The Constitutional History of England from 1760 to 1860

eedom of Trade.-Death of Lord Liverpool.-The Duke of Wellington becomes Prime-minister.-Repeal of the Test and Corporation Act.-O'Connell is Elected for Clare.-Peel Resigns his Seat for Oxford.-Ca

e compare its close with its commencement, it was still more remarkably distinguished by a development of the resources and an incr

counterbalanced by our vast acquisitions in India, at the Cape of Good Hope, and Malta; while to our maritime supremacy, in the complete establishment of which Rodney and Nelson had crowne

capturing the Havana, in the West Indies; Manilla, in the East; and routing French squadrons in sight of their own harbors. While, to maintain these varied armaments, supplies were voted by Parliament in 1761 to what Lord Stanhope calls "the unprecedented amount

; to the achievements of the mechanic, the engineer, and the chemist; to the labors of Brindley and Arkwright and Watt

were many of the labors of our legislators in these sixty years, they are surpassed in their influence on the future history of the nation, as well as in the reality and greatness of the changes which wer

ther great object of his domestic policy, the emancipation of trade from the shackles which impeded its universal development, was rudely interrupted by the pressure of the war forced upon him by that very nation which he had desired to make the first partner, if one may use such an expression, in the prosperity which he

when a conspiracy was discovered, surpassing in its treasonable atrocity any that had been heard of in the kingdom since the days of the Gunpowder Plot; and, even before those concerned in that foul crime had been

commission to investigate the truth of the accusation; but the commissioners unanimously acquitted her of any graver fault than imprudence. She was again received at court, from which she had been excluded while the inquiry was pending; but her husband's animosity toward her was not appeased. As time wore on, and as the King's derangement deprived her of her only protector, it even seemed as if he desired to give it all the notoriety possible, till at last, wearied out by his implacable persecution, she sought and obtained his permission to quit the country and take up her abode abroad. It was a most unfortunate resolution on her part. She fixed her residence in Italy, where she gradually learned to neglect the caution which she had observed in England, till, after a year or two, reports arose of her intimacy with a servant whom she had raised from a menial situation to that of the chief officer of her household, and whom she admitted to a familiarity of intercourse which others besides her husband thought quite incompatible with innocence. He sent agents into Italy to inquire into the truth of those rumors; and their report so greatly confirmed them that, even before the King's death, he laid it before the Prime-minister, with a demand that he should at once take steps to procure him a divorce, in which he professed to

ce the prayer as now framed implored the Divine protection for "all the royal family" in general terms, in which she might be supposed to be included, and made no separate mention of any member of the family.[185] But, unfortunately, she was much more under the influence of counsellors who were neither lawyers nor statesmen, but who only desired to use her as a tool to obtain notoriety for themselves. A long negotiation ensued. It was inevitable that some application should be made to Parliament in connection with her affairs, since the annuity which had been settled upon her by Parliament in 1814, on the occasion of her departure from England, had expired with the life of the late King. And the ministers proposed that that annuity should now be raised from ￡35,000 to ￡50,000, on condition of her remaining abroad, having, by their positive refusal to concur in any proceedings against her while she remained abroad, extorted the King'

o leave him no alternative, and, in consequence, he at once took the course which he had from the beginning conceived her arrival would render indispensable. He brought down to Parliament a royal message from the King, announcing that her return to England had made it necessary to communicate to the Houses documents relating to her conduct since her departure from the kingdom, which he recommended to their immediate and serious attention. He proposed the appointment by ballot of a committee of the House of Lords to examine those documents; and

eged against her had been abundantly proved. At the same time there was a feeling equally general that the King's treatment of her from the very beginning of their married life had disentitled him to any kind of relief; and this sentiment was so strongly shown by the gradual diminution of the majo

g adopted was alleged to be wholly unprecedented; and because, as was contended, the power of Parliament ought not to be invoked to inflict penalties which, if deserved, should have been left to the courts of law. It cannot be denied that there is weight in these objections; but, in estimating their force, it must be considered that every part of the conduct of the ministers showed that their motive was not the gratification of the King's private feelings, whether directed to the object of indulging his enmity against his wife or to that of obtaining freedom to

over the British court, as, if resident in England, and in undisturbed possession of her royal rank, she of necessity must preside. The consequence would evidently have been that the court would have been deserted by all who could give lustre and dignity to it by their position and character; and, in the slights thus offered to her, royalty and the monarchy themselves would seem to be brought into contempt. The latter scandal, too, would be the more permanent. Grievous and shameful as might be the disclosures which must be anticipated from an investigation in which the person accused must be permitted the emplo

or acquiescence in her husband's murder, formed any portion of the grounds of her deprivation. And the Parliament which attainted Catherine Howard proceeded solely on her confession of ante-nuptial licentiousness, without giving her any opportunity of answering or disproving the other charges which were brought against her. Unprecedented, therefore, the course now adopted may be admitted to have been. But it was the only practicable one. The different minutes of the cabinet, which the Prime-minister laid before the King, established most conclusively the correctness of their opinion that no impeachm

k to the fountain of all law; that is, to the Parliament, which alone is competent to make a new law. In one point of view the question may seem unimportant, since we may well hope that no similar case will ever arise to require the precedent now set to be appealed to; but not unimportant, if it in any way or degree contributes to establish the

anded to be crowned with her husband, his refusal to admit her claim elicited scarcely any sympathy for her under this renewed grievance; in truth, it was one as to which precedent was unfavorable to her demand. And the mortif

n by the new Secretary himself. The earliest of them, and one not the least important in its bearing on the well-doing of society, the mitigation of the severity of our Criminal Code, was, indeed, but the following up of a series of measures in the same direction which had been commenced in the time of the Duke of Portland's second administration, and, it must be added, in spite of its resistance. The influence of various trades, and of the owners of different kinds of property, pressing in turns upon our legislators, had rendered our code the most sanguinary that had, probably, ever existed in Christendom. Each class of proprietor regarded only the preservation of his own property, and had no belief in the efficacy of any kind of protection for it, except such as arose from the fear of death; nor any doubt that he was justified in procuring the infliction of that penalty to avert the slightest loss to himself. The consequence was that, at the beginning of the present century, there were above two hundred offences the perpetrators of which were liable to capital punishment, some of a very trivial character, such as cutting down a hop-vine in a Kentish

several additional cases; and at last, in 1822, he carried a resolution engaging the House of Commons "the next session to take into its serious consideration the means of increasing the efficacy of the criminal law by abating its undue rigor." And this success had the effect of inducing the new minister to take the question into his own hands. Peel saw that it was one which, if it were to be dealt with at all, ought to be regulated by the government itself, and not be left to independent members, who could not settle it with satisfactory completeness; and therefore, in 1823, he introduced a series of bills to carry out the principle implied in Mackintosh's resolution of the preceding year, not only simplifying the law, but abolishing the infliction of capital punishment in above a hundred cases. He was unable to carry out his principle as fully as he could have desired. The prejudice in favor of still retaining death as a punishment for forgery was too strong for even his resolution as yet to overbear, though many private bankers supplied him with the same arguments against it in their case which had formerly been alleged by the bleachers. But t

y to the magnitude of the offence often defeated their object was certain. Not only had jurymen been known to confess that they had preferred violating their oaths to doing still greater violence to their consciences, by sending a man to the gallows for a deed which, in their opinion, did not deserve it, but the very persons who had been injured by thefts or forgeries were often deterred from prosecution of the guilty by the knowledge that the forfeiture of their lives must follow their conviction. It was almost equally certain that criminals calculated beforehand on the chance of impunity which the known pr

and threw down a glove on the floor of the court to make good his challenge. The claim was protested against by the prosecutor; but Lord Ellenborough, the Chief-justice, pronounced judgment that, "trial by battle having been demanded, it was the legal and constitutional mode of trial, and must be awarded. It was the duty of the judges to pronounce the law as it was, and not as they might wish it to be."[188] He gave sentence accordingly; and, had the two parties been of equal stature and strength, the Judges of the Common Pleas might have been seen, in their robes, presiding from sunrise till sunset over a combat to be fought, as the law prescribed, with stout staves and leathern shields, till one should cry "Craven," and yield up the field.

whole system and theory of protection; and one of his last measures made an alteration in the manner of taxing corn imported from foreign countries, which was greatly to the advantage of the consumer. It was known as the "sliding-scale," the tax on imported corn varying with the price in the market, rising when the price fell, and falling when it rose; the design with which it was framed being to keep the price

h was intended to diminish still farther the protection which the former act had given, and which was in consequence denounced by many landholders of great wealth and influence, led, on thi

coinciding with him in his dislike of Canning, of whom he entertained a very causeless suspicion, rejected without hesitation, as an abandonment of the royal prerogative in one of its most essential duties or privileges. Another of his Majesty's notions, if it had been carried out, would have been one of the strangest violations of constitutional principle and practice which it is possible to conceive. The Duke of York, who had for many years been Commander-in-chief, died in January of the same year, and on his death the King actually proposed to take that office on himself. For the moment Lord Liverpool was able to induce him to abandon the idea, and to confer the post on the Duke of Wellington. But it had taken such possession of his mind that he recurred to it again when, on Canning becoming Prime-minister, the Duke resigned the office; and he pressed it on the Cabinet with singular pertinacity till, on Canning's

ter a few months its composition became entirely Tory, is memorable for the first great departure from those maxims of the constitution which had been reckoned among its most essential principles ever since the Revolution. Of the measures which bear that character, one was carried against the resistance of the ministry, the other by the ministers themselves. And it may at first sight appear singular that

ned. But those which inflicted disabilities on the Protestant Non-conformists had been gradually relaxed. The repeal of two, the Five Mile and the Conventicle Acts, had, as we have seen in the last chapter, been recent measures of Lord Liverpool. But the Test Act still remained, though it had long been practically a dead letter. The Union with Scotland, where the majority of the population was Presbyterian, had rendered it almost impossible to maintain the exclusion of Englishmen resembling the Scotch in their religious tenets from preferments, and even from seats in the House of Commons, to which Scotchmen were admissible. And though one Prime-minister (Stanhope) failed in his attempt to induce Parliament to repeal the Test Act, and his successor (Walpole) refused his countenance to any repetition of the proposal, even he did not reject such a compromise as was devised to evade it;

argument in their favor. The one contended that there could be no sufficient reason for repealing a law from which no one suffered; the other, that it was a needless provocation of ill-feeling to retain a law which no one ever dreamed of enforcing. Hitherto the latter had been the weaker party. One or two motions for the repeal of the Test Act, which had been made in former years,[193] had been defe

Wellington and Mr. Peel. The Duke's doctrine of government was that "the country was never governed in practice according to the extreme principles of any party whatever;"[196] while Peel's disposition at all times inclined him to compromise. He was quite aware that on this and similar questions public feeling had undergone great alteration since the beginning of the century. There was a large and increasing party, numbering in its ranks many men of deep religious feeling, and many firm supporters of the principle of an Established Church, being also sincere believers in the pre-eminent excellence of the Church of England, who had a conscientious repugnance to the employment of the most solemn ordinance of a religion as a mere political test of a person's qualifications for the discharge of civil duties. In the opinion of the Bishop of Oxford (Dr. Lloyd), this was the feeling of "a very large majority of the Church itself," and of the University.[197] Peel, therefore, came to the conclusion-to which he had no difficulty in bringing his colleague, the Prime-minister-that "it might be

Established Church, but a violation of the constitution, of which, as he regarded it "the existing securities were a part." He pointed out that "the King himself was obliged to take the sacrament at his coronation;" and he argue

rity, which, as it would be steadily put in force, might fairly be expected to prove far more efficacious. And it can hardly be contended that it was not within the province of the Legislature to modify an existing law in this spirit and with this object, however important might be the pur

m had been greatly weakened, if not wholly swept away, by the extinction of the Stuart line of princes. Their retention or removal had, therefore, now become almost wholly a religious question; and the late bill had clearly established as a principle that, though the state had a right to require of members of other religious sects that they should not abuse the power which might arise from any positions or employments to which they might be admitted, to the subversion or injury of the Established Church of England, yet, when security for their innocuousness in this respect was provided, it was not justified in inquiring into the details of their faith. And if this were to be the rule of government for the future, the conclusion was irresistible that a similar security was all that the state was justified in demanding from R

of the Roman Catholic disabilities; to which, however, the peers, by a far larger majority, refused their concurrence.[199] But, within a month of this division, the aspect of the whole question was changed by the shrewdness of an Irish barrister, who had discovered the loop-hole or flaw in the bill of 1678 already alluded to, and by the energy and promptitude with which he availed himself of his discovery. Mr. O'Connell had a professional reputation scarcely surpassed by any member of the Irish Bar. He was also a man of ancient family in the county of Kerry. And, being a Roman Catholic, he had for several years been the spokesman

Roman Catholic priesthood; addresses in his favor were read at the altars of the different churches; and, after five days' polling, Mr. Fitzgerald withdrew from the contest. The Sheriff, in great perplexity, made a special return, reporting that "Mr. Fitzgerald was proposed, being a Protestant, as a fit

ously hoped, by postponing the farther consideration of the question for a year or two, to gain time for a calmer examination of it when the existing excitement had cooled down,[201] at once admitted the conviction that the result of the Clare election had rendered farther delay impossible. In his view, and that of those of his colleagues whose judgment he estimated most highly, the Irish constituencies and their probable action at future elections were not the only parties whose opinions or feelings must be regarded by a responsible statesman; but to them must be added the constituencies of the larger island also, since, while, to quote the language of Mr. Peel, "the general election of 1826 had taken place under circumstances especially calculated to call forth the manifestation of Protestant feeling throughout the country," they had returned a majority of members in favor of concession, as was proved by the recent division on Sir F. Burdett's motion. Moreover, apart from the merits or demerits of concession, taken by itself, there was a manifest danger that the keeping up of the excitement on the subject by a continued adherence to the policy of restriction might, especially among such a people a

f Emancipation, had subsequently changed his opinion, and had recently taken more than one occasion to declare that he had never doubted that, as the head and protector of the Protestant religion, he was bound to refuse his assent to any relaxation of the existing law.[203] The Duke, however, was too well acquainted with his royal master's character to apprehend any real firmness of resistance from him; but he knew that a great majority of the clergy, and no small portion of the country gentlemen, were conscientiously and immovably fixed in opposition to any concession at all, some refusing to regard the question in any but a purely religious light, and objecting to associate in the task of legislation for those whom they regarded as adherents of an idolatrous superstition; while those who mingled political reasoning with that founded on theology dwelt also on the danger to be apprehended to the state, if political power were given to those whose allegiance to the King was divided with another allegiance which they acknowledged to a foreign prelate. And he had presently an unmistakable proof afforded him how great was the streng

viously suppressing the Association. It was evident that it could not be extinguished by any means short of an act of Parliament. And the course pursued, with the discussions which took place respecting it, show in a very clear and instructive manner the view taken by statesmen of the difference between what is loyal or illegal, constitutional or unconstitutional; their apprehension that conduct may be entirely legal, that is to say, within the letter of the law, but at the same time perfectly unconstitutional, outside of and adverse to the whole spirit of the constitution. The royal speech had not ventured to describe the Association as illegal. The Duke of Wellington expressly admitted that "in the original institution and formation of the society there was nothing strictly illegal."[204] And its founder and chief, Mr. O'Connell, had been at all times careful to inculcate on his followers the necessity of avoiding any violation of the law. But the speech had also declared the association to be "inconsistent with the spirit of the constitution." And its acts, as the Duke proceeded to describe them, certainly bore out that declaration. "Those acts consisted principally in levying a tax upon certain of his Majesty's subjects called Catholic rent, and this by means and acts of extreme violence; by appointing persons to collect these rents; and farther by adopting measures to organize the Catholic population; by appointing pe

ant, and to him alone, the power of suppressing any association or meeting which he might think dangerous to the public peace, or inconsistent with the due administration of the law; together with power to interdict the assembly of any meeting of which previous notice should have been given, and which he should think likely to endanger the public peace, or to prove inconsistent with the due administration of the law." And farther, "to interdict any meeting or association which might be interdicted from assembling, or which might be suppressed under this act, from receiving and placing at their control any moneys by the name of rent, or any other name." But the act was not to be one of perpetual duration. It could not be conce

t so narrowly as to elude conviction, can only be reached by enactments which also go in some degree beyond the ordinary law; and, so going beyond it, are to that extent encroachments on the ordinary privileges and rights of the subject, and suspensions of the constitution. But the very term "suspensi

ries, as diminishing a portion at least of the dangers which those who regarded the question in a purely political light most apprehended. On the first point it was determined that, with the exception of three civil offices, those of the Lord Chancellors of England and Ireland and the Lord-lieutenant of Ireland,[207] and some of a purely ecclesiastical character, such as the Judge of the Court of Arches, every kind of preferment should be opened to the Roman Catholics.[208] The declaration against Transubstantiation and the oath of supremacy, certain expressions in which were the obstacles which had hitherto kept the Roman Catholics out of office and out of Parliament, were

tes and clergy themselves, but also by the heads of their Church at Rome, who were willing, in return, to give the crown a veto on all the ecclesiastical appointments of their Church in the two islands.[210] The justice of granting such an endowment could hardly be contested. The Reformation in Ireland, if what had taken place there could be called a reformation at all, had been wholly different from the movement which had almost extinguished Popery in England. The great majority of the Irish people had n

ion, was, of all the cabinet, the counsellor on whose judgment he most relied, took a different view of the expediency of making such a provision, having, indeed, "no objection to it in point of principle." But he saw many practical difficulties, which he pressed on the Duke with great earnestness. He argued that for the government "to apply a sum of money to the payment of the ministers of the Church of Rome in Ireland, granting a license for the performance of their spiritual functions, would be a virtual and complete supersession, if not repeal, of the laws which prohibit intercourse with Rome;" and asked, "Could the state affect to be ignorant that the bishop whom it paid derived his right to be a bishop from the See of Rome?" Another difficulty he found in the apprehension that "the admission of the right of the Roman Catholic clergy to an endowment might produce similar claims on the part of the Dissenters in England, who contribute in like manner to the support of their own re

tate of any provision which they had previously enjoyed; but their position as unendowed ministers was clearly one of their own making. The possible inferiority in point of emolument of some of the Protestant cures in Ireland to that which might be enjoyed by some of the Roman Catholic clergy could hardly be regarded as the foundation of any argument at all, since no law had ever undertaken, or ever could undertake, to give at all times and under all circumstances equal remuneration to equal labors. But the consideration last suggested was exactly the one to influence such a mind as that of the Duke of Wellington, generally contented to deal with a present difficulty. He was determined to carry Emancipation, because he saw that the Clare election had made it impossible to withhold or even to delay it; and, being so determined, he was desirous to avoid encumbering it with any addition which mig

eeling in its favor was equally marked in both Houses of Parliament. In the House of Commons 320 supported it, while only 142 c

ct in 1828 had made the first, and that a great, inroad, and the present statute entirely abolished it as a principle of government. So far as political privileges went, every Christian sect was now placed on a footing of complete equality. But so to place them may fairly be regarded as having been required not only by justice and expediency, but by reasons drawn from the history of the nation and from the circumstances under which these disabilities had been imposed. Before the Rebellion no one was excluded from the English Parliament on account of his religion, whether he was a Roman Catholic, a Presbyterian, or a member of any other of the various sects which were gradually arising in the country. It was not till after the Restoration that a recollection of the crimes of the Puritans, when they had got the upper-hand, and the fear of machinations and intrigues, incompatible with the freedom and independence of the people, which were imputed to the Roman Catholics, gave birth to the statutes depriving both Protestant and Roman Catholic Non-conformists of all legislative and political power. The restrictions thus imposed

ly increased, till it was estimated that the various Dissenting sects in England equalled at least half the number of the members of the Established Church. In Wales they were believed to form the majority. In Scotland three-fourths of the people were Presbyterians; and in Ireland the Roman Catholics o

ts participation in them dangerous to the rest. It had undoubtedly been the doctrine of Pitt, and of the greater part of those who since his time had held the reins of government, that if any portion of the King's subjects did cherish a temper dangerous to the rest, it was because they were debarred from privileges to which they conceived themselves to have a just right, and that their discontent and turbulence were the fruit of the restrictions imposed on them. In proposing to remove such a grievance Pitt certainly conceived himself to be acting in accordance with the strictest principles

but the representation of the University of Oxford. I thought that such decisive proofs that I could have no object, political or personal, in taking a course different from that which I had previously taken, would add to my influence and authority, so far, at least, as the adjustment of the particular question at issue was concerned." "I cannot deny that in vacating my seat I was acting upon the impulse of private feelings, rather than upon a dispassionate consideration of the constitutional relations between a representative and his constituents. I will not seek to defend the resolution to which I came by arguments drawn from the peculiar character of the academic body, or from the special nature of

o its own interests; and so far admits a possible severance between the interests of a particular class or body and those of the whole community, which can have no real existence. That, however, is not the point to be investigated here. The charge, as it seems, to which Mr. Peel's deed lays him open is, that by it he lowered the position and character of a member of Parliament from those of a representative to those of a delegate. It was an adoption of the principle laid down for his own guidance by a colleague of Mr. Burke above fifty years before, and indignantly repudiated by that great political philosopher, as proceeding from an entire misapprehension of the rights of a constituency and of a member[21

sed States-general. And it is the more necessary to put the case in a clear and true light, because at the present day there is an evident disposition on the part of constituencies to avail themselves of Peel's conduct in this instance as a precedent, in spite of his protest against its being so regarded, and to fetter their representatives with precise instructions; and a corresponding willingness on the part of candidates to purchase support at elections by a submissive giving of pledges on a variety of subjects, so numerous as to leave themselves no freedom of judgment at all. On t

te

￡118,776,000. A

account of their first interview.-D

iamentary Debates,"

yal family, had been named, it would have been offensive to the Queen; but the measure adopted he re

d 14th February, 1820, forwarded the King by Lord

r J. Mackintosh," by R.J.

es of the Chief-jus

experiment which, should it fail, must entail the dreadful alternative of the entire ruin of the landed interests of th

endence of the South American provinces of Spain-which is so often represented as exclusively the work of Canning-the memorandum on the subject which Lord Liverpool drew up for the cabinet proves that the policy adopted was entirely his own, and that as such he adhered to it resolutely, in spite of the avowed disapproval of the Duke of Wellington and the known unwillingness of the King to sanction it; and it may be remar

91: See ant

audable disinterestedness," says Hallam

1790, when there had been a majority of

194: 237

: "Peel's Mem

lington's Civil Des

ter to Peel, March 23 ("Pe

Plot, and, to prevent mischief in the interval, passed a bill to disable Papists from sitting in either House of Parliament," to which the Lords, when the bill c

s resolution was six-372 to 266. But, in the House of Lords, Lord Lansd

rald's letter to Peel ("P

"Peel's Memoi

rd Anglesey's Letters,

of York mentioned to both those noblemen that the Regent had an insuperable objection to the concession of Emancipation. And it seems probable that it was the knowledge of

reading of the bill in the House of Lords

irst reading of the bill, Febr

on the first reading (

." And the position, such as it was, being a conventional one, was not necessarily connected with the office of First Lord of the Treasury. "In a recent instance his late right honorable friend, Mr. Canning, had determined to hold the office of Prime-minister with that of Secretary of State. And when Lord Chatham was Prime-minister, he did not hold the office of First Lord of the Treasury." At the same time he explained that the impr

the restriction as to the Lord Chanc

iption, etc., etc. This test was to disclaim in express terms the sovereignty of the people, and was to contain an oath of allegiance and "fidelity to the King's government of the realm, and to the established constitutions of Church and state."-Letter of Lord Grenville, given in Courts and C

om; and, after his return to Rome, Pio VII. himself confirmed the former title by a second addressed, by his instructions, to the same Dr. Poynter, which letter, in 1816, was read by Mr. Grattan in the House of Commons, it being throughout understood that this concession of the veto to the King was conditional on the abolition of the disabilities and the endowment of the priesthood. And in 1825, after Lord Francis Egerton's resolution had been carried in the House of Commons, Dr.

to be ￡300,000 a year.-Peel's Memoirs, i., 197. On the whole question

ill," answered the Duke, who shortly discovered, and had the magnanimity to admit, his mistake.-Life of Lord Sidmouth, iii., 453. It is remarkable that the question of endowing the Roman Catholic clergy was again considered by Lord John Russell's ministry in 1848. A let

ecretary of State, and to support the Emancipation as a private member, a design which he only relinquished at the D

g declared by the sheriffs duly elected member for that

ightest modification; one resolution affirming "that members chosen to be representatives in Parliament ought to do such things as their constituents wish and direct them to do;" another, "that a signed engagement should be exacted from every member tha