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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


FROM  THE  LIBRARY  OF 
FRANK  J.  KLINGBERG 


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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 

In  Three  Volumes.    8vo 

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LONGMANS,    GREEN    AND    CO. 
London,  New  York,  Bombay  and  Calcutta 


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. 

39   PATERNOSTER   ROW,   LONDON 

NEW  YORK,    BOMBAY  AND   CALCUTTA 

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. 


RELIGIOUS  LIBERTY  291 

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. 


RELIGIOUS  LIBERTY  293 

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. 


RELIGIOUS  LIBERTY  297 

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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Rev.  Willlam  Hunt,  M.A.,  D.Litt.,  Trinity  College,  Oxford.    With  3  Maps. 

Vol.    XI.      FROM    ADDINGTON'S   ADMINISTRATION   TO 

THE  CLOSE  OF  WILLIAM  IV.'s  REIGN  (1801  to  1837).  By  the  Hon.  George 
C.  Brodrick,  D.C.L.,  late  Warden  of  Merton  College,  Oxford,  and  J.  K.  Fotherino- 
HAM,  M.A.,  Magdalen  College,  Oxford ;  Lecturer  in  Classics  at  King's  College,  London. 
With  3  Maps. 

Vol.  XII.     THE  REIGN  OF  QUEEN  VICTORIA   (1837  to 

1901).  By  Sidney  Low,  M.A.,  Balliol  College,  Oxford;  formerly  Lecturer  on  Histofy 
at  King's  College,  London  ;  and  Llovd  C.  Sanders,  B.A.    With  3  Maps. 


LONGMANS,  GREEN  AND  CO.,  39  Paternoster  Row    London; 
New  York,  Bombay  and  Calcutta. 


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