfactory which did not embody that principle. These resolutions were affirmed by small majorities ; ^ and Sir Robert Peel was driven from power.
It was an untoward victory. The Whigs had pledged themselves to connect the settlement of tithes with the appro- priation of the surplus revenues of the Church of Ireland. The Conservatives were determined to resist that principle ; and having a large majority in the House of Lords, their resistance was not to be overcome.
Meanwhile, the position of Ministers was strengthened by the disclosure of the true state of the Church. Out of a popu- lation of 7,943,940 persons, there were 852,064 members of the establishment; 6,427,712 Roman Catholics ; 642,356 Presby- terians; and 21,808 Protestant dissenters of other denomina- tions. The State Church embraced little more than a tenth of the people.^ Her revenues amounted to ^865,525. In 151 parishes there was not a single Protestant : in 194 there were
1 Supra, vol. i. p. 98.
^ On 2nd Arpil a committee of the whole House was obtained by a majority of 33. — Hans. Deb., 3rd Ser., xxvii. 362, 770, etc. On 6th April, the first resolu- tion was agreed to in committee by a majority of 25 ; and on the 7th, the second resolution was affirmed by the House on the report by a majority of 27. — Comm. yourn., xc. 202, 208 ; Hans. Deb., 3rd Ser., xxvii. 790, 837, 878.
' ist Report of Commissioners on Public Instruction, Ireland (1835), p. 7.
RELIGIOUS LIBERTY 303
less than ten : in 198 less than twenty: and in 860 parishes there were less than fifty,^
These facts were dwelt upon in support of appropriation, Appropriation which formed part of every bill for the commutation of tithes, ^g^g, °" ' But the Lords had taken their stand upon a principle ; and were not to be shaken. Tithes were still withheld from the clergy ; and the feelings of the people were embittered by continual discussions relating to the Church ; while bill after bill was sacrificed to clauses of appropriation. The mischievous contest between the two Houses was brought to a close in 1838, by the abandonment of the appropriation clause by Ministers them- selves. It was, indeed, bitter and humiliating : but it was unavoidable. The settlement of tithes could no longer be deferred ; and any concession from the Lords was hopeless. But the retirement of the Whigs from a position which they had chosen as their own battlefield, was a grievous shock to their influence and reputation. They lost the confidence of many of their own party, forfeited public esteem, and yielded to the Opposition an exultant triumph which went far to restore them to popular favour, and ultimately to power.^
But if ruin awaited the Whigs, salvation was at hand for Commutation
the Church of Ireland. Tithes were at length commuted into°^^"^^^*^^^'
1838.
a permanent rent-charge upon the land ; and the clergy amply indemnified for a sacrifice of one-fourth the amount, by un- accustomed security and the peaceable enjoyment of their rights. They were further compensated for the loss of arrears, out of the balance of the million, advanced by Parliament as a loan in 1833, ^^^ eventually surrendered as a free gift.^ The Church had passed through a period of trials and danger ; and was again at peace. The grosser abuses of her establish- ment were gradually corrected, under the supervision of the ecclesiastical commissioners : but its diminished revenues were devoted exclusively to the promotion of its spiritual efficiency.
While the State protected the Protestant Church, it had National not been unmindful of the interests of the great body of thefjj"jg*J[°^ people, who derived no benefit from her ministrations. In
1 Lord Morpeth's Speech, 1835 ; Hans. Deb,, 3rd Ser., xxviii. 1339. The latter number comprises the parishes previously enumerated.
^ See especially Debates, 14th May and 2nd July, 1838; ibid., xlii. 1203; xliii. H77.
* I & 2 Vict. c. log.
304 THE CONSTITUTIONAL HISTORY OF ENGLAND
1 83 1 a national system of education was established, embrac- ing the children of persons of all religious denominations.^ It spread and flourished, until, in i860, 803,364 pupils received instruction — of whom 663,145 were Catholics* — at an annual cost to the State of ;^270,ooo.^ Maynooth In 1 845, Sir Robert Peel adventured on a bold measure
o ege, I 45-fQj. promoting the education of Catholic priests in Ireland.* Prior to 1795, the laws forbade the endowment of any college or seminary for the education of Roman Catholics in Ireland ; and young men in training for the priesthood were obliged to resort to colleges on the continent, and chiefly to France, to prepare themselves for holy orders. But the French revolu- tionary war having nearly closed Europe against them, the Government were induced to found the Roman Catholic College of Maynooth.^ It was a friendly concession to the Catholics ; and promised well for the future loyalty of the priesthood. The College was supported by annual grants of the Parliament of Ireland, which were continued by the United Parliament after the Union. The connection of the State with this college had been sanctioned in the days of Protestant ascendency in Ireland ; and was continued without objection by George III. — the most Protestant of kings — and by the most Protestant of his Ministers, at a time when pre- judices against the Catholics had been fomented to the utmost. But when more liberal sentiments prevailed concerning the civil rights of the Catholics, a considerable number of earnest men, both in the Church and in other religious bodies, took exceptions to the endowment of an institution, by the State, for teaching the doctrines of the Church of Rome. " Let us extend to Catholics," they said, " the amplest toleration : let us give them every encouragement to found colleges for them- selves : but let not a Protestant State promote errors and superstitions : ask not a Protestant people to contribute to an object abhorrent to their feelings and consciences." On these
iQn gth Sept., 1831, £30,000 were first voted for this purpose ; Hans. Deb., 3rd Ser., vi. 1249. Commissioners were appointed by the lord-lieutenant to administer the system in 1832, and incorporated by letters patent in 1845.
^28th Report of Commissioners, i86i, No. [3026], pp. 10, 11, etc.
3 The sum voted in i860 was ;f 270,722.
*3rd April, 1845 ; Hans. Deb., Ixxix. 18.
* Irish Act, 35 Geo. III. c. 21; Cornwallis Corr., iii. 365-375; Lord Stan- hope's Life of Pitt, ii. 311.
RELIGIOUS LIBERTY 305
grounds the annual grant had been for some time opposed, while the college — the unfortunate object of discussion — was neglected and falling into decay. In these circumstances, Sir Robert Peel proposed to grant ;^30,ooo for buildings and im- provements, to allow the trustees of the college to hold lands to the value of ;^3,ooo a year, and to augment the endow- ment from less than ^^"9,000 a year to ;^26,36o. To give per- manence to this endowment, and to avoid irritating discussions year after year, it was charged upon the Consolidated Fund.-^
Having successfully defended the revenues of the Pro- testant Church, he now met the claims of the Catho ic clergy in a liberal and friendly spirit. The concession infringed no principle which the more niggardly votes of former years had not equally infringed : but it was designed at once to render the college worthy of the patronage of the State, and to conciliate the Catholic body. He was supported by the first statesmen of all parties, and by large majorities in both Houses : but the virulence with which his conciliatory policy was as- sailed, and the doctrines of the Church of Rome denounced, deprived a beneficent act of its grace and courtesy.
If the consciences of Protestants were outraged by contri- buting, however little, to the support of the Catholic faith, what must have been the feelings of Catholic Ireland towards a Protestant Church, maintained for the use of a tenth of the people ! It would have been well to avoid so painful a con- troversy : but it was raised ; and the Act of 1845, so far from being accepted as the settlement of a vexed question, appeared for several years to aggravate the bitterness of the strife. But state aid
the State, superior to sectarian animosities, calmly acknow- ^iy^"? to ot^^^'
' ^ .•' religions,
ledged the claims of Catholic subjects upon its justice and
liberality. Governing a vast empire, and ruling over men ol different races and religions, it had already aided the propaga- tion of doctrines which it disowned. In Ireland itself, the State has provided for the maintenance of Roman Catholic chaplains in prisons and workhouses. A different policy would have deprived the inmates of those establishments of all the offices and consolations of religion. It has provided for the re- ligious instruction of Catholic soldiers ; and since the reign of
*3rd April, 1845; Hans. Deb., 3rd Ser., Ixxlx. 18. VOL. II. 20
3o6 THE CONSTITUTIONAL HISTORY OF ENGLAND
William III. the Presbyterians of Ireland received aid from the State, known as the Regium Donum. In Canada, Malta, Gibraltar, the Mauritius and other possessions of the Crown, the State has assisted Catholic worship. Its policy has been Imperial and secular — not religious. Queen's In the same enlarged spirit of equity. Sir Robert Peel se-
land^^ls'^^ cured, in 1845, the foundation of three new colleges in Ireland, for the improvement of academical education, without religious distinctions. These liberal endowments were mainly designed for Catholics, as composing the great body of the people : but they who had readily availed themselves of the benefits of na- tional education — founded on the principle of a combined liter- ary and separate religious instruction — repudiated these new institutions. Being for the use of all religious denominations, the peculiar tenets of no particular sect could be allowed to form part of the ordinary course of instruction : but lecture- rooms were assigned for the purpose of religious teaching, according to the creed of every student.^ The Catholics, how- ever, withheld their confidence from a system in which their own faith was not recognised as predominant, and denounced the new colleges as " godless ". The Roman Catholic Synod of Thurles prohibited the clergy of their communion from be- ing concerned in the administration of these establishments ; ^ and their decrees were sanctioned by a rescript of the Pope.^ The colleges were everywhere discountenanced as seminaries for the sons of Catholic parents. The liberal designs of Parlia- ment were so far thwarted ; yet, even under these discourage- ments, the colleges enjoyed a fair measure of success. A steady increase of pupils of all denominations has been main- tained ; * the education is excellent ; and the best friends of Ireland are still hopeful that a people of rare aptitude for learning will not be induced, by religious jealousies, to repudi- ate the means of intellectual cultivation, which the State has invited them to accept.
J Hans. Deb., 3rd Ser., Ixxx. 345 ; 8 & 9 Vict. c. 66.
2 August, 1850. ^23rd May, 1851.
* In 1858 the commissioners of inquiry reported : " The colleges cannot be regarded otherwise than as successful ". — Report of Commissioners, 1858, No. [2413]. In i860, the entrances had increased firom 168 to 309 ; and the numbers attending lectures, from 454 to 752. Of the latter number, 207 were members of the Established Church ; 204, Roman Catholics ; 247, Presbyterians ; and 94 of other persuasions. — Report of President for 1860-61, 1862, No. [2999].
CHAPTER XV.
Local government the basis of constitutional freedom — Vestries — Muni- cipal corporations in England, Scotland, and Ireland — Local Im- provement and Police Acts — Local boards constituted under general Acts — Courts of Quarter Sessions.
That Englishmen have been qualified for the enjoyment of Local gov- political freedom, is mainly due to those ancient local institu- ^^e basis of tions by which they have been trained to self-government, consti- The affairs of the people have been administered, not in Par- freedom, liament only, but in the vestry, the town council, the board meeting, and the Court of Quarter Sessions. England alone among the nations of the earth has maintained for centuries a constitutional polity ; and her liberties may be ascribed, above all things, to her free local institutions. Since the days of their Saxon ancestors,^ her sons have learned, at their own gates, the duties and responsibilities of citizens. Associating, for the common good, they have become exercised in public affairs. Thousands of small communities have enjoyed the privileges of self-government : taxing themselves, through their representatives, for local objects : meeting for discussion and business ; and animated by local rivalries and ambitions. The history of local government affords a striking parallel to the general political history of the country. While the aristo- cracy was encroaching upon popular power in the government of the State, it was making advances, no less sure, in local insti- tutions. The few were gradually appropriating the franchises which were the birthright of the many ; and again, as political liberties were enlarged, the rights of self-government were recovered.
Every parish is the image and reflection of the State. The parish. The land, the Church, and the commonalty share in its govern-
* Palgrave's English Commonwealth, i. 628 ; Allen's Prerog., 128.
307 20
3o8 THE CONSTITUTIONAL HISTORY OF ENGLAND
The vestry.
The select vestry.
Mr. Sturges Bourne's Act, 1818.
Sir John Hobhouse's Act, 1831.
ment : the aristocratic and democratic elements are combined in its society. The common law — in its grand simplicity — recognised the right of all the rated parishioners to assemble in vestry, and administer parochial affairs.^ But in many parishes this popular principle gradually fell into disuse ; and a few inhabitants — self-elected and irresponsible — claimed the right of imposing taxes, administering the parochial funds, and exercising all local authority. This usurpation, long acquiesced in, grew into a custom, which the courts recognised as a legal exception from the common law. The people had forfeited their rights ; and select vestries ruled in their behalf So absolute was their power, that they could assemble without notice, and bind all the inhabitants of the parish by their vote.^
This single abuse was corrected by Mr. Sturges Bourne's Act in 1818:^ but this same Act, while it left select vestries otherwise un-reformed, made a further inroad upon the popular constitution of open vestries. Hitherto every person entitled to attend, had enjoyed an equal right of voting ; but this Act multiplied the votes of vestrymen according to the value of their rated property : one man could give six votes : others no more than one.
An important breach, however, was made in the exclusive system of local government, by Sir John Hobhouse's Vestry Act, passed during the agitation for Parliamentary reform.* The majority of ratepayers, in any parish, within a city or town, or any other parish comprising 800 householders rated to the poor, were empowered to adopt this Act Under its provisions, vestries were elected by every rated parishioner : the votes of the electors were taken by ballot: every ;^io house- holder, except in certain cases,^ was eligible as a vestryman and no member of the vestry was entitled to more than a single
I
^ Shaw's Par. Law, c. 17 ; Steer's Par. Law, 253 ; Toulmin Smith's Parieh, 2nd edn., 15-23, 46-52, 288-330.
^Gibson's Codex, 219; Burn's Eccl. Law, iv. 10, etc. ; Steer, 251.
358 Geo. in. c. 69, amended by 59 Geo. IIL c. 85, 7 Will. IV. and i Victj c. 35 ; Report on Poor Laws, 1818 ; Hans. Deb., ist Ser., xxxviii. 573.
< I & 2 Will. IV. c. 60 ; 2oth Oct., 1831 ; Toulmin Smith's Parish, 240.
^ In the metropolis, or in any parish having more than 3,000 inhabitants, a] ^40 qualification was required. In the metropolis, however, the Act was super- seded by the Metropolis Local Management Act, 1855. — Infra^ p. 321.
LOCAL GOVERNMENT 309
Vote. This measure, however democratic in principle, did little more than revert to the policy of the common law. It was adopted in some populous parishes in the metropolis and elsewhere: but otherwise has had a limited operation/
The history of municipal corporations affords another ex- Municipal ample of encroachments upon popular rights. The govern- ^j^^Pj!"^^' ment of towns, under the Saxons, was no less popular than the England, other local institutions of that race ; - and the constitution of corporations, at a later period, was founded upon the same principles. All the settled inhabitants and traders of corporate towns, who contributed to the local taxes, had a voice in the management of their own municipal affair s.^ The community, enjoying corporate rights and privileges, was continually en- larged by the admission of men connected with the town by birth, marriage, apprenticeship or servitude, and of others, not so connected, by gift or purchase. For some centuries after the conquest, the burgesses assembled in person, for the trans- action of business. They elected a mayor, or other chief magistrate : but no governing body, or town council, to whom their authority was delegated. The burgesses only were known to the law. But as towns and trade increased, the more convenient practice of representation was introduced for muni- cipal as well as for Parliamentary government. The most wealthy and influential inhabitants being chosen, gradually encroached upon the privileges of the inferior townsmen, assumed all municipal authority, and substituted self-election for the suffrages of burgesses and freemen. This encroach- ment upon popular rights was not submitted to without many struggles : but at the close of the fifteenth century it had been successfully accomplished in a large proportion of the corpora- tions of England.
Until the reign of Henry VII., these encroachments had Charters been local and spontaneous. The people had submitted to H°^ry vii them : but the law had jiot enforced them. From this time, to the Revo- however, popular rights were set aside in a new form. The "*'°"'
1 In 1842, nine parishes only had adopted it. — Pari. Paper, 1842, No. 564.
^Palgrave's English Commonwealth, i. 629; Merewether and Stephens' Hist, of Boroughs, Introd. viii. ; Kemble's Hist., ii. 262; Lappenberg's Eng- land, App. ; Hallam's Middle Ages, ii. 153.
3 Report of Commissioners on Municipal Corporations, 1835, p. 16 ; Mere- wether and Stephens' Hist., Introd. v. i, 10, etc.; Hallam's Middle Ages, ii. 155.
31 o THE CONSTITUTIONAL HISTORY OF ENGLAND
Crown began to grant charters to boroughs — generally confer- ring or reviving the privilege of returning members to Parlia- ment ; and most of these charters vested all the powers of municipal government in the mayor and town council — nomi- nated in the first instance by the Crown itself, and afterwards self-elected. Nor did the contempt of the Tudors for popular rights stop here. By many of their charters the same govern- ing body was intrusted with the exclusive right of returning members to Parliament. For national as well as local govern- ment, the burgesses were put beyond the pale of the constitution. And in order to bring municipalities under the direct influence of the Crown and the nobility, the office of high steward was often created : when the nobleman holding that office became the patron of the borough, and returned its members to Par- liament. The power of the Crown and aristocracy was increased, at the expense of the liberties of the people. The same policy was pursued by the Stuarts ; and the two last of that race violated the liberties of the few corporations which still retained a popular constitution, after the encroachments of centuries.^ Corporations After the Revolution, corporations were free from the in- from the trusion of prerogative: but the policy of municipal freedom to George was as little respected as in former times. A corporation had ^^^- come to be regarded as a close governing body, with peculiar
privileges. The old model was followed ; and the charters of George III. favoured the municipal rights of burgesses no more than the charters of Elizabeth or James I.^ Even where they did not expressly limit the local authority to a small body of persons, custom and usurpation restricted it either to the town council, or to that body and its own nominees, the freemen. And while this close form of municipal government was main- tained, towns were growing in wealth and population, whose inhabitants had no voice in the management of their owi affairs. Two millions of people were denied the constitutional' privilege of self-government Abuses of Self-elected and irresponsible corporations were suffered to]
close corpor- enjoy a long dominion. Composed of local, and often heredi-
1 Case of Quo Warranto, 1683 ; St. Tr., viii. 1039 ; Hume's Hist., vi. 201 ;1 Remodelling the Corporations, 1687; Hallam's Const. Hist., ii. 238. * Report of Commissioners, p. 17.
LOCAL GOVERNMENT 311
tary cliques and family connections, they were absolute masters over their own townsmen. Generally of one political party, they excluded men of different opinions — whether in politics or religion — and used all the influence of their office for main- taining the ascendency of their own party. Elected for life, it was not difficult to consolidate their interest ; and they acted without any sense of responsibility.! Their proceedings were generally secret : nay, secrecy was sometimes enjoined by an oath. 2
Despite their narrow constitution, there were some corpora- tions which performed their functions worthily. Maintaining a mediaeval dignity and splendour, their rule was graced by public virtue, courtesy, and refinement. Nobles shared their councils and festivities : the first men of the county were asso- ciated with townsmen : and while ruling without responsibility, they retained the willing allegiance of the people, by traditions of public service, by acts of munificence and charity, and by the respect due to their eminent station. But the greater number of corporations were of a lower type. Neglecting their proper functions — the superintendence of the police, the management of the gaols, the paving and lighting of the streets, and the supply of water — they thought only of the personal interests attached to office. They grasped all patronage, lay and ecclesiastical, for their relatives, friends, and political partisans ; and wasted the corporate funds in greasy feasts and vulgar revelry.^ Many were absolutely insolvent. Charities were despoiled, and public trusts neglected and misapplied : jobbery and corruption in every form were fostered.* Towns- men viewed with distrust the proceedings of councils, over whom they had no control, whose constitution was oligarchical, and whose political sentiments were often obnoxious to the majority. In some towns the middle classes found themselves ruled by a close council alone : in others by the council and a rabble of freemen — its creatures — drawn mainly from the lower classes, and having no title to represent the general interests of the community. Hence important municipal powers were often intrusted, under local Acts, to independent commissioners, in whom the inhabitants had confidence.^ Even the administra-
1 Report of Commissioners, p. 36. ^ Ibid,, 36. ^ Ibid., 46.
* Ibid., 31, 46, 47, 48. ' Ibid., 43.
312 THE CONSTITUTIONAL HISTORY OF ENGLAND
tion of justice was tainted by suspicions of political partiality.^ Borough magistrates were at once incompetent, and exclusively of one party ; and juries were composed of freemen, of the same close connection. This favoured class also enjoyed trading privileges, which provoked jealousy and fettered commerce.^ Monopoly But the worst abuse of these corrupt bodies was that which
rights. too lotig secured their impunity. They were the strongholds
of Parliamentary interest and corruption. The electoral privi- leges which they had usurped, or had acquired by charter, were convenient instruments in the hands of both the political parties who were contending for power. In many of the corporate towns the representation was as much at the disposal of par- ticular families as that of nomination boroughs : in others it was purchased by opulent partisans, whom both parties wel- comed to their ranks. In others, again, where freemen enjoyed the franchise, it was secured by bribery, in which the corpora- tions too often became the most active agents — not scrupling even to apply their trust funds to the corruption of electors.^ The freemen were generally needy and corrupt, and inferior, as well in numbers as in respectability, to the other inhabitants : * but they often had an exclusive right to the franchise ; and whenever a general election was anticipated, large additions were made to their numbers.^ The freedom of a city was valued according to the length of the candidate's purse. Cor- porations were safe so long as society was content to tolerate the notorious abuses of Parliamentary representation. The municipal and Parliamentary organisations were inseparable: both were the instruments by which the Crown, the aristocracy, and political parties had dispossessed the people of their con- stitutional rights ; and they stood and fell together. The Munici- The Reform Act wrested from the corporations their ex-
P.*' ^°1Y,?^^' elusive electoral privileges, and restored them to the people.
tlOnS Bill, ^, . , r : . n ,. 1 . , .
1835. 1 his tardy act of retribution was followed by the appointment
of a commission of inquiry, which roughly exposed the mani- fold abuses of irresponsible power, wherever it had been suffered to prevail. And in 1835, Parliament was called upon to over- throw these municipal oligarchies. The measure was fitly
1 Report of Commissioners, 26-29, 39. ^ Ibid., 40.
^ Ibid., 45. * Ibid., 33.
^Ibid., 34, 35. (See table of freemen created.)
LOCAL GOVERNMENT 3*3
introduced by Lord John Russell, who had been foremost in the cause of Parlianientary reform.^ It proposed to vest the municipal franchise in rated inhabitants who had paid poor- rates within the borough for three years. By them the govern- ing body, consisting of a mayor and common council, were to be elected. The ancient order of aldermen was to be no longer maintained. The pecuniary rights of existing freemen, were preserved during their lives : but their municipal franchise was superseded ; and as no new freemen were to be created, the class would be eventually extinguished. Exclusive rights of trading were to be discontinued. To the councils, constituted so as to secure public confidence, more extended powers were intrusted, for the police and local government of the town, and the administration of justice ; while provision was made for the publicity of their proceedings, the proper administration of their funds, and the publication and audit of their accounts.
No effective opposition could be offered to the general Amended principles of this measure. The propriety of restoring the^^^^^ rights of self-government to the people, and sweeping away the corruptions of ages, was generally admitted : but strenuous efforts were made to give further protection to existing rights and to modify the popular character of the measure. These efforts, ineffectual in the Commons, were successful in the Lords. Counsel was heard, and witnesses examined, on behalf of several of the corporations : but the main principles of the bill were not contested. Important amendments, however, were inserted. The pecuniary rights and parliamentary franchise of freemen received more ample protection. With a view to modify the democratic constitution of the councils, a property qualification was required for town councillors ; and aldermen were introduced into the council, to be elected for life ; the first aldermen being chosen from the existing body of aldermen.^ Those amendments were considered by Ministers and the Commons, in a spirit of concession and compromise. The more zealous advocates of popular rights urged their uncon- ditional rejection, even at the sacrifice of the bill : but more temperate councils prevailed, and the amendments were ac- cepted with modifications. A qualification for councillors was
^ 5th June, 1835 ; Hans. Deb., 3rd Ser., xxviii. 541, ^ Ibid., XXX. 426, 480, 579, etc.
314 THE CONSTITUTIONAL HISTORY OF ENGLAND
Corpora- tion of London.
Efforts to reform it.
agreed to, but in a less invidious form : aldermeo were to be elected for six years, instead of for life ; and the exclusive eligibility of existing aldermen was not insisted on.i And thus was passed a popular measure, second in importance to the Reform Act alone. ^ The municipal bodies which it created if less popular than under the original scheme, were yet founded upon a wide basis of representation, which has since been further extended.^ Local self-government was effectually restored. Elected rulers have since generally secured the confidence of their constituents : municipal office has become an object of honourable ambition to public-spirited townsmen ; and local administration, if not free from abuses,* has been exercised under responsibility and popular control. And further, the enjoyment of municipal franchises has encouraged and kept alive a spirit of political freedom in the inhabitants of towns.
One ancient institution alone was omitted from this general measure of reform — the corporation of the City of London. It was a municipal principality, of great antiquity, of wide jurisdiction, of ample property and revenues, and of composite organisation. Distinguished for its public spirit, its indepen- dent influence had often been the bulwark of popular rights. Its magistrates had braved the resentment of kings and Parlia- ments : its citizens had been foremost in the cause of civil and religious liberty. Its traditions were associated with the history and glories of England. Its civic potentates had entertained, with princely splendour, kings, conquerors, ambassadors, and statesmen. Its wealth and stateliness, its noble old Guildhall and antique pageantry, were famous throughout Europe. It united, like an ancient monarchy, the memories of a past age, with the pride and powers of a living institution.
Such a corporation as this could not be lightly touched. The constitution of its governing body : its powerful companies or guilds : its courts of civil and criminal jurisdiction : its varied municipal functions : its peculiar customs : its extended powers of local taxation — all these demanded careful inquiry and con- sideratioa It was not until 1837 that the commissioners were
1 Hans. Deb., 3rd Sen, xxx. 113^, 1194, 1335. - 5 & 6 Will. IV. c. 76.
^ Municipal Corporations Act, 1859, 22 Vict. c. 35.
* See Reports of Lords' Committees on Rates and Municipal Franchise, 1859, and Elective Franchise, i860.
LOCAL GOVERNMENT 315
able to prepare their report ; and it was long before any scheme for the reconstitution of the municipality was proposed. How- ever superior to the close corporations, which Parliament had recently condemned, many defects and abuses needed correc- tion. Some of these the corporation itself proceeded to correct ; and others it sought to remedy, in 1852, by means of a private bill. In 1853, another commission of eminent men was ap- pointed, whose able report formed the basis of a Government measure in 1856.^ This bill, however, was not proceeded with ; nor have later measures for the same purpose hitherto been accepted by Parliament.^ Yet it cannot be doubted that this great institution will be eventually brought into harmony with the recognised principles of free municipal government.
The history of municipal corporations in Scotland resembles Corpora- that of England, in its leading characteristics. The royal scoUand burghs, being the property of the Crown, were the first to re- Royal ceive corporate privileges. The earlier burgesses were tenants ^*^'^S^^' of the Crown, with whom were afterwards associated the trades or crafts of the place, which comprised the main body of in- habitants. In the fourteenth century, the constitution of these municipalities appears to have become popular ; and the grow- ing influence and activity of the commonalty excited the jealousy of more powerful interests.^ The latter, without waiting for the tedious expedient of usurpation, obtained an Act of the Scottish Parliament in 1469, which deprived the burgesses of their electoral rights, and established a close principle of self- election. The old council of every burgh was to choose the new council for the year, and the two councils together, with one person representing each craft, were to elect the burgh officers.*
Municipal privileges were also granted to other burghs, other under the patronage of territorial nobles, or the Church. The ^""^8^^' rights of burgesses varied in different places : but they were generally dependent upon their patrons.
Neither of these two classes of municipalities had enjoyed Close char- for centuries the least pretence of a popular constitution. Their ^j^^^^^
^ Sir George Grey, ist April, 1856 ; Hans. Deb., 3rd Ser., cxli. 314. 2 Sir George Grey, 1858; ihid., cxlviii. 738; Sir George Lewis, 1859 and i860 ; ibid,, cliv. 946 ; clvi. 282.
2 Rep. of Commrs. , 1835, p. 18. * Scots Acts, 1469, c. 5.
munici- palities.
3i6 THE CONSTITUTIONAL HISTORY OF ENGLAND
property and revenues, their rights of local taxation, their patronage, their judicature, and the election of representatives in Parliament, were all vested in small self-elected bodies. The administration of these important trusts was characterised by the same abuses as those of English corporations. The pro- perty was corruptly alienated and despoiled : sold to nobles and other favoured persons — sometimes even to the provost himself — at inadequate prices : leased at nominal rents to members of the council ; and improvidently charged with debts. ^ The revenues were wasted by extravagant salaries, jobbing contracts, public works executed at an exorbitant cost, and civic entertainments. '^ By such maladministration several burghs were reduced to insolvency.^ Charitable funds were wasted and misapplied : * the patronage, distributed among the ruling families, was grossly abused. Incompetent persons, and even boys, were appointed to offices of trust. At Forfar, an idiot performed for twenty years the responsible duties of town clerk. Lucrative offices were sold by the councils.^ Judica- ture was exercised without fitness or responsibility. The representation formed part of the narrow Parliamentary organi- sation by which Scotland, like her sister kingdoms, was then governed. Municipal Many of these abuses were notorious at an early period ;
reforms, ^^^ ^j^g Scottish Parliament frequently interposed to restrain 1833. ' them.^ They continued, however, to flourish ; and were ex- posed by Parliamentary inquiries in 1793, and again in 1819, and the two following years. '^ The latter were followed by an Act in 1822, regulating the accounts and administration of the royal burghs, checking the expenditure, and restraining abuses in the sale and leasing of property, and the contracting of debts.^ But it was reserved for the first reformed Parliament to deal with the greatest evil, and the first cause of all other abuses — the close constitution of these burghs. The Scotch
1 Rep., 183s, p. 30. */i»<f., 1821, p. 14 ; ibid., 1835, p. 34. ' Ihid., 1819, pp. 15, 23 ; ihid., 1835, p. 36.
* Ibid., 1819, p. 23 ; ibid., 1835, p. 38. ' Ibid., 1820, p. 4; ibid., 1835, p. 67.
« Scots Acts, 1491, c. 19 ; 1503, c. 36, 37 ; 1535, c. 35 ; 1593, c. 39 •, 1693, c. 45 ; Rep. of 1835, pp. 22-28.
'' Rep. of Comm. Committees, i8ig, 1820, and 1821.
* 3 Geo. IV. c. 91.
LOCAL GOVERNMENT 317
Reform Act had already swept away the electoral monopoly which had placed the entire representation of the country in the hands of the Government and a few individuals ; and in the following year, the ;^io franchise was introduced as the basis of new municipal constitutions. The system of self-election was overthrown, and popular government restored. The people of Scotland were impatient for this remedial measure; and, the abuses of the old corporate bodies being notorious, Parliament did not even wait for the reports of commissioners appointed to inquire into them : but proceeded at once to provide a remedy. The old fabric of municipal administration fell with- out resistance, and almost in silence : its only defence being found in the protest of a solitary peer.^
In the corporations of Ireland, popular rights had been Corpora- recognised, at least in form, though the peculiar condition of j'°"^' that country had never been favourable to their exercise. Even the charters of James I., designed to narrow the foundations of corporate authority, usually incorporated the inhabitants or commonalty of boroughs.^ The ruling bodies, however, hav- ing the power of admitting freemen, whether resident or not, readily appropriated all the power and patronage of local ad- ministration. In the greater number of boroughs, the council, or other ruling body, was practically self-elected. The freemen either had no rights, or were debarred, by usurpation, from asserting them. In other boroughs, where the rights of free- men were acknowledged, the council were able to overrule the inhabitants by the voices of non-resident freemen — their own nominees and creatures. Close self-election, and irresponsible power, were the basis of nearly all the corporations of Ireland.^ In many boroughs, patrons filled the council with their own dependents, and exercised uncontrolled authority over the pro- perty, revenues, and government of the municipality.
It were tedious to recount the more vulgar abuses of this Their system. Corporate estates appropriated, or irregularly acquired ^^"ses. by patrons, and others in authority ; leases corruptly granted : debts recklessly contracted : excessive tolls levied, to the injury of trade and the oppression of the poor : exclusive trading privileges enjoyed by freemen, to the detriment of other in-
1 Hans. Deb., 3rd Sen, xx. 563-576 ; 3 & 4 Will. IV. c. 76, 77. « Rep. of Commrs., 1835, p. 7. ' Ihid., pp. 13-18.
3i8 THE CONSTITUTIONAL HISTORY OF ENGLAND
Exclusion of Catholics.
Irish Cor- porations Bills.
Corpora- tions (Ire- land) Bill, 1835.
Renewed in 1836.
habitants : the monopoly of patronage by a few famih'es : the sacrifice of the general welfare of the community to the par- ticular interests of individuals : such were the natural results of close government in Ireland, as elsewhere.^ The proper duties of local government were neglected or abused ; and the in- habitants of the principal towns were obliged to seek more efficient powers for paving, lighting, and police, under separate boards constituted by local Acts, or by a general measure of 1828, enacted for that purpose.^ But there were constitutional evils greater than these. Corporate towns returned members to Parliament ; and the patrons, usurping the franchises of the people, reduced them to nomination boroughs. But, above all. Catholics were everywhere excluded from the privileges of municipal government. The remedial law of 1793, which restored their rights,^ was illusory. Not only were they still denied a voice in the council : but even admission to the free- dom of their own birthplaces. A narrow and exclusive interest prevailed — in politics, in local administration, and in trade — over Catholic communities, however numerous and important* Catholics could have no confidence either in the management of municipal trusts, or in the administration of justice. Among their own townsmen, their faith had made them outlaws.
The Reform Act established a new elective franchise on a wider basis ; and the legislature soon afterwards addressed itself to the consideration of the evils of municipal misgovern- ment. But the Irish corporations were not destined to fall, like the Scotch burghs, without a struggle.
In 1835, Lord Melbourne's Government introduced a bill for the reconstitution of the Irish corporations, upon the same principles as those already applied to other parts of the United Kingdom. It was passed by the Commons without much discussion : but was not proceeded with in the Lords, on account of the late period of the session.^ In the following year it was renewed, with some modifications:*^ when it en- countered new obstacles. The Protestant party in Ireland were
' Rep. of Commrs., pp. 17-38.
^ 9 Geo. IV. c. 82 ; ihii., p. 21.
" 33 Geo. III. c. 21 (Irish) ; supra, p. 197.
* Rep. of Commrs., p. 16.
" Hans. Deb., 3rd Ser., xxx. 230, 614, etc.
" Ibid., xxxi. 496, 1019.
LOCAL GOVERNMENT 319
suffering under grave discouragements. Catholic emancipation and Parliamentary reform had overthrown their dominion : their Church was impoverished by the refusal of tithes, and threatened with an appropriation of her revenues ; and now their ancient citadels, the corporations, were invested. Here they determined to take their stand. Their leaders, however, unable openly to raise this issue, combated the measure on other grounds. Adverting to the peculiar condition of Ire- land, they claimed an exceptional form of local government. Hitherto, it was said, all local jurisdiction had been exercised by one exclusive party. Popular election would place it in the hands of another party, no less dominant. If the former system had caused distrust in local government and in the administration of justice, the proposed system would cause equal jealousy on the other side. Catholic ascendency would now be the rule of municipal government. Nor was there a middle class in Ireland equal to the functions proposed to be intrusted to them. The wealth and intelligence of Protestants would be overborne and outnumbered by an inferior class of Catholic townsmen. It was denied that boroughs had ever enjoyed a popular franchise. The corporations prior to James I. had been founded as outworks of English authority, among a hostile people ; and after that period, as citadels of Protest- ant ascendency. It was further urged that few of the Irish boroughs required a municipal organisation. On these grounds Sir Robert Peel and the Opposition proposed a fundamental change in the Ministerial scheme. They consented to the abolition of the old corporations : but declined to establish new municipal bodies in their place. They proposed to provide for the local administration of justice by sheriffs and magistrates appointed by the Crown : to vest all corporate property in royal commissioners, for distribution for municipal purposes ; and to intrust the police and local government of towns to boards elected under the General Lighting and Watching Act of 1828.1
The Commons would not listen to proposals for denying municipal government to Ireland, and vesting local authority
^Debates on second reading, 2gth Feb., and on Lord F. Egerton's instruc- tion, 7th March; Hans. Deb., 3rd Ser., xxxi. 1050, 1308.
320 THE CONSTITUTIONAL HISTORY OF ENGLAND
Bill of 1837.
Bill of 1838-9.
Bill of 1840.
The Irish Corpora- tions Act, 1840.
Local Im- provement and Police Acts.
in officers appointed by the Crown : but the Lords eagerly accepted them ; and the bill was lost.^
In the following year, a similar measure was again passed by the Commons, but miscarried in the other House by reason of delays, and the king's death. In 1838, the situation of parties and the determined resistance of the Lords to the Irish policy of the Government, brought about concessions and com- promise. Ministers, by abandoning the principle of appropria- tion, in regard to the Irish Church revenues, at length attained a settlement of the tithe question ; and it was understood that the Lords would accept a corporation bill. Yet in this and the following years the two Houses disagreed upon the municipal franchise and other provisions ; and again the Ministerial measures were abandoned. In 1840, a sixth bill was intro- duced, in which large concessions were made to the Lords. ^ Further amendments, however, were introduced by their lord- ships, which Ministers and the Commons were constrained to accept The tedious controversy of six years was at length closed : but the measure virtually amounted to a scheme of municipal disfranchisement
Ten corporations only were reconstituted by the bill, with a ten pound franchise. Fifty-eight were abolished : ^ but any borough with a population exceeding 3,000 might obtain a charter of incorporation. The local affairs and property of boroughs, deprived of corporations, were to be under the management of commissioners elected according to the pro- visions of the General Lighting and Watching Act, or of the poor-law guardians,* The measure was a compromise ; and, however imperfect as a general scheme of local government, it at least corrected the evils of the old system, and closed an irritating contest between two powerful parties.
The reconstitution of municipal corporations, upon a pop- ular basis, has widely extended the principle of local self- government The same principle has been applied, without reserve, to the management of other local affairs. Most of the principal towns of the United Kingdom have obtained Local Acts, at different times, for improvements — for lighting, pay-
^ Hans. Deb., 3rd Ser., xxxiv. 963, etc. ^Ibid., li. 641; liii. 1160; Iv. 183, 1216. s Schedules B and C of Act.
* 3 & 4 Vict. c. io8.
LOCAL GOVERNMENT 321
ing, and police, for waterworks, for docks and harbours ; and in these measures, the principle of elected and responsible boards has been accepted as the rule of local administration. The functions exercised under these Acts are of vast im- portance, not only to the localities immediately concerned, but to the general welfare of the community. The local adminis- tration of Liverpool resembles that of a maritime state. In the order and wise government of large populations by local authority, rests the general security of the realm. And this authority is everywhere based upon representation and respon- sibility. In other words, the people who dwell in towns have been permitted to govern themselves.
Extensive powers of administration have also been in- Local trusted to local boards constituted under general statutes for ^^^g^^^^^^ the sanitary regulation, improvement, and police of towns and under populous districts.^ Again, the same principle was adopted in^^^g"* the election of boards of guardians for the administration of the new poor laws throughout the United Kingdom. And lastly, in 1855, the local affairs of the metropolis were intrusted to the Metropolitan Board of Works — a free municipal assembly — elected by a popular constituency, and exercising extended powers of taxation and local management.^
The sole local administration, indeed, which has still been Courts of left without representation, is that of counties ; where rates areQ"^''.^" levied and expenditure sanctioned by magistrates appointed by the Crown. Selected from the nobles and gentry of the county for their position, influence, and character, the magistracy un- doubtedly afford a virtual representation of its interests. The foremost men assemble and discuss the affairs in which they have themselves the greatest concern : but the principles of election and responsibility are wanting. This peculiarity was noticed in 1836 by the commission on county rates ;^ and
1 Public Health Act, 1848 ; Local Government Act, 1858 ; Toulmin Smith's Local Government Act, 1858 ; Glen's Law of Public Health and Local Govern- ment; Police (Scotland) Acts, 1850; Towns* Improvement (Scotland) Act, i860 ; Police and Improvement (Scotland) Act, 1862, consolidating previous Acts.
^ Metropolis Local Management Acts, 1855, 1862 ; Toulmin Smith's Metro- polis Local Management Act.
^ The Commissioners said : " No other tax of such magnitude is laid upon the subject, except by his representatives ". . . . " The administration of this fund is the exercise of an irresponsible power intrusted to a fluctuating body." VOL. II. 21
32 2 THE CONSTITUTIONAL HISTORY OF ENGLAND
Distinctive character of counties and towns.
efforts have since been made, first by Mr. Hume,^ and after- wards by Mr. Milner Gibson,''^ to introduce responsibility into county administration. It was proposed to establish financial boards, constituted of members elected by boards of guardians, and of magistrates chosen by themselves. To the representa- tive principle itself few objections were offered ; but no scheme for carrying it into effect has yet found favour with the legislature.
Counties represent the aristocratic, towns the democratic, principles of our constitution. In counties, territorial power, ancestral honours, family connections, and local traditions have dominion. The lords of the soil still enjoy influence and respect little less than feudal. Whatever forms of adminis- tration may be established, their ascendency is secure. Their power is founded upon the broad basis of English society : not upon laws or local institutions. In towns, power is founded upon numbers and association. The middle classes — descen- dants and representatives of the stout burghers of olden times — have sway. The wealth, abilities, and public virtues of eminent citizens may clothe them with influence : but they derive authority from the free suffrages of their fellow-citizens, among whom they dwell. The social differences of counties and towns have naturally affected the conditions of their local administration and political tendencies : but both have contri- buted, in different ways, to the good government of the State.
^In 1837 and 1839; Hans. Deb., 3rd Ser., cvi. 125. * In 1840, and subsequently; tWd., cviii. 738.
CHAPTER XVI.
Government of Ireland before the Union— The Legislature and the Executive — Protestant ascendency — Ireland a dependency — Com- mercial Restrictions — The Volunteers — Legislative and judicial in- dependence granted 1782 — The United Irishmen and other associations — The Rebellion of 1798 — The Union — Its benefits deferred— Freedom and equality finally assured.
We have seen liberty steadily advancing, in every form, and Progress of under every aspect, throughout our political and religious institu- ii-g^^nd!" tions. And nowhere has its advance been more conspicuous than in Ireland. In that country, the English laws and constitution had been established as if in mockery.^ For ages its people were ruled, by a conquering and privileged race, as aliens and outlaws.^ Their lands were wrested from them : their rights trampled under foot : their blood and their religion proscribed.^
Before George III. commenced his reign, the dawn of Government better days was brightening the horizon ; yet, what was then befor^i^the the political condition of his Irish subjects? They were Union, governed by a Parliament, whence every Catholic was ex- cluded. The House of Lords was composed of prelates of The Lords, the Protestant Church, and of nobles of the same faith — owners of boroughs, patrons of corporations, masters of the representa- tion, and in close alliance with the Castle.* The House of The Commons assumed to represent the country : but the elective Commons, franchise — narrow and illusory in other respects — was wholly denied to five-sixths of the people,^ on account of their
1 Leland, Hist., i. 80, etc. ; Plovi'den's Hist., i. 33. 2 Davis, 100, 109.
'^ For the earlier history of Ireland, see Plowden, i. 1-332 ; Leland, Prelim Discourse ; O'Halloran ; Moore ; and a succinct but comprehensive outline by. Hallam, Const. Hist., chap, xviii.
■* Hardy's Life of Lord Charlemont, i. 102.
^ Primate Boulter admitted that there were five Catholics to one Protestant in the reign of George II. — Plowden's Hist., i. 269, 271 ; Grattan's Life, i. 64.
323
21
324 THE CONSTITUTIONAL HISTORY OF ENGLAND
religion,^ Every vice of the English representative system was exaggerated in Ireland. Nomination boroughs had been more freely created by the Crown : ^ in towns, the members were returned by patrons or close corporations : in counties, by great proprietors. In an assembly of 300, twenty-five lords of the soil alone returned no less than ii6 members.* A comparatively small number of patrons returned a majority ; and, acting in concert, were able to dictate their own terms to the Government. So well were their influence and tactics recognised, that they were known as the " Parliamentary undertakers ".* Theirs was not an ambition to be satisfied with political power and ascendency : they claimed more tangible rewards — titles, offices, pensions — for themselves, their re- latives, and dependents. Self-interest and corruption were all but universal in the entire scheme of Parliamentary Govern- ment. Two-thirds of the House of Commons, on whom the Government generally relied, were attached to its interest by offices, pensions, or promises of preferment.^ Patrons and nominees alike exacted favours ; and in five-and-twenty years the Irish pension list was trebled.^ Places and pensions, the price of Parliamentary services, were publicly bought and sold in the market.^ But these rewards, however lavishly bestowed, failed to satisfy the more needy and prodigal, whose fidelity was purchased from time to time with hard cash.^ Parliamentary corruption was a recognised instrument of Government : no one was ashamed of it. Even the Speaker, whose office should have raised him above the low intrigues and sordid interests of faction, was mainly relied upon for the management of the House of Commons.^ And this corrupt and servile
1 2 Geo. I. c. 19 ; i Geo. II. c. 9, s. 7.
''Leland, ii. 437; Plowden's Hist., i. log; App. xv., xvi. ; Carte's Ormond, i. 18 ; Lord Mountmorres' Hist, of the Irish Parliament, i. 166, etc. ; Desiderata Curiosa Hibernica, 308 ; Moore's Hist., iv. 164.
3 Massey (on the authority of the Bolton MSS.), Hist, Hi. 264. See also Wakefield's Statistical and Political Account of Ireland, ii. 301.
* Wilkinson's Survey of South of Ireland, 57; Adolphus' Hist., i. 161.
* Plowden's Hist., i. 360,375. See also analysis of the Ministerial majority in 1784, in the Bolton MSS., Massey's Hist., iii. 265.
8 Plowden's Hist., i. 451 ; supra, vol. i. p. 172.
' Plowden's Hist., i. 364, 378.
^ Ibid., 374 ; Irish Debates, i. 139 ; Grattan's Life, i. 97 ; Walpole's Journ,,
i-399.
* Hardy's Life of Lord Charlemont, i. 88.
IRELAND BEFORE THE UNION 325
assembly, once intrusted with power, might continue to abuse Parliament it for an indefinite period. If not subservient to the Crown, it on^demise of was dissolved : but, however neglectful of the rights and in- Crown, terests of the people, it was firmly installed as their master. The law made no provision for its expiration, save on the demise of the Crown itself.
Such being the legislature, to whom the rights of the people The
executive
were intrusted — the executive power was necessarily in the hands of those who corruptly wielded its authority. The lord-lieutenant, selected from English nobles of the highest rank, was generally superior to the petty objects of local poli- ticians : but he was in the hands of a Cabinet consisting of men of the dominant faction, intent upon continuing their own power, and ministering to the ambition and insatiable greed of their own families and adherents. Surrounded by intrigues and troubles, he escaped as much as possible from the intolerable thraldom of a residence in Ireland ; and, in his absence, three men governed the country absolutely, as lords justices. Contending among themselves for influence and patronage, they agreed in maintaining the domination of a narrow oligarchy, and the settled policy of Protestant ascen- dency,^ As if to mark the principles of such a rule, the pri- mate bore the foremost place in the administration of affairs.^
The proscription of Catholics at once insured the power Monopoly and ministered to the cupidity of the ruling party. Every °f5^°^^'" * judge, every magistrate, every officer — civil, military, and cor- porate— was a churchman. No Catholic could practise the law,^ or serve upon a jury. The administration of justice, as well as political power, was monopolised by Protestants. A small junto distributed among their select band of followers all the honours and patronage of the State. Every road to ambition was closed against Catholics — the bar, the bench, the army, the senate, and the magistracy. And Protestant non- conformists, scarcely inferior in numbers to churchmen, fared little better than Catholics. They were, indeed, admitted to a
^ Plowden's Hist., i. 370 ; Adolphus' Hist., 159-161 ; Grattan's Life, i. 97.
2 On the accession of George HI., the lords justices were the primate, Dr. Stone, Lord Shannon, a former Speaker, and Mr. Ponsonby, then holding the ofBce of Speaker.
3 Plowden's Hist., i. 271.
326 THE CONSTITUTIONAL HISTORY OF ENGLAND
Subordina- tion of Ireland to the English Government.
place in the legislature, but they were excluded, by a Test Act, from every civil office, from the army, and from corpora- tions, and, even where the law failed to disqualify them, they might look in vain for promotion to a clique who discerned merit in none but churchmen. Such were the rights and liberties of the Irish people ; and such the character and policy of their rulers.
And while the internal polity of Ireland was exclusive, illiberal, and corrupt, the country, in its relations to England, still bore the marks of a conquered province. The Parliament was not a free legislature, with ample jurisdiction in making laws and voting taxes. By one of " Poynings' Acts," ^ in the reign of Henry VII., the Irish Parliament was not summoned until the Acts it was called upon to pass had already been ap- proved and certified, under the great seal, in England. Such Acts it might discuss and reject, but could not amend. This restriction, however, was afterwards relaxed ; and laws were certified in the same manner, after the opening of Parliament.^ Parliament could say " aye " or " no " to the edicts of the Crown : but could originate nothing itself. Even money bills were transmitted to the Commons in the same Imperial form. Soon after the revolution, the Commons had vainly contended for the privilege of originating grants to the Crown, like their English prototypes : but their presumption was rebuked by the chief governor, and the claim pronounced unfounded by the judges of both countries.^ The rejection of a money bill was also visited with rebuke and protest.*
The Irish Parliament, however, released itself from this close thraldom by a procedure more consonant with English usage, and less openly obnoxious to their independence. Heads of bills were prepared by either House, and submitted to the Privy Council in Ireland, by whom they were transmitted to the king, or withheld at their pleasure. If approved by his Majesty, with or without amendments, they were returned to the House in which they had been proposed, where they were
^ lo Henry VII. c. 4 (Irish).
2 3 & 4 Philip and Mary, c. 4 (Irish) ; Lord Mountmorres' Hist, of Irish Pari., i. 48-50 ; Blackstone's Comm. (Kerr), i, 84.
3 Lord Mountmorres' Hist., i. 47 ; ii. 142, 184.
* In 1692 ; Comm. Journ. (Ireland), ii. 35 ; Lord Mountmorres' Hist., i. 54; Hardy's Life of Lord Charlemont, i. 246.
IRELAND BEFORE THE UNION 327
read three times, but could not be amended.^ The Crown, however, relinquished no part of its prerogative ; and money bills continued to be transmitted from the Privy Council, and were accepted by the Commons.^
These restrictions were marks of the dependence of the Supremacy legislature upon the Crown : other laws and customs Proclaimed j°^j^gjj^Qf' its subordination to the Parliament of England. That Im- England, perial senate asserted and exercised the right of passing laws "to bind the people and kingdom of Ireland"; and in the sixth of George I. passed an Act explicitly affirming this right, in derogation of the legislative authority of the national coun- cil sitting in Dublin.^ Its judicature was equally overborne. The appellate jurisdiction of the Irish House of Lords was first adjudged to be subordinate to that of the highest Court of Appeal in England, and then expressly superseded and annulled by a statute of the English Parliament* The legis- lature of Ireland was that of a British dependency. Whether such a Parliament were free or not, may have little concerned the true interests of the people of Ireland, who owed it nothing but bondage : but the national pride was stung by a sense of inferiority and dependence.
The subordination of Ireland was further testified in an- commercial other form, at once galling to her pride, and injurious to her '^^^'^"'^*'°"^* prosperity. To satisfy the jealous instincts of English traders, her commerce had been crippled with intolerable prohibitions and restraints. The export of her produce and manufactures to England was nearly interdicted : all direct trade with foreign countries and British possessions prohibited. Every device of protective and prohibitory duties had been resorted to for in- suring a monopoly to English commerce and manufactures. Ireland was impoverished that English traders should be en- riched.^
1 Lord Mountmorres' Hist., i. 58, 63 ; Plowden's Hist., i. 395, n.
2 In 1760 a bill was so transmitted and passed. — Grattari's Life, i. 57.
3 ID Henry VII. c. 22 (Irish) ; Carte's Life of Ormond, iii. 55 ; Lord Mount- morres' Hist., i. 360; Comm. Journ. (England), 27th and 30th June, 1698 ; Pari. Hist., V. 1181 ; Plowden's Hist, i. 244 ; Statute 6 Geo. I. c. 5.
■•6 Geo. I. c. 5 ; Pari. Hist., vii. 642 ; Lord Mountmorres' Hist., i. 339.
^32 Charles II. c. 2, prohibited the export of cattle, sheep, and live stock; ID & II Will. III. c. 10, interdicted the export of wool; and other statutes im- posed similar restraints. See Pari. Hist., xix. iioo et seq. ; Swift's Tract on Irish Manufactures, 1720 ; Works, vii. 15 ; Short View of the State of Ireland, 1727 ; ibid., 324.
328 THE CONSTITUTIONAL HISTORY OF ENGLAND
New era opened under George III.
Residence of lord- lieutenant.
Octennial Act, 1768.
Conflict be- tween the Executive and the Com- mons, 1769.
Claim to orig- inate money bills, 1769.
Such were the laws and government of Ireland when George III. succeeded to its crown ; and for many years after- wards. Already a "patriot" party had arisen to expose the wrongs of their country, and advocate her claims to equality : but hitherto their efforts had been vain. A new era, however, was now about to open ; and a century of remedial legislation to be commenced, for repairing the evils of past misgovern- ment.
One of the first improvements in the administration of Ireland was a more constant residence of the lord-lieutenant. The mischievous rule of the lords justices was thus abated, and even the influence of the Parliamentary undertakers im- paired : but the viceroy was still fettered by his exclusive Cabinet. 1
Attempts were made so early as 1761 to obtain a Septen- nial Act for Ireland, which resulted in the passing of an octen- nial bill, in 1768.^ Without popular rights of election, this new law was no great security for freedom, but it disturbed, early in the reign of a young king, the indefinite lease of power, hitherto enjoyed by a corrupt confederacy ; while discussion and popular sentiments were beginning to exercise greater in- fluence over the legislature.
A new Parliament was called, after the passing of the Act, in which the country party gained ground. The Government vainly attempted to supplant the undertakers in the manage- ment of the Commons, and were soon brought into conflict with that assembly. The Commons rejected a money bill, " because it did not take its rise in that House " ; and in order to prove that they had no desire to withhold supplies from the Crown, they made a more liberal provision than had been demanded. The lord-lieutenant, however, Lord Towns- hend, marked his displeasure at this proceeding, by prorogu- ing Parliament as soon as the supplies were voted ; and protesting against the vote and resolution of the Commons, as a violation of the law, and an invasion of the just rights of
1 Adolphus' Hist., i. 331.
2 This difference between the law of the two countries was introduced to prevent the confusion of a general election, on both sides of the Channel, at the same time. — WalpoWi Mem., iii. 155; Lord Chesterfield's Letters, iv. 468; Plowden's Hist., i. 352, 387; Hardy's Life of Lord Charlemont, i. 248-261.
IRELAND BEFORE THE UNION 329
the Crown.i So grave was this difference, that the lord- Repeated pro- lieutenant suspended the further sitting of Parliament, by ^^^^ ' repeated prorogations, for fourteen months^ — a proceeding which did not escape severe animadversion in the English Parliament.^ Parliament, when at length reassembled, proved not more tractable than before. In December, 1771, the 21st Dec, Commons rejected a money bill because it had been altered in ^^^^* England;* and again, in 1773, pursued the same course, for the like reason, in regard to two other money bills. ^ In 1775, having consented to the withdrawal of four thousand Oct. and troops from the Irish establishment, it refused to allow °^"' ^^^^' them to be replaced by Protestant troops from England ^ — a resolution which evinced the growing spirit of national inde- pendence. And in the same year, having agreed upon the heads of two money bills,^ which were returned by the British Cabinet with amendments, they resented this interference by rejecting the bills and initiating others, not without public inconvenience and loss to the revenue.^ This first octennial Parliament exhibited other signs of an intractable temper, and was dissolved in 1776.® Nor did Government venture to meet the new Parliament for nearly eighteen months. ^*'
In the meantime, causes superior to the acts of a Govern- Effect of the ment, the efforts of patriots, and the combinations of parties, ^^r"'^^" were rapidly advancing the independence of Ireland, The
^ Lords' Journ, (Ireland), iv. 538. The lord-lieutenant, not contented with this speech on the prorogation, further entered a separate protest in the Lords' Journal. — Commons' Journal (Ireland), viii. 323 ; Debates of Parliament of Ireland, ix. 181 ; PJowden's Hist, of Ireland, i. 396, ii. 251, Grattan's Mem., i. gS-ioi ; Lord Mountmorres' Hist., i. 54 ; Hardy's Life of Lord Charlemont, i. 290.
"^ From 26th Dec, 1769, till 26th Feb., 1771 ; Comm. Journ. (Ireland), viii. 354; Plowden's Hist., i. 401.
3 Mr. G. M. Walsingham, 3rd May, 1770; Pari. Hist., v. 309.
* Comm. Journ. (Ireland), viii. 467 ; Adolphus, ii. 14 ; Life of Grattan, i. 174-185.
''27th Dec, 1773; Comm. Journ. (Ireland), ix. 74.
^Ibid., 223; Grattan's Life, i. 268.
' Viz. a bill for additional duties on beer, tobacco, etc. ; and another, im- posing stamp duties.
821st Dec, 1775 ; Comm. Journ. (Ireland), ix. 244; Plowden's Hist., i. 435.
9/6ji., 441.
^^ The old Parliament was prorogued in June, 1776, and afterwards dis- solved : the new Parliament did not meet till 14th October, 1777. — Comm. yourn., ix. 289, etc. ; Plowden's Hist., i. 441.
330 THE CONSTITUTIONAL HISTORY OF ENGLAND
American colonies had resented restrictions upon their trade, and the imposition of taxes by the mother country ; and were now in revolt against the rule of England. Who could fail to detect the parallel between the cases of Ireland and America ? The patriots accepted it as an encouragement, and their rulers as a warning. The painful condition of the people Condition of vvas also betraying the consequences of a selfish and illiberal policy. The population had increased with astonishing fe- cundity. Their cheap and ready food, the potato, and their simple wants, below the standard of civilised life, removed all restraints upon the multiplication of a vigorous and hardy race. Wars, famine, and emigration had failed to arrest their progress : but misgovernment had deprived them of the means of employment. Their country was rich in all the gifts of God — fertile, abounding with rivers and harbours, and adapted alike for agriculture, manufactures, and commerce. But her agriculture was ruined by absentee landlords, negligent and unskilful tenants, half-civilised cottiers ; and by restraints upon the free export of her produce. Her manufactures and com- merce— the natural resources of a growing population — were crushed by the jealousy of English rivals. To the ordinary restraints upon her industry was added, in 1776, an embargo on the export of provisions.^ And while the industry of the people was repressed by bad laws, it was burthened by the profusion and venality of a corrupt Government. What could be expected in such a country, but a wretched, ignorant, and turbulent peasantry, and agrarian outrage ? These evils were aggravated by the pressure of the American war, fol- lowed by hostilities with France.^ The English Ministers and Parliament were awakened by the dangers which threat- ened the State to the condition of the sister country ; and England's peril became Ireland's opportunity. Commercial Encouragement had already been given to the Irish fish-
restrictions g^jgg jj^ 1775 ;^ and in 1778, Lord Nugent, supported by Mr. 1778. ' Burke, and favoured by Lord North, obtained from the Parlia- ment of England a partial relaxation of the restrictions upon Irish trade. The legislature was prepared to make far more
^ Grattan's Life, i. 283.
* Ihid., 283-289, 298, etc. ; Hardy's Life of Lord Charlemont, i. 368-379.
' 15 Geo. in. c. 31 ; Plowden's Hist., i. 430.
IRELAND BEFORE THE UNION 331
liberal concessions : but, overborne by the clamours of Eng- lish traders, withheld the most important, which statesmen of all parties concurred in pronouncing to be just.^ The Irish, confirmed in the justice of their cause by these opinions, re- sented the undue influence of their jealous rivals ; and believed that commercial freedom was only to be won by national equality.
The distresses and failing revenue of Ireland again attracted Further the attention of the British Parliament in the ensuing session.^ restrictions
° removed,
England undertook the payment of the troops on the Irish 1779. establishment serving abroad ; ^ and relieved some branches of her industry ; * but still denied substantial freedom to her commerce. Meanwhile, the Irish were inflamed by stirring oratory, by continued suffering, and by the successes of the Americans in a like cause. Disappointed in their expectations of relief from the British Parliament, they formed associations for the exclusion of British commodities and the encourage- ment of native manufactures.^
Another decisive movement precipitated the crisis of Irish The volun- affairs. The French war had encouraged the formation of ' several corps of volunteers for the defence of the country. The most active promoters of this array of military force were members of the country party ; and their political senti- ments were speedily caught up by the volunteers. At first the different corps were without concert or communication : ® but in the autumn of 1779, they received a great accession of strength, and were brought into united action. The country had been drained of its regular army for the American war ; and its coasts were threatened by the enemy. The Govern- ment, in its extremity, threw itself upon the volunteers, dis- tributed 16,000 stand of arms, and invited the people to arm themselves, without any securities for their obedience. The
1 Pari. Hist., xix. 1100-1126; Plowden's Hist., i. 459-466; 18 Geo. HI. c. 45 (flax seed) ; c. 55 (Irish shipping); Adolphus' Hist., ii. 551-554; Grattan's Life, i. 330.
2 Pari. Hist., xx. iii, 136, 248, 635, 663.
3 King's Message, 18th March, 1779 ; ihid., 327.
* E.g. hemp and tobacco ; 19 Geo. III. c. 37, 83.
* Plowden's Hist., i. 485 ; Grattan's Life, i. 362-364 ; Hardy's Life of Lord Charlemont, i. 389.
^ Plowden's Hist., i. 487 ; Grattan's Life, i. 343.
332 THE CONSTITUTIONAL HISTORY OF ENGLAND
The volun- teers demand legislative in- dependence, 1780.
The Mutiny Bill made permanent.
volunteers soon numbered 42,000 men, chose their own officers — chiefly from the country party — made common cause with the people against the Government, shouted for free trade ; and received the thanks of Parliament for their patriotism.^ Power had been suffered to pass from the executive and the legis- lature into the hands of armed associations of men, holding no commissions from the Crown, and independent alike of civil and military authority. The Government was filled with alarm and perplexity ; and the British Parliament resounded with remonstrances against the conduct of Ministers, and argu- ments for the prompt redress of Irish grievances.^ The Parliament of Ireland showed its determination, by voting supplies for six months only ; ^ and the British Parliament, setting itself earnestly to work, passed some important measures for the relief of Irish commerce.*
Meanwhile, the volunteers, daily increasing in discipline and military organisation, were assuming, more and more, the character of an armed political association. The different corps assembled for drill, and for discussion, agreed to re- solutions, and opened an extensive communication with one another. Early in 1780, the volunteers demanded, with one voice, the legislative independence of Ireland, and libera- tion from the sovereignty of the British Parliament.* And Mr. Grattan, the ablest and most temperate of the Irish patriots, gave eloquent expression to these claims in the Irish House of Commons.®
In this critical conjuncture, the public mind was further in- flamed by another interference of the Government in England. Hitherto, Ireland had been embraced in the annual Mutiny Act of the British Parliament. In this year, however, the general sentiment of magistrates and the people being adverse to the operation of such an Act, without the sanction of the
' Plowden's Hist., i. 493 ; Lord Sheffield's Observations on State of Ireland, 1785.
3 Debate on Lord Shelburne's motion in the Lords, ist Dec, 1779; Pari. Hist., XX. 1156; Debate on Lord Upper-Ossory's motion in the Commons, 6th Dec, 1779; ihid., 1197; Hardy's Life of Lord Charlemont, i. 380-382 ; Grattan's Life, i. 368, 389, 397-400; Moore's Life of Lord E. Fitzgerald, i. 187.
3 Nov., 1779; Plowden's Hist., i. 506.
♦ Lord North's Propositions, 13th Dec, 1779 ; Pari. Hist., xx. 1272 ; 20 Geo, in. c 6, 10, 18.
' Plowden's Hist,, i. 513. * 19th April, 1780 ; Grattan's Life, ii. 39-55.
IRELAND BEFORE THE UNION 333
Irish legislature, Ireland was omitted from the English mutiny bill ; and the heads of a separate mutiny bill were transmitted from Ireland. This bill was altered by the English Cabinet into a permanent Act. Material amendments were also made in a bill for opening the sugar trade to Ireland.^ No constitu- tional security had been more cherished than that of an annual mutiny bill, by which the Crown is effectually prevented from maintaining a standing army, without the consent of Parlia- ment, This security was now denied to Ireland, just when she was most sensitive to her rights, and jealous of the sove- reignty of England. The Irish Parliament submitted to the will of its English rulers : but the volunteers assembled to de- nounce them. They declared that their own Parliament had been bought with the wealth of Ireland herself, and clamoured more loudly than ever for legislative independence.^ Nor was such an innovation without effect upon the constitutional rights of England, as it sanctioned, for the first time, the maintenance of a military force within the realm, without limitation as to numbers or duration. Troops raised in Eng- land might be transferred to Ireland, and there maintained under military law, independent of the Parliaments of either country. The anomaly of this measure was forcibly exposed by Mr, Fox and the leaders of Opposition in the British Parliament.^
The volunteers continued their reviews and political de- The voiun- monstrations, under the Earl of Charlemont, with increased '^"^' ^^ °' numbers and improved organisation ; and again received the thanks of the Irish Parliament* But while they were acting in cordial union with the leaders of the country party in the House of Commons, the Government had secured — by means too familiar at the Castle — a majority of that assembly, which The con- steadily resisted further concessions.^ In these circumstances, j^ungannon.
1 Pari. Hist., xxi. 1293 ; Plowden's Hist., i. 515, etc. ; Grattan's Life, ii. 60, 71, 85-100 et seq.
^Ibid., 127 et seq.
3 20th, 23rd Feb., 1781 ; Pari. Hist., xxi. 1292.
* Plowden's Hist., i. 529 ; Grattan's Life, ii. 103.
^ Plowden's Hist., i. 535-555. Mr. Eden, writing to Lord North, 10th Nov., 1781, informs him that the Opposition had been gained over, and adds : " Indeed, I have had a fatiguing week of it in every respect. On Thursday I was obliged to see fifty-three gentlemen separately in the course of the morning, from eight till two o'clock." — Beresford Corr., i. 188 ; Correspondence of Lord- Lieutenant, Grattan's Life, ii. 153-177.
334 THE CONSTITUTIONAL HISTORY OF ENGLAND
delegates from all the volunteers in Ulster were invited to as- semble at Dungannon on the 1 5th February, 1782, " to root out corruption and Court influence from the legislative body," and "to deliberate on the present alarming situation of public affairs ". The meeting was held in the church : its proceedings were conducted with the utmost propriety and moderation ; and it agreed, almost unanimously, to resolutions declaring the right of Ireland to legislative and judicial independence, and Mr. Grattan'sfree trade.^ On the 22nd, Mr. Grattan, in a noble speech, Feb., 1782. moved an address of the Commons to his Majesty, asserting Mr. Flood's ^^ same principles.^ His motion was defeated, as well as motion, 26th another by Mr. Flood, declaring the legislative independence of the Irish Parliament.^
In the midst of these contentions. Lord Rockingham's liberal administration was formed, who recalled Lord Carlisle, and appointed the Duke of Portland as lord-lieutenant. While the new Ministers were concerting measures for the government of Ireland, Mr. Eden, Secretary to Lord Carlisle — who had resisted all the demands of the patriots in the Irish Parliament — hastened to England ; and startled the House of Commons with a glowing statement of the dangers he had left behind him, and a motion to secure the legislative independence of Ireland. His motion was withdrawn, amidst general indignation at the factious motives by which it had been prompted.* On the following day, the king sent a message to both Houses, recommending the state of Ireland to their serious consideration : to which a general answer was returned, with a view to the co-operation of the Irish Parlia- ment. In Dublin, the Duke of Portland communicated a similar message, which was responded to by an address of singular temper and dignity — ^justly called the Irish Declara- tion of Rights.^ The Irish Parliament unanimously claimed for itself the sole authority to make laws for Ireland, and the
Measures of the Rocking- ham Minis- try, April, 1782.
i6th April, 1782.
^ Plowden's Hist., i. 564-569 ; Hardy's Life of Lord Charlemont, ii. i et seq. ; Life of Grattan, ii. 203 et seq.
2 Irish Pari. Deb., i. 266. *Ibid., 279.
'•8th April, 1782; Pari. Hist., xxii. 1241-1264; Wraxall's Mem., iii. 29, 92 ; Fox's Mem., i. 313 ; Lord J. Russell's Life of Fox, i. 287-289 ; Grattan's Life, ii. 208 ; Walpole's Journ. ii. 538.
■^ Plowden's Hist., i. 595-599; Irish Debates, i. 332-346; Grattan's Life, ii. 230 et seq.
IRELAND BEFORE THE UNION 335
repeal of the permanent Mutiny Act. These claims the Legislative British Parliament, animated by a spirit of wisdom and liberality, f "dependence conceded without reluctance or hesitation.^ The sixth Geo. I. granted, 1782. was repealed ; and the legislative and judicial authority of the British Parliament renounced. The right of the Privy Council to alter bills transmitted from Ireland was abandoned, and the perpetual Mutiny Act repealed. The concession was grace- fully and honourably made ; and the statesmen who had con- sistently advocated the rights of Ireland, while in Opposition, could proudly disclaim the influence of intimidation.^ The magnanimity of the act was acknowledged with gratitude and rejoicings by the Parliament and people of Ireland.
But English statesmen, in granting Ireland her indepen- Difficulties dence, were not insensible to the difficulties of her future govern- dependence, ment ; and endeavoured to concert some plan of union by which the interests of the two countries could be secured.^ No such plan, however, could be devised ; and for nearly twenty years the British Ministers were left to solve the strange problem of governing a divided State, and bringing into harmony the councils of two independent legislatures. Its solution was naturally found in the continuance of cor- ruption ; and the Parliament of Ireland, having gained its freedom, sold it, without compunction, to the Castle.* Ireland was governed by her native legislature, but was not the less under the dominion of a close oligarchy — factious, turbulent, exclusive, and corrupt. And how could it be otherwise ? The people, with arms in their hands, had achieved a triumph.
^ Debates in Lords and'Commons, 17th May, 1782 ; Pari. Hist., xxiii. 16-48 ; Rockingham Mem., ii. 469-476.
2 Fox's Mem., i. 393, 403, 404, 418 ; Lord J. Russell's Life of Fox, i. 290-295 ; Grattan's Life, ii. 28g etseq.; Court and Cabinets of Geo. IIL, i. 65.
2 Address of both Houses to the king, 17th May, 1782; Correspondence of Duke of Portland and Marquess of Rockingham ; Plowden's Hist., i. 605. The scheme of a union appears to have been discussed as early as 1757. — Hardy's Life of Lord Charlemont, i. 107. And again in 1776; Cornwallis Corr., iii. 129.
* See a curious analysis of the Ministerial majority, in 1784, on the authority of the Bolton MSS, Massey's Hist., iii. 264 ; and Speech of Mr. Grattan on the Address, 19th Jan., 1792 ; Irish Deb., xii. 6-8 ; and Speech of Mr. Fox, 23rd March, 1797. He stated that "a person of high consideration was known to say that ;^5oo,ooo had been expended to quell an opposition in Ireland, and that as much more must be expended in order to bring the legislature of that country to a proper temper ". — Pari. Hist., xxxiii. 143 ; Speech of Mr. Spring Rice, 23rd April, 1834 ; Hans. Deb., 3rd Ser., xxii. ii8g; Plowden's Hist., ii. 346, 6og.
336 THE CONSTITUTIONAL HISTORY OF ENGLAND
The volun- teers demand Parliamen- tary reform.
Mr. Flood's motion for reform, 29th Nov., 1783.
" Magna Charta," said Grattan, " was not attained in Parlia- ment : but by the barons, armed in the field." ^ But what influence had the people at elections? Disfranchised and incapacitated, they could pretend to none ! The anomalous condition of the Parliament and people of Ireland became the more conspicuous, as they proceeded in their new functions of self-government The volunteers, not satisfied with the achievement of national independence, now confronted their native Parliament with demands for Parliamentary reform.^ That cause being discussed in the English Parliament, was eagerly caught up in Ireland. Armed men organised a wide- spread political agitation, sent delegates to a national convention,^ and seemed prepared to enforce their arguments at the point of the bayonet. Their attitude was threatening : but their cause a hollow pretence. The enfranchisement of Catholics formed no part of their scheme. In order to secure their assistance in the recent struggle for independence, they had, indeed, recommended a relaxation of the penal laws : a common cause had softened the intolerance of Protestants ; and some of the most oppressive disabilities of their Catholic brethren had been removed : * but as yet the patriots and volunteers had no intention of extending to them the least share of civil or political power.
Mr. Flood was the organ of the volunteers in the House of Commons, a patriot second only to Mr. Grattan in influence and ability, and jealous of the popularity and pre-eminence of his great rival. In November, 1783, he moved for leave to bring in a bill, for the more equal representation of the people. He was met at once with the objection that his proposal originated with an armed association, whose pretensions were incompatible with freedom of debate ; and it was rejected by a large majority.^
Mr. Flood renewed his efforts in the following year: but
^ Irish Debates, i6th April, 1782, i. 335.
^Plowden's Hist., ii. 28; Hardy's Life of Lord Charlemont, ii. 93-134; Grattan's Life, iii. 102-146.
3 Plowden, ii. 56.
*Viz. in 1778 (17 & 18 Geo. HL c. 49, Ireland), and in 1782; Plowden'fl Hist., i. 555, 559. 564. 579 1 and iupra, p. 197.
* Ayes, 49 ; Noes, 158 ; Irish Debates, ii. 353 ; Fox's Mem., ii. 165, 186 | Grattan's Life, iii. 146 et seq. ; Hardy's Life of Lord Charlemont, ii. 135.
IRELAND BEFORE THE UNION 337
the country party were disunited ; the owners of boroughs Renewed, were determined not to surrender their power ; the dictation of ^^^^j^°j^g the volunteers gave just offence ; and the division of opinion on the admission of Catholics to the franchise was becom- ing more pronounced. Again his measure was rejected.^ The Failure of mob resented its rejection with violence and fury: but the reform"^* ° great body of the people, whose rights were ignored by the patriots and agitators, regarded it with indifference. The armed agitation proceeded : but the volunteers continued to be divided upon the claims of the Catholics — to which their leader Lord Charlemont was himself opposed. ^ An armed Protestant agitation, and a packed council of borough pro- prietors, were unpromising instruments for reforming the re- presentation of the people.^
A close and corrupt Parliament was left in full possession Mr. Pitt's of its power; and Ireland, exulting in recent emancipation ^^^^gs'* from British rule, was soon made sensible that neither was her 1785- commerce free, nor her independence assured. The regulation of her commerce was beyond the power of the Irish legisla- ture : the restrictions under which it laboured concerned both countries, and needed the concert of the two Parliaments. Mr. Pitt, wise and liberal in his policy concerning Ireland, regarded commercial freedom as essential to her prosperity and contentment ; and in 1785, he prepared a comprehensive scheme to attain that object. Ireland had recently acquired the right of trading with Europe and the West Indies : but was nearly cut off from trade with England herself, and with America and Africa. Mr. Pitt offered liberal concessions on all these points, which were first submitted to the Parliament of Ireland in the form of eleven resolutions.* They were gratefully accepted and acknowledged : but when the Minister introduced them to the British Parliament, he was unable, in the plenitude of his power, to overcome the interests and jealousy of traders, and the ignorance, prejudices, and faction
1 13th, 20th March, 1784 ; Irish Deb., iii. 13 ; Plowden's Hist., ii. 80, Ayes, 85 ; Noes, 159.
2 Plowden's Hist., ii. 105 ; Moore's Life of Lord E. Fitzgerald, i. 189, 198 ; Hardy's Life of Lord Charlemont, ii, 129,
2 For a list of the proprietors of Irish nomination boroughs, see Plowden's Hist., ii. App. No. 96.
■• 7th Feb., 1785; Irish Deb,, iv, 116; Plowden's Hist,, ii. 113, «. VOL. II. 22
338 THE CONSTITUTIONAL HISTORY OF ENGLAND
of his opponents in the House of Commons. He was obliged to withdraw many of the concessions he had offered, including the right of trading with India and the foreign West Indies ; and he introduced a new proposition, requiring the English navigation laws to be enacted by the Parliament of Ireland. The measure, thus changed, was received with chagrin and resentment by the Parliament and people of Ireland, as at once a mark of English jealousy and injustice, and a badge of Irish dependence.^ The resolutions of the Irish Parliament had been set aside, the interests of the country sacrificed to those of English traders, and the legislature was called upon to register the injurious edicts of the British Parliament. A measure, conceived in the highest spirit of statesmanship, served but to aggravate the ill-feelings which it had been de- signed to allay ; and was abandoned, in disappointment and disgust.^ Its failure, however, illustrated the difficulties of governing the realm through the agency of two independent Parliaments, and foreshadowed the necessity of a l^islative union. Another illustration of the danger of divided councils was afforded, four years afterwards, by the proceedings of the Irish Parliament on the regency.^ Liberal A few years later, at a time of peril and apprehension in
measures England, a policy of conciliation was again adopted in Ireland.
of 1792-93. fc. » r / & r
The years 1792 and 1793 were signalised by the admission of Catholics to the elective franchise, and to civil and military offices,* the limitation of the Irish pension list,* the settlement of a fixed civil list upon the Crown, in lieu of its hereditary revenues, the exclusion of some of the swarm of placemen and pensioners from the House of Commons, and the adoption of Mr. Fox's protective law of libel.^ Ireland, however, owed these promising concessions to the wise policy of Mr. Pitt and other English statesmen, rather than to her native Parliament.
J Debates, 22nd Feb. and 12th May, in Commons; Pari. Hist., xxv. 311, 575. In Lords, 7th June ; ibid.. 820.
"^ Irish Debates, v. 329, etc. ; Plowden's Hist., ii. 120-136 ; Tomline's Life of Pitt, ii. 69-92 ; Lord Stanhope's Life of Pitt, i. 263-273 ; Beresford Corr., i. 265.
3 Supra, vol. i. p. 131 ; Hardy's Life of Lord Charlemont, ii. 168-188 ; Grattan's Life, iii. 341 et seq.
* Supra, p. 197 ; Plowden's Hist., ii. 407 ; Moore's Life of Lord E. Fitz- gerald, i. 205, 216, 217.
* Supra, vol. i. p. 174 ; Plowden's Hist., ii. 146, 188, 279. ^ Supra, p. 17.
IRELAND BEFORE THE UNION 339
They were not yielded gracefully by the Irish Cabinet, and they were accompanied by rigorous measures of coercion.^ This was the last hopeful period in the separate history of Ire- land, which was soon to close in tumults, rebellion, and civil war. To the seething elements of discord — social, religious, and political — were now added the perilous ingredients of re- volutionary sentiments and sympathies.
The volunteers had aimed at worthy objects ; yet their as- The United sociation was founded upon revolutionary principles, incompat- Irishmen, ible with constitutional government. Clamour and complaint are lawful in a free State : but the agitation of armed men as- sumes the shape of rebellion. Their example was followed, in I79i,bythe United Irishmen, whose original design was no less worthy. This association originated with the Pro- testants of Belfast ; and sought " a complete reform of the legislature, founded on the principles of civil, political, and re- ligious liberty "? These reasonable objects were pursued, for a time, earnestly and in good faith ; and motions for reform, on the broad basis of religious equality, were submitted to the legislature by Mr. Ponsonby, where they received ample dis- cussion.^ But the association was soon to be compromised by republican leaders ; and seduced into an alliance with French Jacobins, and a treasonable correspondence with the enemies of their country, in aid of Irish disaffection.* Treason took the place of patriotism. This unhappy land was also disturbed by armed and hostile associations of peasants, known as
1 Plowden's Hist., ii. 471. In 1805, Mr. Grattan stated that this policy of conciliation originated with Ministers in England ; but being opposed by the Ministry in Ireland, its grace and popularity were lost. — Hans. Deb., ist Ser., iv. 926 ; Moore's Life of Lord E. Fitzgerald, i, 218 ; Hardy's Life of Lord Charle- mont, ii. 294-300; Grattan's Life, iv. 53-114.
'■'Plowden's Hist., ii. 330-334, and App. No. 84 ; Report of Secret Committee of Lords; Lords' Journ., Ireland, vii. 580; Madden's United Irishmen; Moore's Life of Lord E. Fitzgerald, i. 197.
3 4th March, 1794 ; 15th May, 1797 ; Plowden's Hist., ii. 452, etc.
* In 1795, the Irish Union Societies were formed out of the United Irishmen. The correspondence appears to have commenced in 1795. — Plowden's Hist., ii. 567 ; Report of Secret Committee of Commons, 1797 ; Irish Debates, xvii. 522 ; Grattan's Life, iv. 259, etc. ; 1 Moore's Life of Lord E. Fitzgerald, i. 164-166, 256- 260, 273 et seq., 296; ii. 9 et seq.; Life of Wolfe Tone, i. 132-136; ii. 14 et seq. ; Report of Secret Committee of Commons, Ireland, 1797 ; Comm. Joum., Ireland, xvii. App. 829; Castlereagh Corr., i. 189, 296, 366, etc.; Cornwallis Corr., ii. 338.
22 *
340 THE CONSTITUTIONAL HISTORY OF ENGLAND
" defenders " and " peep-of-day boys ".^ Society was convulsed with violence, agrarian outrage, and covert treason. Feuds be- Meanwhile, religious animosities, which had been partially
testants and allayed by the liberal policy of the Government, and by the Catholics. union of Protestants and Catholics in the volunteer forces, were revived with increased intensity. In 1795, Lord Fitz- william's brief rule — designed for conciliation — merely raised the hopes of Catholics and the fears of Protestants. 2 The peasantry, by whom the peace of the country was disturbed, generally professed one faith : the gentry, another. Tradi- tional hatred of the Romish faith was readily associated, in the minds of the latter, with loyalty and the protection of life and property. To them papist and " defender " were the same. Every social disorder was ascribed to the hated religion. Papist enemies of order, and conspirators against their country were banded together ; and loyal Protestants were invited to associate in defence of life, property, and religion. With this
Orange object, Orange societies were rapidly formed ; which, animated
societies
by fear, zeal, and party spirit, further inflamed the minds of
Protestants against Catholics. Nor was their hostility passive. In September, 1795, a fierce conflict arose between the Orange- men and defenders — since known as the battle of the Diamond — which increased the inveteracy of the two parties. Orange- men endeavoured, by the eviction of tenants, the dismissal of servants, and worse forms of persecution, to drive every Catho- lic out of the county of Armagh ; ^ and defenders retaliated with murderous outrages.* In 1 796, the disturbed state of the country was met by further measures of repression, which were executed by the magistrates and military with merciless severity — too often unwarranted by law.^ To other causes of discontent was added resentment of oppression and injustice. The country was rent asunder by hatreds, strifes, and disaffec- tion, and threatened, from without, by hostile invasion, which
' Plowden's Hist., ii. 335 ; Moore's Life of Lord E. Fitzgerald, ii. 6. "^ Ibid., i. 260; Grattan's Life, iv. 182 ; Castlereagh Corr., i. 10. •'' Speech of Mr. Grattan, 22nd Feb., 1796; Irish Pari. Deb., xvi. 107. * Speech of attorney-general, 20th Feb., 1796; ibid., 102. ' Plowden's Hist., ii. 544-567, 573, 582, 624 ; Lord Moira's speech, 22nd Nov., 1797 ; Pari. Hist., xxxiii. 1058.
IRELAND BEFORE THE UNION %^1
Irish traitors had encouraged,^ At length these evil passions, fomented by treason on one side, and by cruelty on the other, exploded in the rebellion of 1798.
The leaders of this rebellion were Protestants.^ The The rebellion Catholic gentry and priesthood recoiled from any contact with French atheists and Jacobins : they were without republican sympathies ; but could not fail to deplore the sufferings and oppression of the wretched peasantry who professed their faith. The Protestant party, however — frantic with fear, bigotry, and party spirit — denounced the whole Catholic body as rebels and public enemies. The hideous scenes of this re- bellion are only to be paralleled by the enormities of the French Revolution. The rebels were unloosed savages — mad with hatred and revenge — burning, destroying, and slaying : the loyalists and military were ferocious and cruel beyond belief Not only were armed peasants hunted down like wild beasts : but the disturbed districts were abandoned to the license of a brutal soldiery. The wretched " croppies " were scourged, pitch-capped, picketed, half-hung, tortured, muti- lated, and shot : their homes rifled and burned : their wives and daughters violated with revolting barbarity.^ Before the outbreak of the rebellion, the soldiers had been utterly demor- alised by license and cruelty, unchecked by the civil power.* Sir Ralph Abercromby, in a general order, had declared " the army to be in a state of licentiousness, which must render it formidable to every one but the enemy ".^ In vain had that humane and enlightened soldier attempted to restrain military excesses. Thwarted by the weakness of Lord Camden, and the bigotry and fierce party zeal of his Cabinet, he retired in disgust from the command of an army which had been degraded into bands of ruffians and bandits.^ The troops,
1 Report of Secret Committee of Lords, 1798]; Lords' Journ., Ireland, viii. 588 ; Moore's Life of Lord E. Fitzgerald, i. 282.
2 Plowden's Hist., ii. 700.
'•^Ibid., 701, 705 and note, 712-714. It was a favourite sport to fasten caps filled with hot pitch on to the heads of the peasants, or to make them stand upon a sharp stake or picket. — Ibid., 713 ; Moore's Life of Lord E. Fitzgerald, ii. 74, 203.
* The military had been enjoined by proclamation to act without being called upon by the civil magistrates. — Plowden's Hist., ii. 622, App. civ., cv. ; Lord Dunfermline's Memoir of Sir Ralph Abercromby, 69.
Ubid.,gi. 8/5,-^.^89-138.
342 THE CONSTITUTIONAL HISTORY OF ENGLAND
Lord Corn- wallis lord- lieutenant.
The Union conceited.
hounded on to renewed license, were fit instruments of the in- furiated vengeance of the ruling faction.
In the midst of these frightful scenes, Lord Cornwallis assumed the civil and military government of Ireland. Tem- perate, sensible, and humane, he was horrified not less by the atrocities of the rebels, than by the revolting cruelty and law- lessness of the troops, and the vindictive passions of all con- cerned in the administration of affairs.^ Moderation and humanity were to be found in none but English regiments.* With native officers, rapine and murder were no crimes.^
The rebellion was crushed : but how was a country so con- vulsed with evil passions to be governed ? Lord Cornwallis found his council, or junto, at the Castle, by whom it had long been ruled, " blinded by their passions and prejudices ". Per- suaded that the policy of this party had aggravated the pol- itical evils of their wretched country, he endeavoured to save the Irish from themselves, by that scheme of Union which a greater statesman than himself had long since conceived.* Under the old system of government, concessions, conciliation, and justice were impracticable.^ The only hope of toleration
1 Writing 28th June, 1798, he said: " I am much afraid that any man in a brown coat, who is found within several miles of the field of action, is butchered without discrimination ". "It shall be one of my first objects to soften the ferocity of our troops, which I am afraid, in the Irish corps at least, is not confined to the private soldiers." — Cornwallis Corr., ii. 355. Of the militia he said : •' They are ferocious and cruel in the extreme, when any poor wretches, either with or without arms, come within their power : in short, murder appears to be their fa- vourite pastime ". — Ibid., 358. " The principal persons of this country, and the members of both Houses of Parliament, are, in general, averse to all acts of clemency . . . and would pursue measures that could only terminate in the extirpation of the greater number of the inhabitants, and in the utter destruction of the country." — Ibid., 358. Again, he deplores " the numberless murders that are hourly committed by our people without any process or examination whatever ". " The conversation of the principal persons of the country tends to encourage this system of blood ; and the conversation, even at my table, where you may well suppose I do all I can to prevent it, always turns on hanging, shooting, burning, etc. etc. ; and if a priest has been put to death, the greatest joy is expressed by the whole company." — Ibid., 369.
2 In sending the looth Regiment and " some troops that can be depended upon," he wrote : " The shocking barbarities of our national troops would be more likely to provoke rebellion than to suppress it ". — Ibid., 377. See also his General Order, 31st Aug., 1798. — Ibid., 395.
^ E.g. the murder of Dogherty. — Ibid., 420. See also Lord Holland's Mem., i. 105-114.
* Cornwallis Corr., ii. 404, 405. ^ Ibid., 414, 415, 416.
IRELAND BEFORE THE UNION 343
and equity was to be found in the mild and impartial rule of British statesmen, and an united Parliament. In this spirit was the union sought by Mr. Pitt, who " resented and spurned the bigoted fury of Irish Protestants : " ^ in this spirit was it promoted by Lord Cornwallis.^ Self-government had become impossible. " If ever there was a country," said Lord Hutchinson, "unfit to govern itself, it is Ireland; a corrupt aristocracy, a ferocious commonalty, a distracted Government, a divided people." ^ Imperial considerations, no less para- mount, also pointed to the Union. Not only had the divisions of the Irish people rendered the difficulties of internal ad- ministration insuperable : but they had proved a source of weakness and danger from without. Ireland could no longer be suffered to continue a separate realm : but must be fused and welded into one State with Great Britain.
But the difficulties of this great scheme were not easily Difficulties in to be overcome. However desirable, and even necessary, for Union"^ ^^^ the interests of Ireland herself, an invitation to surrender her independence — so recently acquired — deeply affected her national sensibilities. To be merged in the greater and more powerful kingdom was to lose her distinct nationality. And how could she be assured against neglect and oppression, when wholly at the mercy of the Parliament of Great Britain, whose sovereignty she had lately renounced ? The liberties she had won in 1782 were all to be forfeited and abandoned. At any other time, these national feelings alone would have made an Union impossible. But the country, desolated by a war of classes and religions, had not yet recovered the united sentiments of a nation.
But other difficulties, no less formidable, were to be en- Objections of countered. The Irish party were invited to yield up the* ^^y"*"^ power and patronage of the Castle : the peers to surrender their proud position as hereditary councillors in Parliament : the great families to abandon their boroughs. The compact confederacy of interests and corruption was to be broken up.*
1 Wilberforce's Diary, i6th July, 1798.
2 Cornwallis Corr., ii. 418, 419, etc. ; Castlereagh Corr., i. 442. ^ Memoir of Sir Ralph Abercromby, 136.
* " There are two classes of men in Parliament, whom the disasters and sufferings of the country have but very imperfectly awakened to the necessity of a change, viz. the borough proprietors, and the immediate agents of Govern-
344 t^he: constitutional history of England
Means by which the Union was accomp- lished.
But the Government, convinced of the necessity of the Union, was prepared to overcome every obstacle.
The Parliament of Great Britain recognised the Union as a necessary measure of State policy ; and the masterly argu- ments of Mr. Pitt ^ admitted of little resistance.^ But the first proposal to the Irish Parliament miscarried ; an amendment in favour of maintaining an independent legislature being lost by a single vote.^ It was plain that corrupt interests could only be overcome by corruption. Nomination boroughs must be bought, and their members indemnified — county interests conciliated — officers and expectant lawyers compensated — op- ponents bribed. Lord Castlereagh estimated the cost of these expedients at a million and a half; and the price was forth- coming.* The purchase of boroughs was no new scheme, having been proposed by Mr. Pitt himself, as the basis of his measure of Parliamentary Reform in 1785;^ and now it was systematically carried out in Ireland. The patrons of boroughs received ;^7,500 for each seat; and eighty-four boroughs were disfranchised.'' Lord Downshire was paid ;^5 2,500 for seven
ment." — Lord Cornwallis to Duke of Portland, 5th Jan., 1799 ; Corr. iii. 31. Again : " There certainly is a very strong disinclination to the measure in many of the borough proprietors, and a not less marked repugnance in many of the official people, particularly in those who have been longest in the habits of the current system". — Same to same, nth Jan., 1799; ibid., 34. And much later in the struggle, his lordship wrote : "The nearer the great event approaches, the more are the needy and interested senators alarmed at the effects it may possibly have on their interests, and the provision for their families ; and I believe that half of our majority would be at least as much delighted as any of our opponents, if the measure could be defeated". — Ibid., 228.
^23rd and 31st Jan., 1799.
^ In the Commons, his resolutions were carried by 149 votes against 24, and in the Lords without a division. — Plowden's Hist., ii. 896.
^ 22nd Jan., 1799 — Ayes, io6; Noes, 105 ; Cornwallis Corr., iii. 40-51.
* Castlereagh Corr., ii. 151. His lordship divided the cost as follows: Boroughs, ;^756,ooo ; county interests, ;f 224,000 ; barristers, ;^20o,ooo ; pur- chasers of seats, ;^75,ooo; Dublin, ;£2oo,ooo; total, ;f 1,433,000. — Cornwallis Corr., iii. 81 ; Stanhope's Life of Pitt, iii. 180. Lord Cornwallis wrote, 1st July, 1799 : " There cannot be a stronger argument for the measure than the over- grown Parliamentary power of five or six of our pampered borough-mongers, who are become most formidable to Government, by their long possession of the entire patronage of the Crown, in their respective districts". — Corr., iii. no.
'^ Supra, vol. i. p. 268.
8 Of the 34 boroughs retained, 9 only were open. — Cornwallis Corr., iii. 234, 324. See list of boroughs disfranchised and sums paid to proprietors. — Ibid., 321-324. The Ponsonbys exercised influence over 22 seats ; Lord Down- shire and the Beresfords, respectively, over nearly as many. 23 of the 34 boroughs
IRMLAND before the UNIOI^ 345
seats ; Lord Ely, ;^45,ooo for six,^ The total compensation amounted to ;^i, 260,000.^ Peers were further compensated for the loss of their privileges in the national council, by pro- fuse promises of English peerages, or promotion in the peerage of Ireland : commoners were conciliated by new honours,^ and by the largesses of the British Government, Places were given or promised — pensions multiplied — secret-service money exhausted.'* In vain Lord Cornwallis complained of the " pol- itical jobbing" and "dirty business" in which he was "in- volved beyond all bearing," and " longed to kick those whom his public duty obliged him to court ". In vain he " despised and hated himself" while " negotiating and jobbing with the most corrupt people under heaven ",^ British gold was sent for and distributed ; ^ and, at length — in defiance of threats of armed resistance,^ in spite of insidious promises of relief to Catholics,^ and corrupt defection among the supporters of Government^ — the cause Was won. A great end was corn- remained close until the Reform Act of 1832. — Ibid., 324. Many of the counties also continued in the hands of the great families. — Ibid. ; and see supra, vol. 1. p. 242.
1 Plowden's Hist., ii. 1018, 1067; Castlereagh Corr., iii. 56-67 ; Cornwallis Corr., iii. 324 ; Stanhope's Life of Pitt, iii. 227.
^ Cornwallis Corr., iii. 323.
^Castlereagh Corr., iii. 330; Cornwallis Corr., iii. 244, 252, 257, 262. 29 Irish peerages were created, of which 7 were unconnected with the Union ; 20 Irish peers were promoted, and 6 English peerages granted for Irish services. — Ibid., 318. See also Lord Stanhope's Life of Pitt, iii. 180.
^Cornwallis Corr., iii, 278, 340; Grattan's Life, v. iii.
" Cornwallis Corr., iii. 102. The luckless viceroy applied to himself the ap propriate lines of Swift : —
" So to effect his monarch's ends. From hell a viceroy devil ascends : His budget with corruption cramm'd — The contributions of the damn'd — Which with unsparing hand he strows Through courts and senates, as he goes ; And then, at Beelzebub's black hall, Complains his budget is too small,"
^Ibid., 151, 156, 201, 202, 226, 309; Coote's Hist, of the Union.
''Ibid., 167, 180.
^ Ibid., 51, 55, 63, 149; Castlereagh Corr., ii. 45, et supra, p. 201,
" " Sir R, Butler, Mahon, and Fetherstone were taken off by county cabals during the recess, and Whaley absolutely bought by the Opposition stock purse. He received, I understand, ;^2,ooo down, and is to receive as much more after the service is performed. We have undoubted proofs, though not such as we can disclose, that they are enabled to offer as high as ;^5,ooo for an individual vote, and I lament to state that there are individuals remaining amongst us that
346 THE CONSTITUTIONAL HISTORY OF ENGLAND
Terms of the Union,
Results of the Union.
passed by means the most base and shameless. Grattan, Lord Charlemont, Ponsonby, Plunket, and a few patriots continued to protest against the sale of the liberties and free constitution of Ireland. Their eloquence and public virtue command the respect of posterity : but the wretched history of their country denies them its sympathy.^
The terms of the Union were now speedily adjusted and ratified by the Parliaments of both countries.^ Ireland was to be represented, in the Parliament of the United Kingdom, by four spiritual lords, sitting by rotation of sessions ; by twenty- eight temporal peers, elected for life by the Irish peerage ; and by a hundred members of the House of Commons. Her com- merce was at length admitted to a freedom which, under other conditions, could not have been attained.^
Such was the incorporation of the two countries ; and henceforth the history of Ireland became the history of England. Had Mr. Pitt's liberal and enlightened policy been carried out, the Catholics of Ireland would have been at once admitted to a participation in the privileges of the constitu- tion : provision would have been made for their clergy ; and the grievances of the tithe system would have been redressed.* But we have seen how his statesmanship was overborne by the scruples of the king ; ^ and how long and arduous was the struggle by which religious liberty was won. The Irish were denied those rights which English statesmen had designed for them. Nor was this the worst evil which followed the fall of Mr. Pitt, and the reversal of his policy. So long as narrow Tory principles prevailed in the councils of England, the government of Ireland was confided to the kindred party at the Castle. Protestant ascendency was maintained as rigorously as ever : Catholics were governed by Orangemen : the close
are likely to yield to this temptation." — Lord Castlereagk to Duke of Portland, 7th Feb., 1800; Cornwallis Con., iii. 182. "The enemy, to my certain know- ledge, offer ;£5,ooo ready money for a vote." — Lord Cornwallis to Bishop o/Lich- Jield ; ibid., 184.
^ Grattan's Life, v. 17 et seq., 75-180.
'■'sg & 40 Geo. III. c. 67; 40 Geo. III. c. 38 (Ireland).
* 39 & 40 Geo. III. c. 67.
'* Letter of Mr. Pitt, 17th Nov., 1798; Cornwallis Corr., ii. 440 ; Lord Stan- hope's Life of Pitt, iii. 160.
^ Vol. i. p. 63 ; and supra, p. 203.
IRELAND BEFORE THE UNION 347
oligarchy which had ruled Ireland before the Union was still absolute. Repression and coercion continued to be the prin- ciples of its harsh domination,^ The representation of Ireland, in the United Parliament, continued in the hands of the same party, who supported Tory Ministers, and encour- aged them to resist every concession which more liberal statesmen proposed. Political liberties and equality were withheld ; yet the superior moderation and enlightenment of British statesmen secured a more equitable administration of the laws, and much remedial legislation, designed for the im- provement of the social and material condition of the people. These men earnestly strove to govern Ireland well, within the range of their narrow principles. The few restrictions which the Union had still left upon her commerce were removed ; ^ her laws were reviewed, and their administration amended ; her taxation was lightened ; the education of her people en- couraged ; her prosperity stimulated by public works. Despite of insufficient capital and social disturbance, her trade, shipping, and manufactures expanded with her freedom,^
At length, after thirty years, the people of Ireland were Irish liberties admitted to the rights of citizens. The Catholic Relief Act ^gj^gf ^,,^ was speedily followed by an amendment of the representa- and reform, tion ; and from that time, the spirit of freedom and equality has animated the administration of Irish affairs. The party of Protestant ascendency was finally overthrown ; and rulers pledged to a more liberal policy guided the councils of the
1 Lord Cornwallis had foreseen this evil. He wrote, ist May, 1800 : " If a successor were to be appointed who should, as almost all former lords-lieutenants have done, throw himself into the hands of this party, no advantage would be derived from the Union ". — Corr., iii. 237. Again, ist Dec,, 1800: "They assert that the Catholics of Ireland (seven-tenths of the population of the country) never can be good subjects to a Protestant Government, What then have we done, if this position be true ? We have united ourselves to a people whom we ought, in policy, to have destroyed." — Ibid., 307, Again, 15th Feb., 1801 : " No consideration could induce me to take a responsible part vnth any adminis- tration who can be so blind to the interest, and indeed to the immediate security, of their country, as to persevere in the old system of proscription and exclusion in Ireland ". — Ibid., 337.
2 Corn trade, 46 Geo. III. c. 97 ; Countervailing Duties, 4 Geo. IV. c, 72 ; Butter trade, 8 Geo. IV. c. 61 ; 9 Geo. IV. c. 88.
^See Debate on Repeal of the Union, April, 1834, and especially Mr. Spring Rice's able and elaborate speech. — Hans, Deb., 3rd Ser., xxii. 1092 et seq.; Martin's Ireland before and after the Union, 3rd ed., pref,, and chaps, ii., iii., etc.
348 THE CONSTITUTIONAL HISTOR Y OF ENGLAND
State. Ireland shared with England every extension of
popular rights. The full development of her liberties,
however, was retarded by the factious violence of parties — by
the divisions of Orangemen and repealers — by old religious
hatreds — by social feuds and agrarian outrages ; and by the
wretchedness of a population constantly in excess of the
The Irish means of employment. The frightful visitation of famine in famine. ,-11
1846, succeeded by an unparalleled emigration, swept from
the Irish soil more than a fourth of its people.^ Their suffer- ings were generously relieved by England ; and, grievous as they were, the hand of God wrought greater blessings for the survivors than any legislation of man could have accom- plished. Freedom and In the midst of all discouragements, in spite of clamours Ireland^ ° ^^^d misrepresentation, in defiance of hostile factions, the ex- ecutive and the legislature have nobly striven to effect the political and social regeneration of Ireland. The great Eng- lish parties have honourably vied with one another in carry- ing out this policy. Remedial legislation for Ireland, and the administration of her affairs, have, at some periods, engrossed more attention than the whole British Empire. Ancient feuds have yet to be extinguished, and religious divisions healed : but nothing has been wanting that the wisdom and beneficence of the State could devise for insuring freedom, equal justice, and the privileges of the constitution to every class of the Irish people. Good laws have been well administered : fran- chises have been recognised as rights — not admitted as pre- tences. Equality has been not a legal theory, but an unquestioned fact. We have seen how Catholics were excluded from all the rights of citizens. What is now their position ? In 1 860, of the twelve judges on the Irish bench, eight were Catholics.^ In the southern counties of Ireland, Catholic gentlemen have been selected, in preference to Protestants, to serve the office of sheriff, in order to insure confidence in the administration of justice, England has also freely opened to
^In the ten years, from 1841 to 1851, it had decreased from 8,175,124 to 6,552,385, or 19*85 per cent. The total loss, however, was computed at 2,466,414. The decrease amounted to 49 persons to every square mile. — Census Report, 1 85 1.
^ Sir Michael O'Loghlen was the first Catholic promoted to the bench, as Master of the Rolls. — Grattan^s Life, i. 66.
IRELAND BEFORE THE UNION 349
the sons of Ireland the glittering ambition of arms, of states- manship, of diplomacy, of forensic honour. The names of Wellington, Castlereagh, and Palmerston attest that the highest places in the State may be won by Irish genius.
The number of distinguished Irishmen who have been added to the roll of British peers, proves with what welcome the incorporation of the sister kingdom has been accepted. Nor have other dignities been less freely dispensed to the honourable ambition of their countrymen. One illustration will suffice. In i860, of the fifteen judges on the English bench, no less than four were Irishmen.^ Freedom, equality, and honour have been the fruits of the Union ; and Ireland has exchanged an enslaved nationality for a glorious incorporation with the first Empire of the world.
1 Viz. Mr. Justice Willes, Mr, Justice Keating, Mr. Justice Hill, and Baron Martin, to whom has since been added Mr. Justice Shee, an Irishman and a Catholic.
CHAPTER XVII.
Free Constitutions of British Colonies — Sovereignty of England — Commer- cial restrictions — Taxation of the American Colonies — Their resist- ance and separation — Crown Colonies — Canada — Australia — Colonial administration after the American War — New commercial policy affecting the Colonies — Responsible Government — Democratic Colo- nial Constitutions — India.
Colonists have borne with them the laws of England.
It has been the destiny of the Anglo-Saxon race to spread through every quarter of the globe their courage and endurance, their vigorous industry, and their love of freedom. Wherever they have founded colonies they have borne with them the laws and institutions of England, as their birthright, so far as they were applicable to an infant settlement.^ In territories acquired by conquest or cession, the existing laws and customs of the people were respected, until they were qualified to share the franchises of Englishmen. Some of these — held only as gar- risons, others peopled with races hostile to our rule, or unfitted for freedom — were necessarily governed upon different prin- ciples. But in quitting the soil of England to settle new colonies. Englishmen never renounced her freedom. Such being the noble principle of English colonisation, circumstances favoured the early development of colonial liberties. The Puritans, who founded the New England colonies, having fled from the oppression of Charles I., carried with them a stern love of civil liberty, and established republican institutions. ^ The persecuted Catholics who settled in Maryland, and the proscribed
1 Blackstone's Comm., i. 107 ; Lord Mansfield's Judgment in Campbell ». Hall ; Howell's St. Tr., xx. 289 ; Clark's Colonial Law, 9, 139, i8r, etc. ; Sir G. C. Lewis on the Government of Dependencies, 189-203, 308 ; Mill's Colonial Constitutions, i8.
■* In three of their colonies the council was elective; in Connecticut and Rhode Island the colonists also chose their governor. — Adam Smith, book iv., ch. 7. But the king's approval of the governor was reserved by 7 & 8 Will. III. c. 22.
350
BRITISH COLONIES AND DEPENDENCIES 351
Quakers who took refuge in Pennsylvania, were little less de- mocratic.i Other colonies founded in America and the West Indies, in the seventeenth century, merely for the purposes of trade and cultivation, adopted institutions, less democratic, indeed, but founded on principles of freedom and self-govern- ment. ^ Whether established as proprietary colonies, or under charters held direct from the Crown, the colonists were equally free.
The English constitution was generally the type of these Ordinary colonial Governments. The governor was the viceroy of the Qj^nial Crown: the legislative council, or upper chamber, appointed by constitu- the governor, assumed the place of the House of Lords ; and *'°"^' the representative assembly, chosen by the people, was the ex- press image of the House of Commons. This miniature Par- liament, complete in all its parts, made laws for the internal government of the colony. The governor assembled, pro- rogued, and dissolved it ; and signified his assent or dissent to every Act agreed to by the Chambers : the Upper House mimicked the dignity of the House of Peers ; ^ and the Lower House insisted on the privileges of the Commons, especially that of originating all taxes and grants of money for the public service.^ The elections were also conducted after the fashion of the Mother Country.^ Other laws and institutions were imitated not less faithfully. Jamaica, for example, maintained a Court of King's Bench, a Court of Common Pleas, a Court of Exchequer, a Court of Chancery, a Court of Admiralty, and a Court of Probate. It had grand and petty juries, justices of the peace, courts of quarter sessions, vestries, a coroner, and constables."
Every colony was a little State, complete in its legislature,
1 Bancroft's Hist, of the Colonisation of the United States, i. 264 ; iii. 394.
2 Merivale's Colonisation, ed. 1861, 95, 103.
3 In 1858, a quarrel arose between the two Houses in Newfoundland, in con- sequence of the Upper House insisting upon receiving the Lower House at a conference, sitting and covered, an assumption of dignity which was resented by the latter. The governor having failed to accommodate the difference, prorogued the Parliament before the supplies were granted. In the next session these dis- putes were amicably arranged. — Message of Council, 23rd April, 1858, and reply of House of Assembly ; Private Correspondence of Sir A. Bannerman.
^Stokes' British Colonies, 241 ; Edwards' Hist, of the West Indies, ii. 419; Long's Hist, of Jamaica, i. 56.
* Edwards, ii. 419; Haliburton's Nova Scotia, ii. 319. ^ Long's Hist, of Jamaica, i. 9.
352 THE CONSTITUTIONAL HISTORY OF ENGLAND
The sove- reignty of England.
Commercial restrictions.
its judicature, and its executive administration. But, at the same time, it acknowledged the sovereignty of the Mother Country, the prerogatives of the Crown, and the legislative supremacy of Parliament. The assent of the king, or his re- presentative, was required to give validity to acts of the colonial legislature : his veto annulled them ; ^ while the Imperial Par- liament was able to bind the colony by its acts, and to super- sede all local legislation. Every colonial judicature was also subject to an appeal to the King in Council, at Westminster. The dependence of the colonies, however, was little felt in their internal government. They were secured from interference by the remoteness of the Mother Country,^ and the ignorance, indifference, and preoccupation of her rulers. In matters of Imperial concern, England imposed her own policy : but other- wise left them free. Asking no aid of her, they escaped her domination. All their expenditure, civil and military, was de- frayed by taxes raised by themselves. They provided for their own defence against the Indians, and the enemies of England. During the seven years' war, the American colonies maintained a force of 25,000 men, at a cost of several millions. In the words of Franklin, " they were governed, at the expense to Great Britain of only a little pen, ink, and paper : they were led by a thread ".^
But little as the Mother Country concerned herself in the political government of her colonies, she evinced a jealous vigilance in regard to their commerce. Commercial monopoly, indeed, was the first principle in the colonial policy of Eng- land, as well as of the other maritime States of Europe. She suffered no other country but herself to supply their wants : she appropriated many of their exports ; and, for the sake of her own manufacturers, insisted that their produce should be sent to her in a raw, or unmanufactured state. By the Naviga- tion Acts, their produce could only be exported to England in
^ In Connecticut and Rhode Island, neither the Crown nor the governor were able to negative laws passed by the Assemblies.
2 •' Three thousand miles of ocean lie between you and them," said Mr. Burke. " No contrivance can prevent the effect of this distance in weakening government." Adam Smith observed : " Their situation has placed them less in the view and less in the power of the Mother Country ". — Book iv. ch. 7. * Evidence before the Commons, 1766 ; Pari. Hist., xvi. 139-141.
BRITISH COLONIES AND DEPENDENCIES 353
English ships. ^ This policy was avowedly maintained for the benefit of the Mother Country — for the encouragement of her commerce, her shipping, and manufactures — to which the interests of the colonies were sacrificed. ^ But, in compensa- tion for this monopoly, she gave a preference to the produce of her own colonies, by protective and prohibitory duties upon foreign commodities. In claiming a monopoly of their markets, she, at the same time, gave them a reciprocal monopoly of her own. In some cases she encouraged the production of their staples by bounties. A commercial policy so artificial as this — the creature of laws striving against nature — marked the dependence of the colonies, crippled their industry, fomented discontents, and even provoked war with foreign States.^ But it was a policy common to every European Government, until enlightened by economical science ; and commercial advant- ages were, for upwards of a century, nearly the sole benefit which England recognised in the possession of her colonies.*
In all ages, taxes and tribute had been characteristic inci- Taxes and dents of a dependency. The subject provinces of Asiatic com"mon to monarchies, in ancient and modern times, had been despoiled by depen- the rapacity of satraps and pashas, and the greed of the central ^"'^'^^• Government. The Greek colonies, which resembled those of England more than any other dependencies of antiquity, were forced to send contributions to the treasury of the parent State. Carthage exacted tribute from her subject towns and territories. The Roman provinces " paid tribute unto Caesar ", In modem times, Spain received tribute from her European dependencies, and a revenue from the gold and silver mines of her American colonies. It was also the policy of France, Holland, and Portugal to derive a revenue from their settlements.^
But England, satisfied with the colonial trade, by which English
her subjects, at home, were enriched, imposed upon them alone ^^^'JJ^
all the burthens of the State.^ Her costly wars, the interest imperial
taxation.
^ The first Navigation Act was passed in 1651, during the Commonwealth ; Merivale, 75, 84, 89 ; Adam Smith, book iv. ch. 7.
"^Ihid. ^Ibid. *Ibid.
'Sir G. C. Lewis on the Government of Dependencies, 99, lor, 106, 112, 124, 139, 149, 211 et seq.; Adam Smith, book iv. ch. 7; Raynal, Livres i. ii. vi.-ix. xii. xiii.
* " The English colonists have never yet contributed anything towards the defence of the mother country, or towards the support of its civil government." — Adam Smith, book iv. ch. 7.
VOL. II. 23
354 7W^ CONSTITUTIONAL HISTORY OF ENGLAND
of her increasing debt, her naval and military establishments —
adequate for the defence of a widespread Empire — were all
maintained by the dominant country herself James II. would
Arguments j^^^^g levied taxes upon the colonists of Massachusetts : but
in favour of o- ixr-n- t i i t,
taxation^ was assured by bir William Jones that he could no more
" levy money without their consent in an assembly, than they could discharge themselves from their allegiance".^ Fifty years later, the shrewd instinct of Sir Robert Walpole revolted against a similar attempt ^ But at length, in an evil hour, it Was resolved by George III. and his Minister, Mr. Grenville,' that the American colonies should be required to contribute to the general revenues of the Government This new principle was apparently recommended by many considerations of justice and expediency. Much of the national debt had been in- curred in defence of the colonies, and in wars for the com- mon cause of the whole Empire.* Other States had been accustomed to enrich themselves by the taxation of their de- pendencies ; and why was England alone to abstain from so natural a source of revenue? If the colonies were to be exempt from the common burthens of the Empire, why should England care to defend them in war, or incur charges for them in time of peace? The benefits of the connection were reciprocal ; why, then, should the burthens be all on one side? Nor, assuming the equity of Imperial taxation, did it seem beyond the competence of Parliament to establish it The omnipotence of Parliament was a favourite theory of lawyers ; and for a century and a half, the force of British statutes had been acknowledged without question, in every matter concerning the government of the colonies.
No charters exempted colonists from the sovereignty of the parent State in matters of taxation ; nor were there wanting precedents in which they had submitted to Imperial imposts without remonstrance. In carrying out a restrictive com- mercial policy. Parliament had passed numerous Acts provid-
1 Grahame's Hist, of the United States, i. 366.
^ Walpole's Mem., ii. 70. " I have Old England set against me," he said — by the excise scheme — " do you think I will have New England likewise ? " — Coxe's Life, i. 123.
* Wraxall's Mem., ii. 11 1 ; Nichols' Recoil., i. 205; Bancroft's Amer. Rev.,
iii. 307-
* Adam Smith, book iv. ch. 7; Walpole's Mem., ii. 71.
BRITISH COLONIES AND DEPENDENCIES 355
ing for the levy of colonial import and export duties. Such duties, from their very nature, were unproductive — imposing restraints upon trade, and offering encouragements to smug- gling. They were designed for commercial regulation rather than revenue : but were collected by the king's officers, and payable into the Exchequer. The State had further levied postage duties within the colonies.^
But these considerations were outweighed by reasons on Arguments the other side. Granting that the war expenditure of the side. Mother Country had been increased by reason of her colonies, who was responsible for European wars and costly armaments ? Not the colonies, which had no voice in the Government : but their English rulers, who held in their hands the destinies of the Empire. And if the English treasury had suffered in defence of the colonies, the colonists had taxed themselves heavily for protection against the foes of the Mother Country, with whom they had no quarrel.- But, apart from the equity of the claim, was it properly within the jurisdiction of Parlia- ment to enforce it ? The colonists might be induced to grant a contribution : but could Parliament constitutionally impose a tax without their consent ? True, that this Imperial legislature could make laws for the government of the colonies : but taxa- tion formed a marked exception to general legislation. Ac- cording to the principles, traditions, and usage of the con- stitution, taxes were granted by the people, through their representatives. This privilege had been recognised for cen- turies in the parent State ; and the colonists had cherished it with traditional veneration in the country of their adoption. They had taxed themselves, for local objects, through their own representatives : they had responded to requisitions from the Crown for money : but never until now had it been sought to tax them directly, for Imperial purposes, by the authority of Parliament.
1 Evidence of Dr. Franklin, 1766 ; Pari. Hist. xvi. 143 ; Stedman's Hist, of the American War, i. 10, 44 ; Rights of Great Britain Asserted, 102 ; Adolphus' Hist., i. 145 ; Bancroft's Hist, of the American Revolution, ii. 260 et seq. ; Dr. Johnson's Taxation no Tyranny, Works, xii. 177; Speech of Lord Mansfield, January, 1766; Pari. Hist., xvi. 166; Burke's Speech on American Taxation, 1774, Works, ii. 380; Speech of Governor Pownall, i6th Nov., 1775; Pari. Hist., xviii. 984.
2 Dr. Franklin's Ev., Pari. Hist., xvi. 139.
23 *
356 TME CONSTITUTIONAL HISTORY OF ENGLAND
A statesman imbued with the free spirit of our constitution could not have failed to recognise these overruling principles. He would have seen, that if it were fit that the colonies should contribute to the Imperial treasury, it was for the Crown to demand their contributions through the governors ; and for the colonial legislatures to grant them. But neither the king nor his Minister were alive to these principles. The one was too conscious of kingly power to measure nicely the rights of his subjects ; and the other was blinded by a pedantic reverence for the authority of Parliament^ The Stamp In 1 764, an Act was passed, with little discussion, impos-
^ '^'^ ^- ing customs' duties upon several articles imported into the American colonies — the produce of these duties being reserved for the defence of the colonies themselves.^ At the same time, the Commons passed a resolution, that "it may be proper to charge certain stamp duties " in America,^ as the foundation of future legislation. The colonists, accustomed to perpetual interference with their trade, did not dispute the right of the Mother Country to tax their imports : but they resolved to evade the impost, as far as possible, by the encouragement of native manufactures. The threatened Stamp Act, however, they immediately denounced as an invasion of the rights of Englishmen, who could not be taxed otherwise than by their representatives. But, deaf to their remonstrances, Mr. Gren- ville, in the next session, persisted in his stamp bill. It attracted little notice in this country: the people could bear with complacency the taxation of others ; and never was there a Parliament more indifferent to constitutional principles and popular rights. The colonists, however, and their agents in this country, remonstrated against the proposal.
Their opinion had been invited by Ministers ; and that it might be expressed, a year's delay had been agreed upon. Yet when they petitioned against the bill, the Commons refused
1 Walpole's Mem., ii. 70, 220 ; Bancroft's Hist, of the American Revolution, ii. 88.
'4 Geo. III. c. 15. Mr. Bancroft regards a measure, introduced by Mr. Townshend in the previous session for lowering some of the prohibitory duties, and making them productive, as the commencement of the plan for the taxation of America ; but that measure merely dealt with existing duties. It was not until 1764 that any new issue was raised with the colonies. — Hist, of American Revolution, ii. 102.
3 xoth March, 1764 ; Pari. Hist., xv. 1427 ; Grahame's Hist., iv. 179.
BRITISH COLONIES AND DEPENDENCIES 357
to entertain their petitions, under a rule, by no means binding on their discretion, which excluded petitions against a tax proposed for the service of the year.i An arbitrary temper and narrow pedantry prevailed over justice and sound policy. Unrepresented communities were to be taxed — even without a hearing. The bill was passed with little opposition : ^ but the colonists combined to resist its execution. Mr. Pitt had been ill in bed when the Stamp Act was passed : but no sooner were the discontents in America brought into discussion, than he condemned taxation without representation ; and counselled the immediate repeal of the obnoxious Act. " When in this House," he said, " we give and grant, we grant what is our own. But in an American tax, what do we do ? We, your Majesty's Commons for Great Britain, give and grant to your Majesty — what? Our own property? No: we give and grant to your Majesty the property of your Majesty's Commons of America." At the same time, he proposed to save the honour of England by an act declaratory of the general legislative authority of Parliament over the colonies.^ Lord Rockingham, who had succeeded Mr, Grenville, alarmed by the unanimity and vio- lence of the colonists, readily caught at Mr. Pitt's suggestion. The Stamp Act was repealed, notwithstanding the obstinate Repeal of resistance of the king and his friends, and of Mr. Grenville and ^^ Stamp the supporters of the late Ministry.* Mr. Pitt had desired ex- pressly to except from the Declaratory Act the right of taxation without the consent of the colonists : but the Crown lawyers and Lord Mansfield denied the distinction between legislation and the imposition of taxes, which that great constitutional statesman had forcibly pointed out ; and the bill was introduced without that exception. In the House of Lords, Lord Camden, the only sound constitutional lawyer of his age, supported with remarkable power the views of Mr. Pitt : but the bill was passed in its original shape, and maintained the unqualified right of
^ This monstrous rule, or usage, which set at naught the right of petition on the most important matters of public concern, dates from the Revolution ; and was not relinquished until 1842, — Hatsell, Prec, iii, 226 ; May's Proceedings and Usage of Parliament, 6th ed., 516.
^ Pari. Hist., xvi, 34. " We might as well have hindered the sun's setting," wrote Franklin. — Bancroft, ii. 281,
^ Pari, Hist., xvi, 93 ; Life of Lord Chatham, i. 427.
*Walpole's Mem., ii. 258, 285, etc.; Rockingham Mem., i. 291-295; ii, 250, 294,
358 THE CONSTITUTIONAL HISTORY OF ENGLAND
England to make laws for the colonies. ^ In the same session some of the import duties imposed in 1764 were also repealed, and others modified.^ The colonists were appeased by these concessions ; and little regarded the abstract terms of the De- claratory Act. They were, indeed, encouraged in a spirit of independence by their triumph over the English Parliament : but their loyalty was as yet unshaken.^ Mr. Charles The error of Mr. Grenville had scarcely been repaired, when
''^°miiaa^"*^^ an Act of political fatuity caused an irreparable breach between taxes, 1767. the Mother Country and her colonies. Lord Chatham, by his timely intervention, had saved England her colonies ; and now his ill-omened administration was destined to lose them. His witty and accomplished, but volatile and incapable Chancellor of the Exchequer, Mr. Charles Townshend, having lost half a million of his ways and means, by an adverse vote of the Com- mons on the land tax,* ventured, with incredible levity, to repeat the disastrous experiment of colonial taxation. The Americans, to strengthen their own case against the Stamp Act, had drawn a distinction between internal and external taxation — a distinction plausible and ingenious in the hands of so dexterous a master of political fence as Dr. Franklin,' but substantially without foundation. Both kinds of taxes were equally paid by the colonists themselves ; and if it was their birthright to be taxed by none but representatives of their own, this doctrine clearly comprehended customs, no less than excise. But, misled by the supposed distinction which the Americans themselves had raised, Mr. Townshend proposed a variety of small colonial customs' duties — on glass, on paper, on painters' colours, and lastly, on tea. The estimated produce of these paltry taxes amounted to no more than ;^40,ooo. Lord Chatham would have scornfully put aside a scheme, at once so contemptible and impolitic, and so plainly in violation of the principles for which he had himself recently contended :
^6 Geo. III. c. II, 12; Pari. Hist., xvi. 163, 177, etc. ; Walpole's Mem., ii. 277-298, 304-307, etc. ; Rockingham Mem., i. 282-293 5 Bancroft, ii. 459-473 ; Chatham Corr., ii. 375.
"6 Geo. III. c. 52.
3 Stedman's Hist., i. 48 et seq. ; Bancroft's Hist, of the American Revolution, ii. 523 ; Burke's Speech on American Taxation. See also Lord Macaulay's Life of Lord Chatham, Essays ; Lord Campbell's Lives of the Chief Justices (Lord Camden).
* Supra, vol. i. p. 376. " Pari. Hist., xvi. 144.
BRITISH COLONIES AND DEPENDENCIES 359
but he lay stricken and helpless, while his rash lieutenant was rushing headlong into danger. Lord Camden would have arrested the measure in the Cabinet ; but standing alone, in a disorganised Ministry, he accepted under protest a scheme which none of his colleagues approved.^ However rash the financier, however weak the compliance of Ministers, Parlia- ment fully shared the fatal responsibility of this measure. It was passed with approbation, and nearly in silence. 2 Mr. Townshend did not survive to see the mischief he had done: but his colleagues had soon to deplore their error. The colonists resisted the import duties, as they had resisted the Stamp Act ; and, a second time. Ministers were forced to recede from their false position. But their retreat was effected awkwardly, and All repealed with a bad grace. They yielded to the colonists so far as to duties.^ give up the general scheme of import duties : but persisted in continuing the duties upon tea.^
This miserable remnant of the import duties was not cal- insignifi- culated to afford a revenue exceeding ;^i 2,000; and its actual ^g^^utj^s proceeds were reduced to ;;^300 by smuggling, and the deter- mination of the colonists not to consume an article to which the obnoxious impost was attached. The insignificance of the tax, while it left Ministers without justification for continuing such a cause of irritation, went far to secure the acquiescence of the colonists. But their discontents — met without temper or moderation — were suddenly inflamed by a new measure, which only indirectly concerned them. To assist the half- bankrupt East India Company in the sale of their teas, a draw- Drawbacks back was given them, of the whole English duty, on shipments f^"*^^ °" to the American plantations.* By this concession to the East India Company, the colonists, exempted from the English duty, in fact received their teas at a lower rate than when there was no colonial tajj. The Company were also empowered to ship their teas direct from their own warehouses. A sudden stimulus was thus given to the export of the very article which alone caused irritation and dissension. The colonists saw, or
1 See Lord Camden's Statement ; Pari. Hist., xviii. 1222.
27 Geo. III. c. 46 ; Rockingham Mem., ii. 75 ; Bancroft's Hist, of the Ameri- can Revolution, iii. 83 et seq.
3 10 Geo. III. c. 17 ; Pari. Hist., xvi. 853 ; Cavendish Deb., ii. 484.
* 12 Geo. III. c. 60; 13 Geo. III. c. 44. The former of these Acts granted a drawback of three-fifths only.
36o THE CONSTITUTIONAL HISTORY OF ENGLAND
Attack upon the tea-ships at Boston, 1773.
Boston Port Act, 1774.
Constitution of Massachu- setts super- seded.
affected to see, in this measure, an artful contrivance for en- couraging the consumption of taxed tea, and facilitating the further extension of colonial taxation. It was met by a daring outrage. The first tea-ships which reached Boston were boarded by men disguised as Mohawk Indians, and their cargoes cast into the sea. ^ This being the crowning act of a series of provocations and insults, by which the colonists, and especially the people of Boston, had testified their resentment against the Stamp Act, the import duties, and other recent measures, the Government at home regarded it with just indignation. Every one agreed that the rioters deserved punishment ; and that re- paration was due to the East India Company. But the punish- ment inflicted by Parliament, at the instance of Lord North, was such as to provoke revolt. Instead of demanding com- pensation, and attaching penalties to its refusal, the flourishing port of Boston was summarily closed : no ship could lade or unlade at its quays : the trade and industry of its inhabitants were placed under an interdict The ruin of the city was decreed : no penitence could avert its doom : but when the punishment had been suffered, and the atonement made : when Boston, humbled and contrite, had kissed the rod ; and when reparation had been made to the East India Company, the King in Council might, as an act of grace, remove the fatal ban.^ It was a deed of vengeance, fitter for the rude arbitrament of an eastern prince than for the temperate equity of a free State. Nor was this the only act of repression. The republican constitution of Massachusetts, cherished by the descendants of the pilgrim fathers, was superseded. The council, hitherto elective, was to be nominated by the Crown ; and the appoint- ment of judges, magistrates, and sheriffs was transferred from the council to the governor.^ And so much was the adminis- tration of justice suspected, that by another Act, accused per- sons might be sent for trial to any other colony, or even to England.* Troops were also despatched to overawe the tur- bulent people of Massachusetts.
'Adams' Works, ii. 322; Bancroft's Hist, of the American Rev., iii. 514-541,
etc.
* Boston Port Act, 14 Geo. III. c. 19; Pari. Hist, xvii. 1159-1189 ; Chatham Corr., iv. 342 ; Rockingham Mem., ii. 238-243 ; Bancroft's Hist., iii. 565 tt seq.
'14 Geo. in. c. 45 ; Pari. Hist., xvii. 1192, 1277, etc
* 14 Geo. III. c. 39 ; ibid., 1199, etc.
BRITISH COLONIES AND DEPENDENCIES 361
The colonists, however, far from being intimidated by the Resistance rigours of the Mother Country, associated to resist them. Nor"^^'^ ^°'°" was Massachusetts left alone in its troubles. A congress of delegates from twelve of the colonies was assembled at Phila- delphia, by whom the recent measures were condemned, as a violation of the rights of Englishmen. It was further agreed to suspend all imports from, and all exports to, Great Britain and her dependencies, unless the grievances of the colonies were redressed. Other threatening measures were adopted, which proved too plainly that the stubborn spirit of the colonists was not to be overcome. In the words of Lord Chatham, " the spirit which now resisted taxation in America, was the same spirit which formerly opposed loans, benevolences, and ship- money in England ".^
In vain Lord Chatham — appearing after his long prostration Lord Chat- — proffered a measure of conciliation, repealing the obnoxious ^^I^^Q^^^pJo. Acts, and explicitly renouncing Imperial taxation : but requir- position, ing from the colonies the grant of a revenue to the king. Such 1775.^ *' a measure might even yet have saved the colonies : ^ but it was contemptuously rejected by the Lords on the first reading.^
Lord North himself soon afterwards framed a conciliatory Propositions proposition, promising that, if the colonists should make pro- \^^ ^r. °'' vision for their own defence, and for the civil government, no Burke, 20th Imperial tax should be levied. His resolution was agreed to : ^ ' ^'^^^' but, in the present temper of the colonists, its conditions were impracticable.* Mr. Burke also proposed other resolutions, 22nd March, similar to the scheme of Lord Chatham, which were rejected ^775- by a large majority.^
The Americans were already ripe for rebellion, when an Outbreak of unhappy collision occurred at Lexington, between the royal *'^tt,'^A'^i.,Y"' troops and the colonial militia. Blood was shed ; and the 1775. people flew to arms. The war of independence was coni- menced. Its sad history and issue are but too well known. In vain Congress addressed a petition to the king for redress Petition to and conciliation. It received no answer. In vain Lord Chat- ^^^ l''"^' ^^*
Sept., 1775.
^ Speech, 20th January, 1777 ; Pari. Hist,, xviii. 154^ ».
' See Lord Mahon's Hist., vi. 43.
3 1st Feb., 1775 ; Pari. Hist., xviii. 198.
* Ibid., 319; Chatham Corr., iv, 403; Gibbon's Posthumous Works, i. 490.
* Pari. Hist., xviii. 478 ; Burke's Works, iii. 23.
562 THE CONSTITUTIONAL HISTORY OF ENGLAND
Overtures for peace, 1778.
Crown colonies.
Free constitU' tions to Crown colonies.
Canada.
ham devoted the last energies of his wasting life 1 to eflfect a reconciliation, without renouncing the sovereignty of England. In vain the British Parliament — humbling itself before its rebellious subjects — repealed the American tea duty, and renounced its claims to Imperial taxation.^ In vain were Parlia- mentary commissioners empowered to suspend the Acts of which the colonists complained, to concede every demand but that of independence, and almost to sue for peace. ^ It was too late to stay the civil war. Disasters and defeat befell the British arms on American soil ; and, at length, the indepen- dence of the colonies was recognised.*
Such were the disastrous consequences of a misunderstand- ing of the rights and pretensions of colonial communities, who had carried with them the laws and franchises of Englishmen. And here closes the first period in the constitutional history of the colonies.
We must now turn to another class of dependencies, not originally settled by English subjects, but acquired from other States by conquest or cession. To these a different rule of public law was held to apply. They were dominions of the Crown, and governed, according to the laws prevailing at the time of their acquisition, by the King in Council.^ They were distinguished from other settlements as Crown colonies. Some of them, however, like Jamaica and Nova Scotia, had received the free institutions of England, and were practically self- governed, like other English colonies. Canada, the most im- portant of this class, was conquered from the French, in 1759, by General Wolfe, and ceded to England in 1763, by the treaty of Paris. In 1774, the administration of its affairs was in-
^ Lord Chatham was completely secluded from political and social life, from the spring of 1767 to the spring of 1769 ; and again, from the spring of 1775 to the spring of 1777.
2 28 Geo. III. c. 12; Pari. Hist., xix. 762; Ann. Reg., 1778, 133.
828 Geo. III. c. 13.
* No part of English history has received more copious illustration than the revolt of the American colonies. In addition to the general histories of England, the following may be consulted : Franklin's Works, Sparks' Life of Washington, Marshall's Life of Washington, Randolph's Mem. of Jefferson, Chalmers' Politi- cal Annals, Dr. Gordon's History of the American Revolution, Grahame's History of the United States, Stedman's History, Bancroft's History of the American Re- volution.
<^ Clark's Colonial Law, 4 ; Mills' Colonial Constitutions, 19, etc
BRITISH COLONIES AND DEPENDENCIES 36J
trusted to a council appointed by the Crown -.^ but in 1791, it was divided into two provinces, to each of which representative institutions were granted.^ It was no easy problem to provide for the government of such a colony. It comprised a large and ignorant population of French colonists, having sympathies with the country whence they sprang, accustomed to absolute government and feudal institutions, and under the influence of a Catholic priesthood. It further comprised an active race of British settlers, speaking another language, professing a dif- ferent religion, and craving the liberties of their own free land. The division of the provinces was also a separation of races ; and freedom was granted to both alike.^ The immediate ob- jects of this measure were to secure the attachment of Canada, and to exempt the British colonists from the French laws : but it marked the continued adhesion of Parliament to the prin- ciples of self-government. In discussing its policy, Mr. Fox laid down a principle, which was destined, after half a century, to become the rule of colonial administration. " I am con- vinced," said he, "that the only means of retaining distant colonies with advantage, is to enable them to govern them- selves." * In 1785, representative institutions were given to New Brunswick, and, so late as 1832, to Newfoundland; and thus, eventually, all the British American colonies were as free, in their forms of government, as the colonies which had gained their independence. But the Mother Country, in granting these constitutions, exercised, in a marked form, the powers of a dominant State. She provided for the sale of waste lands, for the maintenance of the Church establishment, and for other matters of internal polity.
England was soon compensated for the loss of her colonies Australian in America by vast possessions in another hemisphere. But the circumstances under which Australia was settled were un- favourable to free institutions. Transportation to the American plantations, commenced in the reign of Charles II., had long
I14 Geo. III. c. 83.
2 31 Geo. III. c. 31; Pari. Hist., xxviii. 1377.
^See Lord Durham's description of the two races; Report, 1839, pp. 8-18.
* 6th March, 1791 ; Pari. Hist., xxviii. 1379 ; Lord J. Russell's Life of Fox, ii. 259 ; Lord Stanhope's Life of Pitt, ii. 89.
364 THE CONSTITUTIONAL HISTORY OF ENGLAND
been an established punishment for criminals.^ The revolt of these colonies led to the establishment of penal settlements in Australia. New South Wales was founded in 1788,^ and Van Diemen's Land in 1825.^ Penal settlements were necessarily without a constitution, being little more than State prisons. These fair countries, instead of being the homes of free English- men, were peopled by criminals sentenced to long terms of punishment and servitude. Such an origin was not promising to the moral or political destinies of Australia : but the at- tractions which it offered to free emigrants gave early tokens of its future greatness. South Australia and New Zealand, whence convicts were excluded, were afterwards founded, in the same region, without free constitutions. The early political condition of the Australian colonies forms, indeed, a striking contrast to that of the older settlements, to which Englishmen had taken their birthrights. But free emigration developed their resources, and quickly reduced the criminal population to a subordinate element in the society ; and, in 1828, legislative councils nominated by the Crown, were granted to New South Wales and Van Diemen's Land.^ Transporta- While these colonies were without an adequate population,
tinued.^^°" transportation was esteemed by the settlers, as the means of affording a steady supply of labour : but as free emigration advanced, the services of convicts became less essential to colonial prosperity ; and the moral taint of the criminal class was felt more sensibly. In 1838, Sir William Molesworth's committee exposed the enormities of transportation as part of a scheme of colonisation ; and in 1 840, the sending of convicts to New South Wales was discontinued. In Van Diemen's Land, after various attempts to improve the system of convict labour and discipline, transportation was finally abolished in 1854. Meanwhile, an attempt to send convicts to the Cape of Good Hope in 1848 had been resisted by the colonists, and abandoned. In the following year a new penal settlement was founded in Western Australia.
^ 4 Geo. I. c. 2 ; 6 Geo. I. c. 23. Banishment was made a punishment, in 1597. by 39 Elizabeth, c. 4 ; and transportation, by Orders in Council, in 1614, 1615, and 1617. — Mills' Colonial Constitution, 344.
3 24 Geo. III. c. 56 ; Orders in Council, 6th Dec, 1786.
s Mills' Colonial Const., 325. * 9 Geo. IV. c. 83.
BRITISH COLONIES AND DEPENDENCIES 365
The discontinuance of transportation to the free colonies Free con- of Australia, and a prodigious increase of emigration and pro- AustrairV° ductive industry, were preparing them for a further develop- colonies, ment of freedom at no distant period.
From the period of the American War the home Govern- Colonial ad- ment, awakened to the importance of colonial administration, after^he '°" displayed greater activity, and a more ostensible disposition to American interfere in the affairs of the colonies. Until the commence- ment of the difficulties with America, there had not even been a separate department for the government of the colonies : but the Board of Trade exercised a supervision, little more than nominal, over colonial affairs. In 1768, however, a third Secretary of State was appointed, to whose care the colonies were entrusted. In 1782, the office was discontinued by Lord Rockingham, after the loss of the American provinces : but was revived in 1794, and became an active and important department of the State. ^ Its influence was felt throughout the British colonies. However popular the form of their institutions, they were steadily governed by British Ministers in Downing Street.
In Crown colonies — acquired by conquest or cession — the Colonies dominion of the Crown was absolute : and the authority of ^°^"'?®** '"
. Downing
the Colonial Office was exercised directly, by instructions to the Street, governors. In free colonies it was exercised, for the most part, indirectly, through the influence of the governors and their councils. Self-government was there the theory : but in practice, the governors, aided by dominant interests in the several colonies, contrived to govern according to the policy dictated from Downing Street. Just as at home, the Crown, the nobles, and an ascendant party were supreme in the national councils — so in the colonies, the governors and their official aristocracy were generally able to command the ad- hesion of the local legislatures.
A more direct interference, however, was often exercised. Ministers had no hesitation in disallowing any colonial Acts of which they disapproved, even when they concerned the inter- nal affairs of the colony only. They dealt freely with the public lands, as the property of the Crown : often making grants obnoxious to the colonists ; and peremptorily insisting ' Mills' Colonial Const., 2-13.
366 THE CONSTITUTIONAL HISTORY OF ENGLAND
upon the conditions under which they should be sold and settled. Their interference was also frequent regarding Church establishments and endowments, official salaries, and the colonial civil lists. Misunderstandings and disputes were con- stant, but the policy and will of the home Government usually prevailed. Patronage. Another incident of colonial administration was that of
patronage. The colonies offered a wide field of employment for the friends, connections, and political partisans of the home Government. The offices in England, available for securing Parliamentary support, fell short of the demand ; and appoint- ments were accordingly multiplied abroad. Of these, many of the most lucrative were executed by deputy. The favoured friends of Ministers, who were gratified by the emoluments of office, were little disposed to suffer banishment in a distant de- pendency. Infants in the cradle were endowed with colonial appointments, to be executed through life by convenient de- puties. Extravagant fees or salaries were granted in Downing Street, and spent in England ; but paid out of colonial revenues. Other offices again, to which residence was attached, were too frequently given to men wholly unfit for employment at home, but who were supposed to be equal to colonial service, where indolence, incapacity, or doubtful character might escape ex- posure.^ Such men as these, however, were more mischievous in a colony than at home. The higher officers were associated with the governor, in the administration of affairs : the subordi- nate officers were subject to less control and discipline. In both, negligence and unfitness were injurious to the colonies. As colonial societies expanded, these appointments from home further excited the jealousy of colonists, many of whom were better qualified for office than the strangers who came amongst them to enjoy power, wealth, and distinction, which were denied to themselves.^ This jealousy and the natural ambition
1 " As to civil officers appointed for America, most of the places in the gift of the Crown have been filled with broken members of Parliament, of bad, if any, principles — valets de chambre, electioneering scoundrels, and even livery ser- vants. In one word, America has been, for many years, made the hospital of England." — Letter of General Huske, in 1758 ; PhiUimore's Life of Lord Lyttel- ton, ii. 604, cited by Lord Mahon.
^ Long's Hist, of Jamaica, i. 27, 79; Edwards' Hist, of the West Indies, ii. 390 ; Sir G, C. Lewis on Dependencies, 278-284 ; MS. Memorandum by the Right Hon. Edw. EUice, M.P.
BRITISH COLONIES AND DEPENDENCIES 367
of the colonists, were among the principal causes which led to demands for more complete self-government. As this feeling was increasing in colonial society, the home Government were occupied with arrangements for insuring the permanent main- tenance of the civil establishment out of the colonial revenues. To continue to fill all the offices with Englishmen, and at the same time to call upon the jealous colonists to pay them, was not to be attempted. And accordingly the home Government surrendered to the governors all appointments under ;^200 a year ; and to the greater number of other offices, appointed colonists recommended by the governors.^ A colonial griev- ance was thus redressed, and increased influence given to the colonists ; while one of the advantages of the connection was renounced by the parent State.
While England was entering upon a new period of ex- New com- tended liberties, after the Reform Act, circumstances materially Effecting the^ affected her relations with the colonies; and this may be colonies, termed the third and last period of colonial history. First, the abolition of slavery, in 1833, loosened the ties by which the sugar colonies had been bound to the Mother Country. This was followed by the gradual adoption of a new commercial policy, which overthrew the long-established protections and monopolies of colonial trade. The main purpose for which both parties had cherished the connection was lost. Colonists found their produce exposed to the competition of the world ; and, in the sugar colonies, with restricted labour. The home consumer, independent of colonial supplies, was free to choose his own market, wherever commodities were best and cheapest. The sugars of Jamaica competed with the slave-grown sugars of Cuba : the woods of Canada with the timber of Norway and the Baltic.
These new conditions of colonial policy seriously affected Its effect the political relations of the Mother Country with her depen- pQ^i^j^^^f dencies. Her interference in their internal affairs having relations of generally been connected with commercial regulations, she had ^'^ °"'^' now less interest in continuing it ; and they, having submitted to it for the sake of benefits with which it was associated, were less disposed to tolerate its exercise. Meanwhile, the
^ Earl Grey's Colonial Policy, i. 37-41 ; Rules and Regulations for Her Majesty's Colonial Service, ch. iii. ; Mills' Colonial Constitutions, App. 378.
368 THE CONSTITUTIONAL HISTORY OF ENGLAND
Contumacy of Jamaica repressed.
Insurrection in Canada.
Reunion of the provinces.
Right of colonial self- government admitted.
growing population, wealth, and intelligence of many of the colonies, closer communications with England, and the ex- ample of English liberties, were developing the political aspira- tions of colonial societies, and their capacity for self-government.
Early in this period of transition, England twice had oc- casion to assert her paramount authority : but learned at the same time to estimate the force of local opinion, and to seek in the further development of free institutions the problem of colonial government. Jamaica, discontented after the abolition of slavery, neglected to make adequate provision for her prisons, which that measure had rendered necessary. In 1838, the Imperial Parliament interposed, and promptly supplied this defect in colonial legislation.^ The local assembly, resenting this act of authority, was contumacious, stopped the supplies, and refused to exercise the proper functions of a legislature. Again Parliament asserted its supremacy. The sullen legisla- ture was commanded to resume its duties ; and submitted in time to save the ancient constitution of Jamaica from sus- pension.^
At the same period, the perilous state of Canada called forth all the authority of England. In 1837 and 1838, the discontents of Lower Canada exploded in insurrection. The constitution of that province was immediately suspended by the British Parliament ; and a provisional Government was established, with large legislative and executive powers.^ This necessary act of authority was followed by the reunion of the provinces of Upper and Lower Canada into a single colony, under a governor-general.*
But while these strong measures were resorted to, the British Government carefully defined the principles upon which Parliamentary interposition was justified. " Parliamen- tary legislation," wrote Lord Glenelg, the Colonial Minister, " on any subject of exclusively internal concern to any British colony possessing a representative assembly is, as a general rule, unconstitutional. It is a right of which the exercise is reserved for extreme cases, in which necessity at once creates
1 1 & 2 Vict. c. 67.
2 2 & 3 Vict. c. 26 ; Hans. Deb., 3rd Ser., xlvi. 1243 ; xlvii. 459, etc.
' I & 2 Vict, eg; 2 & 3 Vict. c. 53.
* 3 & 4 Vict. c. 35.
BRITISH COLONIES AND DEPENDENCIES 369
and justifies the exception." ^ Never before had the rights of colonial self-government been so plainly acknowledged.
But another principle was about to be established in Principle of Canada, which still further enlarged the powers of colonial as- ''^spons ble
' & r government.
semblies, and diminished the influence of the Mother Country. This principle is known as the doctrine of responsible Govern- ment. Hitherto the advisers of the governor in this, as in every other colony, were the principal officers appointed by the Crown, and generally holding permanent offices. What- ever the fluctuations of opinion in the legislature, or in the colony — whatever the unpopularity of the measures, or persons of the executive officers, they continued to direct the councils of the colony. For many years, they had contrived, by con- cessions, by management and influence, to avoid frequent collisions with the assemblies : but as the principles of repre- sentative government were developed, irresponsible rulers were necessarily brought into conflict with the popular assembly. The advisers of the governor pursued one policy, the assembly another. Measures prepared by the executive were rejected by the assembly : measures passed by the assembly were refused by the council, or vetoed by the governor. And when- ever such collisions arose, the constitutional means were want- ing for restoring confidence between the contending powers.^ Frequent dissolutions exasperated the popular party, and generally resulted in their ultimate triumph. The hostility between the assembly and permanent and unpopular officers became chronic. They were constantly at issue ; and repre- sentative institutions, in collision with irresponsible power, were threatening anarchy. These difficulties were not confined to Canada : but were common to all the North American colonies ; and proved the incompatibility of two antagonistic principles of government.^
After the reunion of the Canadian provinces, a remedy was introduction sought for disagreements between the executive and the legis-°f''^^P°"^'^'^
° ° ° government
lature in that principle of Ministerial responsibility, which had into Canada, long been accepted as the basis of constitutional government in England. At first, Ministers at home were apprehensive iest the application of that principle to a dependency should
1 Pari. Papers, 1839, No. 118, p. 7.
* See Lord Durham's Report on Canada, 1839, pp. 27-39. ^Ibid.
VOL. IL 24
370 THE CONSTITUTIONAL HISTORY OF ENGLAND
lead to a virtual renunciation of control by the Mother Country.^ Nor had Canada yet sufficiently recovered from the passions of the recent rebellion, to favour the experiment. But arrange- ments were immediately made for altering the tenure of the principal colonial offices; and in 1847, responsible government was fully established under Lord Elgin.'^ From that time, the governor-general selected his advisers from that party which was able to command a majority in the legislative assembly ; and accepted the policy recommended by them,^ The same principle was adopted, about the same time, in Nova Scotia;* and other and has since become the rule of administration in other free
colonies. , . c
colonies.^ Its results. By the adoption of this principle, a colonial constitution has
become the very image and reflection of Parliamentary govern- ment in England. The governor, like the sovereign whom he represents, holds himself aloof from, and superior to parties ; and governs through constitutional advisers, who have acquired an ascendency in the legislature. He leaves contending parties to fight out their own battles ; and by admitting the stronger party to his councils, brings the executive authority into har- mony with popular sentiments.^ And as the recognition of this doctrine, in England, has practically transferred the su- preme authority of the State from the Crown to Parliament and the people — so in the colonies has it wrested from the governor and from the parent State the direction of colonial affairs. And again, as the Crown has gained in ease and popu- larity what it has lost in power — so has the Mother Country, in accepting, to the full, the principles of local self-government,
1 Despatches of Lord J. Russell to Mr. Poulett Thomson, governor-general of Canada, 14th and i6th Oct., 1839; Pari. Papers, 1848, No. 621.
' Earl Grey's Colonial Policy, i. 200-234, 269 ; Despatches of Lord Elgin ; Pari. Papers, 1848.
3 See Resolutions of the Canadian Parliament, 3rd Sept., 1841 ; Pari. Papers, 1848, No. 621.
* Despatch of Earl Grey to Sir John Harvey, 3rd Nov., 1846 ; Pari. Papers, 1848, No. 621, p. 8.
' Mills' Colonial Constitutions, 201, 205, 209, etc. The only free colony to which responsible government has not been extended is Western Australia. In 1872, it was given to the Cape of Good Hope.
•*" The executive council is a removable body, in analogy to the usage pre- vailing in the British constitution " ..." it being understood that councillors who have lost the confidence of the local legislature will tender their resignations to the Governors." — Rules and Regulations for the Colonial Service, ch. ii.
BRITISH COLONIES AND DEPENDENCIES 371
established the closest relations of amity and confidence be- tween herself and her colonies.
There are circumstances, however, in which the parallel is Conflicting not maintained. The Crown and Parliament have a common g^^^j^^^nd interest in the welfare of their country : but England and her colonies, colonies may have conflicting interests, or an irreconcilable policy. The Crown has, indeed, reserved its veto upon the acts of the colonial legislatures : but its practical exercise has been found scarcely more compatible with responsible govern- ment in the colonies than in England. Hence colonies have been able to adopt principles of legislation inconsistent with the policy and interests of the Mother Country. For example, after England had accepted free trade as the basis of her com- mercial policy, Canada adhered to protection ; and established a tariff injurious to English commerce.^ Such laws could not have been disallowed by the home Government without a revival of the conflicts and discontents of a former period ; and in deference to the principles of self-government, they were re- luctantly confirmed.
But popular principles, in colonial government, have not Democratic rested here. While enlarged powers have been entrusted to the constitutions, local legislatures, those institutions again have been reconsti- tuted upon a more democratic basis. The constitution granted to Canada in 1 840, on the reunion of the provinces, was popular. Franchise but not democratic.^ It was composed of a legislative council '" Canada, nominated by the Crown, and of a representative assembly, to which freeholders or roturiers to the amount of ;^500 were eligible as members. The franchise comprised 40J. freeholders, ;^5 houseowners, and ^10 occupiers: but has since been placed upon a more popular basis by provincial acts.^
Democracy made more rapid progress in the Australian Australian colonies. In 1842, a new constitution was granted to New *^°"^^'*"*'°"^* South Wales, which, departing from the accustomed model of colonial constitutions in other parts of the Empire, provided for the legislation of the colony by a single chamber.
' Report on Colonial Military Expenditure, 1861. Ev. of Mr. Gladstone, 3785; MS. Paper by the Right Hon. Edw. Ellice, M.P. ; and see a Statement of difficulties experienced by the home Government in endeavouring to restrain New Brunswick in the granting of bounties. — Earl Grey's Colonial Policy, i. 279.
23 & 4 Vict. c. 35 ; Mills' Colonial Const., 184.
3 Canadian Acts, 16 Vict. c. 153 ; 22 Vict. c. 82.
24 *
372 THE CONSTITUTIONAL HISTORY OF ENGLAND
Policy of a The constitution of an upper chamber in a colonial society,
clmnber without an aristocracy, and with few persons of high attain- ments, and adequate leisure, had ever been a difficult problem. Nominated by the governor, and consisting mainly of his exe- cutive officers, it had failed to exercise a material influence over public opinion ; and had been readily overborne by the more popular assembly. The experiment was, therefore, tried of bringing into a single chamber the aristocratic and democratic elements of colonial government. It was hoped that eminent men would have more weight in the deliberations of the popu- lar assembly, than sitting apart and exercising an impotent veto. The experiment found favour with experienced states- men : yet it can scarcely be doubted that it was a concession to democracy. Timely delays in legislation — a cautious re- view of public measures — resistance to the tyranny of a ma- jority and the violence of a faction — the means of judicious compromise — were wanting in such a constitution. The majority of a single chamber was absolute.^ Constitutions In 1850, it became expedient to divide the vast territories of 1850. Q^- jNjg^y South Wales into two, and the southern portion was erected into the new colony of Victoria. This opportunity was taken of revising the constitutions of these colonies, and of South Australia and Van Diemen's Land.^ The New South Wales model was adhered to by Parliament ; and a single chamber was constituted in each of these colonies, of which one-third were nominated by the Crown, and two-thirds elected under a franchise, restricted to persons holding free- hold property worth ;^ioo and £\o householders or lease- holders. A fixed charge was also imposed upon the colonial revenues for the civil and judicial establishments, and for re- ligious worship. At the same time, powers were conceded to the governor and legislative council of each colony, with the assent of the Queen in Council, to alter every part of the constitution so granted.^ The experiment of a single chamber was soon abandoned by those colonies themselves ; while the
1 The relative advantages of a single and double chamber are fully argued by Earl Grey, Colonial Policy, ii. 96, and by Mr. Mills, Colonial Const., Introd., 57.
"^ This constitution was postponed, as regards Western Australia, until the colony should undertake to pay the charges of its civil government.
' 13 & 14 Vict. c. 59; Earl Grey's Colonial Policy, i. App. 422 ; ii. 88-111 ; Mills, 291 ; Hans. Deb., 3rd Ser., cviii. 634; cix. 1384, etc.
BRITISH COLOm^S AND DEPENDENCIES 375
principle of election was introduced into the legislative councils.^ But otherwise the tendency of such societies was naturally favourable to democracy ; and in a few years the limited franchise was changed, in nearly all of these colonies, for universal or manhood suffrage and vote by ballot,^ It was open to the Queen in Council to disallow these laws, or for Parliament itself to interpose and suspend them : ^ but in deference to the principle of self-government, these critical changes were allowed to come into operation.
In 1852, a representative constitution, with two chambers, New Zealand was introduced, after some delay, into New Zealand ; ^ and. Good Hope^ about the same period, into the Cape of Good Hope.^
To conclude this rapid summary of colonial liberties, it Other must be added that the colonies have further enjoyed municipal Jj5e°ties institutions,** a free press,'^ and religious freedom and equality. No liberty or franchise prized by Englishmen at home has been withheld from their fellow-countrymen in distant lands.
Thus, by rapid strides, have the most considerable depen- Colonial dencies of the British Crown advanced, through successive stages ^"^^^^^y- of political liberty, until an ancient monarchy has become the parent of democratic republics in all parts of the globe. The constitution of the United States is scarcely so democratic as that of Canada or the Australian colonies. The president's fixed tenure of office and large executive powers, the in- dependent position and authority of the senate, and the control of the supreme court, are checks upon the democracy
^ New South Wales Colonial Act, 17 Vict. c. 41 ; Mills, 296 ; Victoria Colonial Act, 25th March, 1854 ; Mills, 309 ; South Australia, 1854 ; Mills, 316 ; Van Diemen's Land Colonial Act, 18 Vict. c. 18 ; Mills, 326. Western Australia is the only colony now having a single chamber.
2 Colonial Acts, Victoria, 24th Nov., 1857, 21 Vict. No. 33 ; South Australia, 27th Jan., 1858, 21 Vict. No. 12 ; New South Wales, 24th Nov., 1858, 22 Vict. No. 22. In New Zealand the franchise has been given to the gold-miners.
^ Colonial Acts for such purposes were required to be laid before Parliament, for thirty days, before her Majesty's pleasure should be signified in regard to them.
* 15 & r6 Vict. c. 72. A previous Act had been passed with this object in 1846, but its operation was suspended in the following year. — Earl Grey''s Colonial Policy, ii. 153-158; Mills, 335 ; Hans. Deb., 3rd Ser., cxxi. 922.
* Earl Grey, ii. 226-234, App. C. and D. ; Cape of Good Hope Papers, pre- sented by command, 5th Feb., 1850; Mills, 151.
^ Earl Grey's Colonial Policy, i. 32, 235, 437 ; ii. 327 ; Mills, 185, etc. ; Merivale, Colonisation, 1861, 651-656. ■^ Earl Grey's Colonial Policy, i. 29.
374 THE CONSTITUTIONAL HISTORY OF ENGLAND
of congress.^ But in these colonies the majority of the democratic assembly, for the time being, are absolute masters of the colonial Government : they can overcome the resistance of the legislative council, and dictate conditions to the governor, and indirectly to the parent State. This transition from a state of control and pupilage to that of unrestrained freedom may have been too precipitate. Society — particularly in Australia — had scarcely had time to prepare itself for the successful trial of so free a representation. The settlers of a new country were suddenly intrusted with uncontrolled power, before edu- cation, property, traditions, and usage had given stability to public opinion. Nor were they trained to freedom, like their English brethren, by many ennobling struggles, and the patient exercise of public virtues. But such a transition, more or less rapid, was the inevitable consequence of responsible government, coupled with the power given to colonial assem- blies, of reforming their own constitutions. The principle of self-government once recognised, has been carried out with- out reserve or hesitation. Hitherto there have been many failures and discouragements in the experiment of colonial democracy: yet the political future of these thriving com- munities affords far more ground for hope than for despondency. Colonies have England ventured to tax her colonies, and lost them : she become affili- endeavoured to rule them from Downing Street, and provoked disaffection and revolt. At last, she gave freedom, and found national sympathy and contentment. But in the meantime, her colonial dependencies have grown into affiliated States. The tie which binds them to her is one of sentiment rather than authority. Commercial privileges, on either side, have been abandoned : transportation — for which some of the colonies were founded — has been given up : patronage has been sur- rendered, the disposal of public lands waived by the Crown, and political dominion virtually renounced. In short, their dependence has become little more than nominal, except for purposes of military defence. Military We have seen how, in the earlier history of the colonies,
colonies. they Strove to defend themselves. But during the prolonged hostilities of the French revolutionary war, assaults upon our colonies naturally formed part of the tactics of the enemy,
• De Tocqueville, i. pp. 143, 151, 179.
BRITISH COLONIES AND DEPENDENCIES 375
which were met, on our part, by costly naval and military armaments. And after the peace, England continued to garri- son her colonies with large military forces — wholly paid by herself — and to construct fortifications, requiring still larger garrisons. Wars were undertaken against the natives, as in the Cape of Good Hope and New Zealand, of which England bore all the cost and the colonies gained all the profit. Eng- lish soldiers have further performed the services of colonial police. Instead of taxing her colonies, England has suffered herself to be taxed heavily on their account. The annual military expenditure, on account of the colonies, ultimately reached ^3,225,081, of which £i,y 1^,246 was incurred for free colonies, and ;^i, 509,835 for military garrisons and de- pendencies, maintained chiefly for Imperial purposes.^ Many of the colonies have already contributed towards the mainten- ance of British troops, and have further raised considerable bodies of militia and volunteers : but Parliament has recently pronounced it to be just that the colonies which enjoy self- government, should undertake the responsibility and cost of their own military defence.^ To carry this policy into effect must be the work of time. But whenever it may be effected, the last material bond of connection with the colonies will have been severed ; and colonial States, acknowledging the honorary sovereignty of England, and fully armed for self-defence — as well against herself as others — will have grown out of the de- pendencies of the British Empire. They will still look to her, in time of war, for at least naval protection ; and, in peace, they will continue to imitate her laws and institutions, and to glory in the proud distinction of British citizenship. On her part, England may well be prouder of the vigorous freedom of her prosperous sons, than of a hundred provinces subject to the iron rule of British pro-consuls. And, should the sole remain- ing ties of kindred, affection, and honour be severed, she will reflect, with just exultation, that her dominion ceased, not in oppression and bloodshed, but in the expansive energies of
1 Report of Committee on Colonial Military Expenditure, 1861.
2 Ibid,, and Evidence ; Resolution of Commons, 4th March, 1862 ; Hans. Deb., 3rd Ser., clxxv. 1032; Earl Grey's Colonial Policy, i. 265 ; Mr. Adderley's Letter to Mr. Disraeli on the Relations of England with the Colonies, 1861.
376 TH^ CONSTITUTIONAL HISTORY OP ENGLAND
freedom, and the hereditary capacity of her manly offspring for the privileges of self-government. Dependencies Other parts of the British Empire have — from the condi-
unfitted for . r i • • i i • /• , ,- ■
self-govern- tions oi their occupation, the relations of the State to the native
ment. population, and other circumstances — been unable to participate
in the free institutions of the more favoured colonies ; ^ but they have largely shared in that spirit of enlightened liberality, which, during the last twenty years, has distinguished the ad- ministration of colonial affairs.
India. Of all the dependencies of the British Crown, India is the
most considerable in territory, in population, in revenue, and in military resources. It is itself a great Empire. Originally ac- quired and governed by a trading company, England was re- sponsible for its administration no further than was implied in the charters and Acts of Parliament, by which British subjects were invested with sovereignty over distant regions.^ Trade
The East was the first, dominion the secondary object of the company.
pany. ' Early in the reign of George III. their territories had become so extended, that Lord Chatham conceived the scheme of claiming them as dominions of the Crown.^ This great scheme, however, dwindled, in the hands of his colleagues, into an agreement that the company should pay ;^400,ooo a year as the price of their privileges.* This tribute was not long en- joyed, for the company, impoverished by perpetual wars, and maladministration, fell into financial difficulties; and in 1773, were released from this obligation.* And in this year Parlia- ment, for the first time, undertook to regulate the constitution of the government of India.* The court of directors, consisting of twenty-four members, elected by the proprietors of India stock, and virtually independent of the Government, became the home authority, by whom the governor-general was ap- pointed, and to whom alone he was responsible. An Asiatic empire was still intrusted to a company having an extensive
^Viz. India, Malta, Gibraltar, Ceylon, Hong Kong, St. Helena, Falklands, Labuan, Sierra Leone, Gambia, Gold Coast.
*The first charter was granted in 1600; the first Act concerning the East India Company was passed in 1698, 9 & 10 Will. III. c. 44.
^Lord Mahon's Hist., v. 262 ; Chatham Corr., iv. 264.
*7 Geo. III. c. 57 ; 9 Geo. III. c. 24; Pari. Hist., xvi. 350; Walp. Mem., ii. 394, 427, 449 ; iii. 39-57.
8 13 Geo. III. c. 63. 'Ibid., c. 64.
BRITISH COLONJES AND DEPENDENCIES 377
civil and military organisation, making wars and conquests, negotiating treaties, and exercising uncontrolled dominion. A trading company had grown into a corporate emperor. The genius of Clive and Warren Hastings had acquired the empire of the Great Mogul.
But power exercised by irresponsible and despotic rulers Abuses of was naturally abused; and in 1773, and again in 1780, the ministration, directors were placed under the partial control of a Secretary 1781-82. of State.^ Soon afterwards some of the most glaring excesses of Indian misrule were forced upon the notice of Parliament.''' English statesmen became sensible that the anomalies of a Government, so constituted, could no longer be endured. It was not fit that England should suffer her subjects to practise the iniquities of Asiatic rule without effective responsibility and control. On Mr. Fox and the Coalition Ministry first de- Mr. Fox's volved the task of providing against the continued oppression j-g-^ and misrule which recent inquiries had exposed. They grap- pled boldly with the evils which demanded a remedy. Satis- fied that the Government of an Empire could not be confided with safety or honour to a commercial company, they pro- posed at once to transfer it to another body. But to whom could such a power be intrusted ? Not to the Crown, whose influence they had already denounced as exorbitant : not to any department of the executive Government, which could become accessory to Parliamentary corruption. The com- pany had been, in great measure, independent of the Crown and of the Ministers of the day ; and the power which had been abused, they now proposed to vest in an independent board. This important body was to consist of seven commissioners appointed, in the first instance, by Parliament, for a term of four years, and ultimately by the Crown. The leading concerns of the company were to be managed by eight assistants, appointed first by Parliament, and afterwards by the proprietors of East India stock .^ It was a bold and hazardous measure, on which Mr. Fox and his colleagues
1 Burke's speech, Works, iv. 115.
2 See Debates, ist and 12th Feb., and 8th May, 1781; 15th April, 1782 ; Pari. Hist., xxi. 1162, 1182; xxii. 200, 1275 ; Reports of Secret and Select Com- mittees, 1782 and 1783.
3 Mr. Fox's speech, i8th Nov., 1783 ; Pari. Hist., xxiii. 1187.
378 THE CONSTITUTIONAL HISTORY OF ENGLAND
staked their power. Conceived in a spirit of wisdom and humanity, it recognised the duty of the State to redress the wrongs and secure the future welfare of a distant Empire; yet was it open to objections which a fierce party contest dis- coloured with exaggeration. The main objections urged against the bill were these: that it violated the chartered rights of the company, that it increased the influence of the Crown, and that it invested the coalition party, then having a Parliamentary majority, with a power superior to the Crown itself. As regards the first objection, it was vain to contend that Parliament might not lawfully dispossess the company of their dominion over millions of men, which they had disgraced by fraud, rapine, oppression, cruelty, and bloodshed. They had clearly forfeited the political powers intrusted to them for the public good. A solemn trust, having been flagrantly violated, might justly be revoked. But had they forfeited their commercial privileges ? They were in difficulties and debt : their affairs were in the utmost confusion : the grossest mis- management was but too certainly proved. But such evils in a commercial company, however urgently needing correction, scarcely justified the forfeiture of established rights. The two last objections were plainly contradictory. The measure could not increase the influence of the Crown, and at the same time exalt a party above it. The former was, in truth, wholly untenable, and was relinquished ; while the king, the Opposi- tion, the friends of the company, and the country, made common cause in maintaining the latter. And assuredly the weakest point was chosen for attack. The bill nominated the commissioners, exclusively from the Ministerial party ; and in- trusted them with all the power and patronage of India for a term of four years. At a time when corrupt influence was so potent in the councils of the State, it cannot be doubted that the commissioners would have been able to promote the poli- tical interests of their own party. To add to their weight, they were entitled to sit in Parliament. Already the Parlia- mentary influence of the company had aroused jealousy ; and its concentration in a powerful and organised party naturally ex- cited alarm. However exaggerated by party violence, it was unquestionably a well-founded objection, which ought to have been met and counteracted. It is true that vacancies were to
BRITISH COLONIES AND DEPENDENCIES 379
be filled up by the Crown, and that the appointment of the commissioners was during good behaviour; but, practically, they would have enjoyed an independent authority for four years. It was right to wrest power from a body which should never have been permitted to exercise it, and by whom it had been flagrantly abused : but it was wrong to constitute the new Government an instrument of party, uncontrolled by the Crown, and beyond the immediate reach of that Parliamentary responsibility which our free constitution recognises as necessary for the proper exercise of authority. The error was fatal to the measure itself, and to the party by whom it was committed.^
Mr. Fox's scheme having been overthrown, Mr. Pitt Mr. Pitt's proceeded to frame a measure, in which he dexterously evaded ^"g'^ ^'''' all the difficulties under which his rival had fallen. He left the company in possession of their large powers : but sub- jected them to a board of control representing the Crown.^ The company were now accountable to Ministers in their rule ; The double and Ministers, if they suffered wrong to be done, were re- °^""'"®" ' sponsible to Parliament. So far the theory of this measure was good : but power and responsibility were divided ; and distracted councils, an infirm executive, and a cumbrous and perplexed administration, were scarcely to be avoided in a double government.^ The administration of Indian affairs came frequently under the review of Parliament : * but the system of double or divided government was continued on each successive renewal of the privileges of the company. In 1833, the first great change was effected in the position of Later the company. Up to this time, they had enjoyed the ex- clusive trade with China, and other commercial privileges. This monopoly was now discontinued, and they ceased to be a trading company ; but their dominion over India was con- firmed for a further period of twenty years.^ The right of Parliament, however, to legislate for India was then reserved.
^ Supra, vol. i. p. 46; Pari. Hist., xxiii. 1224, 1255, etc.; Burke's Works, iv. I ; Adolphus' Hist., iv. 34-65 ; Massey's Hist, iii. 196-218 ; Fox, Mem., ii. 21a- 221 ; Lord J. Russell's Life of Fox, ii. 24-48 ; Lord Stanhope's Life of Pitt, i. 138.
2 24 Geo, III. c. 25.
3 Mr. Fox's speech, Pari. Hist., xxiv. 1122; Fox, Mem., ii. 254; Debates on India Bill of 1858, passim.
* 28 Geo. III. c. 8 ; 33 Geo. IH. c. 52 ; 53 Geo. III. c. 155. 5 3 & 4 Will. IV. c. 85.
38o THE CONSTITUTIONAL HISTORY OF ENGLAND
It was the last periodical renewal of the powers of the corn- India Bill, pany. In 1853, significant changes were made : their powers being merely continued until Parliament should otherwise provide ; and their territories being held in trust for the I Crown. The Court of Directors was reconstituted, being hence- forth composed of twelve elected members, and six nominees of the Crown. At the same time, the council of the governor- general in India was enlarged, and invested with a more legislative character. The Government of India being thus drawn into closer connection with Ministers, they met objec- tions to the increase of patronage, which had been fatal to Mr.. Fox's scheme, by opening the civil and medical services to competition.^ This measure prepared the way for a more complete identity between the executive administration of England and of India. It had a short and painful trial. The mutiny of the native army, in 1857, disclosed the perils and responsibilities of England, and the necessity of establishing a single and supreme authority. Government The double government of Mr. Pitt was at length con-
of India demned : the powers and territories of the company were
transferred to r 1 1 1 1 1 • • r t \-
the Crown, transferred to the queen ; and the admmistration of India was 1858. entrusted to a Secretary of State, and council. But this great
change could not be accomplished without a compromise ; and of the fifteen members of the council, seven were elected by the Board of Directors, and eight appointed by the Crown. And again, with a view to restrict the State patronage, cadet- ships in the engineers and artillery were thrown open to com- petition.^ Subsequent The transfer of India to the Crown was followed by a
Indian ad- vigorous administration of its vast dominions. Its army was
ministration. ° ^
amalgamated with that of England : ^ the constitution of the council in India was placed upon a wider basis ; * the courts of judicature were remodelled ; ^ the civil service enlarged ; " and the exhausted revenues of the country regenerated. To an Empire of subjugated States, and Asiatic races, self-govern- ment was plainly impossible. But it has already profited by
^ 16 & 17 Vict. c. 95. 2 21 & 22 Vict. c. 106.
s 23 & 24 Vict. c. 100 (discontinuing a separate European force in India) ; 24 & 25 Vict. c. 74 ; and Pari. Papers, i860, Nos. 364, 471, etc.
■•24 & 25 Vict. c. 67. ^ Ibid., c. 104. " Ibid., c. 54.
BRITISH COLONIES AND DEPENDENCIES 38 1
European civilisation and statesmanship ; and while necessarily denied freedom, its rulers are guided by the principles upon which free States are governed ; and its interests are protected by a free English Parliament, a vigilant press, and an en- lightened and humane people.
Beyond these narrow isles, England has won, indeed, a Freedom of vast and glorious Empire. In the history of the world, no the British other State has known how to govern territories so extended and remote, and races of men so diverse : giving to her own kindred colonies the widest liberty, and ruling, with en- lightened equity, dependencies unqualified for freedom. To the Roman, Virgil proudly sang,
" Tu regere imperio populos, Romane, memento : Hse tibi erunt artes."
To the Englishman may it not be said with even juster pride, "having won freedom for thyself, and used it wisely, thou hast given it to thy children, who have peopled the earth ; and thou hast exercised dominion with justice and humanity ! "
CHAPTER XVIII.
Improved spirit of legislation coincident with liberty — Administration of justice — Mitigation of the Criminal Code — Capital and secondary punishments — Prisons — Police — The Poor Laws — Lunatics — Provi- sions for the social welfare of the people — Popular education — Com- mercial and financial policy — Activity of Parliament since the Re- form Act — Conclusion.
Improved spirit of modern legislation.
We have now surveyed the progress of freedom and popular influence in all the institutions of England. Everywhere we have seen the rights and liberties of the people assured ; and closer relations established between the State and the com- munity. The liberal spirit of general legislation has kept pace with this remarkable development of constitutional liberty. While the basis of power was narrow, rulers had little sym- pathy with the people. The spirit of their rule was hard and selfish : favouring the few at the expense of the many : pro- tecting privileges and abuses by which the governing classes profited : but careless of the welfare of the governed. Re- sponsibility and popular control gradually forced upon them larger views of the public interests ; and more consideration for the claims of all classes to participate in the benefits of enlightened government. With freedom there grew a stronger sense of duty in rulers — more enlightenment and humanity among the people : wiser laws, and a milder policy. The as- perities of power were tempered ; and the State was governed in the spirit which society approved.
This improved spirit has displayed itself throughout the wide range of modern legislation : but, in passing beyond the strict limits of constitutional history, we must content our- selves with a rapid glance at some of its more remarkable illustrations.
No example more aptly illustrates the altered relations of
382
PROGRESS OF GENERAL LEGISLATION 383
rulers to the people, than the revision of official emoluments. Emoluments Ministers once grew rich upon the gains of office; and pro- "* vided for their relatives by monstrous sinecures and appoint- ments egregiously overpaid. To grasp a great estate out of the public service was too often their first thought. Families were founded, titles endowed, and broken fortunes repaired at the public expense. It was asked what an office was worth : not what services were to be rendered. This selfish and dishonest system perished under exposure : but it proved a tedious and unthankful labour to bring its abuses to the light of day. Inquiries were commenced early in the present century ; but were followed by few practical results. At that time, " all abuses were freeholds," ^ which the Govern- ment did not venture to invade. Mr. Joseph Hume, foremost among the guardians of public interests, afterwards applied his patient industry and fearless public spirit to this work ; and, unruffled by discouragements and ridicule, he lived to see its accomplishment. Soon after the Reform Act, Ministers of State accepted salaries scarcely equal to the charges of office : ^ sinecures and reversions were abolished : offices discontinued or consolidated ; and the scale of official emoluments revised, and apportioned to the duties performed, throughout the public service. The change attested a higher sense of duty in Ministers, and increased responsibility to public opinion.
The abuses in the administration of justice, which had Administra- been suffered to grow and flourish without a check, illustrate *°"° ^"^ ^^^' the inert and stagnant spirit of the eighteenth century. The noble principles of English law had been expounded by emi- nent judges, and applied to the varying circumstances of society, until they had expanded into a comprehensive system of juris- prudence, entitled to respect and veneration. But however admirable its principles, its practice had departed from the simplicity of former times, and, by manifold defects, went far
1 This happy phrase is assigned to Richard Bentley, son of Dr. Bentley. — Walpole^s Mem., ii. 391.
^ Reports on Sinecure Offices, 1807, 1810-12, and 1834 ; Debates on Offices in Reversion Bill, 1807, 1808 ; Hans. Deb., ist Ser. ix. 178, 1073, etc. ; x. 194, 870, etc. J Romilly's Life, ii. 219, 302; iii. g; Twiss's Life of Lord Eldon, ii. 116, 225 ; Reports of Commons on Offices held by Members, 1830-31, No. 322 ; 1833, No. 671 ; Report on Miscellaneous Expenditure, 1847-48, No. 543 ; and on Public Offices, 1856, No. 368.
384 THE CONSTITUTIONAL HISTORY OF ENGLAND
to defeat the ends of justice. Lawyers, ever following pre- cedents, were blind to principles. Legal fictions, technicalities, obsolete forms, intricate rules of procedure, accumulated. Fine intellects were wasted on the narrow subtilties of special plead- ing ; and clients won or lost causes — like a game of chess — not by the force of truth and right, but by the skill and cun- ning of the players. Heart-breaking delays and ruinous costs were the lot of suitors. Justice was dilatory, expensive, un- certain, and remote. To the rich it was a costly lottery : to the poor a denial of right, or certain ruin. The class who profited most by its dark mysteries were the lawyers them- selves. A suitor might be reduced to beggary or madness : but his advisers revelled in the chicane and artifices of a life- long suit, and grew rich. Out of a multiplicity of forms and processes arose numberless fees and well-paid offices. Many subordinate functionaries, holding sinecure or superfluous ap- pointments, enjoyed greater emoluments than the judges of the court ; and upon the luckless suitors, again, fell the charge of these egregious establishments. If complaints were made, they were repelled as the promptings of ignorance : if amend- ments of the law were proposed, they were resisted as innova- tions. To question the perfection of English jurisprudence was to doubt the wisdom of our ancestors — a political heresy which could expect no toleration. Delays of the 'VciQ delays of the Court of Chancery, in the time of Lord Court of Eldon, were a frequent cause of complaint ; and formed the subject of Parliamentary inquiry in both Houses.^ In 181 3, a Vice-Chancellor was appointed to expedite the business of the court : but its complex and dilatory procedure remained without improvement. Complaints continued to be made by Mr. Michael Angelo Taylor, Mr. Williams, and others, until, in 1825, a commission was appointed to inquire into the ad- ministration of justice in that court.2 Defects of In 1 828, Mr. Brougham exposed the complicated abuses
the Common Qf j-hg courts of common law, and the law of real property. His masterly speech, of six hours, displayed the combined powers of the philosophic jurist, the practised lawyer, the
1 Romilly's Life, ii. 368, 386, 392 ; iii. 13, etc. ; Twiss's Life of Lord Eldon, ii. 167, 199,
' Romilly's Life, ii. 474, 486, 567; iii. 321 et seq.
PROGRESS OF GENERAL LEGISLATION 385
statesman, and the orator.^ Suggesting most of the law reforms which have since been carried into effect, and some not yet accomplished, it stands a monument to his fame as a lawgiver.^ Commissions of inquiry were immediately ap- pointed ; and, when their investigations were completed, a new era of reform and renovation was commenced. Thence- forth, the amendment of the law was pursued in a spirit of Law reforms, earnestness and vigour. Judges and law officers no longer discountenanced it : but were themselves foremost in the cause of law reform. Lord Brougham, on the woolsack, was able to give effect to some of his own cherished schemes ; and never afterwards faltered in the work. Succeeding Chancellors followed in his footsteps ; and Lord Denman, Lord Campbell, Sir Richard Bethell, and other eminent jurists, laboured successfully in the same honourable field of legislation. The work was slow and toilsome, beset with many difficulties, and generally unthankful : but it was accomplished. The procedure of the Court of Chancery was simplified : its judicial establishment enlarged and remodelled : its offices regulated. Its delays were in great measure averted ; and its costs dim- inished. The courts of common law underwent a like revision. The effete Welsh judicature was abolished : the bench of English judges enlarged from twelve to fifteen : the equitable jurisdiction of the Court of Exchequer superseded : the pro- cedure of the courts freed from fiction and artifice : the false system of pleading swept away : the law of evidence amended ; and justice restored to its natural simplicity. The law of bankruptcy and insolvency was reviewed ; and a court estab- lished for its administration, with wide general and local jurisdiction. Justice was brought home to every man's door by the constitution of county courts. Divorce, which the law had reserved as the peculiar privilege of the rich, was made the equal right of all. The ecclesiastical courts were recon- stituted ; and their procedure and jurisdiction reviewed. A new court of appeal — of eminent learning and authority — was found in a judicial committee of the Privy Council, which, as
^ 7th Feb., 1828 ; Hans. Deb., 2nd Ser., xviii. 127 ; Lord Brougham's Speeches, ii. 311.
2 Acts and Bills of Lord Brougham, by Sir Eardley Wilmot, Intr. xv et seq. ; Ivi et seq. ; Ixxx ; Speech of Lord Brougham on Law Reform, 12th May, 1848 ; Hans, Deb., 3rd Ser., xcviii. 877.
VOL. n. 25
386 THE CONSTITUTIONAL HISTOR Y OF ENGLAND
the court of last resort from India and the Colonies, from the ecclesiastical courts and the Court of Admiralty, is second only to the House of Lords in the amplitude of its jurisdic- tion. The antiquated law of real property was recast ; and provision made for simplifying titles and facilitating the transfer of land. Much was done, and more attempted, fori the consolidation of the statutes. Nor have these remarkable amendments of the law been confined to England. Scotland and Ireland, and especially the latter, have shared largely in the work of reformation. Of all the law reforms of this period, indeed, none was so signal as the constitution of the Irish Encumbered Estates Court.
Such were the more conspicuous improvements of the law during the thirty years preceding 1 860. Before they had yet been commenced, Lord Brougham eloquently foreshadowed the boast of that sovereign who should have it to say " that he found law dear and left it cheap : found it a sealed book, — left it a living letter : found it the patrimony of the rich — left it the inheritance of the poor : found it the two-edged sword of craft and oppression — left it the staff of honesty, and the shield of innocence ", The whole scheme of renovation is not yet complete : but already may this proud boast be justly uttered by Queen Victoria. Spirit and In reviewing the administration of justice, the spirit and
th™fudees temper of the judges themselves, at different periods, must not be overlooked. One of the first acts of George III. was to complete the independence of the judges by providing that their commissions should not expire with the demise of the Crown. It was a necessary measure, in consummation of the policy of the Revolution ; and, if unworthy of the courtly adulations with which it was then received, it was, at least, entitled to approval and respect.^ The tenure of the judges was now assured ; and their salaries were charged permanently on the civil list.
The law had secured their independence of the Crown : but the spirit of the times leagued them closely with its
' King's Message, 3rd March, 1761 ; 1 Geo. III. c. 23 ; Walpole Mem., i. 41 ; Cooke's Hist, of Party, ii. 400. In 1767 the same law was extended to Ireland, on the recommendation of Lord Townshend, the lord-lieutenant. — Walpole Mem., iii. log.
PROGRESS OF GENERAL LEGISLATION 387
authority. No reign was more graced by the learning and accomplishments of its judges. They were superior to every corrupt influence : but all their sympathies and predilections were with power. The enemies of Lord Mansfield asserted " that he was better calculated to fill the office of praetor under Justinian, than to preside as chief criminal judge of this kingdom in the reign of George III.".^ Neither Lord Mans- field himself, nor any other judge, deserved so grave a censure : but, with the illustrious exception of Lord Camden, the most eminent magistrates of that reign were unfriendly to liberty. Who so allied to the court — so stanch to arbitrary principles of government — so hostile to popular rights and remedial laws, as Lord Mansfield, Lord Thurlow, Lord Lough- borough, Lord Eldon, and Lord Ellenborough ? The first and last of these so little regarded their independence, in the exercise of the chief criminal judicature of the realm, that they entered the Cabinet, as Ministers of the Crown ; and identified themselves with the executive Government of the day. What further illustration is needed of the close relations of the judgment-seat with power? But no sooner had prin- ciples of freedom and responsible government gained ascend- ency, than judges were animated by independence and liberality. Henceforward they administered justice in the spirit of Lord Camden ; and promoted the amendment of the laws with the enlightenment of statesmen.
The deepest stain upon the policy of irresponsible govern- The criminal ment is to be found in the history of the criminal law. The*^°*^^* lives of men were sacrificed with a reckless barbarity, worthier of an Eastern despot, or African chief, than of a Christian Capital State. The common law was guiltless of this severity: but P""'^^™®"*®' as the country advanced in wealth, lawgivers grew merciless to criminals. Life was held cheap, compared with property.^ To hang men was the ready expedient of thoughtless power. From the Restoration to the death of George IH. — a period of 160 years — no less than 187 capital offences were added to the criminal code. The legislature was able, every year, to
^Wraxall Mem., ii. 307.
2" Penal laws, which are in the hands of the rich, are laid upon the poor; and all our paltriest possessions are hung round with gibbets." — Goldsmith's Vicar of Wakefield.
25 *
388 THE CONSTITUTIONAL HISTORY OF ENGLAND
discover more than one heinous crime deserving of death. In the reign of George II., thirty-three Acts were passed creating capital offences : ^ in the first fifty years of George III., no less than sixty-three.^ In such a multiplication of offences all principle was ignored : offences wholly different in character and degree were confounded in the indiscriminating penalty of death. Whenever an offence was found to be increasing, some busy senator called for new rigour,^ until murder became, in the eye of the law, no greater crime than picking a pocket, purloining a ribbon from a shop, or pilfering a pewter-pot. Such law-makers were as ignorant as they were cruel. Ob- stinately blind to the failure of their blood-stained laws, they persisted in maintaining them long after they had been con- demned by philosophers, by jurists, and by the common sense and humanity of the people. Dr. Johnson — no squeamish moralist — exposed them : * Sir W. Blackstone, in whom ad- miration of our jurisprudence was almost a foible, denounced them.* Beccaria, Montesquieu, and Bentham^ demonstrated that certainty of punishment was more effectual in the repres- sion of crime than severity : but lawgivers were still inexorable. Nor within the walls of Parliament itself were there wanting humane and enlightened men to protest against the barbarity of our laws. In 1752, the Commons passed a bill to commute the punishment of felony, in certain cases, to hard labour in
^ Speech of Sir W. Meredith, 1777; Pari. Hist., xix. 237.
' Lord Grenville's Speech, 2nd April, 1813, on Sir S. Romilly's Shoplifting Bill ; Hans. Deb., ist Ser., xxv. 535. This excellent speech, however, is scarcely reported in Hansard, but was printed separately by the Capital Punishments Society.
^ Mr. Burke sarcastically observed, that if a country gentleman could obtain no other favour from the Government, he was sure to be accommodated with a new felony, without benefit of clergy. Paley justified the same severity to un- equal degrees of guilt, on the ground of " the necessity of preventing the repe- tition of the offence ". — Moral and Political Philosophy, book vi. ch. ix,
* " Whatever may be urged by casuists or politicians, the greater part of mankind, as they can never think that to pick a pocket and to pierce the heart are equally criminal, wall scarcely believe that two malefactors, so different in guilt, can be justly doomed to the same punishment." — Rambler, i. 114 ; Works, iii. 275. In this admirable essay, published in 1751, the restriction of death to cases of murder was advocated.
* " It is a kind of quackery in government, and argues a want of solid skill, to apply the same universal remedy, the ultimum supplicium, to every case of difficulty." — Comm., iv. 15.
* Bentham's work, " Th^orie des Peines et des Recompenses," appeared in 1811.
1
PROGRESS OF GENERAL LEGISLATION 389
the dockyards : but it was not agreed to by the Lords.^ In 1772, Sir Charles Bunbury passed a bill through the Commons to repeal some of the least defensible of the criminal statutes : but the Lords refused to entertain it, as an innovation.'^ In 1777, Sir W. Meredith, in resisting one of the numerous bills of extermination, made a memorable speech which still stands out in judgment against his contemporaries. Having touch- ingly described the execution of a young woman for shoplifting, who had been reduced to want by her husband's impressment, he proceeded : " I do not believe that a fouler murder was ever committed against law, than the murder of this woman, by law " ; and again : " the true hangman is the member of Parlia- ment : he who frames the bloody law is answerable for the blood that is shed under it ".^ But such words fell unheeded on the callous ears of men intent on offering new victims to the hangman.*
Warnings more significant than these were equally neg- Uncertainty lected. The terrors of the law, far from preventing crime, in- men""'^^ terfered with its just punishment. Society revolted against barbarities which the law prescribed. Men wronged by crimes shrank from the shedding of blood, and forebore to prosecute : juries forgot their oaths and acquitted prisoners against evi- dence : judges recommended the guilty to mercy. ^ Not one in twenty of the sentences was carried into execution. Hence arose uncertainty — one of the worst defects in criminal juris- prudence. Punishme^it lost at once its terrors, and its example. Criminals were not deterred from crime when its consequences were a lottery : society could not profit by the sufferings of guilt when none could comprehend why one man was hung and another saved from the gallows. The law was in the breast of the judge ; the lives of men were at the mercy of his temper or caprice.*^ At one assize town, a "hanging judge"
1 Comm. Journ., xxvi. 345 ; Lords' Journ,, xxvii. 661.
'^ Pari. Hist., xvii. 448 ; Comm. Journ., xxxiii. 695, etc. ; Speech of Sir W. Meredith, 1777.
3 Pari. Hist, xix. 237.
*Sir WilHam Meredith said: "When a member of Parliament brings in a new hanging bill, he begins with mentioning some injury that may be done to private property, for which a man is not yet liable to be hanged ; and then pro- poses the gallows as the specific and infallible means of cure and prevention ".
* Blackstone Comm., iv. 15.
^ Lord Camden said : " The discretion of the judge is the law of tyrants. It is always unknown : it is different in different men ; it is casual, and depends
390 THE CONSTITUTIONAL HISTORY OF ENGLAND
Sir Samuel Romilly's bills, 1808- 18.
Sir James
Mackintosh,
1819-23.
left a score of victims for execution : at another, a milder magistrate reprieved the wretches whom the law condemned. Crime was not checked : but, in the words of Horace Walpole, the country became "one great shambles"; and the people were brutaiised by the hideous spectacle of public executions.
Such was the state of the criminal law when Sir Samuel Romilly commenced his generous labours. He entered upon them cautiously. In 1808, he obtained the remission of capi- tal punishment for picking pockets. In 18 10, he vainly sought to extend the same clemency to other trifling thefts. In the following year, he succeeded in passing four bills through the Commons. One only — concerning thefts in bleaching grounds — obtained the concurrence of the Lords. He ventured to deal with no crimes but those in which the sentence was rarely carried into execution : but his innovations on the sacred code were sternly resisted by Lord Eldon, Lord Ellenborough, and the first lawyers of his time. Year after year, until his un- timely death, he struggled to overcome the obduracy of men in power. The Commons were on his side : Lord Grenville, Lord Lansdowne, Lord Grey, Lord Holland, and other en- lightened peers supported him : but the Lords, under the guidance of their judicial leaders, were not to be convinced. He did much to stir the public sentiment in his cause : but little, indeed, for the amendment of the law.^
His labours were continued, under equal discouragement, by Sir James Mackintosh.^ In 18 19, he obtained a committee in opposition to the Government ; and in the following year, succeeded in passing three out of the six measures which they recommended. This was all that his continued efforts could ac- complish. But his philosophy and earnest reasoning were not lost upon the more enlightened of contemporary statesmen. He lived to see many of his own measures carried out ; and to mark so great a change of opinion "that he should almost think that he had lived in two different countries, and con- versed with people who spoke two different languages ".*
upon constitution, temper, and passion. In the best, it is oftentimes caprice ; in the worst, it is every vice, folly, and passion to which human nature is liable." — St. Tr., viii. 58.
J Romilly's Life, ii. 303, 315, 325, 333, 383; iii. 95, 233, 331, 337; Twiss's Life of Lord Eldon, ii. 119.
^Hans. Deb., ist. Set., xxxix. 784, etc. * Mackintosh's Life, ii. 387-396.
PROGRESS OF GENERAL LEGISLATION 391
Sir Robert Peel was the first Minister of the Crown Sir Robert who ventured upon a revision of the criminal code. He ^^j^^j^^'^^l^ brought together, within the narrow compass of a few statutes, 1824-30. the accumulated penalties of centuries. He swept away several capital punishments that were practically obsolete : but left the effective severity of the law with little mitigation. Under his revised code upwards of forty kinds of forgery alone were punishable with death. ^ But public sentiment was beginning to prevail over the tardy deliberations of lawyers and states- men. A thousand bankers, in all parts of the country, peti- tioned against the extreme penalty of death in cases of forgery : '-^ the Commons struck it out of the Government bill ; but the Lords restored it.^
With the reform period commenced a new era in criminal Revision of legislation. Ministers and law officers now vied with philan- 1832-60. thropists in undoing the unhallowed work of many generations. In 1832, Lord Auckland, Master of the Mint, secured the abolition of capital punishment for offences connected with coinage : Mr. Attorney-General Denman exempted forgery from the same penalty — in all but two cases, to which the Lords would not assent ; and Mr. Ewart obtained the like remission for sheep-stealing, and other similar offences. In 1833, the Criminal Law Commission was appointed to revise the entire code. While its labours were yet in progre':^s, Mr. Ewart, ever foremost in this work of mercy, and Mr. Lennard carried several important amendments of the law.* The com- missioners recommended numerous other remissions,^ which were promptly carried into effect by Lord John Russell in 1837. Even these remissions, however, fell short of public opinion, which found expression in an amendment of Mr. Ewart, for limiting the punishment of death to the single crime of murder. This proposal was then lost by a majority of one : ® but has since, by successive measures, been accepted by the legislature — murder alone, and the exceptional crime of treason, having been reserved for the last penalty of the law.^ Great indeed, and rapid, was this reformation of the
1 II Geo. IV. and i Will. IV. c. 66.
^ Presented by Mr. Brougham, 24th May, 1830 ; Hans. Deb., 2nd Ser., xxiv. 1014.
3 Ibid., XXV. 838. * In 1833, 1834, and 1835. ' Second Report, p. 33.
« Hans. Deb., 3rd Ser., xxxviii. 908-922. '' 24 & 25 Vict. c. 100.
392 THE CONSTITUTIONAL HISTORY OF ENGLAND
Secondary punishments.
Transporta- tion.
criminal code. It was computed that from 1810 to 1845, upwards of 1,400 persons had suffered death for crimes which had since ceased to be capital.^
While these amendments were proceeding, other wise pro- visions were introduced into the criminal law. In 1834, the barbarous custom of hanging in chains was abolished. In 1836, Mr. Ewart, after a contention of many years, secured to prisoners, on trial for felony, the just privilege of being heard by counsel, which the cold cruelty of our criminal juris- prudence had hitherto denied them.'' In the same year, Mr. Aglionby broke down the rigorous usage which had allowed but forty-eight hours to criminals under sentence of death for repentance or proof of innocence. Nor did the efforts of phil- anthropists rest here. From 1840, Mr. Ewart, supported by many followers, pressed upon the Commons, again and again, the total abolition of capital punishment. This last movement failed, indeed ; and the law still demands life for life. But such has been the sensitive — not to say morbid — tenderness of society, that many heinous crimes have since escaped this ex- treme penalty : while uncertainty has been suffered to impair the moral influence of justice.
While lives were spared, secondary punishments were no less tempered by humanity and Christian feeling. In 18 16, the degrading and unequal punishment of the pillory was con- fined to perjury ; and was, at length, wholly condemned in 1 837.'
In 1838, serious evils were disclosed in the system of transportation : the penal colonies protested against its con- tinuance ; and it was afterwards, in great measure, abandoned. Whatever the objections to its principle : however grave the faults of its administration, it was, at least in two particulars, the most effective secondary punishment hitherto discovered. It cleansed our society of criminals ; and afforded them the best opportunity of future employment and reformation. For such a punishment no equivalent could readily be found.^
^ Report of Capital Punishments Society, 1845.
^ This measure had first been proposed in 1824 by Mr. George Lamb. See Sydney Smith's admirable articles upon this subject. — WorkSi, ii. 259, iii. i.
356 Geo. III. c. 138 ; i Vict. c. 23. In 1815, the Lords rejected a bill for its total abolition. — Romilly^s Life, iii. 144, 166, 189.
* Reports of Sir W. Molesworth's Committee, 1837, No. 518 ; 1838, No. 669. Bentham's " Th^orie des Peines," etc. ; Dr. Whately's Letters to Earl Grey ;
PROGRESS OF GENERAL LEGISLATION 393
Imprisonment became nearly the sole resource of the State ; and how to punish and reform criminals, by prison discipline, was one of the most critical problems of the time.
The condition of the prisons, in the last century, was a re- Prisons, proach to the State, and to society. They were damp, dark, and noisome : prisoners were half-starved on bread and water, clad in foul rags, and suffered to perish of want, wretched- ness, and gaol fever. Their sufferings were aggravated by the brutality of tyrannous gaolers and turnkeys, absolute masters of their fate. Such punishment was scarcely less awful than the gallows, and was inflicted in the sanie merciless spirit. Vengeance and cruelty were its only principles : charity and reformation formed no part of its scheme. Prisons without separation of sexes, without classification of age or character, were schools of crime and iniquity. The convicted felon corrupted the untried, and perhaps innocent prisoner ; and con- firmed the penitent novice in crime. The unfortunate who entered prison capable of moral improvement, went forth impure, hardened, and irreclaimable.
Such were the prisons which Howard visited ; and such the evils he exposed. However inert the legislature, it was not indifferent to these disclosures, and attempts were immediately made to improve the regulation and discipline of prisons.^ The cruelty and worst evils of prison life were gradually abated. Philanthropists penetrated the abodes of guilt ; and prisons came to be governed in the spirit of Howard and Mrs. Fry. But, after the lapse of half a century, it was shown 'that no enlarged system had yet been devised to unite condign punish- ment with reformation ; adequate classification, judicious em- ployment, and instruction were still wanting.^ The legislature, at length, applied itself to the systematic improvement of prisons. In 1835, inspectors were appointed to correct abuses, and insure uniformity of management.^ Science and humanity laboured together to devise a punishment, calculated at once
Reply of Colonel Arthur; Innes on Home and Colonial Convict Manage- ment, 1842.
' Two bills were passed in 1774, and others at later periods ; and see Reports of Commons' Committees on gaols, 1819, 1822 ; Sydney Smith's Works, ii. ig6, 244.
* Five Reports of Lords' Committee, 1835 (Duke of Richmond), on Gaols and Houses of Correction.
55 & 6 Will. IV. c. 38.
394 THE CONSTITUTIONAL HISTORY OF ENGLAND
to deter from crime, and to reform criminals. The magistracy, throughout the country, devoted themselves to this great social experiment. Vast model prisons were erected by the State : costly gaols by counties, light, airy, spacious, and healthful. Physical suffering formed no part of the scheme. Prisoners were comfortably lodged, well fed and clothed, and carefully tended. But a strict classification was enforced : every system of confinement — solitary, separate, and silent — was tried : every variety of employment devised. While reformation was sought in restraints and discipline — in industrial training, in education and spiritual instruction — good conduct was encouraged by hopes of release from confinement, under tickets-of-leave, before the expiration of the sentence. In some cases penal servitude was followed by transportation, in others it formed the only punishment Meanwhile, punishment was passing from one extreme to another. It was becoming too mild and gentle to deter from crime : while hopes of reformation were too gener- ally disappointed. Further experiments may be more com- plete : but crime is an intractable ill, which has baffled the wisdom of all ages. Men born of the felon type, and bred to crime, will ever defy rigour and frustrate mercy. If the present generation have erred, its errors have been due to humanity, and Christian hopefulness of good. May we not contrast them proudly with the wilful errors of past times — neglect, moral indifference, and cruelty? Reforma- Nor did the State rest satisfied with the improvement of
tories. prisons : but alive to the peculiar needs and dangers of juvenile
delinquents, and the classes whence they sprang, it provided for the establishment of reformatory and industrial schools, in which the young might be spared the contamination and infamy of a gaol, and trained, if possible, to virtue.^ Police. Our ancestors, trusting to the severity of their punishments
for the protection of life and property, took little pains in the prevention of crime. The metropolis was left to the care of drunken and decrepit watchmen, and scoundrel thief-takers — companions and confederates of thieves. "^ The abuses of such a police had long been notorious, and a constant theme of
^ 17 & i8 Vict. c. 86, etc.
'VVraxall's Mem., i. 329; Reports of Commons' Comm., 1812, i8t6, 1817, 1822, and 1828.
PROGRESS'OF GENERAL LEGISLATION 395
obloquy and ridicule. They had frequently been exposed by Parliamentary Committees; but it was not until 1829 that Mr. Peel had the courage to propose his new metropolitan police. This efifective and admirable force has since done more for the order and safety of the metropolis than a hundred exe- cutions every year at the Old Bailey. A similar force was afterwards organised in the city of London ; and every con- siderable town throughout the realm was prompt to follow a successful example. The rural districts, however, and smaller boroughs, were still without protection. Already, in 1836, a constabulary of rare efficiency had been organised in Ireland : but it was not until 1839 that provision was made for the voluntary establishment of a police in English counties and boroughs. A rural police was rendered the more necessary by the efficient watching of large towns; and at length, in 1856, the support of an adequate constabulary force was required of every county and borough.
And further, criminals have been brought more readily Summary to justice by enlargements of the summary jurisdiction of magis-|"" ' trates. A principle of criminal jurisprudence which excludes trial by jury is to be accepted with caution : but its practical administration has been unquestionably beneficial. Justice has been administered well and speedily ; while offenders have been spared a long confinement prior to trial ; and the innocent have had a prompt acquittal. The like results have also been at- tained by an increase of stipendiary magistrates, in the metro- polis and elsewhere, by the institution of the Central Criminal Court, and by more frequent assizes.
The stern and unfeeling temper which had dictated the Flogging penal code, directed the discipline of fleets and armies. Life|j"^^^^j was sacrificed with the same cruel levity ; and the lash was army, made an instrument of torture. This barbarous rigour was also gradually relaxed, under the combined influence of humanity and freedom.
Equally wise and humane were numerous measures for The poor raising the moral and social condition of the people. And *^^* first in importance was an improved administration of relief to the poor. Since the reign of Elizabeth, the law had provided for the relief of the destitute poor of England. This wise and simple provision, however, had been so perverted by ignorant
396 THE CONSTITUTIONAL HISTORY OF ENGLAND
administration that, in relieving the poor, the industrial popula- tion of the whole country was being rapidly reduced to pauperism, while property was threatened with no distant ruin. The system which was working this mischief assumed to be founded upon benevolence : but no evil genius could have designed a scheme of greater malignity for the corruption of the human race. The fund intended for the relief of want and sickness, of age and impotence, was recklessly distributed to all who begged a share. Everyone was taught to look to the parish, and not to his own honest industry, for support. The idle clown, without work, fared as well as the industrious labourer who toiled from morn till night. The shameless slut, with half a dozen children — the progeny of many fathers — was pro- vided for as liberally as the destitute widow and her orphans. But worse than this, independent labourers were tempted and seduced into the degraded ranks of pauperism by payments freely made in aid of wages. Cottage rents were paid, and allowances given according to the number of a family. Hence thrift, self-denial, and honest independence were discouraged. The manly farm labourer, who scorned to ask for alms, found his own wages artificially lowered, while improvidence was cherished and rewarded by the parish. He could barely live without incumbrance : but boys and girls were hastening to church — without a thought of the morrow — and rearing new broods of paupers to be maintained by the overseer. Who can wonder that labourers were rapidly sinking into pauperism, without pride or self-respect ? But the evil did not even rest here. Paupers were actually driving other labourers out of employment — that labour being preferred which was partly paid out of rates, to which employers were forced to contribute. As the cost of pauperism, thus encouraged, was increasing, the poorer ratepayers were themselves reduced to poverty. The soil was ill-cultivated by pauper labour, and its rental consumed by parish rates. In a period of fifty years the poor rates were quadrupled; and had reached, in 1833, the enor- mous amount of ;^8,6oo,cxx). In many parishes they were approaching the annual value of the land itself.
The new Such evils as these demanded a bold and thorough remedy ;
poor law, ^^jj ^j^g recommendations of a masterly commission of inquiry were accepted by the first reformed Parliament in 1834 as the
PROGRESS OF GENERAL LEGISLATION 397
basis of a new poor law. The principle was that of the Act of Elizabeth — to confine relief to destitution ; and its object, to distinguish between want and imposture. This test was to be found in the workhouse. Hitherto pauperism had been gener- ally relieved at home, the parish workhouse being the refuge for the aged, for orphans, and others, whom it suited better than out-door relief Now out-door relief was to be withdrawn altogether from the able-bodied, whose wants were to be tested by their willingness to enter the workhouse. This experiment had already been successfully tried in a few well-ordered parishes, and was now generally adopted. But instead of con- tinuing ill-regulated parish workhouses, several parishes were united, and union workhouses established, common to them all. The local administration of the poor was placed under elected boards of guardians ; and its general superintendence under a central board of commissioners in London. A change so sudden in all the habits of the labouring classes could not be introduced without discontents and misconception. Some of the provisions of the new law were afterwards partially relaxed : but its main principles were carried into successful operation. Within three years the annual expenditure for the relief of the poor was reduced to the extent of three millions. The plague of pauperism was stayed ; and the English peasantry rescued from irretrievable corruption. The full benefits of the new poor law have not yet been realised : but a generation of labourers has already grown up in independence and self- respect ; and the education and industrial training of children, in the workhouses, have elevated a helpless class, formerly neglected and demoralised.^
While England had been threatened with ruin from a Poor laws of reckless encouragement of pauperism, the law of Scotland had Scotland, made no adequate provision for the support of the destitute poor. This error, scarcely more defensible, was corrected in 1845. I^ut worst of all was the case of Ireland, where there of Ireland, was absolutely no legal provision for the destitute.^ The
^ Extracts of information collected, 1833 ; Report of Commissioners of In- quiry, 1834; Debates in Lords and Commons, 17th April and 21st July, 1834; Nicholls' Hist, of the Poor Law, etc.
^3rd Report of Commissioners on the Poorer Classes in Ireland, 1836, p. 25, etc.
398 THE CONSTITUTIONAL HISTORY OF ENGLAND
wants of the peasantry were appalling : two millions and a half were subsisting, for a part of every year, on charity. The poor man shared his meal with his poorer neighbour ; and everywhere the vagrant found a home. To approach so vast a mass of destitution, and so peculiar a condition of society, was a hazardous experiment. Could property bear the burden of providing for such multitudes? could the ordinary machinery of poor-law administration safely deal with them? The ex- periment was tried in 1838 — not without serious misgivings — and it succeeded. The burden, indeed, was often ruinous to the land ; and the workhouse was peculiarly repugnant to the Irish peasantry : but the operation of the new law was facili- tated by the fearful famine of 1 846 ; and has since contributed, with other causes, to the advancing prosperity of Ireland. The poor-law legislation of this period was conceived in a spirit of enlightened charity : it saved England from pauperism, and the poor of Scotland and Ireland from destitution. Lunatics. The Same beneficence has marked recent legislation for the
care of lunatics. Within the wide range of human suffering, no affliction so much claims pity and protection as insanity. Rich and poor are stricken alike ; and both are equally de- fenceless. Treated with care and tenderness, it is sad enough : aggravated by neglect and cruelty, it is unspeakably awful. To watch over such affliction — to guard it from wrong and oppression, to mitigate its sufferings, and, if possible, to heal it — is the sacred office of the State. But until a period, com- paratively recent, this office was grievously neglected. Rich patients were left in charge of keepers in their own homes, or in private asylums, without control or supervision : the poor were trusted to the rude charge of their own families, or received into the workhouse, with other paupers. Neglect, and too often barbarity, were the natural results. The strong may not be safely trusted with unrestrained power over the weak. The well-paid keeper, the pauper family, the work- house matron, could all tyrannise over helpless beings bereft of reason. Sad tales were heard of cruelty committed within walls to which no watchful guardian was admitted ; and idiots were suffered to roam at large, the sport of idle jests, or worse brutality.
A few charitable asylums had been founded, by private or
PROGRESS OF GENERAL LEGISLATION 399
local munificence, for the treatment of the insane ; ^ but it was not until the present century that county and borough lunatic asylums began to be established ; nor until after the operation of the new poor law that their erection was rendered com- pulsory.^ At the same time, provision was made for the inspection of asylums ; and securities were taken against the wrongful detention or mismanagement of lunatics. Private asylums are licensed : every house tenanted by the insane is subjected to visitation ; and the care of all lunatics is entrusted to commissioners. 3 The like provision has also been made for the care of lunatics in Scotland and Ireland.^ Two principles were here carried out — the guardianship of the State, and the obligation of property to bear the burden of a liberal treatment of the lunatic poor. Both are no less generous than just ; and the resources of medical science, and private charity, have more than kept pace with the watchfulness of the State in alleviating the sufferings of the insane.
In other cases, the State has also extended its generous Labour in protection to the weak, even where its duty was not so clear. ^^|^^°"^gtj. To protect women and children from excessive, or unsuitable labour, it has ventured to interfere with husband and wife, parent and child, labourer and employer — with free labour and wages, production and profits. The first Sir Robert Peel had induced the legislature to interfere for the preservation of the health and morals of factory children.^ But to the earnest philanthropy of Mr, Sadler and Lord Ashley (now Earl of Shaftesbury) is due their first protection from excessive labour. It was found that children were doomed to immoderate toil in factories by the cupidity of parents ; and young persons and females accustomed to hours of labour injurious to health and character. The State stretched forth its arm to succour them. The employment of children of tender years in factories was prohibited : the labour of the young, of both sexes under eighteen, and of all women, was subjected to regulation : an inspection of factories was instituted ; and provision made for
1 E.g. Bethlehem Hospital, in 1547 ; St. Peter's Hospital, Bristol, in 1697 ; Bethel Hospital, Norwich, in 1713 ; St. Luke's Hospital, in 1751.
2 In 1845 ; 8 & 9 Vict. c. 126. ^ Ibid., c. 100, etc.
*9 & 10 Vict. c. 115, etc. ; 20 & 21 Vict. c. 71.
'In 1802 and 1819; Acts 42 Geo. III. c. 73 ; 59 Geo. III. c. 66, etc.
400 THE CONSTITUTIONAL HISTORY OF ENGLAND
working classes.
Popular education.
the education of factory children.^ The like parental care was extended to other departments of labour — to mines,- and bleaching vvorks,^ and even to the sweeping of chimneys.* Measures for The State has further endeavoured to improve the social
menTo/the condition of the working classes, by providing for the estab- lishment of savings' banks and provident societies, of schools of design, of baths and wash-houses, of parks and places of recreation ; by encouraging the construction of more suitable dwellings, by the supervision of common lodging-houses, and by measures of sanitary improvement ; the benefits of which, though common to all classes, more immediately affect the health and welfare of the labouring multitudes. In this field, however, the State can do comparatively little : it is from society, from private benevolence and local activity, that effectual aid must be sought for the regeneration of the poorer classes. And this great social duty has fallen upon a genera- tion already awakened to its urgency.
Among the measures most conducive to the moral and social improvement of the people has been the promotion of popular education. That our ancestors were not insensible to the value of extended education, is attested by the grammar schools and free or charity schools in England, and by the parochial schools of Scotland. The State, however — inert and indifferent — permitted endowments for the good of society to be wasted and misapplied. From the latter end of last cen- tury much was done, by private zeal and liberality, for the education of the poor: but the State stirred not.^ It was reserved for Mr. Brougham, in 1816, to awaken Parliament to the ignorance of the poor ; and to his vigilance was it due that many educational endowments were restored to the uses for which they were designed. Again, in 1820, he proposed a scheme for the systematic education of the poor.*' To the general education of the people, however, there was not only indifference, but repugnance. The elevation of the lower grades of society was dreaded, as dangerous to the State. Such instruction as impressed them with the duty of con- 's & 4 Will. IV. c. 103 ; 7 Vict. c. 15, etc. ' 5 & 6 Vict. c. 99. » 23 & 24 Vict. c. 78. '•4 & 5 Will. IV. c. 35, etc. ' See Porter's Progress of the Nation, pp. 690-699.
** Hans. Deb., 2nd Ser., ii. 49; Harwood's Mem. of Lord Brougham, 124, 161.
PROGRESS OF GENERAL LEGISLATION 401
tentment and obedience might be well : but education which should raise their intelligence and encourage freedom of thought, would promote democracy, if not revolution. It was right that the children of the poor should be taught the Church catechism : it was wrong that they should learn to read news- papers.^ So long as this feeling prevailed, it was vain to hope for any systematic extension of secular education : but the Church and other religious bodies were exerting themselves earnestly in their proper sphere of instruction. In their schools, religious teaching was the primary object : but great advances were also made in the general education of the poor. Meanwhile, the increasing prosperity of the country was rapidly developing the independent education of the children of other classes, who needed no encouragement or assistance. As society advanced, it became more alive to the evils of ignorance ; and in a reformed Parliament, the political jealousy of popular education was speedily overcome.
In Ireland, as we have seen, a broad scheme of national obstacles to education was introduced, in 183 1, on the principle of a " com- ^"^ ^^^^""^ bined literary, and a separate religious education ".^ In Great education. Britain, however, there were obstacles to any such system of national education. In the schools of the Church, and of dis- senters, religious teaching was the basis of education. The patrons of both were jealous of one another, resentful of inter- ference, and unwilling to co-operate in any combined scheme of national education. The Church claimed the exclusive right of educating the people : dissenters asserted an equal title to direct the education of the children of their own sects. Both parties were equally opposed to any scheme of secular educa- tion, distinct from their own religious teaching. Hence the Government was obliged to proceed with the utmost caution. Its connection with education was commenced in 1834, by a small Parliamentary grant in aid of the building of school- Parliamen- houses. The administration of this fund was confided to the Jn^jf "J^*^ Treasury, by whom it was to be distributed, through the education. National School Society, representing the Church and the British and Foreign School Society, to whose schools children of all religious denominations were admitted. This arrange-
1 See Lord Cockburn's Life of Jeffrey, i. 68 ; Porter's Progress, p, 694,
2 Supra, p. 303.
VOL. II. 26
402 THE CONSTITUTIONAL HISTORY OF ENGLAND
ment was continued until 1839; when Lord Melbourne's Government vested the management of the education funds in a Committee of Privy Council. This change was effected, in contemplation of a more comprehensive scheme, by which aid should be given directly to schools connected with the Church, and other religious bodies. The Church was alarmed, lest her own privileges should be disturbed : many of the conservative party were still adverse, on political grounds, to the extension of education ; and the Government scheme was nearly overthrown. The annual grant met with strenuous re- sistance ; and was voted in the Commons by a bare majority of two.^ The Lords, coming to the aid of the Church and their own party, hastened to condemn the new scheme in an address to the Crown,'*^ Their lordships, however, received a courteous rebuke from the throne ; ^ and the scheme was vigorously carried out. Despite of jealousies and distrust, the operations of the Committee of the Privy Council were speedily extended. Society was awakened to the duty of educating the people : local liberality abounded : the rivalry of the Church and dis- senters prompted them to increased exertions ; and every year larger demands were made upon the public fund, until, in i860, the annual grant amounted to nearly ;^700,ooo.*
However such a system may have fallen short of a com- plete scheme of national education, embracing the poorest and most neglected classes, it gave an extraordinary impulse to popular education ; and bore ample testimony to the earnestness of the State in promoting the social improvement of the people. Commercial L^t US now tum to the material interests of the country —
policy. its commerce, its industry, its productive energies. How
were these treated by a close and irresponsible Government ? and how by a Government based upon public opinion, and striving to promote the general welfare and happiness of the people? Our former commercial policy was founded on monopolies, and artificial protections and encouragements —
' Hans. Deb., 3rd Ser., xlviii. 229 et seq.
2 Ibid., 1332. 3 Ibid., xlix. 128 ; Ann. Reg., 1839, 171.
•* [The first Act relating to Public Elementary Education was passed in 1856, and provided for the appointment of a Vice-President of the Committee of Council on Education. This Minister became practically the Minister of Education re- sponsible to the House of Commons for the administration of the grant. — Ed.]
PROGRESS OF GENERAL LEGISLATION 403
maintained for the benefit of the few at the expense of the many. The trade of the East was monopolised by the East India Company : the trade of the Mediterranean by the Levant Company : ^ the trade of a large portion of North America by the Hudson's Bay Company.^ The trade of Ireland and the colonies was shackled for the sake of English producers and manufacturers. Every produce and manufac- ture of England was protected, by high duties or prohibitions, against the competition of imported commodities of the like nature. Many exports were encouraged by bounties and drawbacks. Everyone sought protection or encouragement for himself, utterly regardless of the welfare of others. The protected interests were favoured by the State, while the whole community suffered from prices artificially raised, and industry unnaturally disturbed. This selfish and illiberal policy found support in erroneous doctrines of political economy : but its foundation was narrow self-interest. First one monopoly was established, and then another, until pro- tected interests dominated over a Parliament in which the whole community were unrepresented. Lord North and Mr. Pitt, generally commanding obedient majorities, were unable to do justice to the industry of Ireland, in opposition to English traders.^ No power short of rebellion could have arrested the monstrous corn bill of 181 5, which landowners, with one voice, demanded. But political science and liberty advanced together : the one pointing out the true interests of the people : the other ensuring their just consideration.
It was not until fifty years after Adam Smith had exposed Free trade, what he termed " the mean and malignant expedients of the mercantile system," that this narrow policy was disturbed. Mr. Huskisson was the first Minister, after Mr. Pitt, who ventured to touch protected interests. A close representation still governed : but public opinion had already begun to exercise a powerful influence over Parliament ; and he was able to remove some protections from the silk and woollen trades, to restore the right of free emigration to artisans, and to break in upon the close monopoly of the navigation Jaws. These were the beginnings of free trade : but a further
' This Company was wound up in 1826. — 6 Geo. IV. c. 33. ''The charter of this Company expired in 1859. ^ Supra, p. 337.
26*
404 THE CONSTITUTIONAL HISTORY OF ENGLAND
development of political liberty was essential to the triumph of that generous and fruitful policy. A wider representation wrested exclusive power from the hands of the favoured classes ; and monopolies fell, one after another, in quick suc- cession. The trade of the East was thrown open to the free enterprise of our merchants : the productions of the world were admitted for the consumption and comfort of our teeming multitudes : exclusive interests in shipping, in the colonies, in commerce and manufactures, were made to yield to the public good. But above all, the most baneful of monopolies, and the most powerful of protected interests, were overborne. The lords of the soil, once dominant in Parlia- ment, had secured to themselves a monopoly in the food of the people. To ensure high rents, it had been decreed that multitudes should hunger. Such a monopoly was not to be endured ; and so soon as public opinion had fully accepted the conclusions of science, it fell before enlightened statesmen and a popular Parliament.
The fruits of free trade are to be seen in the marvellous development of British industry. England will ever hold in grateful remembrance the names of the foremost promoters of this new policy — of Huskisson, Poulett Thomson, Hume, Villiers, and Labouchere — of Cobden and Bright — of Peel and Gladstone : but let her not forget that their fruitful states- manship was quickened by the life of freedom. Financial The financial policy of this period was conceived in the
policy. same spirit of enlightened liberality ; and regarded no less the
general welfare and happiness of the people. Industry, while groaning under protection, had further been burdened by oppressive taxes, imposed simply for purposes of revenue. It has been the policy of modern finance to dispense with duties on raw materials, on which the skill and labour of our industri- ous artisans is exercised. Free scope has been given to pro- ductive industry. The employment and comfort of the people have been further encouraged by the removal or reduction of duties on manufactured articles of universal use — on glass, on bricks and tiles, on soap and paper, and hundreds of other articles.
The luxuries of the many, as well as their food, have also been relieved from the pressure of taxation. Tea, sugar,
PROGRESS OF GENERAL LEGISLATION 405
coffee, cocoa — nay, nearly all articles which contribute to the comfort and enjoyment of daily life — have been placed within reach of the poorest.^ And among financial changes conceived in the interest of the whole community, the remarkable penny postage of Sir Rowland Hill deserves an honourable place. Notwithstanding extraordinary reductions of taxation, the pro- ductive energies of the country, encouraged by so liberal a policy, have more than made good the amount of these remis- sions. Tax after tax has been removed ; yet the revenue — ever buoyant and elastic — has been maintained by the increased productiveness of the remaining duties. This policy — the conception of Sir Henry Parnell — was commenced by Lord Althorp, boldly extended by Sir Robert Peel, and consum- mated by Mr. Gladstone.
To ensure the safe trial of this financial experiment, Sir Robert Peel proposed a property tax, in time of peace, to fall exclusively on the higher and middle classes. It was accepted : and marks, no less than other examples, the solicitude of Parlia- ment for the welfare of the many, and the generous spirit of those classes who have most influence over its deliberations. The succession duty, imposed some years later, affords another example of the self-denying principles of a popular Parliament. In 1796, the Commons, ever ready to mulct the people at the bidding of the Minister, yet unwilling to bear their own proper burthen, refused to grant Mr. Pitt such a tax upon their landed property. In 1853, the reformed Parliament, intent upon sparing industry, accepted this heavy charge from Mr, Glad- stone.
The only unsatisfactory feature of modern finance has been Vast increase the formidable and continuous increase of expenditure. The "^^^^^P^" '" demands upon the Exchequer — apart from the fixed charge of the public debt — were nearly doubled during the last ten years of this period.^ Much of this serious increase was due to the Russian, Chinese, and Persian wars — to the vast armaments
^ In 1842, the customs' tariff embraced 1,163 articles ; in i860, it comprised less than 50, of which 15 contributed nearly the whole revenue.
2 In 1850, the estimated expenditure was £50,763,583 ; in i85o, it amounted to';;^73,534,ooo. The latter amount, however, comprised ;^4,700,ooo for the col- lection of the revenue, which had not been brought into the account until 1856. In the former year the charge of the public debt was ;^28, 105,000 ; in the latter, ;^26,2oo,ooo. Hence an expenditure of ;^22,658,583 at one period, is to be com- pared with £42,634,000 at the other.
4o6 THE CONSTITUTIONAL HISTORY OF ENGLAND
These changes carefully made.
Good
government
promotes
content and
discourages
democracy.
and unsettled policy of foreign States — to the proved defici- encies of our military organisation — to the reconstruction of the navy — and to the greater costliness of all the equipments of | modern warfare. Much, however, was caused by the liberal and humane spirit of modern administration. While the utmost efficiency was sought in fleets and armies, the comforts and moral welfare of our seamen and soldiers were promoted, at great cost to the State. So, again, large permanent additions were made to the civil expenditure by an improved administra- tion of justice, a more effective police, extended postal com- munications, the public education of the people, and the growing needs of civilisation, throughout a powerful and wide- spread empire. This augmented expenditure, however, de- prived the people of the full benefits of a judicious scheme of taxation. The property tax, intended only as a temporary expedient, was continued ; and, however light and equal the general incidence of other taxes, enormous contributions to the State were necessarily a heavy burden upon the industry, the resources, and the comforts of the people.
Such have been the legislative fruits of extended liberty : wise laws, justly administered : a beneficent care for the moral and social welfare of the people : freedom of trade and indus- try : lighter and more equitable taxation. Nor were these great changes in our laws and policy effected in the spirit of democracy. They were made slowly, temperately, and with caution. They were preceded by laborious inquiries, by dis- cussion, experiments, and public conviction. Delays and op- position were borne patiently, until truth steadily prevailed ; and when a sound policy was at length recognised, it was adopted and carried out, even by former opponents.^
Freedom, and good government, a generous policy, and the devotion of rulers to the welfare of the people, have been met with general confidence, loyalty, and contentment. The great ends of freedom have been attained, in an enlightened
' M. Guizot, who never conceals his distrust of democracy, says : " In the legislation of the country, the progress is immense : justice, disinterested good sense, respect for all rights, consideration for all interests, the conscientious and searching study of social facts and wants, exercises a far greater sway than they formerly did, in the government of England: in its domestic matters, and as re- gards its daily affairs, England is assuredly governed much more equitably and wisely ". — Life of Sir R. Peel, p. 373.
PROGRESS OF GENERAL LEGISLATION 407
and responsible rule, approved by the judgment of the governed. The constitution, having worked out the aims, and promoted the just interests of society, has gained upon democracy ; while growing wealth and prosperity have been powerful auxiliaries of constitutional government.
To achieve these great objects. Ministers and Parliaments Pressure of have laboured, since the Reform Act, with unceasing energy g^^^^^he" and toil. In less than thirty years, the legislation of a century Reform Act. was accomplished. The inertness and errors of past ages had bequeathed a heavy arrear to lawgivers. Parliament had long been wanting in its duty of " devising remedies as fast as time breedeth mischief".^ There were old abuses to correct — new principles to establish — powerful interests and confirmed pre- judices to overcome — the ignorance, neglect, and mistaken policy of centuries to review. Every department of legislation — civil, ecclesiastical, legal, commercial, and financial — de- manded revision. And this prodigious work, when shaped and fashioned in council, had to pass through the fiery ordeal of a popular assembly — to encounter opposition and unre- strained freedom of debate — the conflict of parties — popular agitation — the turmoil of elections — and lastly, the delays and reluctance of the House of Lords, which still cherished the spirit and sympathies of the past. And further, this work had to be slowly wrought out in a Parliament of wide remedial jurisdiction — the Grand Inquest of the nation. Ours is not a council of sages for framing laws and planning amendments of the constitution : but a free and vigorous Parliament, which watches over the destinies of an empire. It arraigns Ministers : directs their policy, and controls the administration of affairs : it listens to every grievance ; and inquires, complains, and censures. Such are its obligations to freedom ; and such its paramount trust and duty. Its first care is that the State be well governed : its second that the laws be amended. These functions of a Grand Inquest received a strong impulse from Parliamentary Reform, and were exercised with a vigour char- acteristic of a more popular representation. Again, there was the necessary business of every session — provision for the public service, the scrutiny of the national expenditure, and multifarious topics of incidental discussion, ever arising
1 Lord Bacon ; Pacification of the Church.
4o8 THE CONSTlTtniONAL HISTORY OF ENGLAND
Foreign relations affected by freedom.
Conclusion.
in a free Parliament. Yet, notwithstanding all these obstacles, legislation marched onwards. The strain and pressure were great, but they were borne ; ^ and the results may be recounted with pride. Not only was a great arrear overtaken : but the labours of another generation were, in some measure, anticipated. An exhausting harvest was gathered : but there is yet ample work for the gleaners : and a soil that claims incessant culti- vation. " A free Government," says Machiavel, " in order to maintain itself free, hath need, every day, of some new pro- visions in favour of liberty." Parliament must be watchful and earnest, lest its labours be undone. Nor will its popular constitution again suffer it to cherish the perverted optimism of the last century, which discovered perfection in everything as it was, and danger in every innovation.
Even the foreign relations of England were affected by her domestic liberty. When kings and nobles governed, their sympathies were with crowned heads : when the people were admitted to a share in the government, England favoured con- stitutional freedom in other States ; and became the idol of every nation which cherished the same aspirations as herself.
This history is now completed. However unworthy of its great theme, it may yet serve to illustrate a remarkable period of progress and renovation in the laws and liberties of Eng- land. Tracing the later development of the constitution, it concerns our own time, and present franchises. It shows how the encroachments of power were repelled, and popular rights acquired, without revolution : how constitutional liberty was won, and democracy reconciled with time-honoured institutions. It teaches how freedom and enlightenment, inspiring the national councils with wisdom, promoted the good government of the State, and the welfare and contentment of society. Such political examples as these claim the study of the historian and philosopher, the reflection of the statesman, and the gratula- tions of every free people.
' The extent of these labours is shown in the reports of Committees on Public Business in 1848, 1855, and 1861 ; in a pamphlet, by the author, on that subject, 1849 ; and in the Edinburgh Review, Jan. 1854, Art. vii.
INDEX.
Abbot, Mr. Speaker, opposes Catholic relief, ii. 217, 218 ; his speech at the Bar of the Lords, 219, «.
Abercorn, Earl of, his rights as peer of Great Britain and of Scotland, i. 194.
Abercromby, Mr., his motion on Scotch representation, i. 241.
Abercromby, Sir R., his opinion of the Irish soldiery, ii. 341 ; retires from command, 341.
Aberdeen, Earl of, the Reform Bill of his Ministry, i. 303 ; his Ministry, 455 ; its fall, 455 ; his efforts to re- concile differences in the Church of Scotland, ii. 287, 293.
A'Court, Colonel, deprived of his com- mand for votes in Parliament, i. 19.
Addington, Mr., mediated between George III. and Pitt on the Cath- olic question, i. 65 ; formed an ad- ministration, 66 ; official difficulties caused by the king's illness at this juncture, 132-134; his relations with the king, 67 ; resigned office, 68 ; led the " King's friends," 68 ; took office under Pitt, 69 ; made a peer, 69; permitted debate on notice of motion, 270, n. See also Sidmouth, Viscount.
Additional Curates Society, sums ex- pended by, ii. 269, n.
Addresses to the Crown, from Parlia- ment, respecting peace and war, or the dissolution of Parliament, i. 366, 368 ; and from the people, 368 ; Lord Camden's opinion, 369.
Admiralty Court, the, judge of, disquali- fied from sitting in Parliament, i. 252.
Advertisement duty, first imposed, ii. 6 ; increased, 60 ; abolished, 97.
Affirmations. See Quakers.
Agitation, political. See Opinion, Lib- erty of; Political Associations; Public Meetings.
Aliens, protection of, ii. 156-161; Alien Acts, 157, 158; Traitorous Corre- spondence Act, 158 ; Napoleon's
demands refused, 159; the Con- spiracy to Murder Bill, 162 ; Ex- tradition Treaties, 162. Almon, bookseller, proceeded against,
ii. II. Althorp, Lord, the Melbourne Ministry dismissed, on his elevation to the House of Lords, i. 99 ; brings for- ward cases of imprisonment for debt, ii. 142 ; his church-rates measure, 1834, 259; his plans for tithe commutation, 270 ; com- menced the modern financial policy, 404. American colonies, the war with, stopped by the Commons, i. 39, 367 ; pledge exacted by George III. of his Ministers to maintain the war, 34 ; the war with, a test of party prin- ciples, 407, 409 ; first proposals to tax them, ii. 353 ; Mr. Grenville's Stamp Act, 356 ; repealed, 357 ; Mr. Tovvnshend's scheme, 358 ; repealed, except the tea duties, 359 ; attack on the tea-ships, 360 ; the port of Boston closed, 360 ; the constitution of Massachusetts super- seded, 360 ; attempts at concilia- tion, 361 ; the tea duty repealed, 362 ; independence of colonies recognised, 362-363 ; its effect on Ireland, 329. Anne, Queen, the land revenues at her accession, i. 155 ; their alienation restrained, 155 ; her ciTiil list and debts, 157 ; increase of peerage during her reign, 185 ; created twelve peers in one day, 185 ; holders of offices disqualified by the Act of Settlement of her reign, 249 ; popular addresses to, praying a dissolution, 368 ; the press in the reign of, ii. 5 ; her bounty to poor clergy, 267. Anti-Corn Law League, the, ii. 118-121. Anti-Slavery Association, the, ii. 27, 2S,
112. Appellate jurisdiction of the House of Lords bill, i. 201.
409
4IO THE CONSTITUTIONAL HISTORY OF ENGLAND
Appropriation of grants by Parliament, the resolution against issue of un- appropriated money, i. 52 ; the commencement of the system, 156, 374 ; misappropriation of grants by Charles II., 156.
Appropriation question, the, of Irish Church revenue, ii, 298-302.
Arcot, Nabob of, represented in Parlia- ment by several members, i. 266.
Army, the, duty of muster-masters, i. 20, n. ; their abolition in 1818, 20, «. ; interference of military in ab- sence of a magistrate, ii. 26 ; Orange lodges in, iii ; impress- ment for, 137 ; freedom of wor- ship in, 208, 212 ; the defence of colonies, 374 ; flogging in, abated,
395- Army and Navy Service Bill opposed by George III., i. 71 ; withdrawn,
73-
Army and Navy Service Bill, the, ii. 207.
Arrest, on mesne process, ii. 143 ; abolished, 144.
Articles, the Thirty-nine, subscription to, by clergy, and on admission to the universities, ii. 175, 184, 255 ; by dissenting schoolmasters, abolished, 185, 186.
Assizes, the, a commission for holding, issued during George Ill.'s incap- acity, i. 127.
Associations. See Political Associa- tions.
Auchterarder Cases, the, ii. 285, 287.
Australian colonies, the settlement and constitutions of, ii. 350, 371.
Baker, Mr., his motion against the use of the king's name, i. 47.
Ballot, vote by, motions for adoption of, i. 280, 299 ; one of the points of the Charter, ii. 114; in the col- onies, 373.
Baptists, the number and places of worship of, ii. 272, 273, n.
Baronetage, past and present numbers of, i. 217.
Barr^, Colonel, deprived of his com- mand for votes in Parliament, i. 19 ; resigned his commission, 33 ; passed over in a brevet, 33,
Beaufoy, Mr., his efforts for the relief of dissenters, ii. 190-192.
" Bedchamber Question, the," i. 104.
Bedford, Duke of, remonstrated against Lord Bute's influence, i. 22 ; at- tacked by the silk-weavers, ii. 20.
Berkeley, Mr. H., his motions for the ballot, i. 300.
Birmingham, public meetings at, ii. 77, 99; election of a legislatorial at- torney, 77 ; political union of, 99, 100.
Births, bills for registration of, ii. 251.
Bishops, their number in the House, i, 201 ; attempts to exclude them, 202 ; their present position, 203 ; their votes upon the Reform Bill, 208 ; Irish representative bishops, 189.
Blandford, Marquess of, his schemes of reform, i. 277.
Boards. See Local Government.
Bolingbroke, Lord, his theory of " a patriot king," i. 8.
Boroughs, diff"erent rights of election in, i. 222, 223, 239; number, etc., of English nomination boroughs, 222, 223 ; of Scotch, 239 ; of Irish, 242 ; total number in the representation of the United Kingdom, 243 ; seats for, bought or rented, 225, 230, 232; advertised for sale, 227 ; prices of, 227, 231, 246; "borough-brokers," 228 ; law passed against the sale of boroughs, 233 ; Government boroughs, 233.
Boston, Lord, assaulted, ii. 25.
Boston, the port of, closed by Act, ii. 360.
Bourne, Mr. S., his Vestry Act, ii. 308.
Boyer, an early reporter of debates in Parliament, i. 332.
Braintree Cases, the, ii. 260.
Brand, Mr., his motion against the pledge required of the Grenville Ministry, i. 74.
Brandreth, execution of, ii. 72.
Bribery at elections, prior to Parliamen- tary reform, i. 224 ; commenced in reign of Charles II., 224 ; supported by George III., 229, 231 ; acts to restrain, 224, 226, 233 ; bribery since the Reform Act, 290 ; later bribery acts, 292 ; proof of agency, 292 ; inquiry by commission, 293 ; gross cases, 293, 294 ; travelling expenses, 294 ; policy of legislation,
295-
Bribery of members of Parliament See Members of the House of Com- mons.
Briellat, T., tried for sedition, ii. 35.
Bristol, reform riots at, ii. loi.
Brougham, Lord, his motion against the influence of the Crown, i. 91 ; opinion on life peerages, 198 ; ad- vised, as chancellor, the creation of new peers, 209 ; his motion for re- form, 282 ; on the duration of Par
INDEX
4Tt
liaraent, 297 ; defends Leigh Hunt, ii. 66 ; describes the Hcense of the press, 68, n. ; promotes popular education, 94, 400; his law re- forms, 385.
Brownists, the, ii. 168.
Buckingham, Marquess of, his refusal to transmit the address of the Irish Parliament to the Prince of Wales,
i. 131-
Bunbury, Sir C, attempts amendment of the criminal code, ii. 389.
Burdett, Sir F., his schemes of reform, i. 273, 274 ; committed for con- tempt, 3^8 ; resists the warrant, 359; apprehended by force, 360; his actions for redress, 360 ; his Catholic Relief Bills, ii. 226, 231.
Burgage tenure, the franchise, i. 223.
Burghs (Scotland), reformed, ii. 315.
Burial, the, of dissenters with Church of England rites, ii. 249, 252 ; bills to enable dissenters to bury in church- yards, 253 ; permitted in Ireland,
253-
Burke, Mr., his scheme of economic re- form, i. 36, 161, 173; drew up the prince's reply to Pitt's scheme of a regency, 124 ; his proposal for sale of the Crown lands, 171 ; for reduc- tion of pension list, 173 ; opposed Parliamentary reform, 270, 271 ; his ideal of representation, 308; opposed Wilkes's expulsion, 316; his remark on the opposition made to the punishment of the reporters, 335 ; on pledges to constituents, 355 ; the character of his oratory, 385, 385 ; separates from the Whigs, 418; his alarm at the French Revolution, 418, ii. 33 ; among the first to advocate Ca- tholic relief, 187 ; his opposition to relief of dissenters, 194, 196.
Bute, county, the franchise of, prior to reform, i. 240, 241.
Bute, Earl of, his unconstitutional in- structions to George III., i. 7, 8; aids his personal interference in Government, 12, 13 ; his rapid rise, 14 ; becomes Premier, 15 ; arbitrary conduct, 15 ; and Parliamentary bribery, 254, 255 ; his fall, 17 ; secret influence over the king, 17, 22, 24; retired from court, 19; driven from office, ii. 7, 20.
Cabinet, the, admission of a judge to seat in, i. 71 ; temporary tenure of the offices in, by the Duke of Wellington, 100 ; Minute of, 1832,
212, n. See also Ministers of the Crown.
Calcraft, Mr., deprived of office for op- position to court policy, i. 20.
Cambridge University, admission of dis- senters to degrees at, ii. 185, 256 ; the petition for admission of dis- senters, 1834, 254; state of feeling at, on Catholic relief, in 1812, 215.
Camden, Lord, disapproved the Middle- sex election proceedings, i. 319, 323 ; defended his conduct in the Cabinet, 321 ; opinion on popular addresses to the Crown, 369 ; sup- ports the right of juries in libel cases, ii. 13, 17, 18 ; his decisions condemning the practice of general warrants, 125-129; protects a Ca- tholic lady by a private Act of Parliament, 187 ; opposes taxation of the American colonies, 357, 359 ; a friend to liberty, 387.
Campbell, Lord, his opinion on life peerages, i. 198 ; his Act to pro- tect publishers in libel cases, ii. it.
Canada, a Crown colony, ii, 362-363 ; free constitution granted, 363 ; the insurrection, and re-union of the provinces, 368 ; responsible go- vernment in, 369 ; establishes a protective tariff, 371 ; popular fran- chise in, 371.
Canning, Mr., his conduct regarding the Catholic question, i. 65, 76 ; in office, 76, 92 ; overtures to, from the court, 85 ; declined to support George IV. against his queen, 88, go, n. ; character of his oratory, 388 ; his influence on parties, 426 ; in office, 435 ; secession of Tories firom, 435, 436 ; supported by the Whigs, 436 ; advocates Catholic re- lief, 436, ii. 200, 214, 216, 220 ; brought in the Catholic Peers Bill, 221 ; his death, i. 437, ii. 227.
Capital punishments, multiplication of, since the Revolution, ii. 387 ; since restricted to murder and treason,
391- Caricatures, influence of, ii. 19. Carlton House, the cost of, i. 169. Carmarthen, Marquess of, proscribed for
opposition to court policy, i. 38. Caroline, Queen (of George IV.), the
proceedings against her, i. 87 ;
the Divorce Bill, 89 ; withdrawn,
90 ; effect of proceedings against,
upon parties, 434. Castle, the Government spy, ii. 151. Catholic Association, the, proceedings
of, ii. 88-92, 232, 235.
4t2 THE CONSTITUTIONAL HISTORY OF ENGLAND
Catholic Emancipation opposed by George III., i. 63, 64, 73 ; by George IV., 92 ; the measure carried, 93 ; a plea for Parliamentary reform, 276, 277. See also Roman Ca- tholics.
Cato Street Conspiracy, the, 11,84; dis- covered by spies, 152.
Cavendish, Lord J., his motion on the American wax, i. 39.
Cavendish, Sir H., reported the Com- mons' debates (1768-1774), 1. 328, n.
Censorship of the press, 11. 2-4.
Chalmers, Dr., heads the Free Kirk movement, 11. 284 ; moved deposi- tion of the Strathbogie Presbytery, 289.
Chancellor, Lord. See Great Seal, the.
Chancery, Court of, reformed, 11. 384,
385.
Charlemont, Earl of, heads Irish volun- teers, 11. 333 ; opposes claims of Catholics to the franchise, 337.
Charles I., alienated the Crown lands, 1. 154.
Charles II., wasted Crown revenues re- covered at his accession, i. 154 ; misappropriated army grants, 156 ; bribery at elections, and of mem- bers, commenced under, 224, 252.
Charlotte, Princess, question as to the guardianship of, i. 182.
Charlotte, Queen (of George III.), ac- cepted the resolutions for a re- gency, i. 125, 144.
Chartists, the, torch-light meetings, ii. 114; the national petition, 114; meetings and riots, 115; proposed election of popular representatives by, 115 ; the meeting and petition of 1848, 116-118.
Chatham, Earl of, in office at accession of George III., 1. 9; his retirement, 14 ; refusal to resume office, 18, 21 ; his demeanour as a courtier, 27 ; formed an administration, 27, 28 ; endeavoured to break up parties, 28 ; 111 health, 29, 30 ; retired from office, 30 ; his statement as to the Influence of the Crown, 31 ; re- ceives overtures from Lord North, 33 ; approved the Grenville Act, 246 ; advocated Parliamentary re- form, 264 ; favoured Triennial Par- liaments, 296 ; his opposition to the proceedings against Wilkes, 311, 319 ; his bill to reverse the pro- ceedings, 323 ; his resolution, 316 ; moved addresses to dissolve Parlia- ment, 323, 324, 369 ; condemned
the king's answer to the city ad- M dress, 322 ; strangers excluded I during his speeches, 323, 328 ; sup- ' ported popular addresses to the Crown, 369; his opinion on the exclusive rights of the Commons over taxation, 378 ; his position as an orator, 384, 392 ; effect of his leaving office on parties, 404 ; his protest against colonial taxation, ii. 357 ; that measure adopted by his Ministry during his illness, 358 ; his conciliatory propositions, 361 ; proposed to claim India for the Crown, 376. Chippenham election petition, Walpole displaced from office by vote upon, i. 245. Church of England, the relations of the Church to political history, ii. 163 ; the Church before the Reformation, 163 ; the Reformation, 164 ; under Queen Elizabeth, 168 ; relations of the Reformed Church with the State, 168 ; Church policy from James I. to Charles II., 170-172 ; attempts at comprehension, 174, 176; the Church at the Revolu- tion, 176; under William III., 176; state of, at accession of George III., 178 ; Wesley and Whitefield, 180 ; motion for relief from subscription to the Articles, 184 ; surrender by the Church of the fees on dissenters' marriages, etc., 252 ; the Church- rate question, 257 ; state of Church to end of last century, 263 ; hold of the Church over society, 264; church building and extension, 267 ; Queen Anne's bounty, 268 ; eccle- siastical revenues, 268 ; sums expended by charitable societies, 269, n. ; tithe commutation, 269 ; activity by the clergy, 271 ; Church statistics, 273 ; relations of the Church to dissent, 273 ; to Parliament, 274.
Church in Ireland, the establishment of, 11. 170 ; state of, at accession of Geo. III., 178 ; at the Union, 294 ; the tithes question, 294, 303 ; advances to the clergy, 296 ; Church reform, 297 ; the Tem- poralities Act, 297 ; the appropria- tion question, 298 ; the Irish Church commission, 299 ; the re- port, 302 ; power monopolised by Churchmen, 325.
Church of Scotland, the Presbyterian form of, ii. i6g ; legislative origin of, 169 ; Church policy from James
INDEX
413
I. to Geo. III., 173, 174, 176, 181; motion for relief from the Test Act, 195 ; the patronage question, 281- 289; earlier schisms, 283; the Free Kirk secession, 291.
Church rates, the law of, ii. 257 ; the question first raised, 259 ; the Braintree Cases, 260 ; number of parishes refusing the rate, 261 ; bills for abolition of, 261-262.
Civil disabilities. See Dissenters ; Jews; Quakers; Roman Catholics.
Civil list, the, of the Crown, i. 156, 157 ; settlement of, on accession of Geo. III., 158 ; charges, debts, and pen- sions thereon, 157-176 ; charges re- moved therefrom, 164 ; Civil List Acts, of 1782, 163 ; of 1816, 165 ; regulation of the civil list, 163-166 ; no debts upon, during the last three reigns, 166. See also Pensions from the Crown.
Clerke, Sir P. J., his Contractors' Bill, i. 260, 261.
Coalition Ministry, the, the formation of, i. 43 ; Coalition Ministries fa- voured by Geo. III., 404, 414 ; the Coalition, 1783, 411-414; at- tempted coalitions between Pitt and Fox, 419, 427, 428 ; coalition of the Whigs and Lord Sidmouth's party, 427 ; Lord Aberdeen's Min- istry, 455.
Cobbett, W., trials of, for libel, ii. 65; withdraws from England, 75 ; pro- secuted by Whig Government, 95.
Cockburn, Lord, his description of Scotch elections, i. 240.
Coke, Lady Mary, admired by the Duke of York, i. 177.
Coke, Lord, an authority for life peer- ages, i. 197.
Coke, Mr., moved a resolution hostile to the Pitt Ministry, i. 54.
Colliers and salters in Scotland, slavery of, ii. 148 ; emancipated, 149.
Colonies, British, colonists retain the freedom of British subjects, ii. 350; colonial constitutions, 351, 362, 365, 368 ; democratic form of, 371, 372 ; the sovereignty of England, 352 ; colonial expenditure, 352, 375 ; and commercial policy, 352, 367, 371 ; taxes common to dependencies, 353 » arguments touching Imperial taxation, 353 ; taxation of Ameri- can colonies, 356-361 ; the Crown colonies, 362 ; colonial administra- tion, 365 ; first appointment of Sec- retary of State for, 365 ; patronage surrendered to the colonies, 366 ;
responsible Government, 369 ; con- flicting interests of England and colonies, 371 ; dependencies un- fitted for self-government, 376 ; India, 376.
Commerce, restrictions on Irish, ii. 327 ; removed, 330, 332, 346 ; Pitt's propositions, 337 ; restrictions on colonial commerce, 352 ; the pro- tective system abandoned, 367, 402 ; the Canadian tariff, 371.
Commission, the, for opening Parlia- ment during incapacity of George III., questions arising thereupon, i. 125, 129, 144 ; the form of such commission, 144 ; his inability to sign a commission for prorogation, 140 ; and for holding assizes, 127.
Commissions to inquire into bribery at elections, i. 293.
Common Law, Courts of, reformed, ii. 384.
Commons, House of, position of, at accession of George III., i. 221 ; instances of his personal interfer- ence with, 19, 25, 31, 32, 45, 73 ; debate thereon, 36, 47, 52 ; resist- ance of the House to Pitt's first Ministry, 50 ; resolutions against a dissolution, 51, 369 ; against the issue of money unappropriated by Parliament, 52 ; against the recent changes in the Ministry, 52, 53 ; resolutions to be laid before George III., 54 ; resolution against inter- ference by the Lords, 55 ; com- ments on this contest, 57 ; debates on the pledge required of the Gren- ville Ministry, 74 ; action of the Commons as regards a regency, 115-151; doubts respecting the issue of new writs during George III.'s incapacity, 119; the election of a Speaker during the king's in- capacity, 124 ; the vote to author- ise the use of the great seal, 126, 144 ; the address on the king's re- covery, 128; the relations between the two Houses of Parliament, 204 ; the composition of the House since the Revolution, 220; its dependence and corruption, 220 ; defects in the representation, 221 ; nomination boroughs, 222-242 ; ill- defined rights of election, 222 ; number of small boroughs, 223 ; in- fluence of peers in the House, 224, 242 ; bribery at elections, 224 ; since reform, 290 ; at the general elections of 1761, 225 ; of 1768, 227 ; sale of boroughs, 226-233 ;
414 THE CONSTITUTIONAL HISTORY OF ENGLAND
gross cases of bribery, 228, 229 ; bribery supported by George III., 22g, 231 ; Crown and Government influence over boroughs, 11, 233 ; revenue officers disfranchised. 234 ; majority of members nominated, 242 ; trial of election petitions,
243 ; by committee of privileges,
244 ; at the bar of the House, 244 ; the Grenville Act, 245 ; corruption of members, 248-261 ; by places and pensions, 248 ; measures to disqualify placemen and pensioners, 250 ; number of, in Parliament, 250 ; judges disqualified, 252 ; bribes to members, 252-259 ; under Lord Bute, 254 ; the shop at the pay- office, 254 ; apology for refusing a bribe, 255 ; bribes by loans and lotteries, 257 ; by contracts, 260 ; Parliamentary corruption con- sidered, 261 ; the reform move- ment, 264-290 ; efforts to repeal the Septennial Act, 296 ; vote by ballot, 299 ; qualification Acts, 301 ; proceedings at elections improved, 302 ; later measures of reform, 302 ; relation of the Commons to Crown, law, and people, 309-383 ; contests on questions of privilege, 309 ; the proceedings against Wilkes, 310 ; his expulsion, 312 ; his expulsion for libel on Lord Weymouth, 315 ; his re-elections declared void, 317, 318 ; Luttrell seated by the House, 318 ; motions upon the Middlesex election pro- ceedings, 319 ; the House address the king condemning the city ad- dress, 322 ; the resolution against Wilkes expunged, 325 ; exclusion of strangers from debates, 326, 342 ; the exclusion of ladies, 343, M. ; the Lords excluded from the Commons, 330 ; contest with the printers, touching the publication of debates (1771), 330, 334 ; and with the city authorities, 337 ; re- port of debates permitted, 341 ; re- porters' and strangers' galleries, 345 ; publication of division lists, 345 ; strangers present at divisions, 347; publicity given to committee proceedings, 347 ; to Parliamentary papers, 347 ; freedom of comment upon Parliament, 348 ; early peti- tions to Parliament, 349; com- mencement of the modern system of petitioning, 350 ; debates on, re- strained, 354 ; pledges of members to their constituents, 355 ; discon-
tinuance of certain privileges, 357 ; to servants, 357 ; of prisoners kneeling at the bar, 358 ; privilege and the Courts of Law, 359-364 ; case of Sir F. Burdett, 359 ; Stock- dale and Howard's actions, 361- 362 ; commit Stockdale and his agents, 363 ; commit the sheriffs, 363 ; right of the Commons to pub- lish papers affecting character, 361 ; increased power of the Com- mons, 364 ; the proceedings regard- ing Jewish disabilities, 365 ; control of the Commons over the Govern- ment, 365 ; over peace and war. and over dissolutions of Parliament, 39, 73.366; votesofwant of confidence 39i 52, 56, 369 ; and of confidence, 96, 285, 370 ; impeachments, 370 ; relations between the Commons and Ministers since the Reform Act, 103, 372; their control over the national expenditure, 154, 374 ; liberality to the Crown, 375 ; stopping the supplies, 284, «., 377; supplies delayed, 55, 377 ; re- straints upon the liberality of the House, 377 ; exclusive rights over taxation, 378 ; the rejection by the Lords of a money bill, 379 ; relative rights of the two Houses, 381 ; conduct of the House in debate, 392 ; increased authority of the chair, 394 ; oath of supremacy im- posed on the Commons, ii. 165 ; O'Connell refused his seat for Clare, 239 ; number of Catholic members in, 240; Quakers and others admitted on affirmation, 241 ; a new form of oath established for Jews, 248, «. ; a resolution of the House not in force after a proroga- tion, 248, H. ; refusal to receive the petitions of the American colonists, 357. S^c 0/50 Membersof the House of Commons; Parliament; Petitions Commons, House of, Ireland, the com- position of, ii. 323-324 ; conflicts with the executive, 328 ; claim to originate money bills, 328 ; bought over by the Government, 333, 335,
344-
Commonwealth, the destruction of Crown revenues under, i. 154.
Conservative Party, the. See Parties.
Constitutional Association, the, ii. 87,
Constitutional Information Society, ii. 30 ; Pitt and other leading states- men, members of, 3 1 ; reported on by secret committee, 44 ; trial of members of, for high treason, 46.
INDEX
415
Contempt of court, imprisonment for, ii. 141.
Contracts with Government, a means of bribing members, i. 260 ; con- tractors disqualified from sitting in Parliament, 261.
Conventicle Act, the, ii. 173.
Convention, National, of France, corre- spondence with, of English soci- eties, ii. 31, 61.
Conventions. See Delegates, Political Associations.
Conway, General, proscribed for votes in Parliament, i. 19, 20 ; took office under Lord Rockingham, 23 ; dis- claimed the influence of the " King's friends," 24 ; his motion condemning the American war,
39- Copenhagen House, meetings at, ii. 53,
58.
Corn Bill (1815), the, ii. 70, 403.
Corn laws, repeal of, i. 451, ii. 118, 404.
Cornwall, Duchy of, the revenues of, the inheritance of Prince of Wales, i. 167 ; their present amount, 167.
Cornwall, Mr. Speaker, his death dur- ing George III.'s incapacity, i. 124.
Cornwallis, Marquess, his policy as lord-lieutenant of Ireland regard- ing Catholic relief, ii. 201, 374 ; concerts the Union, 342.
Corporations, the passing of the Cor- poration and Test Acts, ii. 173, 174 ; extortion practised on dis- senters under the Corporation Act, 183; motions for repeal of Cor- poration and Test Acts, 190-193, 195 ; their repeal, i. 438, ii. 228 ; the consent of the bishops, 229; the bill amended in the Lords, 230 ; admission of Catholics to, 235, 325, 338; and Jews, 244. — (England), the ancient system of Corporations, 309 ; loss of popular rights, 309 ; corporations from the Revolution to George IIL, 310 ; corporate abuses, 310; monopoly of elec- toral rights, 311, 312 ; corporate reform, 312 ; the bill amended by the Lords, 313 ; self-government restored, 314 ; the corporation of London excepted from the bill, 314. — (Ireland), apparent recogni- tion of popular rights in, 186, 317 ; exclusion of Catholics, 318; the first municipal reform bill, 318 ; opposition of the Lords, 320; the municipal Reform Act, 320. — (Scotland), close system in, 315 ; municipal abuses, 316 ; reform, 316.
Corresponding societies, proceedings of, ii. 22, 30, 37, 61 ; trials of members of, 37, 47 ; bill to repress, 62.
County elections, territorial influence over, i. 237 ; expenses of contests at, 238.
Courier newspaper, trial of, for libel, ii.
63-
Courts of law, the, and Parliamentary privilege, i. 358-365 ; decisions in Burdett's case, 359 ; in the Stock- dale cases, 361.
Crawfurd, Mr. S., his motion as to duration of Parliament, i. 297.
Crewe, Mr., his Revenue Officers' Bill, i. 234.
Cricklade, bribery at, i. 229 ; dis- franchised, 229.
Criminal code, improvement of, ii. 387, 390 ; counsel allowed in cases of felony, 392 ; summary jurisdiction of magistrates, 395 ; the transporta- tion question, 392.
Crosby, Brass, Lord Mayor, proceeded against for committing the mes- senger of the House, i. 337, 339 340.
Crown, the, constitutional position of, since the Revolution, i. i ; para- mount authority of, 2 ; sources of its influence, 2-4 ; by Government boroughs, 233 ; by places, peerages, and pensions, 91, 160, 248 ; by bribes, 252 ; by loans and lotteries, 257 ; by contracts, 260 ; measures for the diminution of its influence, by disqualification of placemen, etc., 42, 234, 248, 251, 261 ; by the powers of the Commons over the civil list expenditure, 155, 173 ; and over supplies, 374 ; constitu- tional relations between the Crown and Ministers, 4, 9, 71, 98, 104, 107, 372 ; the influence of the Crown over the Government during Lord Bute's Ministry, 15 ; Mr. Grenville's, 19 ; Lord Rocking- ham's, 25, 42; Lord North's, 31; Lord Shelburne's, 43 ; " the Coali- tion Ministry," 45 ; Mr. Pitt's, 59, 62 ; Mr. Addington's, 67 ; Lord Grenville's, 70; the influence of the Crown during the regency, 81 ; during the reigns of William IV. and her Majesty, 94-112; debates upon the influence of the Crown, 24, 36, 47, 52, 91, 92; violation of Parliamentary privileges by the Crown, 19, 25, 31, 38, 45, 52; bribery at elections, and of mem- bers supported by the Crown, 229,
41 6 THE CONSTITUTIONAL HISTORY OF ENGLAND
231, 256 ; influence of the Crowm exerted against its Ministers at elections, 11, 12; in Parliament, 19, 25, 45, 62, 71, 92; the attitude of parties a proof of the paramount influence of the Crown, 63, 84; its influence exerted in favour of re- form, 94, 97 ; wise exertion of Crown influence in the present reign, no; its general influence increased, no; Parliament kept in harmony by influence of the Crown, 206 ; the prerogatives of the Crown in abeyance, 113-151; the Regency Bills of George III., 114-144; of William IV., 148; of Queen Victoria, 151 ; powers of the Crown exercised by Parlia- ment, 122-127, 143, 145 ; the Royal Sign Manual Bill, 146 ; questions as to the rights of an infant king, 148 ; of a king's posthumous child, 150 ; the ancient revenues of the Crown, 152 ; the constitutional re- sults of the improvidence of kings, 155 ; the Parliamentary settlement of Crown revenues, 156 ; the civil list, 156-167; private property of the Crown, 168 ; provision for the royal family, 167 ; land revenues, 167 ; the pension list, 172 ; rights of Crown over the Royal Family, 176 ; over grandchildren, 177, 182; over royal marriages, 177 ; the Royal Marriage Act, 177; the question submitted to the judges, 179; opinion of law officers on the marriage of Duke of Sussex, 181 ; the attempt to limit the rights of Crown in the creation of peers, 185 ; numerous applications to the Crown for peerages, 191 ; the ad- vice of Parliament tendered to the CrowTi as to peace and war, a dis- solution, and the conduct of Min- isters, 39, 50, 364-370 ; addressed by the people on the subject of a dis- solution, 368 ; improved relations between the Crown and Commons, 372-375 ; the delay or refusal of the supplies, 55, 377 ; the recommenda- tion of the Crown required to mo- tions for grant of public money, 378. See also Ministers of the Crown.
Crown colonies, the. See Colonies.
Crown debtors, position of, ii. 140.
Crown lands. See Revenues of the Crown.
Cumberland, Duke of, conducted Minis- terial negotiations for the King, i. 21,
23 ; protested against resolutions for a regency bill, 125 ; his name omit- ted from the commission to open Parliament, 127 ; married Mrs. Horton, 176 ; (Ernest) grand master of the Orange Society, ii. 109 ; dissolves it, iii.
Curwen, Mr., his Act to restrain the sale of boroughs, i. 233.
Cust, Sir John, chosen Speaker, i. 12 ; altercations with, when in the chair,
394- Customs and excise officers dis- franchised, i. 234 ; numbers of, 234.
Danby, Earl, his case cited with refer- ence to Ministerial responsibility, i.78.
Daviot Case, the, ii. 287.
Deaths, Act for registration of, ii. 251.
Debates in Parliament, the publication of, prohibited, i. 331 ; sanctioned by the Long Parliament, 331 ; early publications of debates, 332 ; abuses of reporting, 333, 334 ; the contest with the printers, 335 ; opposed in twenty-three divisions, 335 ; re- porting permitted, 341 ; late in- stance of complaints against persons taking notes, 342 ; report- ing interrupted by the exclusion of strangers, 56, n., 342 ; political re- sults of reporting, 344 ; still a breach of privilege, 345 ; galleries for reporters, 345 ; freedom of comment on debates, 348 ; improved taste in debate, 394 ; personalities of former times, 392.
Debt, imprisonment for, ii. 144 ; debtors' prisons, 145 ; exertions of the Thatched House Society, 145 ; insolvent debtors, 146 ; later measures of relief, 146.
Delegates of political associations, the practice of, adopted, ii. 22, 61, loi, 109, 114 ; assembled at Edinburgh, 38 ; law against, 72 ; in Ireland, 88.
Democracy, associations promoted in 1792, ii. 28, 30 ; alarm excited by, 32 ; proclamation against, 34 ; in Scotland, 37 ; in the colonies, 371 ; discouraged by good government, 405. See also Party.
Denman, Lord, his decision in Stock- dale V. Hansard, i. 361.
Dering, Sir E., expelled for publishing his speeches, i. 331.
Derby, Earl of, the Reform Bill of big Ministry, 1859, i. 304 ; the rejec- tion of the bill, 306 ; his first Min-
INDEX
417
istry defeated on the house tax, 376; his Ministries, 454, 457, 462 ; persuades the Lords to agree to Jewish relief, ii. 247.
Derbyshire insurrection, the, ii. 72.
D'Este, Sir A., his claim to the dukedom of Sussex, i. 182.
Devonshire, Duke of, disgraced for op- position to the treaty with France, i. 16 ; resigned his lord-lieuten- ancy, 16.
Diplomatic relations with the Papal Court Bill, ii. 277, n.
Disraeli, Mr., his Reform Bill, 1859, i. 304.
Dissenters, origin of dissent, ii. 166-175 ; the penal code of Elizabeth, 165, 167 ; dissent from James I. to Chas. II., 171-174 ; attempts at compre- hension, 174, 176 ; Corporation and Test Acts, 173, 174; conduct of dissenters at the Revolution, 175 ; the Toleration Act, 175 ; dissenters in reigns of Anne and Geo. I. and II., 177; the Occasional Conformity Act, 177 ; annual Acts of Indemnity, 178, ». ; their numbers at accession of Geo. III., 179, n. ; impulse given by Wesley and Whitefield, 180; relaxation of penal code com- menced, 182 ; general character of the penal code, 183 ; extortion practised on dissenters by the City of London under the Cor- poration Act, 183 ; debate on subscription to the Articles by dis- senters, 184 ; and admission to universities, 184 ; subscription by dissenting schoolmasters abolished, 185, 186 ; offices in Ireland thrown open, 186 ; first motions for repeal of the Corporation and Test Acts, 190-194 ; motions for relief of Uni- tarians, 196 ; and of Quakers, 198 ; Lord Sidmouth's Dissenting Minis- ters' Bill, 213 ; relief from require- ments of the Toleration Act, 214 ; the army thrown open, 219; bills for relief of dissenters in respect of births, marriages, and burials, 224, 225, 249-252 ; repeal of the Corpor- ation and Test Acts, i. 438, ii. 228 ; dissenters admitted to the Com- mons on making an affirmation, 241 ; admitted to universities and endowed schools, 253, 257; the London University, 256 ; the Dis- senters' Chapels Bill, 256 ; final re- peal of penal code, 257 ; the church rate question, 257 ; progress of dis- sent, 265, 272 ; numbers of different
sects, etc., 272, 273 ; in Scotland, 294, n. ; in Ireland, 302 ; relations of the Church and dissent, 274 ; and of dissent to political liberty, 275.
Dissolutions of Parliament. See Ad- dresses to the Crown ; Parliament.
Divisions, instance of a stranger counted in a Commons' division, i. 327 ; twenty-three divisions on one ques- tion, 335; the lists of, published by both Houses, 346 ; presence of strangers at, 347.
Donoughmore, Lord, his motions for Catholic Relief, ii. 211, 214,215.
Douglas, Neil, trial of, for sedition, ii. 76.
Dowdeswell, Mr., opposed the expul- sion of Wilkes, i. 316, 320.
Downie, D., trial of, for high treason, ii. 45.
Drakard, J., trial of, for libel, ii. 66.
•' Droit le Roi," the book burnt by order of the Lords, i. 313.
Droits of the Crown and Admiralty, the, vested in the Crown till accession of William IV., i. 159, 165.
Dundas, Mr., his amendment to Mr. Dunning's resolutions, i. 36, 37.
Dundas, Mr., leader of the Tories in Scotland, i. 423.
Dundas, Mr. R., his influence in Scot- land, i. 430.
Dungannon, convention of volunteers at, ii. 333-334-
Dunning, Mr., his resolutions against the influence of the Crown, i. 36 ; denied the right of the House to in- capacitate Wilkes, 320.
Dyer, cudgelled by Lord Mobun for a libel, ii. 5.
Dyson, Mr., soubriquet given him by the reporters, i. 335.
Earl Marshal's Office Act, the, ii. 226.
East India, the Company allowed a drawback on tea shipped to America, ii. 359; first Parliamen- tary recognition and regulation of, 376 ; Mr. Fox's India Bill, 377 ; Mr. Pitt's, 379 ; the Bill of 1853, 380 ; India transferred to the Crown, 380 ; subsequent administration, 380.
East Retford, the disfranchisement bill of, i. 278.
Eaton, D. I., trial of, for sedition, ii.
43- Ebrington, Lord, his motions in sup- port of the Reform Ministry, i. 285, 286.
VOL. II.
27
41 8 THE CONSTITUTIONAL HISTORY OF ENGLAND
Ecclesiastical Commission, the, ii. 268. Ecclesiastical Titles Act, the, 185 1, ii.
279. Economic reform, Mr. Burke's, i. 36,
161, 173. Edinburgh, the defective representation
of, i. 239 ; bill to amend it, 241. Edinburgh Review, the influence of, ii.
430-
Education, proposals for a national system in England, ii. 400 ; in Ire- land, 303, 401 ; address of the House of Lords on the subject, 402 ; the system continued, 402.
Edward II., the revenues of his Crown,
i- 153-
Edward VI., his sign manual affixed by a stamp, i. 147.
Edwards, the Government spy, ii. 152.
Effingham, Earl of, his motion con- demning the Commons' opposition to Mr. Pitt, i. 54.
Eldon, Lord, the suspected adviser of George III. against the Grenville Ministry, 1807, '• 7^; at first dis- liked by the Regent, 82 ; condoled with George IV. on the Catholic Emancipation, 93 ; scandahsed when the Crown supported reform, 95 ; Chancellor to the Addington Ministry, 134 ; his declaration as to George III.'s competency to transact business, 138 ; obtained the royal assent to bills, 137, 138 ; his interview with the king, 138; negotiated Pitt's return to office, 137; his conduct impugned, 138; motions to omit his name from Council of Regency, 139; his opinion as to the accession of an infant king, 148 ; his position as a statesman, 388 ; retired from office on promotion of Canning, 435 ; opposes the repeal of the Corpor- ation and Test Acts, 438, ii. 229, 230 ; and Catholic relief, 237 ; as- sisted poor suitors to put in answers, 141 ; favours authority, 387 ; resists amendment of the penal code, 390.
Election petitions, the trial of, prior to the Grenville Act, i. 244 ; under that Act, 245 ; later election petition Acts, 246 ; their transfer to judges of superior courts, 248, n.
Elections, expensive contests at, i. 224, 227, 238 ; vexatious contests, 235 ; Acts to amend election proceedings, 302 ; writs for, addressed to return- ing officers, 302. See also Reform of Parliament.
Elective franchise, Ireland, the regula- tion of, ii. 227, 238 ; admission of Catholics to, 235, 347.
Elizabeth, queen, her Church policy, it. 165.
Ellenborough, Lord, his admission to the Cabinet, when Lord Chief Justice, i. 70; his conduct on the trials of Hone, ii. 75, n. ; a Cabinet Minister, 387 ; resists amendment of the criminal code, 390.
Entinck, Mr., his papers seized under a general warrant, ii. 128 ; brings an action, 128.
Erskine, Lord, his motions against a dissolution, i. 48, 51 ; his speech on the pledge required from the Grenville Ministry, 77 ; his support of reform, 270, 272, 273 ; the char- acter of his oratory, 387 ; a leading member of the Whig party, 416; supports the rights of juries in libel cases, ii. 14 ; case of Dean of St. Asaph, 14 ; of Stockdale, 15 ; pro- motes the libel Act, 16, 18 ; defends Paine, 29 ; and Hardy and Home Tooke, 47.
Erskine, E., seceded from the Church of Scotland, ii. 283.
Erskine, Mr. H., the leader of the Whigs in Scotland, i. 424.
Establishment Bill, the, brought in by Burke, i. 162.
Ewart, Mr., his efforts to reform the criminal code, ii. 391.
Exchequer chamber, court of, reverse the decision in Howard v. Gosset, i- 363.
Excise Bill, its withdrawal in deference to popular clamour, ii. 20.
Ex-officio information filed by Govern- ment for libels, ii. 8, 9, 68, 94 ; bills to restrain, 10, 12.
Expenditure, national, vast increase in, since 1850, ii. 405.
Extradition treaties, ii. 162.
Factories, labour of children, etc., regulated in, ii. 399.
Families, great, the state influence of, '• 5» 237; opposed by George III., 8, 28 ; their influence at the present day. III.
Financial policy, the present system of, ii. 404.
Fitzgerald, Mr. V., defeated in the Clare election, ii. 232.
Fitzherbert, Mr., proscribed for opposi- tion to court policy, i. 20.
Fitzherbert, Mrs., married the Prince of Wales, i. 181.
INDEX
419
Fitzwilliam, Earl, dismissed from his lord-lieutenancy for attending a public meeting, ii. 80 ; his conduct as lord-lieutenant of Ireland, 200, 340; his motion on the state of Ireland, 214.
Five Mile Act, the, ii. 173.
Flogging, articles on military flogging punished as libels, ii. 347 ; in army and navy abated, 395.
Flood, Mr., his reform bill, i, 270; his efforts for independence of Ireland, ii. 334 ; for reform, 336.
Foreigners. See Aliens.
Four and a half per cent, duties, the, sources of the revenue to Crown, i. 158, 165 ; charged with pensions, 173 ; surrendered by William IV.,
175- Fox, Mr. C. J., his remarks on the policy of George III., i. 34, 36, 39, 42 ; coalesced with Lord North, 43 ; in the Coalition Ministry, 45 ; brought in the India Bill, 46 ; dis- missed from office, 49 ; heads the opposition to Pitt, 51 ; his name struck off the list of Privy Coun- cillors by the king, 6i ; and pro- scribed from office, 68 ; admitted to office, 70 ; again dismissed, 74 ; his death loosened the tie between the regent and the Whigs, 82 ; his conduct regarding the Regency Bill, 120, 122 ; comments thereon, 130, 131 ; his disapproval of the Royal Marriage Act, 178 ; the Westminster election, 236; cost of the scrutiny, 236; received unfair treatment from Mr. Pitt, 237 ; de- nounced Parliamentary corruption by loans, 259; supported the pro- ceedings against Wilkes, 325 ; his wise remark on unrestrained re- porting, 342, 343 ; his position as an orator, 385 ; opposes the repressive policy of 1792, 419, ii. 34 ; and of 1794-1796, i. 408, ii. 55-60, 131 ; his advice to the Whigs to take office rejected, i. 409 ; refuses office under Lord Shelburne, 410 ; in office with Lord North, 411 ; his policy con- trasted with Mr. Pitt's, 411, n., 415 ; sympathises with the French Revolution, 418 ; attempted coali- tions with Mr. Pitt, 419, 427 ; de- serted by his party, 420 ; secedes from Parliament, 425 ; in office with Lord Sidmouth, 427, 428, ii. 207 ; effect of his death on parties, i. 428 ; his remark on the rights of juries in libel cases, ii. 13 ; his
libel bills, 16 ; takes the chair at a reform meeting, 1779, 22 ; advo- cates the relief of Catholics, 187, 205 ; and of Dissenters arxi Uni- tarians, 192, 193, 196 ; his India Bill, 377.
Fox, Mr. Henry, Sir R. Walpole's agent in bribery, i. 254.
Fox Maule, Mr., presents petition of the General Assembly, ii. 291.
France, the treaty of peace with, proscription of the Whigs for dis- approval of, i. 16 ; members bribed to support, 254.
Franchise, the, of England, at the ac- cession of George III,, i. 222, 223.
Franchise, the, of Scotland, i. 239.
Franchise, the, of Ireland, i. 242 ; under the Reform Act, 287-289 ; later measures of reform, 302 ; the fancy franchises of the Whigs, 303 ; of the Tories, 305, See also Reform in Parliament.
Free Church of Scotland, the, ii. 292.
Freedom of opinion. See Opinion, Freedom of.
Free trade, the policy of, adopted, i. 449-450, ii. 220, 400 ; effect of, on colonial policy, 367.
French Revolution, effect of, on parties, i. 417 ; sympathy with, of English democrats, ii. 28, 30, 31 ; alarm excited by, 32, 82, 85.
" Friends of the People," the society of, statements by, as to the composition of the House of Commons, i. 223, 242, 243 ; leading Whig members of, 351 ; discountenances demo- cracy, ii. 31.
Frost, J., tried for sedition, ii. 35.
Fuller, Mr. R., bribed by a pension from the Crown, i. 249.
Gascovne, General, his anti-reform motion, i. 284.
Gatton, the numbers of voters in, prior to reform, i. 223 ; the price of the borough, 246.
Gazetteer, the, complained against for publishing debates, i. 334.
General Assembly, the (Church of Scotland), petitions for relief from the Test Act, ii. 195 ; passes the Veto Act, 284-285 ; rejects Lord Aberdeen's compromise, 287; ad- dresses her Majesty, 248; admits the quoad sacra ministers, 290; petitions Parliament, 291 ; the se- cession, 291 ; the Veto Act re- scinded, 292.
27
420 THE CONSTITUTIONAL HISTORY OF ENGLAND
General warrants, issued in the case of the "North Briton," ii. 124; against Mr. Entinck, 128 ; actions brought in consequence, 126 ; con- demned in Parliament, 129.
Gentleman's Magazine, the, one of the first to report Parliamentary de- bates, i. 332.
George I,, his civil list, i. 157 ; the powers he claimed over his grand- children, 117; consented to the Peerage Bill, 185, 186.
George II., his Regency Act, i. 114; his civil list, 157 ; the great seal affixed to two commissions during his illness, 126 ; his savings, 159.
George III., the accession of, i. 6; his education, 7 ; determination to govern, 8-12 ; his jealousy of the Whig famihes, 8 ; his secret coun- sellors, 9 ; his arbitrary conduct and violation of Parliamentary privi- leges during Lord Bute's Ministry, 15; during Mr. Grenville's, 19, 20 ; his differences with that Ministry, 19, 21, 23 ; his active interference in affairs during that Ministry, 21 ; pledged himself not to be influenced by Lord Bute, 22 ; consented to dismiss Mr. S. Mackenzie, 22 ; the conditions of the Rockingham Ministry, 24 ; exerted his influence against them, 25, 27 ; attempted, with Chatham, to destroy parties, 28 ; his influence during Chatham's Ministry, 28, 30 ; tried to retain him in office, 30 ; the king's ascend- ency during Lord North's Ministry, 31, 34, 40; his irritation at opposi- tion, 31, 32, 33, 34; exerted his will in favour of the Royal Mar- riage Bill, 31 ; took notice of proceedings in Parliament, 32 ; proscribed ofificers in opposition, 33 ; exacted a pledge of his Minis- ters to maintain the American war, 34 ; his overtures to the Whigs, 34, 35 ; debates on his personal interference in Parliament, 36-38, 47, 48; sought to intimidate the Opposition peers, 38 ; the defeat of his American policy, 39 ; his ap- proval of Lord North's conduct, 40 ; the results of the king's policy, 41 ; the second Rockingham Ministry, 42 ; their measures to repress his influence, 42, 173, 235, 251 ; Lord Shelburne's Ministry, 43 ; the king's resistance to the " Coalition," 45- 48 ; his negotiations with Pitt, 44 ; use of his name against the India
Bill, 46 ; his support of Pitt against the Commons, 53-56 ; his position during this contest, 57 ; its result upon his policy, 59 ; his relations with Pitt, 60 ; his general influence augmented, 60, 63 ; prepared to use it against Pitt, 62 ; the king's op- position to the Catholic question, 63 ; his illness from agitation on this subject, 67 ; his relations with Addington, 65, 67 ; Pitt reinstated, 67 ; the king's refusal to admit Fox to office, 68 ; the admission of Lord Grenville and Mr. Fox to office, 70 ; his opposition to changes in army administration, 71 ; uncon- stitutional use of his influence against the Army and Navy Service Bill, 71 ; the pledge he required of his Ministers, 73 ; his anti-Catholic appeal on the dissolution (1807), 79; his influence prior to his last illness, 79, 80 ; his character com- pared to that of the Prince Regent, 81; the king's illnesses, 113-146; the first illness, 113 ; his scheme for a regency, 114; modified by Min- isters, 115; speech and addresses on this subject, 115 ; consented to the withdrawal of his mother's name from Regency Bill, 117; his second illness, 118; recovery, 128; anxiety to provide for a regency, 131 ; his third illness, in the in- terval between the Pitt and Adding- ton Ministries, 132 ; recovery, 133 ; fourth illness, 135 ; questions aris- ing as to his competency to transact business, 136-139; gave his assent to bills, 136 ; anecdote as to his reading the bills, 137 ; Pitt's inter- view with the king, 137 ; his last illness, 139 ; the passing of the Re- gency Bill, 141-144; his civil list, 158 ; other sources of his revenue, 158; the piu^chase of Buckingham House, 159; his domestic economy, 159 ; debts on his civil list, 160 ; prof\ision in his household, 162 ; his message on the public expendi- ture, 163 ; his pension list, 173 ; his annoyance at his brothers' mar- riages, 176 ; his attachment to Lady S. Lennox, 177; the Royal Mar- riage Act, 178; claimed the guar- dianship of Princess Charlotte, 182 ; profuse in creation of peers, 186; his expenditure at elections, 230 ; supported bribery at elections, and of members, 229, 231, 256 ; his opposition to reform, 62, 268 ; his
INDEX
421
answer to the city address on the proceedings against Wilkes, 321, 322 ; his objection to political agi- tation by petitions, 352 ; his party tactics on accession, 403 ; influence of his friends, 404 ; overcomes the Coalition, 412 ; influenced by Lord Thurlow, 415 ; his repugnance to the Whigs, 416, 428 ; to Fox, 427 ; directs the suppression of the Gor- don riots, ii. 26 ; his speech and message respecting seditious prac- tices, 1792 and 1794, 34, 43, 44 ; at- tacked by the mob, 53 ; opposes Catholic relief, 202, 203 ; and the Army and Navy Service Bill, 209 ; his message to Parliament touching affairs in Ireland, 334 ; seeks to tax the American colonies, 354, 356.
George IV., the ascendency of the Tory party under, i. 87 ; the pro- ceedings against his queen, 87, 88 ; his aversion to Lord Grey and the Whigs, 90, 91 ; his popularity, 91 ; his opposition to Catholic claims, 92 ; yielded, but showed his dis- like to his Ministers, 93 ; the Act to authorise him to affix his sign manual by a stamp, 146 ; his civil list and other revenues, 164, 165 ; his conduct on the passing of the Catholic Relief Bill, 235, 238.
Germaine, Lord G., his statement re- specting George III.'s personal in- fluence, i. 34.
German Legion, the, Cobbett's libel on, ii. 66.
Gerrald, J., tried for sedition, ii. 41, 42.
Gibson, Mr. Milner, heads movement against taxes on knowledge, ii. 97 ; his proposal to establish county financial boards, 322.
Gillray, his caricatures, ii. 19.
Gladstone, Mr., separates from Lord Palmerston's Ministry, i. 456 ; his financial policy, ii. 404.
Glasgow, the defective representation of, i. 239.
Gloucester, bribery at, i. 294.
Gloucester, Duke of, married Lady Waldegrave, i. 176.
Goderich, Lord, his administration, i.
437- Goldsmiths' Hall Association, the, ii.
38, 41- Good Hope, Cape of, a constitution
granted to, ii. 373. Gordon, Lord G., the petitions that he
presented to Parliament, i. 351 ;
heads the Protestant Association,
ii. 24, 188 ; presents their petition, 24 ; committed to Newgate, 27.
Gosset, Sir W., sued by Howard for trespass, i. 363, 364.
Government, executive, control of Par- liament over, i. 365 ; strong and weak Governments since the Re- form Act, 372. See also Ministers of the Crown.
Gower, Earl of, his amendment to re- solutions for a regency, i. 143 ; cleared the House, 329.
Gower, Lord F. L., his resolution for the State endowment of Irish priests, ii. 227.
Grafton, Duke of, dismissed from lord- lieutenancy for opposing the court policy, i. 16 ; accepted office under Lord Chatham, 27 ; complained of the bad results of Chatham's ill- health, 30 ; consequent weakness of the Ministry, 30 ; his resigna- tion, 30 ; his Ministry broken up by debates upon Wilkes, 320.
Graham, Sir J., separates from Lord Palmerston's Mmistry, i. 456 ; case of opening letters by, ii. 154 ; his answer to the claim, etc., of the Church of Scotland, 289.
Grampound, the disfranchisement bills of, i. 275.
Grant, Mr. R., his motions for Jewish relief, ii. 242, 244.
Grattan, Mr., the character of his oratory, i. 388 ; advocates Catholic relief, ii. 206, 211, 214-217; the in- dependence of Ireland, 332, 334, 345 ; his death, 220.
Great Seal, the, use of, under authority of Parliament, during George III.'s illness, i. 123, 126, 141 ; questions arising thereupon, 129 ; affixed by Lord Hardwicke to two com- missions during illness of George IL, 126.
Grenville Act, trial of election petitions under, i. 245 ; made perpetual, 246.
Grenville, Lord, the proposal that he should take office with Pitt, i. 68 ; formed an administration on his death, 70 ; differed with the king on the army administration, 71 ; the Army Service Bill, 71 ; Cabinet minute reserving liberty of action on the Catholic question, 73 ; pledge required by the king on that sub- ject, 73 ; dismissed, 74 ; his advice neglected by the regent, 82 ; at- tempted reconciliation, 83 ; failure of negotiations on the " household question," 85 ; his difficulty in
422 THE CONSTITUTIONAL HISTORY OF ENGLAND
issuing public money during George III.'s incapacity, 144; the tactics of his party, 427, 428, 433 ; in office, 426, ii. 207 ; introduces the Treason- able Practices Bill, 54; advocates Catholic relief, 203, 204 ; his Army and Navy Service Bill, 207 ; fall of his Ministry, 209.
Grcnville, Mr. George, succeeded Lord Bute as Premier, i. 17; did not defer to George III., i8 ; remon- strated against Lord Bute's influ- ence, 18, 21 ; supported the king's arbitrary measures, 19; differences between them, 22 ; his Election Petitions Act, 245 ; his statement of amount of secret service money, 255 ; the bribery under his Ministry, 255, 256 ; opposed Wilkes's expul- sion, 316 ; his motion for reduction of land tax, 376 ; attacked by Wilkes, ii. 8 ; his schemes for tax- ation of American colonies, 356 ;
Grey, Earl, his advice neglected by the regent, i. 82 ; declined office on the " household question," 85 ; ad- vocated reform, and led the Reform Ministry, 94, 208, 270, 273, 282 ; lost the confidence of William IV., 98 ; accused Lord Eldon of using George III.'s name without due authority, 136, 138 ; the regulation of the civil list by his Ministry, 166 ; his views on the present state of the House of Lords, 207, n. ; ad- vised the creation of new peers, 209, 211 ; favoured a shorter duration of Parliament, 296; the character of his oratory, 388 ; the separation of his party from the Radicals, 431, 442 ; carries Parliamentary Reform, 440; his Ministry, 441-446; his Army and Navy Service Bill, ii. 2o8; advocates Catholic claims, 210; and relief from declaration against transubstantiation, 219.
Grey, Mr. (1667), an early reporter of the debates, i. 331, 332.
Grosvenor, General, his hostile motion against Mr. Pitt's Ministry, i. 53.
Grote, Mr., advocated vote by ballot, i. 300.
Habeas Corpus Suspension Acts, the, of 1774, ii. 44, 51, 131 ; of 1817, 71, 134; of i860 and 1871, 136; cases of, between the Revolution and 1794, 131 ; the Acts of Indem- nity, 131-136; in Ireland, 136, 221.
Halifax, Earl of, issue of general war- rants by, ii. 125, 128 ; action
brought against him by Wilkes, 127 ; obtained the consent of George III. to exclude his mother from the regency, i. 117.
Hamilton, Duke of, a Scottish peer, not allowed the rights of an Eng- lish peer, i. 193.
Hamilton, Lord A., advocated reform in the representation of Scotland, i. 241.
Hanover, House of, the character of the first two kings of, favourable to constitutional government, i. 5.
Hanover, kingdom of, the revenues attached to the Crown till her Ma- jesty's accession, i. 167.
Hansard, Messrs., sued by Stockdale for libel, i. 361.
Harcourt, Lord, supported the influence of the Crown over Parliament, i.
25- Hardwicke, Lord, affixed the great seal
to commissions during illness of
George II., i. 126. Hardwicke, Lord, changes caused by
his Marriage Act, ii. 224. Hardy, T., tried for treason, il 47. Harrowby, Earl of, supported George
IV. on the Catholic question, i.
77-
Hastings, Mr. Warren, impeachments not abated by dissolution, estab- lished in his case, i. 371.
Hastings, the sale of the seat for this borough, i. 233.
Hawkesbury, Lord, the supposed ad- viser of George III. against the Grenville Ministry, i. 76 ; his de- claration as to the king's compet- ency to transact business, 136 ; his refusal of Napoleon's demands against the press and foreigners, ii. 64, 159.
Heberden, Dr., his evidence regarding the king's illnesses, i. 138, 139.
Henley, Mr., seceded from the Derby Ministry on the question of reform, i. 305.
Henry III., V., VI., and VII., the revenues of their Crowns, i. 153, 154.
Henry VIII., his sign manual affixed by a stamp, i. 146, 147 ; his Crown revenues, 153.
Herbert, Mr., his bill as to the expulsion of members, i. 321.
Heron, Sir R., his bill for shorten- ing the duration of Parliament, i. 297.
Hewley, Lady, the case of her charities, ii. 256.
INDEX
423
Hindon, bribery at, i. 229,
Hobhouse, Mr., committed for libelling
the Housa of Commons, i. 348. Hobhouse, Sir J., his Vestry Act, ii.
308. Hoghton, Sir H., his Dissenters Relief
Bills, ii. 185. Holdernesse, Lord, retired from office
in favour of Lord Bute, i. 13, Holland, Lord, his amendment for an
address to the Prince of Wales, i.
142. Hone, W., trials of, for libel, ii. 75. Horner, Mr. F., his speech against a
Regency Bill, i. 142. Horsley, Bishop, his opinion on the
rights of the people, ii. 55 ; amends
the Protestant Catholic Dissenters
Bill, 194. Household, the. Sec Royal Household. House Tax, the. Lord Derby's Ministry
defeated on, i. 377. Howard, Messrs., reprimanded for con- ducting Stockdale's action, i. 362 ;
committed, 363 ; sued the sergeant-
at-arms, 363, 364. Howick, Lord, denounced secret advice
to Crown, i. 75, 76. See also Grey,
Earl. Hudson, Dr., tried for sedition, ii.
36. Hudson's Bay Company, the, ii. 403. Hume, Mr., his motion against Orange
lodges in the army, ii. iii ; his
scheme for voluntary enlistment,
139; his proposed reform of county
administration, 322 ; his exertions
in revision of official salaries,
383. Hunt, Leigh, tried for libel, ii. 66. Hunt, Mr., headed the Manchester
meeting, ii. 78 ; tried for sedition,
84. Huskisson, Mr., his prophecy as to
reform in Parliament, i. 279; his
commercial policy, 434, ii. 403.
Impeachment of Ministers by Parlia- ment, i. 370 ; rare in later times, 371; not abated by a dissolution,
371. Impressment, for the army, ii. 136, 137 ;
for the navy, 137. Imprisonment, for debts to the Crown,
ii. 140 ; contempt of court, 141 ;
on mesne process, 143 ; for debt,
144. See also Prisons. Indemnity Acts, the, on expiration of
the Habeas Corpus Suspension
Acts, ii. 133, 134; — Annual, the
first passed, 118, n.
Independents, the, their tenets, ii. 167- 168 ; their toleration, 172 ; num- bers, etc., 272, 273, n.
India. See East India,
India Bill, the (1783), thrown out by influence of the Crown, i. 48, 49.
Informers. See Spies.
Insolvent debtors, laws for the relief of, ii. 146.
Ireland, the position fo he Church in, caused alarm toWtilliam IV., i. 98; number of archbishops and bishops of, 189; lost their seats in Parliament by Act of 1869, 189, n. ; representative bishops of, 189 ; — civil list of, 165 ; pensions on the Crown revenues of, 173, 174; con- solidated with English pension list, 175 ; — the Parliament of, their proceedings on the regency, 131; address the Prince, 131; Irish office holders disqualified for Parlia- ment, 251; — the representative peers of, 188 ; restriction upon the number of the Irish peerage, i8g ; its absorption into the peerage of the United Kingdom, 195 ; Irish peers sit in the Commons, 189 ; — re- presentation of, prior to the Re- form Bill, 242, 243 ; nomination boroughs abolished at the Union, 242 ; Irish judges disqualified, 252; — the Reform Act of, 289; amended (1850), 289; the Refor- mation in, ii. 170; dangerous state of, 1823-25, 226 ; and in 1828, 232 ; burial grounds in, open to all per- suasions, 253 ; the tithe question, 294, 299-302 ; national education, 303, 401 ; Maynooth and Queen's Colleges, 304 ; Government of Ire- land prior to the Union, 323 ; the Parliament, 323 ; the executive, 325 ; power monopolised by church- men, 325 ; supremacy of English Government, 326 ; commercial re- strictions, 327; partially removed, 330. 332; residence of lord- lieuten- ant enforced, 305, 328 ; conflicts between the Commons and the Executive, 328; state of Ireland, 1776, 329 ; the volunteers, 331 ; they agitate for independence and Parliamentary reform, 332-334, 336 ; the conventionat Dungannon, 333- 334 ; independence granted, 335 ; admission of Catholics to the elec- tive franchise, 197, 338 ; the United Irishmen, 62, 339 ; feuds between Protestants and Catholics, 340 ; the rebellion of 1798, 341 ; Union with
424 THE CONSTITUTIONAL HISTORY OF ENGLAND
England concerted, 342 ; opposi- tion bought off, 344 ; the Union effected, 346 ; its results, 346 ; ef- fect of Catholic relief and reform in the representation, 238, 347; present position of Ireland, 238 ; and of its Catholic inhabitants, 348 ; the number of Irishmen on the English bench, 349, ». ; — cor- porate reform, 317 ; new poor law introduced into, 397. Irnham, Lord, his daughter married to the Duke of Cumberland, i. 176.
Jamaica, colonial institutions in, ii. 351, 362; contumacy of assembly re- pressed, 368.
James I., his Crown revenues, i. 153.
James II., expelled by union of Church and dissenters, ii. 175 ; his pro- posal to tax colony of Massachu- setts, 354.
Jews, the admission of, to Parliament, i. 365 ; Naturalisation Act of, 1754, repealed, ii. 20 ; tolerated by Crom- well, 172 ; excepted from Lord Hardwicke's Marriage Act, 224; the first motions for their relief, 242; Mr. Grant's motions, 243- 244 ; Jews admitted to corpora- tions, 244 ; returns of Baron Roth- schild and Mr. Salomons, 245, 246 ; attempt to admit Jews under de- claration, 247; the Relief Acts, 247, 248 ; nimiber of, returned, 248.
Johnson, Dr., a compiler of Parliamen- tary reports, i. 332, 333, 342, 384, n.
Jones, Mr. Gale, committed for libel on the House of Commons, i. 348.
Judges, the introduction of a judge into the Grenville Cabinet, i. 71 ; dis- qualified from Parliament, 252 ; except the Master of the Rolls, 252; their conduct in libel cases, "• 73 » 75; number of Irishmen on the English bench, 349, n.; spirit and temper of the judges, 386 ; their tenure of office assured, 387.
Junius, the letter of, to the king, ii. 10, II.
Juries, rights of, in libel cases, ii. 11-18.
Kenninqton Common, Chartist meet- ing at, ii. 116.
Kent, Duchess of, appointed Regent (1830), i. 149.
Kentish petitioners imprisoned by the Commons, i. 350.
Kenyon, Lord, his opinion on the cor- onation oath, i. 64.
Kersal Moor, Chartist meeting at, ii. 115; election of popular represen- tative at, 115.
King, Lord, moved to omit LordEldon's name from the Council of Regency, i. 139.
King, questions as to accession of an infant king, i. 148 ; as to the rights of a king's posthumous child, 150 ; rights of a king over the royal family, 176. See also CrowTi, the.
" King's friends, the," the party so called, i. 9 ; their influence, 17 ; led by Addington, 68, 70 ; their activity against the Army Service Bill, 71, 72; the "nabobs" rank themselves among them, 225 ; a section of the Tory party, 404 ; estranged from Pitt, 426 ; coalesce with 5ie Whigs, 427; estranged from them, 429.
Knight's (a negro) case, ii. 148.
Knighthood, the orders of, i. 217, 218.
Ladies, debates in the Commons at- tended by, i. 328 ; their exclusion,
343. «• Lambton, Mr., his motion for reform, i.
243. 275.
Lancaster, Duchy of, the revenues of, attached to the Crown, i. 153, 158, 167 ; present amount, 167.
Land revenues of the Crown. See Rev- enues of the Crown.
Land tax, the, allowed twice over to Crown tenantry, i. 171 ; reduced by vote of the Commons, 378 ; third reading of a land tax bill delayed,
51, 377-
Lansdowne, Marquess of, his amend- ment to resolutions for a regency, i. 143 ; his motions respecting the marriages of Catholics and dis- senters, ii. 224 ; for relief of English Catholics, 224.
Lauderdale, Earl of, condemned the King's conduct to the Grenville Ministry, i. 78.
Law, the, improvement in the spirit and administration of, ii. 385; legal sinecures abolished, 385, 386.
Legislatorial attorneys, election of, at public meetings, ii. 77 ; practice of, imitated by the Chartists, 115.
Leicester, case of bribery from corporate funds of the borough of, i. 277.
Lennox, Lady S., admired by George III., i. 177.
Lethendy Case, the, ii. 287.
Letters, opened at the Post Office, by Government, ii. 153; the former
INDEX
425
practice, 153, and «. ; case of, in 1844, 154.
Libel, the Libel Act, ii. 16-18 ; Lord Sidmouth's circular to the lord-lieu- tenants respecting seditious libels, 73 ; conduct of judges in libel cases, 75. See also Sedition, etc.
Liberal Party, the. See Party.
Liberty of opinion. See Opinion, Liberty of.
Liberty of the subject. See Subject, Liberty of.
Licensing Act, the, ii. 4 ; not renewed,
4-
Life peerages, i. 195 ; to women, 196 ; the Wensleydale peerage case, 198.
Liverpool, Earl of, his Ministry, i. 87 ; conducted the proceedings against Queen Caroline, 88 ; his administra- tion, 431, 434 ; disunion of the Tories on his death, 435 ; his Ministry and the Catholic question, ii. 2i6.
Loans to Government, members bribed by shares in, i. 257 ; cessation of the system, 259.
Local government, the basis of consti- tutional freedom, ii. 307 ; vestries, open and select, 308 ; Vestry Acts, 308 ; municipal corporations before and after reform, 309-319 ; local boards, 321 ; courts of quarter ses- sions, 321.
Logan, the Rev. Mr., his defence of Warren Hastings, ii. 15.
London, city of, address George IIL condemning the proceedings against Wilkes, i. 321, 322.
London, Corporation of, extortion prac- tised by, on dissenters, ii. 183 ; ad- dress of the Common Council on the Manchester massacre, 80 ; schemes for its reform, 314.
London Corresponding Society, the, ii. 31 ; reported on by a secret com- mittee, 44 ; trial of members of, for high treason, 47 ; inflames public discontent, 52 ; calls a meeting at Copenhagen House, 53 ; address on an attack on George IIL, 58 ; increased activity of, 61 ; suppressed by Act, 62.
London Magazine, the, one of the first to report Parliamentary debates, i. 332.
London University, founded, ii. 256.
Lord-lieutenant of Ireland, the residence of, enforced, ii. 328.
Lords, House of, relations of, with the Crown, i. 2, 206 ; the influence of the Crown exerted over the
Lords, 16, 37, 46, 97, 210; debates on the influence of the Crown, 36; rejection of the India Bill by the Lords, 48, 49 ; they condemn the Commons' opposition to Mr. Pitt, 54 ; their proceedings on the reform bills, 96, 207, 285 ; the pro- posed creation of peers, 96, 209, 286 ; position of the House in the State, 184, 203 ; increase of its numbers, 184- 191; such enlarge- ment a source of strength, 204 ; twelve peers created in one day by Queen Anne, 185 ; the representa- tive peers of Scotland and Ireland, 185, 188,189; proposed restrictions upon the power of the Crown, and the regent, in the creation of peers, 185, 187; profuse creations by George III., 186 ; composition of the House in i860, 190 ; its repre- sentative character, 192 ; the rights of peers of Scotland, 193 ; the appellate jurisdiction of the Lords, 195 ; bill to improve it, 201 ; the life-peerage question, 196 ; Lords spiritual, 201 ; their past and pre- sent number, 201 ; attempts to exclude them, 202; the political position of the House, 203 ; the influence ol parties, 205 ; collisions between the two Houses, 205, 206 ; the danger now increased, 206 ; the creation of sixteen peers by William IV., 208 ; creation of new peers equivalent to a dissolution, 21 1 ; position of the House since reform, 212 ; their independence, 213 ; the scanty attendance in the House, 215 ; smallness of the quorum, 215 ; indiff'erence to business, 216; de- ference to leaders, 216 ; influence of peers over the Commons through nomination boroughs, 224; and through territorial influence, 237, 243 ; refusal of the Lords to indem- nify the witnesses against Walpole, 254 ; the proceedings against Wilkes, 312, 315 ; the book " Droit le Roi " burnt, 313 ; their address to condemn the city address on the Middlesex election proceedings, 322 ; debates on those proceedings, 319, 323 ; strangers and members excluded from debates, 328, 343 ; scene on one occasion, 329 ; report of debates permitted, 341, 345 ; presence of strangers at divisions, 347 ; publicity given to committee proceedings, 347 ; to Parliamentary papers, 347 ; the privilege to set-
426 THE CONSTITUTIONAL HISTORY OF ENGLAND
vants discontinued, 357 ; and of prisoners kneeling at the bar, 358 ; the control of the Lords over the executive Government, 365 ; they advise the Crown on questions of peace and war, and of a dissolution, 366; their rejection of a money bill, 379 ; relative rights of the two Houses, 379; conduct of the House in debate, 392 ; the Catholic peers take their seats, ii. 239. See also Parliament ; Peerage ; Peers.
Lords, House of (Ireland), composition of, ii. 323.
Lords spiritual. See Bishops.
Lottery tickets (Government), members bribed by, i. 258.
Loughborough, Lord, joins the Tories, i. 419 ; prompts the repressive policy of the Government, ii. 33.
Luddites, the, outrages of, ii. 69.
Ludgershall, price of seat, i. 228.
Lunatics, a state provision for, ii. 398.
Lushington, Dr., a life peerage offered to, i. 198 ; disqualified from Parlia- ment, 252.
Luttrell, Colonel, his sister married to the Duke of Cumberland, i. 176; op- posed Wilkes for Middlesex, 318; enforced the exclusion of reporters, 342.
Lyndhurst, Lord, his motion on the life-peerage case, i. 198; brought in the Dissenters' Chapels Bill, ii. 256-257.
Lyttelton, Lord, his address respecting the regency, i, 116; his complaint against the book called " Droit le Roi," 313.
Lyttleton, Mr., his motion on the dismis- sal of the Grenville Ministry, i. 78.
Macclesfield, Lord, his decision touching the rights of the king over his grandchildren, i. 178.
Mackenzie, Mr. S., dismissed from office, i. 24.
Mackintosh, Sir J., his defence of Peltier, ii. 64, 65 ; his efforts to reform the criminal code, 390.
M'Laren, and Baird, trial of, for sedi- tion, ii, 76.
Magistrates, military interference in absence of, ii. 26; the summary jurisdiction of, 395.
Manchester, Duke of, strangers excluded on his motion relative to war with Spain, i. 329.
Manchester, public meeting at, ii. 78 ; the massacre, 79 ; debates thereon in Parliament, 79-81.
Mansfield, Lord, exhorted George IH. to exert his influence over Parlia- ment i. 26 ; the precedent of his ad- mission to the Cabinet cited, 71; his opinion on the right of the Com- mons to incapacitate Wilkes, 319, 323 ; accused by Wilkes ofaltering, a record, 314 ; his decisions touching the rights of juries in libel cases, ii. II, 14; produced the judgment in Woodfall's case to the House of Lords, 13 ; his house burnt by the Protestant rioters, 26 ; his opinion on military interference in absence of a magistrate, 26 ; his decision in the negro case, 147 ; and recognis- ing toleration, 184 ; his tolerant acquittal of a priest, 187 ; a Cabinet Minister, 387.
Manufacturing districts, state of the, ii. 77. 264.
Marchmont, Lord, his motion on the Middlesex election proceedings, i. 321.
Margarot, M., trial of, for sedition, ii. 41, 42.
Marriages, laws affecting the, of Dis- senters and Catholics, ii. 224-225, 249-252 ; effect of Lord Hard- wicke's Act, 224.
Martin, Mr., his duel with Wilkes, i. 312.
Marvell, A., reported proceedings in the Commons, i. 331.
Mary (Queen of England), her sign manual affixed by a stamp, i. 147.
Massachusetts, proposal of James II. to tax, ii. 354; constitution of, sus- pended, 360.
Maynooth College, founded, ii. 304; Peel's endowment of, 305 ; popu- lar opposition to, 305.
Mazzini, J., his letters opened by Government, ii. 154.
Meetings. See Public Meetings.
Melbourne, Viscount, in office, i. 98, 99 ; his sudden dismissal, 99; rein- stated, 103 ; in office at the acces- sion of her Majesty, 104 ; organised her household, 104 ; kept in office by the " Bedchamber Question," 104, 105 ; retired from office, 107 ; his Ministries, 446, 447 ; receives a deputation of working men, ii. 102 ; reception of delegates from trades' unions, 113 ; framed the Tithe Com- mutation Act, 270; and the first Irish Corporations Bill, 318.
Melville, Lord, his impeachment, i. 311 ; impeachment of, a blow to the Scotch Tories, 429.
INDEX
427
Members oi the House of Commons, number of nominee members prior to reform, i. 242, 243 ; members bribed by pensions, 248 ; bribery under Charles II., 252 ; under William III., 253 ; George II., 254 ; and George III., 254, 256; bribed by loans and lotteries, 257 ; by con- tracts, 260 ; wages to, provided for in Lord Blandford's reform bill, 277; the abolition of property qualifications, 301 ; their exclusion from the House of Lords, 329 ; the system of pledges to constituents considered, 355 ; certain privileges of, discontinued, 357. See also Commons, House of.
Meredith, Sir W., his speech against capital punishments, ii. 389.
Middle classes, the, strength given to Whigs by adhesion of, i. 434, 440, ii. 86 ; a combination of the work- ing and middle classes necessary to successful agitation, 98, 220.
Middlesex, electors of, cause of, sup- ported by public meetings, ii. 21.
Middlesex Journal, the, complaint against, for misrepresenting de- bates, i. 334.
Middlesex, sheriffs of, committed by the House in the Stockdale actions, i. 362.
Military and Naval Ofificers Oaths Bill, the, ii. 219.
Military officers, deprived of command for opposition to the policy of George III., i. 19, 33 ; this practice condemned under the Rockingham Ministry, 23.
Militia, the Catholics in, ii. 199.
Miller, proceeded against for publish- ing debates, i. 336 ; interposition of the city authorities, 336, 337 ; tried for publication of a libel, ii. 12.
Mines, labour of children, etc., regu- lated in, ii. 399.
Ministers of the Crown, the responsi- bility of, i. 4, 74 ; regarded with jealousy by George III., 6 ; con- stitutional relations between the Crown and Ministers, 9, 10, 74, 98, 104, 107, 138, 139 ; the influence of the Crown exerted against its Ministers, 25, 45, 62, 72 ; appeals by Ministers from the House of Commons to the people, by dissolu- tions of Parliament, 59, n., 95, 96, 102, 107, 207, 285, 369 ; the pledge exacted by George III. of his Ministers, 73 ; Ministers supported by the Crown and the Commons
in reform, 96, 208, 285 ; the influ- ence of great families over Minis- tries, III ; numerous applications to, for peerages, 191 ; votes of want of confidence, 39, 40, 53, 56, 369; and of confidence, 95, 285, 369; Ministers impeached by the Com- mons, 370 ; the stability of recent Ministries considered, 372; Minis- ters defeated on financial mea- sures, 376 ; increasing influence of public opinion over, 405, 434 ; ii. 18, 85 ; the principles of coalition between, i. 414, 455 ; responsibility of Ministers to their supporters, 438, 452 ; the Premiership rarely held by the head of a great family, 462 ; revision of salaries of, ii. 383.
Minorities, proposed representation of, at elections, in Reform Bill (1854), i. 304.
Mohun, Lord, cudgelled Dyer for a libel, ii. 5.
Moira, Earl, his mission to the Whig leaders, i. 85 ; the " household question," 86.
Moravians. See Quakers.
Morton, Mr., moved the insertion of the Princess of Wales's name into the Regency Bill, i. 117.
Muir, T., trial of, at Edinburgh, for sedition, ii. 37 ; comments thereon in Parliament, 42.
Municipal Corporations. See Corpora- tions.
Murray, Lady A., married to the Duke of Sussex, i. 181.
Murray, Mr., his refusal to kneel at the bar of the Commons, i. 358.
Mutiny Act (Ireland), made permanent, ii. 332 ; repealed, 335.
Mutiny Bill, the passing of, postponed, i. 56.
" Nabobs," the, their bribery at elec- tions, i. 225, 228 ; rank themselves among the " King's friends," 226.
Napoleon, First Consul of France, de- mands the repression of the press, ii. 64 ; the dismissal of refugees, 159 ; trial of Peltier for libel on, 64.
Naturalisation Act, passing of, ii. 159.
Navy, impressment for, ii. 137 ; flogging in, abated, 395.
Negroes freed by landing in England, ii. 147 ; in Scotland, 148 ; the slave trade and slavery abolished, 27, 112, 149.
New Brunswick, the constitution of, ii. 363.
428 THE CONSTITUTIONAL HISTORY OF ENGLAND
Newcastle, Duke of, in office at acces- sion of George III., i. 8 ; his re- signation, 14; dismissed from his lord-lieutenancy, 16.
Newfoundland, the constitution of, ii. 363.
Newnham, Mr., his motion respecting the debts of Prince of Wales, i. i6g.
Newport, the Chartist attack on, li. 115.
New Shoreham, voters for the borough of, disfranchised for bribery, i. 228.
New South Wales, a legislature granted to, ii. 364 ; transportation to, abolished, 364 ; democratic consti- tution of, 371.
Newspapers, the first, ii. 2-5 ; stamp and advertisement duties first im- posed, 6 ; increased, 60 ; removed, 96-98 ; improvement in newspapers, 18, 67 ; commencement of " The Times " and other papers, 19, n. ; measures of repression, 62, 81.
New Zealand, constitution granted to,
ii- 373.
Nomination boroughs. See Boroughs.
Nonconformists. See Dissenters.
Norfolk, Duke of, his eldest son abjured the Catholic faith, 1780, ii. igo, n. ; his Catholic Officers Relief Bill, 218 ; enabled by Act to serve as Earl Marshal, 226.
North, Lord, his relations, as Premier, with George III., i. 31 ; his com- plete submission to the king, 31, 34, 40; his overtures to Chatham, 34 ; to the Whigs, 34 ; his Ministry overthrown, 39 ; his conduct in of- fice approved by the king, 40; joined the " Coalition Ministry," 43 ; dismissed from office, 49 ; liberal in creation of peers, 187; in the bribery of members, 256 ; with money sent by George III., 256 ; by shares in a loan, 258 ; his second loan, 259; approved the Middlesex election proceedings, 320, 321, 324; his carriage broken by mob, 339 ; his personalities in debate, 393 ; in office, 404, 405 ; driven from office, 409 ; the Coal- ition, 411 ; his measure to concili- ate the American colonies, ii. 361,
Northampton borough, cost of electoral contest for (1768), i. 228; case of bribery firom the corporate funds of, 277. " North Briton " (No. 45), the publica- tion of, i. 310 ; riot at the burning off 3i3> 314; proceedings against, ii. 8, 9, 125.
Northumberland, Duke of, supported in bribery at elections by George III., i. 229.
Norton, Sir F. (the Speaker), supported Dunning's resolutions, i. 37 ; his speech to George III. touching the civil list, 161 ; altercations with, when in the chair, i. 394.
Nottingham Castle, burnt by mob, ii.
lOI.
Nova Scotia, responsible government in, ii. 370.
Nugent, Lord, his bill for Catholic re- lief, ii. 224 ; obtained relaxation to Irish commerce, 330.
Occasional Conformity Act, the, ii. 177.
O'Connell, Mr., advocated universal suffrage, etc., i. 280; reprimanded for libelling the House, 348 ; his position as an orator, 390; leads the Irish party, 444 ; heads the Catholic Association, ii. 88 ; agitates for repeal of the Union, 104 ; trials of, 105, 107 ; released on writ of error, 108 ; returned for Clare, 232 ; his re-election required, 239 ; his motions on Irish tithes and Church, 297-301.
O'Connor, F., presents the Chartist petition, ii. 117- 118.
Octennial Act, the (Ireland), ii. 328.
Officers under the Crown, disqualified from sitting in Parliament, i. 234, 250 ; number of, in Parliament, 91, 92, 251.
Official salaries, revision of, since the Reform Act, ii. 383.
Oldfield, Dr., his statistics of Parliamen- tary patronage, i. 243.
Oliver, Mr. Alderman, proceeded against by the Commons for committing their messenger, i. 337, 339.
Oliver, the Government spy, ii. 151.
Onslow, Mr. G., ordered the House to be cleared, to exclude the peers, i. 329; to hinder the rejxjrting the debates, 330 ; complained of the publication of debates, 334; the soubriquet given him by the re- porters, 334.
Opinion, liberty of, the last liberty to be acquired, ii. 1 ; the press, from James I. till the accession of George III., 3 ; the " North Briton " prosecutions, 7 ; the law of libel, II ; political agitation by public meetings, 20 ; by associations, 22 ; democratic associations, 29 ; re- pressive measures, 1792-99, 33 ;
INDEX
429
Napoleon and the English press, 64; the press, before the regency, 67 ; repressive measures under the regency, 69; the contest between authority and public opinion re- viewed, 85 ; the Catholic Associa- tion, 88 ; the press under George IV., 93 ; its freedom established, 95 ; the Reform agitation, 98 ; for re- peal of the Union, 104 ; Orange lodges, log ; trades' unions, 112; the Chartists, 113 ; the Anti-Corn Law League, 118; political agita- tion reviewed, 121. See also Press ; Political Associations ; Pub- lic Meetings.
Orange societies, suppressed by Act, ii. 90; revived, 91; organisation of, 109; in the army, no; dissolved, III; peculiar working of Orange societies, in.
Orators and oratory. See Parliamentary Oratory.
Orsini conspiracy, the, plotted in England, ii. i6i.
Oxford borough, the seat for, sold by the corporation, i. 227.
Oxford University, state of feeling at, on Catholic relief, ii. 215 ; admis- sion of dissenters to degrees at, 256.
Paine, T., tried for seditious writings, ii. 29.
Pains and penalties, bill of, against Queen Caroline, i, 89.
Palmer, the Rev. T. F., trial of, tor sedition, ii. 40 ; comments thereon in Parliament, 42.
Palmerston, Viscount, his removal from office, 1851, i. 108 ; the Re- form Bill of his Ministry, 305 ; his resolutions on the Lords' rejec- tion of the Paper Duties Bill, 382 ; adhered to Mr. Can- ning, 436 ; in the Duke of Wellington's Ministry, 437 ; in office, 454 ; secession of the Peelites, 456 ; his overthrow in 1857 and 1858, 457, ii. 162 ; his second Ministry, i. 458.
Papal aggression, 1850, the, ii. 275 ; — Court, diplomatic relations with. Bill, 277, M.
Paper Duties Repeal Bill (i860), rejected by the Lords, i. 213, 381.
Paper duty, the, abolished, ii, 97.
Parish, the, local affairs of, adminis- tered by vestries, ii. 307, 308.
Parke, Sir J. See Wensleydale, Baron.
Parliament, government by, established at the Revolution, i. i ; constitu-
tional position of, at the accession of George III., 2, ir ; violation of Parliamentary privileges by the Crown, 16, 19, 25, 32, 38, 97; the reform of Parliament, 94, 207, 264 ; the dissolution of, of 1784, 59 ; of 1807, 79 ; of 1830, 280 ; of 1831, 95, 284 ; of 1834, 102 ; of 1841, 107 ; influence of families over Par- liament, in; the meeting of Par- liament during George III.'s illnesses, 118, 140; commissions for opening Parliament during his illness, 125, 144 ; second opening after king's recovery (1789), 128 ; adjournments caused by king's in- ability to sign the commission for prorogation, 118, 140; Parliament and the revenues of the Crown, and the civil list, 154-175 ; the duration of Parliament, 296; mo- tions for triennial Parliaments, 296 ; time between summons and meeting of, shortened, 302 ; rela- tions of Parliament to the Crown, the law, and the people, 309-384 ; the unreported Parliament, 328, n. ; publication of the debates and di- vision lists, 331, 344, 345 ; peti- tions to Parliament, 349 ; the publication of Parliamentary pa- pers, 347 ; the relinquishment of certain Parliamentary privileges, 357; privilege and the Courts of Law, 359 ; the publication of papers affecting character, 361 ; control of Parliament over the executive Government, 365 ; over supplies to the Crown, 381 ; sketch of Parliamentary oratory, 383 ; group of Parliamentary orators of the age of Chatham and Pitt, 384 ; of later times, 387; character of modern oratory, 391 ; the person- alities of former times, 392 ; in- creased authority of the chair, 394 ; secessions of the Whigs from, 407, 425, ii. 57 ; repression of the press by Parliament, 5 ; attempted intimi- dation of, by the silk- weavers, 20 ; by the Protestant Associations, 24 ; relations of the Church and Parlia- ment, 274 ; supremacy of, over the Irish Parliament, 327 ; Parliament since the Reform Act, 382; vast amount of public business, 407. See also Commons, House of; Lords, House of. Parliament (Ireland), state of, before the Union, ii. 323 ; exclusion of Catholics, 323, 325 ; expired only
430 THE CONSTITUTIONAL HISTORY OF ENGLAND
on demise of the Crown, 325 ; Poynings' Act, 326 ; supremacy of the linglish Parliament, 326 ; agi- tation for independence, 332, 334 ; submits to the permanent Mutiny Bill, 332 ; independence granted, 335 ; corrupt influence of the Government, 335 ; motions for Par- liamentary Reform, 337 ; the Union carried, 344.
Pamell, Sir H., his views of financial policy, ii. 405.
Party, influence of, in party govern- ment, i. 396; origin of parties, 397 ; parties under the Stuarts, and after the Revolution, 398, 399; Whigs and Tories, 398 ; their distinctive principles, 401, 405, 458 ; parties on the accession of George III., 402, 405 ; the American war a test of party principles, 406 ; secessions of the Whigs from Parliament, 407, 425, ii. 57 ; overtures to the Whigs, i. 409 ; commencement of a democratic party, 409; crisis on death of Lord Rockingham, 410 ; the Coalition, 411-412; ruin of the Whigs, 413 ; principles of coalition, 414; the Tories under Mr. Pitt, 414, 421 ; the Whigs and the Prince of Wales, 416, 428, 431 ; effect of the French Revolution upon parties,
417, 420 ; position of the Whigs,
418, 420, 423 ; the Tories in Scot- land, 423 ; schism among the Tories, 425 ; parties on Pitt's re- tirement from office, 426 ; the Whigs in office, 1806, 427-429, ii. 206 ; coalesce with Lord Sidmouth's party, i. 427 ; the Tories reinstated, 429 ; position of the Whigs, 429 ; the strength they derived from the adhesion of the middle classes, 430, ii. 86 ; the Tories under Lord Liver- pool, i. 431-435 ; under Canning, 435 ; influence of national distress, and of proceedings against Queen Caroline, upon parties, 433-434 ; increase of Liberal feeling, 434 ; effect of the Catholic question upon parties, 436, 438, ii. 209, 216, 235 ; party divisions after Mr. Canning's death, i. 437; the Duke of Welling- ton's Ministry, 437; secession of Liberal members from his Cabinet, 437 ; the Whigs restored to office, 440 ; supported by the democratic party, 440, 441 ; Whig ascendency after the Reform Acts, 441 ; state of parties, 442 ; the Radicals, 442 ; the Irish party, 444 ; the Tories
become " Conservatives," 445 ; in- crease in power, 445 ; breaking up \ of Earl Grey's Mmistry, 446 ; dis- ' missal of Lord Melbourne's Min- istry, 446 ; Liberals reunited against Sir R. Peel, 446 ; his Liberal policy alarms the Tories, 446 ; parties under Lord Mel- bourne, 447 ; a Conservative reac- tion, 448 ; effect of Peel's free-trade policy upon the Conservatives, 450, 451 ; the obligations of a party leader, 452 ; the Whigs in office, 454 ; Lord Derby's first Ministry, 454 ; coalition of Whigs and Peelites under Lord Aberdeen, 455 ; fall of his Ministry, 455 ; the Peelites re- tire from Lord Palmerston's first administration, 456 ; his over- throws in 1857 and 1858, 456, 457 ; Lord Derby's second Ministry, 457 ; passed the Jewdsh Relief Act, ii. 247 ; Lord Palmerston's second administration, i. 458 ; fusion of parties, 458 ; essential difference between Conservatives and Liber- als, 458 ; party sections, 459 ; changes in the character, etc., of parties, 460; politics formerly a profession, 461 ; effects of Parlia- mentary reform on parties, 463 ; the conservatism of age, 464 ; statesmen under old and new systems, 464 ; patronage, an in- strument of party, 465 ; review of the merits and evils of party, 467 ; the press an instrument of party, ii. 5, 19; opposition of the Whigs to a repressive policy, 34, 79 ; to the Six Acts, 81 ; the Habeas Corpus Suspension Bills, 50, 131-136; the Treasonable Practices, etc.. Bills, 54-57 ; the Irish Church appropriation ques- tion adopted by the Whigs, 301 ; abandoned by them, 303.
Patronage, an instrument of party, i. 465 ; the effect of competition, 466 ; abuses of colonial patronage, ii. 366 ; surrendered to the colonies, 367.
Patronage Act (Scotland), ii. 293. See also Church of Scotland.
Pease, Mr., his case cited regarding Jewish disabilities, i. 365.
Peel, Mr. See Peel, Sir R.
Peel, Sir R., the first, his Factory Chil- dren Act, ii. 399.
Peel, Sir R., obtained the consent of George IV. to Catholic emancipa- tion, i. 93 ; his first administration,
INDEX
431
loo; his absence abroad, 100; his Ministerial efforts, 102 ; advised a dissolution, 102 ; resignation, 103; declines to takeoifice on the " bed- chamber question," 104 ; his second administration, 107 ; his anti-re- form declaration, 280 ; the character of his oratory, 389; his commercial policy, 434, ii. 404 ; seceded from Canning on the Catholic question, '• 435 ; opposes that measure, li. 217, 222; brings in the Relief Act, i. 438, ii. 235 ; his first Ministry, i. 446; his policy and fall, 446, ii. 301-302 ; his relation to the Con- servatives, i. 449, 451 ; his second Ministry, 449 ; his free-trade policy, 449 ; repeal of corn laws, 451, ii. 118, 220 ; his obligations as a party leader, i. 452 ; obtains the bishops' consent to the repeal of the Corpor- ation and Test Acts, ii. 229; pro- poses to retire from the Wellington Ministry, 234 ; loses his seat at Oxford, 235 ; the Irish Franchise Act, 238 ; his Dissenters' Marriage Bills, 250; plan for commutation of Irish Tithes, 301 ; resists the ap- propriation question, 301 ; proposes endowment to Maynooth and the Queen's Colleges, 304 ; his scheme for Irish corporate reform, 319; the first Minister to revise the criminal code, 391.
Peerage, the number of, i. 184 ; of the United Kingdom, 190 and n. ; anti- quity of, 191 ; claims to, 191 ; changes in its composition, 191; the Scottish peerage, 192 ; fusion of peerages of the three kingdpms, 195 ; life peerages, 196 ; to women, 196; peerages with remainders over, 197 ; authorities favouring life peerages, 197; the Wensleydale peerage case, 198 ; the peerage in its social relations, 216. See also Lords, House of; Ireland, Peerage of ; Scotland, Peerage of.
Peerage Bill (1720), rejected by the Commons, i. 185, 186.
Peers, scanty attendance of, at the House, affecting their political weight, i. 215 ; their influence over borough and county elections, 224, 237 ; their exclusion from debates in the House of Commons, 329, 330; the Catholic, restored to the privilege of advising the Crown, ii. 195, 222 ; exempted from the oath of supremacy, 220 ; the Catholic Peers Bill, 221 ; take seats in the
House of Lords, 239 ; creation of, to carry the Union with Ireland, 345. See also Lords, House of.
Pelham, Mr., bribery to members, a system under, i. 254.
Peltier, J., trial of, for libel, ii. 64, 65.
Pembroke, Earl of, proscribed for op- position to court policy, i. 38.
Penryn, the disfranchisement bill, i. 278; the proposal to transfer the franchise to Manchester, 278.
Pensions from the Crown, charged on civil list, i. 172 ; on Crown re- venues, 172 ; restrained by Parlia- ment, 172, 174 ; consolidation of pension list, 175 ; the regulation of (1837), 175 ; bribery by pensions, 248 ; holders of, disqualified from sitting in Parliament, 248.
Perceval, Mr., formed an administra- tion, i. 74; denied giving secret advice to George III., 75 ; the dis- solution during his Ministry, 79 ; his relations with the king, 79 ; his position at commencement of regency, 81 ; obnoxious to the Re- gent as adviser of Princess Caro- line, 82 ; Ministerial negotiations at his death, 85 ; in office, 429, 431, ii. 209.
Petitions to Parliament, the right of petitioning endangered by George III.'s answer to the city address touching Wilkes, i. 322 ; the com- mencement of the practice, 349 ; of political petitions, 349 ; forbidden under Charles II., 349 ; petitions rejected and petitioners imprisoned by the Commons, 350 ; commence- ment of the modern system, 350; objected to by George III., 352 ; progress of the system, 352 ; the numbers presented of late years, 352, n. ; abuses of petitioning, 354 ; debates on presentation of, restrained, 354 ; for grant of public money to be recommended by the Crown, 377, 378.
Peto, Sir M., his Dissenters' Burial Bills, ii. 252.
Phillimore, Dr., his Catholic Marriages Bill, ii. 225.
Pillory, punishment of, abolished, ii. 392.
Pitt, Mr. See Chatham, Earl of.
Pitt, Mr. Thomas, moved to delay the grant of supplies, i. 377.
Pitt, Mr. William, Chancellor of the Exchequer under Lord Shelburne, i. 43 ; his first refusals to assume
432 THE CONSTITUTIONAL HISTORY OF ENGLAND
the Government, 44, 45 ; is Pre- mier, 49; his contest with the Commons, 50-56 ; his final triumph, 56 ; reflections on this contest, 56- 61 ; his relations with George III., 59 ; in opposition to the king on reform, 62 ; quitted office on the Catholic question, 66 ; his mis- management of that question, 66 ; his pledge to the king not to re- vive it, 67 ; again in office, 67 ; with Addington, 68 ; evaded the Catholic question, 69 ; his opinion on the rights of Prince of Wales as Regent, 120-122; his letter to him respecting the regency, 122 ; moved resolutions for a bill, 122, 125 ; proposition as to use of the great seal, 123, 126; introduced the bill, 127 ; his conduct in these proceedings considered, 130; con- firmed the king's confidence in him, 131 ; embarrassment caused by the king's illness on his leaving office, 132 ; brought forward the budget after his resignation, 133 ; his doubts as to the king's sanity on his return to office, 138 ; pro- fuse in the creation of peers, 186, 188; his unfair conduct as to the Westminster scrutiny, 236 ; abol- ished some of the Irish nomination boroughs, 242 ; discontinued bribes to members, 257 ; by loans and lot- teries, 259 ; advocated reform, 266, 267 ; his reform bill, 268 ; afterwards opposed reform, 270 ; his position as an orator, 384 ; Tory principles never completely adopted by, 406, 411, M., 414; entered Parliament as a Whig, 410, 413 ; the leader of the Tories, 414 ; his first Ministry a coalition, 413 ; his policy con- trasted with Mr. Fox's, 411, n., 415 ; feelings towards the French Re- volution, 418, ii. 33 ; attempted coalitions with Fox, i. 419, 427 ; joined by portion of the Whigs, 420 ; the consolidation of his power, 421, ii. 33 ; dangerous to liberty, i. 424 ; his liberal views on Catho- lic question, 426, ii. 200-206, 346 ; his retirement from office, i. 426 ; his return, 426 ; the Tory party after his death, 429 ; member of the Constitutional Information Society, ii. 23, 31 ; commences a repressive policy, 33 ; brings in the Seditious Meetings Bill, 55 ; opposes relief to dissenters, 191-193, 196 ; his proposal for commutation of Irish
tithes, 294, 295 ; his Irish com- mercial propositions, 337 ; carried the Union with Ireland, 344 ; his India Bill, 379.
Pius IX., his brief appointing bishops in England, ii. 276 ; and against the Queen's Colleges, 306.
Placemen. See Officers under the Crown.
Pledges, by members to constituents, considered, i. 355.
Plunket, Lord, the character of his oratory, i. 389; his advocacy of Catholic relief, ii. 220, 223.
Police, modern system of, ii. 394.
Political Associations, commencement of, ii. 20, 21, 23 ; for Parliamentary reform, 22, 98 ; Protestant Associ- ations, 24-27, 187 ; anti-slave trade, 27, 112 ; democratic, 28, 30, 52, 58, 61 ; proceeded against, 37, 45 ; sup- pressed, 62, 71, 82 ; associations for suppressing sedition, 36, 87 ; for Catholic relief, 88 ; finally sup- pressed, 92 ; for repeal of the Union with Ireland, 104 ; Orange lodges, 109 ; trades' unions, 112 ; the Chart- ists, 113 ; the Anti-Corn Law League, 118.
Ponsonby, Mr., chosen leader of the Whigs, i. 430.
Poole, borough, electoral corruption at, i. 227.
Poor laws, the old and new systems, ii. 395 ; in Scotland and Ireland, 397.
Population, great increase of, in the manufacturing districts, ii. 77 ; its effect on the position of the Church, 264.
Portland, Duke of, headed the " Coal- ition," i. 45 ; assisted George III. in opposing the Army Service Bill, 72 ; in office, 74.
Portland, Earl of (1696), the enormous grant to, by William III., recalled, i. 154.
Post Office. See Letters, Opening at
Potwallers, the electoral rights of, i. 223.
Poynings' Act, the, ii. 326.
Pratt, Lord Chief Justice. See Camden, Lord.
Presbyterians, in England, ii. 167; in Scotland, 169, 173 ; in Ireland, 170, 299. See Church of Scotland.
Press, the, under censorship, ii. 2 ; from the Stuarts to accession of George III., 3-7 ; the attacks on Lord Bute, 7; general warrants, 9; the pro- secutions of, 1 763 -1 770, 9; pub- lishers liable for acts of servants, 11 ;
i
INDEX
433
the rights of juries in libel cases, 11-18 ; the progress of free discus- sion, 18, 67, 85, 93, g8 ; caricatures, 19 ; laws for repression of the press, 54, 60, 62, 74, 81 ; the press and foreign powers, 64 ; the press not purified by rigour, 87 ; com- plete freedom of the press, 95 ; fiscal laws affecting, 95 ; public jealousies of, 97. See also Opinion, liberty of.
Prince Regent. See Wales, Prince of.
Printers, contest of the Commons with, i. 330, 334. See also Debates in
^ ■ Parliament.
Prisons, debtors', ii. 145 ; improved state of, 393.
Privileges and elections committee, trial of election petitions before, i. 244.
Privileges of Parliament. See Parlia-
r""' ment ; Crown, the.
Protection, etc., against Republicans' -- Society, the, ii. 36, 37.
Protestant Associations, the, ii. 24, 188 ; the petition, and riots, 25, 188. See also Orange Societies.
Protestant Catholic Dissenters, bill for
f' relief of, ii. 194.
Protestant Dissenting Ministers' Bill, ii. 213.
Public meetings, commencement of political agitation by, ii. 20, 21, 22; riotous meetings of the silk- weavers, 20; meetings to support the Middlesex electors, 21 ; for Parliamentary reform, 1779, 22 ; in 1795, 52; in 1831, 100; of the Protestant Association, 24, 188 ; to oppose the Sedition and Treason Acts, 58 ; in the manufacturing districts, 1819, 77 ; for Catholic re- lief, gr; for repeal (Ireland), 104; of the trades' unions, 112; the Chartists, 113, 116; the Anti-Corn Law League, 118 ; laws to restrain
'^ ■ public meetings. 55, 71, 81, 82.
Public money, difficulties in the issue of, caused by George IIL's incapacity, i. 144 ; motions for, to be recommended by the Crown, 378.
Public opinion. See Opinion, Liberty of ; Press, the ; Political Associa- tions ; Public Meetings.
Public Works Commission, the, sepa- rated from Woods and Forests, i. 172.
Publishers, criminally liable for acts of
"" servants, ii. 11.
Puritans, the, under Queen Elizabeth, ii. 166, 167 ; under James I. and
Charles IL, 171, 173 ; numbers imprisoned, 174. See also Dis- senters.
Quakers, number of, imprisoned, temp. Chas. IL, ii. 174 ; motions for relief of, 198 ; excepted from Lord Hardwicke's Marriage Act, 224 ; admitted to the Commons on mak- ing an affirmation, 241. See also Dissenters.
Qualification of members, the Acts re- pealed, i. 301.
Quarter Sessions, Courts of, county rates administered by, ii. 321 ; efforts to introduce the representative system into, 322.
Queen's Bench, Court of, the decision in favour of Stockdale, i. 361, 362 ; compelled the sheriffs to pay over the damages, 362.
Queensberry, Duke of, his rights as a peer of Great Britain and of Scot- land, i. 193, 194.
Queen's Colleges, Ireland, founded, ii. 306 ; opposition from Catholic clergy, 306.
Quoad sacra ministers, the, in the Church of Scotland, ii. 290.
Radical Party. See Party.
Rawdon, Lord, moved an address to the Prince of Wales to assume the re- gency, i. 123.
Reeves, Mr., his pamphlet condemned, ii. 59.
Reform in Parliament, arguments for, i. 264 ; advocated by Chatham, 264 ; Wilkes, 265 ; the Duke of Richmond, 265 ; the Gordon riots unfavourable to, 266 ; Pitt's mo- tions, 266; discouraging effect of the French Revolution, 270 ; Earl Grey's first reform motions, 271 ; Sir F. Burdett's, 273, 274 ; Lord John Russell's, 274-277 ; Mr. Lamb- ton's, 275 ; Lord Blandlord's, 277 ; disfranchisement bills for bribery, 277 ; O'Connell's motion for uni- versal suffrage, 279 ; the dissolu- tion of 1830, 280; impulse given by French Revolution, 280 ; storm raised by Duke of Wellington's declaration, 280, 281 ; Lord Brougham's motion, 282 ; Lord Grey's Reform Ministry, 282 ; the first Reform Bill, 283 ; Ministers defeated by the Commons; 95, 284 ; supported by the Crown, 284; the dissolution of 1831, 284, 285 ; the second Reform Bill,
VOL. II.
28
434 THE CONSTITUTIONAL HISTORY OF ENGLAND
96, 285 ; the bill thrown out by the Lords, 96, 207, 285 ; proposed creation of peers, 96, 97, 209, 286 ; resignation of the Reform Ministry,
97, 210, 286 ; they are supported by the Commons and recalled to office, 97, 210, 286 ; the third bill passed, 96, 210, 287 ; the Act considered, 287 ; Scotch and Irish Reform Acts, 288, 289 ; the Irish franchise ex- tended, 289 ; the political results of reform, 103, 289, 373 ; bribery and bribery acts since reform, 290, 295 ; triennial Parliaments, 296 ; vote by ballot, 299 ; reform, later measures for, 302 ; obstacles to Parliamentary reform, 307 ; carried by the Whigs as leaders of the people, 440 ; influence of, on parties, 463 ; on official emoluments, ii, 383 ; on law reform and amend- ment of the criminal code, 383, 387 ; on the spirit and temper of the judges, 387 ; on the condition of the people, 395 ; on commercial and financial policy, 402 ; on Parlia- ment, 407 ; the first reform meet- ings, 21 ; and in Ireland, 336 ; reform discouraged from the example of the French Revolution, 32, 82, 85 ; repressed as seditious, 42, 51, 76 ; cause of, promoted by political agitation and unions, 92 ; review of reform agitation, 104.
Reformation, the, effect of, upon Eng- land, ii. 164 ; doctrinal moderation of, 166; in Scotland, 169; in Ire- land, 170.
Reformatories instituted, ii. 394.
Refugees. See Aliens.
Regency Act, the, of 1751, i. 114; of 1765, 116-118; the Princess ot Wales excluded by Lords, and in- cluded by Commons in the Act, 117 ; the resolutions for a Regency Bill (1788-89), 121 ; proposed re- strictions over the regent's power to create peers, 187 ; the resolutions accepted by ftince of Wales, 125 ; the bill brought in, 127; its pro- gress interrupted by George IIL's recovery, 128 ; comments on these proceedings, 129; comparison of them to the proceedings at the Re- volution, 130 ; the Regency Act of 1810, debates thereon, 140 ; resolu- tions for a bill agreed to, 142 ; laid before the Prince, 144; the Act passed, 144; the Regency Act of 1830, 149; the Regency Acts of Her Majesty, 151.
Regent, the office of, the legal definition of, i. 123 and n. See also Wales, Prince of.
Regent, the Prince. See Wales, Prince of.
Registration of births, marriages, and deaths. Act for, ii. 251.
Religious liberty, from the Reformation to George III., ii. 163-178; com- mencement of relaxation of the penal code, 182 ; Corporation and Test Acts repealed, 228 ; Catholic emancipation carried, 235 ; admis- sion of Quakers to the Commons by affirmation, 241 ; Jewish dis- abilities, 247 ; registration of births, marriages, and deaths, 251 ; the Dissenters' Marriage Bill, 252 ; ad- mission of dissenters to the Uni- versities, 253 ; dissenters' chapels, 256 ; church rates, 257, See also Church of England ; Church in Ireland; Church of Scotland; Dis- senters ; Jews ; Quakers ; Roman Catholics.
Reporters. See Debates in Parliament.
Representation in Parliament, defects in, i. 221. See also Reform in Parliament.
Revenue Commissioners, disqualified from sitting in Parliament, i. 248 ; — Officers' Disfranchisement Bill carried by the Rockingham Min- istry, 42, 234.
Revenue laws, restraints of, on personal liberty, ii. 140 ; — offices thrown open to dissenters and Catholics, 197, 228, 235.
Revenues of the Crown, its ancient possessions, i. 152 ; forfeitures, 152 ; grants and alienations, 153 ; in- crease of revenues by Henry VII. and VIII., 153 ; destruction of the revenues under the Commonwealth, 154 ; recovery and subsequent waste, 154 ; restraints on alienation of Crown property, 155 ; constitu- tional result of the improvidence of kings, 155 ; settlement of Crown revenues by Parliament, 156 ; the revenues prior to the Revolution, 156; the civil list from William III. to George III., 156; settle- ment of the civil list at the acces- sion of George III., 158; charges thereon, 159; the surplus of here- ditary revenues, 164 ; regulation of civil list, 164; other Crown rev- enues, 158, 165 ; the loss of the Hanover revenues, 167 ; the Duch- ies of Lancaster and Cornwall, 167;
INDEX
435
private property of the Crown, i68 ; provision for the royal family, i68 ; mismanagement of the land rev- enues, 170 ; proposal for sale of Crown lands, 171 ; appropriation of the proceeds, 172 ; pensions charged on lands and revenues, 172.
Revolution, the, Parliamentary govern- ment established at, i. i ; position of the Crown since the Revolution, 2 ; revenues of the Crown prior to, 156 ; the system of appropriation of grants to the Crown commenced at, 375 ; and of permanent taxation, 380 ; eftect of, on the press, ii. 4 ; the Church policy after, 174.
Revolutions in France, the effect of, on reform in England, i. 270, 272.
Revolution Society, the, ii. 30.
Rialton, Lady, case of, cited on the " Bedchamber Question," i. 106.
Richard II., the revenues of his Crown, i. 152.
Richmond, Duke of, his motion re- specting the regency, i. 116; for reduction of civil list, 161 ; state- ment as to the nominee members, 242 ; advocated Parliamentary re- form, 265 ; his motion on the Middlesex election proceedings,
323-
Roache, Mr., opposed Mr. Wilkes for Middlesex, i. 318.
Rockingham, Marquess, dismissed from his lord-lieutenancy for opposing the Crown, i. 16 ; made Premier, 23 ; his Ministerial conditions, 24 ; influence of the Crown in Parlia- ment exerted in opposition to him, 25, 27; dismissed from office, 27; his second administration, 42 ; carried the contractors, the civil list, and the revenue officers' bills, 42, 162, 174, 234, 250, 261 ; and the reversal of the Middlesex election proceedings, 325 ; de- nounced Parliamentary corruption by loans, 259 ; his motion con- demning the resolution against Wilkes, 321 ; moved to delay the third reading of a land-tax bill, 377 ; Whigs restored to power under, 409, 462 ; his death, 410 ; his administration consent to the independence of Ireland, ii. 334.
Rolls, Master of the, sole judge not disqualified from Parliament, i. 252.
Roman Catholics, the first Relief Act, 1778, ii. 24, 187 ; the riots in Scot- land and London, 188, 189 ; the
28
Scotch Catholics withdraw their claims for relief, 24, 188 ; the penal code of Elizabeth, 165 ; Ca- tholics under James I., Chas. L, and Cromwell, 171-173 ; the pas- sing of the Test Act, 174 ; repres- sive measures, William III. to Geo. I., 176-177; the Catholics at ac- cession of Geo. III., 178, 183, 186 ; their numbers, 179, n. ; later in- stances of the enforcement of the penal laws, 187 ; bill to restrain education of Protestants by Ca- tholics, 189 ; the case of the Pro- testant Catholic Dissenters, 194 ; another measure of relief to Eng- lish Catholics, 1791, 194 ; first measures of relief to Catholics in Ireland and Scotland, 197, 198, 338 ; the Catholics and the militia. 199 ; effect of union with Ireland on Catholic relief, i. 425, ii. 200 ; Catholic claims, 1801-1810, 202- 211 ; the Army and Navy Service Bill, 207 ; the regency not favour- able to Catholic claims, 212 ; free- dom of worship to Catholic soldiers, 212; the Catholic question, 1811- 1823, 214, 223 ; treated as an open question, 216, 223 ; Acts for Re- lief of Naval and Military Officers, 219 ; the Catholic Peers Bill, 221 ; the Catholic question in 1823, 223 ; efforts for relief of English Catho- lics, 224; the laws affecting Ca- tholic marriages, 224, 225 ; Office of Earl Marshal Bill, 226; Sir F. Burdett's motion, 226 ; State pro- vision for Catholic clergy carried in the Commons, 227; the Duke of Wellington's Ministry, i. 437, ii. 227 ; repeal of the Corporation and Test Acts, 228 ; Catholic relief in 1828, 231 ; the Act, i. 438-440, ii. 235, 347 ; the Catholic peers take their seats, 239 ; Catholic emanci- pation too long deferred, 240 ; number of Catholic members in House of Commons, 240 ; Bills for relief in respect of Catholic births, marriages, and deaths, 249-252 ; final repeal of penalties against Roman Catholics, 257; numbers, etc., of, in England, 272, 273 ; in Ireland, 302 ; the papal aggression, 275 ; the Maynooth and Queen's Colleges, 304 ; exclusion of Irish Catholics from the Corporations, 319; from the ParUament, 323, 325 ; number on Irish bench, 348. See also Corporations.
436 THE CONSTITUTIONAL HISTORY OF ENGLAND
Roman Catholic Officers' Relief Bill, the, ii. 218.
Romilly, Sir S., his opinion on the pledge required from the Grenville Ministry, i. 75 ; his justification of the purchase of seats, 231 ; his ef- forts to reform the penal code, ii.
390. Ross, General, his complaint to the House, of Court intimidation, i.
52.
Rothschild, Baron L. N. de, the admis- sion of, to Parliament, i. 365 ; re- turned for London, ii. 245 ; claims to be sworn, 245.
Rous, Sir J., his hostile motion against Lord North's Ministry, i. 40.
Royal family, the provision for, i. 168- 174 ; power of the Crown over, 176 ; exempted from Lord Hard- wicke's Marriage Act, 177.
Royal household, the, a question be- tween the Whig leaders and the regent, i. 85 ; the " Bedchamber Question," 104 ; profusion in George IIL's, 159 ; proposed re- duction in William I V.'s household, 166.
Royal Marriage Act (1772), i. 31, 178; arbitrary principles of this Act, 180.
Royal Sign Manual Bill, the, to au- thorise George IV. to sign docu- ments by a stamp, i. 146.
Russell, Lord John (now Earl Russell), his first motions for reform, i. 274- 280; his disfranchisement bills, 278 ; advocated the enfranchise- ment of Leeds, Birmingham, and Manchester, 279 ; moved the first Reform Bill, 283 ; his later reform measures, 302, 303, 306 ; attempts to form a free-trade Ministry, 45 1 ; in office, 453-454 ; retires from Lord Palmerston's Ministry, 456 ; carries the repeal of Corporation and Test Acts, ii. 228 ; his efforts to obtain the admission of Jews to Parlia- ment, 247 ; his Dissenters' Mar- riage Bills, 250, 252 ; his Registra- tion Act, 251; his letter on the papal aggression, 277 ; overthrows the Peel Ministry upon the Ap- propriation question, 302 ; carries Municipal Reform, 312 ; and amendments of the criminal code, 391- St. Albans disfranchised, i. 291.
St. Asaph, Dean of, the case of, ii. 14-
Salomons, Mr., the admission of, to Parliament, i. 365 ; returned for Greenwich, ii. 246; claims to be sworn, 246.
Salters (Scotland). See Colliers.
Sandwich, Earl of, denounced Wilkes for the " Essay on Woman," i. 312 ; "Jemmy Twitcher," 313, «.
Savile, Sir G., condemned the resolution against Wilkes, i. 320 ; his bills to secure the rights of electors, 324 ; among the first to advocate Catho- lic relief, ii. 187 ; his bill to restrain Catholics from teaching Protest- ants, 189.
Sawbridge, Mr., his motions for reform, i. 268 ; for shortening duration of Parliament, 296.
Say and Sele, Lord, his apology to Mr. Grenville for refusing a bribe, i.
255-
Schism Act, the, ii. 178.
Scot and lot, a franchise, i. 222.
Scotland, the hereditary Crown revenues of, i. 165 ; the pensions charged thereon, 173, 175 ; the consolidation of Scotch and English civil lists, 175 ; — the peerage of, 185 ; the re- presentative peers of, 185 ; Scottish peers created peers of Great Britain, 192 ; their rights, 192-193 ; the pro- bable absorption of the Scottish peerage into that of the United Kingdom, 194 ; — Scottish judges disqualified, 252 ; — the defective representation of Scotland prior to reform, 239; the Reform Act of, 288 ; the Tory party in, 423, 429 ; literary influence of the Scotch Whigs, 430; alarm of democracy in, ii. 37; trials for sedition and high treason, 38, 45, 76 ; the slavery of colliers and salters abol- ished, 148, 149 ; the Reformation in, 169 ; intimidation of Parliament by the mob, 24, 188 ; motion for re- peal of the Test Act (Scotland), 195 ; relief to Scotch Episcopalians, 196; to Scotch Catholics, 198; re- ligious disunion in, 294 ; statistics of places of worship in, 294, n. ; municipal reform in, 315 ; new poor laws introduced into, 397.
Scott, Sir John, the Ministerial adviser during the regency proceedings, i. 130.
Secret service money, issue of, re- strained, i. 163 ; a statement of the amount of, 255.
Secretary of State, the powers given to, in repression of libel, ii. 8, 73, 124,
INDEX
437
128 ; of opening letters, 153 ; — for the colonies, date of formation of ofSce, 365.
Sedition and seditious libels, trials for, Wilkes and his publishers, ii. 8 ; the publishers of Junius's Letters, 10 ; the Dean of St. Asaph, 14 ; of Stockdale, 15 ; Paine, 29 ; Frost, Winterbotham, Briellat, and Hud- son, 35 ; Muir and Palmer, 37. 40; Skirving, Margaret, and Gerrald, 41 ; Eaton, 43 ; Yorke, 51 ; Mr. Reeves, 59 ; Gilbert Wakefield and the " Courier," 63 ; of Cobbett, 65, 95 ; J. and L. Hunt and Drakard, 66 ; Hunt and Wolseley, 84 ; O'Connell and others, 105, 107 ; measures for repression ot sedition in 1792, 33; 1794, 44; 1795. 54; 1799, 62; 1817, 70; 1819, 81 ; societies for the repres- sion of, 36, 87. See also Treason, High, Trials for.
Seditious Meetings Bills, the, ii. 55, 83 ; Libels Bill, 83.
Selkirk, Earl of, supports the king on the Catholic question, i. 77.
Septennial Act, efforts to repeal, i. 296 ; arguments against, 297 ; in favour, 298.
Session, Court of (Scotland), pro- ceedings of, in the patronage cases, ii. 285, 289.
Shaftesbury, bribery at, i. 229.
Shell, Mr., the character of his oratory, i. 390.
Shelburne, Earl of, dismissed from command for opposition to the Crown, i. ig ; his motion on the public expenditure, 37 ; on the in- timidation of peers, 38 ; his admin- istration, 43 ; supported by the royal influence, 43 ; in office, 410, 462 ; his concessions to America, 412.
Sheridan, Mr., the character of his oratory, i. 386 ; one of the Whig associates of the Prince of Wales, 416 ; adhered to Fox, 420 ; his motion on the state of the nation, 1793, ii. 34 ; brought Palmer's case before the Commons, 42; urged repeal of the Habeas Corpus Sus- pension Act, 50 ; his opposition to the Seditious Meetings Bill, 57.
Shrewsbury, Duke of, his precedent cited as to the temporary concen- tration of offices in the Duke of Wellington, i. loi.
Sidmouth, Viscount, withdrew from Pitt's administration, i. 69 ; took
VOL. II.
office under Lord Grenville, 70; joined George III. in opposing the Army Service Bill, 71 ; resigned office, 72 ; supported the king, 72, 78 ; as Premier, 426 ; in office with the Whigs, 427 ; his repres- sive policy, ii. 69, 136 ; his cir- cular to the lord-lieutenants, 73 ; his emplojTnent of spies, 151 ; his Dissenting Ministers' Bill, 213. See also Addington, Mr.
Silk-weavers, riots by, ii. 20; bill passed for protection of their trade, 21.
Sinecures, official and legal, abolished,
ii- 383, 385-
Six Acts, the, passed, ii. 81.
Skirving, W., trial of, for sedition, ii. 41.
Slavery, in England, ii. 147 ; in Scot- land, 148 ; in the Colonies, 149.
Slave trade, the abolition of, advo- cated by petitions to Parliament, i. 351-
Slave-trade Association, the, ii. 27,. 149.
Smith, Mr. W., his anecdote as to bribery of members by Lord North, i. 256, n. ; his Unitarian Marriages Bills, ii. 224, 226.
Smith O'Brien, abortive insurrection by, ii. 109.
Sommersett's (the negro) case, ii. 147.
Spa Fields, meeting at, ii. 72.
Speaker of the House of Commons, the, election of, during George III.'s in- capacity, i. 124 ; altercations of members with, 394 ; the increased authority of the chair, 394.
Spencer, Earl, election expenses of, i. 228.
Spies, employment of, by Government, ii. 149 ; under Lord Sidmouth, 151 ; their employment considered, 151 ; the Cato Street conspiracy discovered by, 152.
Spring Rice, Mr., his scheme for set- tling Church rates, ii. 259; his speech on the state of Ireland,
347, «.
Stafford, Marquess of, his motion on the pledge exacted from the Gren- ville Ministry, i. 76, 77.
Stamp Act, the American, the influence of the Crown exerted against its repeal, i. 25, ii. 356, 357,
Stamp duty. See Newspapers.
State trials. See Treason, High, Trials for.
Steele, Sir R., opposed the Peerage Bill, i. 186.
438 THE CONSTITUTIONAL HISTORY OF ENGLAND
Stockdale, Mr., his actions against Messrs. Hansard for libel, i. 361 ; committed for contempt, 362 ; the case of, ii. 15.
Strangers, the exclusion of, from de- bates in Parliament, i. 326, 327 ; the attendance of ladies, 328 ; their exclusion, 343, n. ; their pres- ence permitted, 344.
Strathbogie cases, the, ii. 287.
Subject, liberty of, the earliest of political privileges, ii. 124 ; general warrants, 124 ; suspension of the Habeas Corpus Act, 130, 136, n. ; impress- ment, 136 ; the restraints caused by the revenue laws, 140 ; im- prisonment for debt, 140, 144 ; for contempt of court, 141 ; arrest on mesne process, 143 ; debtors' prisons, 145 ; insolvent debtors, 146 ; negroes in Great Britain, 147 ; colliers and salters in Scot- land, 148 ; spies and informers, 149 ; opening letters, 153 ; pro- tection of aliens, 156 ; extradition treaties, 162.
Sudbury, the seat for, advertised for sale, i. 227 ; disfranchised, 291.
Sunderland, Lady, case of, cited on the " Bedchamber Question," i. 106.
Supplies to the Crown delayed, i. 55, 284, 377, n. ; granted, 375 ; refused, 376-
Supremacy, oath of, imposed by Queen Elizabeth, ii. 165 ; on the House of Commons, 165 ; Catholic peers exempted from, 195, 221 ; altered by the Catholic Relief Act, 235.
Surrey, Earl of, his motion on the dis- missal of the " Coalition " Minis- try, i. 52.
Sussex, Duke of, voted against a Re- gency Bill, i. 142 ; his marriages, 181.
Taxation and expenditure, the control of the Commons over, i. 155, 156, 374, 378 ; temporary and perma- nent taxation, 380.
Temple, Earl, proscribed by the king for intimacy with Wilkes, i. 19 ; his agent in the exertion of the Crown influence against the India Bill, 47 ; employed to dismiss the " Coalition," 49 ; accepted and re- signed office, 49, 50.
Tennyson, Mr., his motions to shorten the duration of Parliament, i. 297.
Thatched House Society, the, ii. 145.
Thelwall, J., tried for high treason, ii. 46.
Thistlewood, A., tried for high treason, ii. 72; for the Cato Street plot, 84.
Thompson, proceeded against, for pub- lishing debates, i. 334 ; brought before Alderman Oliver, 336.
Thurles, Synod of, opposition of, to the Queen's Colleges, ii. 306.
Thurlow, Lord, the character of, i. 415, ii. 387 ; his negotiations for George in. with the Whigs, i. 35 ; his ad- vice to the king on his proposed retreat to Hanover, 44 ; co-operated in his opposition to the India Bill, 47 ; is made Lord Chancellor, 49 ; supported the resolutions for a re- gency, 123 ; affixed the great seal to commissions under the authority of Parliament, 127 ; announced the king's recovery, 128 ; resisted the Cricklade Disfranchisement Act, 229.
Tierney, Mr., joins the Whigs, i. 421 ; their leader, 425, 434.
Tindal, Chief Justice, his opinion re- specting the law of Church rates, ii. 260.
Tithes, the commutation of, ii. 269 ; in Ireland, 294, 303 ; associated with the question of appropriation, 300.
Toleration Act, the, ii. 175 ; dissenters relieved from its requirements, 186, 213.
Tooke, Home, trial of, for high treason ii. 46.
Tory party, the, supplied the greater number of the " King's friends," i. 9 ; the ascendency of, under George IV., 87 ; the period of their ascend- ency in the House of Lords, 305. See also Party.
Townshend, Mr., his manoeuvre to se- cure a share in a loan, i. 258 ; his proposed land tax reduced by the Commons, 376 ; his scheme for colonial taxation, ii. 358.
Trades' unions, ii. 112 ; procession of, through London, 112 ; reception of their petition by Lord Melbourne,
"3- Traitorous Correspondence Act, passing
of, ii. 158. Transportation, commencement of the
punishment, ii. 363 ; establishment
of the Australian penal settlements,
364 ; discontinued, 364, 392. Transubstantiation, Lord Grey's motion
for relief from declaration against,
ii. 219. Treasonable Practices Bill, the passing
of the, ii. 54.
INDEX
439
Treason, high, trials for, of Walker, ii. 43 ; of Watt and Dovvnie, 45 ; of Hardy and others, 47 ; of Watson, Thistlewood, and others, 72.
Treasury warrants, the form of, for issue of public money during George III.'s incapacity, i. 144, 145.
Tutchin, beaten to death for a libel, ii.
Underwood, Lady C, married the Duke of Sussex, i. 181.
Uniformity, Act of, of Queen Elizabeth, ii. 165 ; of Charles II., 173.
Union, the, of England and Ireland, agitation for repeal of, ii. 104 ; effect of, on Catholic relief, 200; the means by which it was accom- plished, 344.
Unions, political, established, ii. 98 ; their proceedings, 99 ; organise delegates, loi ; proclamation against, 102 ; threatening attitude of, 102, 103.
Unitarians, the, toleration withheld from, ii. 175 ; further penalties against, 176 ; first motion for re- lief of, 196; relief granted, 214; laws affecting their marriages, 224- 225.
United Englishmen, Irishmen, and Scotsmen, the proceedings of, ii. 61. 339, 340; suppressed by Act, 62.
United Presbyterian Church, the, ii. 281, «,, 284.
Universal suffrage, motions for, i. 265, 273, 279 ; agitation for, ii. 31, 53, 76, 114; in the colonies, 373.
Universities, the, of Oxford and Cam- bridge, admission of dissenters to, ii. 184 ; of London, 256.
Van Diem en's Land, a legislature granted to, ii. 364, 372 ; transporta- tion to, discontinued, 364.
Vestries, the common law relating' to, ii. 308 ; Mr. S. Bourne's and Sir J. Hobhouse's Vestry Acts, 308.
Veto Act, the (Church of Scotland), ii. 284 ; rescinded, 292.
Victoria, Queen, her Majesty, her ac- cession, i. 104; the Ministry then in office, 104 ; her household, 104 ; the " Bedchamber Question," 104, 107 ; her memorandum concerning acts of Government, 108 ; judicious exercise of her authority, no; the Regency Acts of her reign, 151 ; her civil list, i56 ; her pension list, 175-
Volunteers, the (Ireland), ii. 331 ; de- mand independence of Ireland, 332, 333; and Parliamentary reform, 336.
Wakefield, bribery at (i860), i. 294.
Wakefield, Mr. G., tried for libel, ii. 63.
Waldegrave, Dowager Countess of, married to the Duke of Gloucester, i. 176.
Waldegrave, Earl of, his opinion on the education of George III., i. 7.
Wales, Prince of (George IV.), his character, i. 81 ; subject to court influence, 81 ; indifferent to politics, 82 ; his separation from the Whigs, 84, 86 ; raised and disappointed their hopes, 82 ; proposals for their union with the Tories, 83, 85 ; the " household question " between him and the Whigs, 85 ; debates as to his rights as regent (1788), 120-122 ; disclaimed his right, 121 ; his reply to the regency scheme, 124 ; accepted the resolutions, 125 ; his name omitted from the com- mission to open Parliament, 127 ; the address from the Irish Parlia- ment, 131 ; accepted resolutions for Regency Bill (1810), 144 ; his civil list, 164 ; his debts, 168 ; his marriage with Mrs. Fitzherbert, 181 ; the guardianship over Prin- cess Charlotte, 182 ; a member of the Whig party, 416 ; deserts them, 421, 431 ; alleged effect of Mr. Fox's death upon his conduct, 428 ; attack on, when regent, ii. 70; unfavourable to Catholic claims, 212.
Wales, Princess Dowager of, her in- fluence over George III., i. 7 ; ad- vocated the exercise of his personal authority, 16 ; the insertion of her name into the Regency Bill, 118.
Wales, the Princes of, the Duchy of Cornwall their inheritance, i. 167.
Wales, progress of dissent in, ii. 266.
Walker, T., tried for high treason, ii.
43-
Walpole, Horace, cited in proof of Par- liamentary corruption, i. 225, «., 254, 257 ; appointment offered to his nephew, 250.
Walpole, Mr., seceded from Lord Derby's Ministry on question of reform, i. 305.
Waipole, Sir R„ opposed the Peerage Bill, i. 186 ; displaced from office by vote on an election petition, 245 ; bribery of members a system
440 THE CONSTITUTIONAL HISTORY OF ENGLAND
under, 253 ; the charges of bribery not proved, 253 ; his remark on misrepresentations by reporters, 333 ; his indifference to newspaper attacks, ii. 7 ; withdrew the Excise Bill, 2o ; his refusal to levy taxes on our colonies, 354.
Warburton, Bishop, his name affixed to notes on the " Essay on Wo- man," ii. 312.
Ward, Mr., advocated vote by ballot, i. 300.
Warrants. See General Warrants.
Watson, J., tried for high treason, ii. 72.
Watt, R., tried lor high treason, n. 45.
Wellesley, Marquess, commissioned to form a Ministry, i. 85 ; his Minis- try and the Catholic claims, ii. 216 ; his motion, 216.
Wellington, Duke of, obtained the con- sent of George IV. to Catholic emancipation, i. 93 ; anti-reform character of his Ministry, 278; his anti-reform declaration, 281 ; failed to form an anti-reform Ministry, 97, 210; formed a Min- istry with Peel, gg ; his assumption of different Cabinet offices during Peel's absence, 100 ; his opinion on the prof)Osed creation of new peers, 210 ; his position as an orator, 389; seceded from Can- ning on the Catholic question, 435 ; in office, 437, 440 ; secession of Liberal members from his Cabinet, 437 ; beaten on repeal of the Test, etc.. Acts, 438, ii. 228 ; his Min- istry and Catholic claims, i. 438, ii. 227, 233 ; prosecutes the Tory press, 94.
Wensleydale, Baron, the life-peerage case (1856), i. 198.
Wesley, the Rev. J., effect of his labours, ii. 180 ; number, etc., of Wesleyans, 272.
West India duties, the, vested in the Crown till the accession of William IV., i. 165.
Westminster election (1784), Fox's vexatious contest at, i. 236 ; the scrutiny, and his return withheld, 236 ; Act passed in consequence,
237-
Westminster Hall, public meetings pro- hibited within one mile of, ii. 72.
Westmoreland county, expense of a contested election for, i. 238.
Weymouth Lord, overtures to, from George III., i. 34 ; libelled by Wilkes, 315 ; proposal that the
Whigs should take office under him, 409.
Wharncliffe, Lord, his motion against the dissolution (1831), i. 96, 368.
Wheble, proceeded against for publish- ing debates, i. 334; discharged from custody by Wilkes, 336.
Whig Club, the, meeting of, to oppose the Treason and Sedition Bills, ii. 58.
Whig party, the, period of ascendency of, i. 5 ; regarded with jealousy by George III., 8 ; proscription of, under Lord Bute, 16 ; separation between them and Prince Regent, 82, 84 ; decline office on the "household question," 85, 86; unsuccessful against the Ministry, 87 ; espouse the queen's cause, 90 ; lose the confidence of William IV., 98 ; the period of their ascendency in the House of Lords, 205.
V/hitaker, Mr., opposed Wilkes for Middlesex, i. 318.
Whitbread, Mr., his remarks on the Perceval Ministry, i. 75 ; moved to omit Lord Eldon's name from the council of regency, 139 ; his party estranged Irom Earl Grey's^ 430.
White Conduit House, threatened meeting at, ii. 102.
Whitefield, his career, ii. 180.
Whittam, a messenger of the House, committed by the Lord Mayor for apprehending a printer, i. 336 ; his recognisance erased, 338 ; saved from prosecution, 338.
Wilberforce, Mr., promoter of the abolition of slavery, ii. 27; en- deavours to obtain admission of Catholics to the militia, 199.
Wilkes, Mr., advocated Parliamentary reform, i. 265 ; is denied his Parlia- mentary privilege, 310 ; proceeded against for libel in the " North Briton," 311; absconded and is expelled, 312 ; proceeded against in the Lords, 312 ; returned for Middlesex, 314; committed, 314; his accusations against Lord Mans- field, 314 ; the question be raised at the bar of the House, 314 ; ex- pelled for libel on Lord Weymouth, 315 ; re-elected, 317 ; again elected, but Luttrell seated by the House, 318; elected alderman, 319; ef- forts to reverse the proceedings against him, 319 ; his complaint against the deputy-clerk of the Crown, 324 ; again returned for
INDEX
441
Middlesex, and takes his seat, 325 ; lord mayor, 325 ; the resolution against him expunged, 42, 325 ; instigated the pubHcation of de- bates, 333 ; interposed to protect printers, 336 ; is proceeded against by the Commons, 337 ; advocated pledges to constituents by mem- bers, 355 ; attacks Lord Bute and Mr. Grenville in the " North Briton," ii. 7 ; proceeded against, 8, 21, 125 ; brings actions against Mr. Wood and Lord Halifax, 126, 127 ; dogged by spies, 150.
Williams, Sir Hugh, passed over in a brevet, for opposition to the court policy, i. 33.
William IlL, his personal share in the Government, i. 4 ; his sign manual affixed by a stamp, 147; the re- venues of his Crown, 154 ; grants to his followers, 154 ; his civil list, 156; tried to influence Parliament by the multiplication of offices, 248 ; the bribery of members dur- ing his reign, 253 ; popular ad- dresses to, praying a dissolution of Parliament, 367 ; his Church policy, ii. 175-177; towards the Church of Scotland, 177 ; towards Catholics, 180.
William IV., supported Parliamentary reform, i. 94, 210, 285 ; dissolved Parliament (1831), 96, 285 ; created sixteen peers in favour of reform, 208 ; exerted his influence over the peers, 97, 287 ; withdrew his con- fidence from the Reform Ministry, 98 ; suddenly dismissed the Mel- bourne Ministry, 99 ; the Welling- ton and Peel Ministry, 100 ; the Melbourne Ministry reinstated, 104 ; regency questions on his ac- cession, 148 ; his civil list, 165 ; opposed the reduction of his house- hold, 166 ; surrendered the lour and a half per cent, duties, 175 ; his declaration against the Appro- priation question, ii. 299.
Williams, a printer, sentenced to the
pillory, ii. 10. Windham, Mr., his position as an
orator, i. 387. Wines and Cider Duties Bill (1763),
the first money bill divided upon
by the Lords, ii. 380. Winterbotham, Mr., tried for sedition,
ii- 35-
Wolseley, Sir C, elected popular repre- sentative of Birmingham, ii. 77; tried for sedition, 84.
Wood, Mr. G., his Universities Bill, ii.
254-
Woodfall, his trial for publishing Junius's Letter, ii. 11 ; the judg- ment laid before the Lords, 13.
Woods, Forests, and Land Revenues Commission, i. 172 ; separated from the Public Works, 172.
" Woman, Essay on," Wilkes prose- cuted for publishing, i. 312.
Working classes, measures for the im- provement of the, ii. 400. See also Middle Classes.
Wortley, Mr. S., his motion for address to regent to form an efficient Min- istry, i. 85.
Wray, Sir C, opposed Fox at the Westminster election, i. 236.
Writs for new members, doubt respect- ing issue of, during king's illness, i. 119 ; writs of summons for elec- tions, addressed to returning offi- cers, 302.
Yarmouth, freemen of, disfranchised,^ i. 291, 292.
York, Duke of, opposed the regency proceedings, i. 125, 142 ; his name omitted from the commission to open Parliament, 127, 144 ; at- tached to Lady Mary Coke, 177.
Yorke, Mr., enforced the exclusion of strangers from debates, i. 343.
Yorke, H. R., tried for sedition, ii.
51- Yorkshire, petition, the, for Parlia- mentary reform, i. 267, 350.
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