The Constitutional History of England From 1760 to 1860

by Charles Duke Yonge

  It was admitted that the spirit of disaffection was local, confined to three or four counties; but those counties were, next to Middlesex itself, the most populous and among the most important in the kingdom, and there was danger lest the feeling, if not checked, might spread. The crisis seemed so momentous, that some even of the Opposition leaders volunteered their counsels and aid to the ministers in dealing with it. And the ministers, after long deliberation, decided on calling Parliament together in November, and introducing some bills which they conceived necessary to enable them to restore and preserve tranquillity. They were six in number; and-perhaps, with some sarcastic reference to Gardiner's Six Acts in the sixteenth century-they were very commonly spoken of as Lord Sidmouth's Six Acts, that noble lord being the Home-secretary, to whose department they belonged. It is not necessary here to do more than mention the general purport of five of them. One prohibited military training without the sanction of the government; another empowered magistrates to search for arms which they had reason to believe were collected for illegal purposes; the third authorized the seizure of seditious and blasphemous libels; the fourth subjected publications below a certain size to the same stamp as that required for a newspaper; the fifth regulated the mode of proceeding in trials for misdemeanor of a political character. But these enactments were regarded as little more than arrangements of detail or procedure involving no principles, and some of them were admitted even by the most steadfast opponents of the ministers to be necessary. But the sixth, designed to restrain the practice of holding large open-air meetings-not, indeed, forever, but for a certain period, fixed at five years-was strongly resisted by the greater portion of the Whig party in both Houses, as a denial to the people of one of their most ancient and constitutional rights.[179]

  Its principal clauses enacted that "no meeting exceeding the number of fifty persons (except a meeting of any county or division of any county, called by the Lord-lieutenant or sheriff of such county, etc., or by five or more acting justices of the peace for such county, or by the major part of the grand-jury; or any meeting of any city, borough, etc., called by the mayor or other head officer of such city, etc.) should be holden for the purpose or on the pretext of deliberating upon any public grievance, or upon any matter relating to any trade, manufacture, etc., or upon any matter of Church or State, or of considering, proposing, or agreeing to any petition, address, etc., etc., unless in the parish or township within which the persons calling any such meeting usually dwell;" and it required six days' notice of the intention to hold such meetings, with their time, place, and object, to be given to a magistrate. It empowered the magistrate to whom such notice was given to alter the time and place. It forbade adjournments intended to evade these prohibitions. It forbade any one to attend such meetings except freeholders of the county, or parishioners of the parish, or members of the corporation of the city or borough in which they were held, or members of the House of Commons for such places. It empowered magistrates to proceed to the places where such meetings were being held, and, if they thought it necessary, to require the aid of constables. It enacted that any meeting, the tendency of which should be "to incite or stir up the people to hatred and contempt of the person of his Majesty, his heirs and successors, or of the government or constitution of this country as by law established, should be deemed an unlawful assembly." It empowered one or more justices of the peace, in the event of any meeting being held contrary to the provisions of this act, to warn every one present, in the King's name, to depart; and made those who did not depart in obedience to such warning liable to prosecution for felony, and, if convicted, to seven years' transportation. It forbade the display of flags, banners, or ensigns at any meeting, and the employment of any drum, or military or other music; but it excepted from its operation "any meeting or assembly which should be wholly holden in any room."

  There was one peculiarity in the line taken by the opponents of the bill, that they did not deny that the meetings which had induced the ministers to propose it were an evil, dangerous to the general tranquillity; but it was strongly urged by Lord Erskine and others that the existing laws were quite strong enough to deal with them, so that a new enactment was superfluous; and by others, in both Houses, that such meetings were "an ancient and constitutional mode of discussing abuses or petitioning Parliament," any interference with which was a greater evil than the meetings themselves, as being a violation of the constitution. Mr. Brougham in particular admitted, to the full extent of the assertions of the ministers themselves, "the wickedness and folly of many of the speeches" made at the recent meetings. He expressed with great force his entire disapproval of the system on which these meetings had been conducted, and admitted that the martial array which had been exhibited, and the vastness of the numbers of those who had attended, were of themselves calculated to excite alarm; but he declared that "he could not on that account acquiesce in a total subversion of a popular right." On the other hand, the ministers themselves did not deny "the general right of the people to petition the Legislature, or to carry their addresses to the foot of the throne. And therefore (as Lord Harrowby, the President of the Council, admitted) there could be no doubt of their right to assemble, so far as was necessary to agree to their petitions or addresses. It was a right that did not depend on the Bill of Rights, on which it was usually grounded, but had existed long before. But this bill," he contended, "imposed no restrictions on the legitimate enjoyment of that privilege; it only regulated the meetings at which it was to be exercised." And Lord Liverpool affirmed that the bill was not only "consistent with the existing laws and principles of the constitution, but was even proposed in furtherance of those principles, and for the purpose of protecting the people of this country against a series of evils which, if not checked, must subvert their laws and liberties."

  In attempting to form a correct judgment on the question whether this bill were constitutional or unconstitutional, it must, I think, be admitted that, as has been remarked before, the terms "constitutional" and "unconstitutional" are somewhat vague and elastic. There is no one document-not Magna Charta, nor the Petition of Eight, nor the Bill of Rights-which can be said to contain the whole of the British constitution. Its spirit and principles are, indeed, to be found in all the laws, to which they give animation and life, but not in any one law. And among its leading principles are those which embrace the right of every individual to freedom of action and freedom of speech, so long as he does not commit any crime himself, nor tempt others to do so. Yet it does not follow that a new enactment which for a while abridges or suspends that freedom of action or speech is inconsistent with those constitutional principles.

  Ministers, to whom the government of a country is intrusted, do wrong if they limit their operations to the punishment of offences which have been committed. It is at least equally their duty, as far as possible, to prevent their commission; to take precautionary measures, especially at times when there is notorious danger of offences being committed. At the same time they are bound not to legislate under the influence of panic; not to yield to fears having no substantial ground. And in their measures of precaution they are farther bound to depart from or overstep the ordinary law as little as is compatible with the attainment of their object. In all such cases each action of theirs must stand or fall by its own merits; by the greatness of the emergency which has caused it, and by its sufficiency for its end. For as no law, except such as forbids moral crimes, is invariable, so even the dearest privileges of each subject, being his for the common good, are liable to temporary suspension for that common good. But the burden of justification lies on those who propose that suspension.

  Now, that this bill was such a suspension of the long-established rights of the subject, and so far an overstepping of the principles of the constitution, is admitted by the very fact of its framers only proposing for it a temporary authority. Had it not invaded a valuable and real right, it might have been made of perpetual obligation. But it is not easy to see how
it can be denied that the dangers against which it was intended to guard were also real. It was certain that itinerant demagogues were visiting districts with which they had no connection, for the sole purpose of stirring up political agitation. It was clear that such meetings as they convened, where those assembled could only be counted by tens of thousands, were too large for deliberation, and were only meant for intimidation; and equally clear that, though the existing laws may have armed the magistrate with authority to disperse such meetings, they did not furnish him with the means of doing so without at least the risk of bloodshed (for such a risk must be involved in the act of putting soldiers in motion), and still less did they invest him with the desirable power of preventing such meetings. It was necessary, therefore, to go back to the original principles and objects of every constitution, the tranquillity, safety, and welfare of the nation at large. And it does not appear that this bill went beyond what was necessary for that object. Indeed, though party divisions are not always trustworthy tests of the wisdom or propriety of a measure, the unusual magnitude of the majorities by which on this occasion the minister was supported in both Houses may fairly be regarded as a testimony to the necessity of the bill,[180] while its sufficiency was proved by the abandonment of all such meetings, and the general freedom from agitation in every part Of the country which prevailed in the following year, though its most remarkable incident was one of which demagogues might well have taken advantage, if they had not had so convincing a proof of the power of government, and of the resolution of the ministers to exert it.[181]

  Notes:

  [Footnote 172: Against Junot, at Vimiera and Rolica, in 1808; Soult, at Oporto, and Victor, at Talavera, in 1809; Massena and Ney, at Busaco and Torres Vedras, in 1810; Massena and Bessieres, at Fuentes d'Onor, in 1811. Ciudad Rodrigo and Badajoz had been taken in 1812, in spite of the neighborhood of Soult and Marmont. In July, 1813, a month after the formation of Lord Liverpool's ministry, he routed Marmont at Salamanca; in 1813 he took Madrid, and routed Jourdain at Vittoria; and, having subsequently defeated Soult at Sauroren, he crossed the French frontier in October.]

  [Footnote 173: A resolution, moved by Mr. Canning, to take the claims of the Roman Catholics into consideration in the next session had been carried in June by the large majority of 129; and when Lord Wellesley brought forward a similar motion in the House of Lords, not only did Lord Liverpool "protest against its being inferred from any declaration of his that it was, or ever had been, his opinion that under no circumstances would it be possible to make any alteration in the laws respecting the Roman Catholics," but the Chancellor, Lord Eldon, who was generally regarded as the stoutest champion of the existing law, rested his opposition entirely on political grounds, explaining carefully that he opposed the motion, "not because he quarrelled with the religion of the Roman Catholics, but because their religious opinions operated on their political principles in such a way as to render it necessary to adopt some defence against them," and met the motion by moving the previous question, avowedly because "he did not wish, at once and forever, to shut the door of conciliation;" and the previous question was only carried by a single vote-126 to 125.]

  [Footnote 174: "It (difference on the Catholic question) was an evil submitted to by the government, of which Mr. Fox, Lord Grenville, and Lord Grey were members, in the years 1806, 1807, as well as by the governments of Mr. Perceval, Lord Liverpool, and the Duke of Wellington."-Peel's Memoirs, i., 62. This passage would seem to imply that Peel believed the Catholic question to have been left "open" in 1806; but there is not, so far as the present writer is aware, any trace of such an arrangement on record, and Lord Liverpool's letter to the King, of November 10, 1826 ("Life," iii., 436), shows clearly that he was not aware of such a precedent for the arrangement which, in 1812, "he and others advised his Majesty" to consent to. Moreover, the condemnation passed on it by Mr. Ponsonby, who had been Chancellor of Ireland in 1806 and 1807, seems a clear proof that he knew nothing of it, though it is hardly possible that he should have been ignorant of it if it had existed.]

  [Footnote 175: To whom the chief glory of the Waterloo campaign belongs there can, of course, be no doubt; and though the Austrians and Prussians put forward a claim to an equal share, and Russia even to a preponderating one, in the first deposition of Napoleon, he himself constantly attributed his fall more to the Peninsular contest than to any of his wars east of the Rhine. And, indeed, it is superfluous to point out that almost to the last he gained occasional victories over the Continental armies, but that he never gained one advantage over the British force; and that Wellington invaded France the first week of October, 1813-nearly three months before a single Russian or German soldier crossed the Rhine.]

  [Footnote 176: Letter to Sir W. Scott, Twiss's "Life of Lord Eldon," ii., 272. It is remarkable that in his "Life of Lord Ellenborough" Lord Campbell takes no notice of this case.]

  [Footnote 177: The opinion of the Attorney and Solicitor General, Sir S. Shepperd and Sir R. Gifford, is given at length in the author's "Life of Lord Liverpool," ii., 373.]

  [Footnote 178: It is a shrewd observation of Sully, that it is never any abstract desire for theoretical reforms, or even for increased privileges, which excites in lower classes to discontent and outrage, but only impatience under actual suffering.]

  [Footnote 179: The bill (entitled "The Seditious Meetings Prevention Bill"), 60 George III., c. 6, is given at full length in Hansard's "Parliamentary Debates," series 1., vol. xli., p. 1655.]

  [Footnote 180: In the House of Lords the majority was 135 to 38; in the House of Commons, 851 to 128. And even of this minority, many would have supported the bill, if the ministers would have consented to adopt an amendment proposed by Lord Althorp, to limit its operation to a few of the northern and midland counties, in which alone, as he contended, any spirit of dangerous disaffection had been exhibited.]

  [Footnote 181: It may be as well to mention that these pages were written in the autumn of 1880.]

  CHAPTER VIII. Survey of the Reign of George III.-The Cato Street Conspiracy.-The Queen's Return to England, and the Proceedings against her.-The King Visits Ireland and Scotland.-Reform of the Criminal Code.-Freedom 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.-Catholic Emancipation.-Question of the Endowment of the Roman Catholic Clergy.-Constitutional Character of the Emancipation.-The Propriety of Mr. Peel's Resignation of his Seat for Oxford Questioned.

  In the first month of 1820 George III. died. His had been an eventful reign, strangely checkered with disaster and glory; but, if we compare its close with its commencement, it was still more remarkably distinguished by a development of the resources and an increase in the wealth and power of the nation, to which the history of no other country in the same space of time affords any parallel.

  Regarded from the first point of view, our successes greatly outweighed our disasters. The loss of our North American Colonies, the only event which can be so described, was far more than 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 crowned the work of Anson and Hawke, was now added a splendor of military renown far surpassing that achieved by any other of the nations which had borne their share in the overthrow of Napoleon.

  The increase of our resources is sufficiently shown by a single fact. At his accession George III. found the kingdom engaged in the great seven years' war; one British army employed beyond the Rhine, another in India; fleets traversing the seas in every direction, 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 of almost twenty millions." In 1813 the supplies reached nearly six times that amount,[182] and that pro
digious sum was raised with greater ease than the revenue of 1761, the interest on the necessary loans being also lower than it had been on the former occasion.

  The philosophical man of science will point with at least equal exultation to the great discoveries in art and science; to the achievements of the mechanic, the engineer, and the chemist; to the labors of Brindley and Arkwright and Watts, to which, indeed, this great expansion of the resources and growth of the wealth of the country is principally owing.

  While, as the preceding chapters of this work have been designed to show, our political progress and advancement had been no less steady or valuable; yet, important from a constitutional point of view as 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 were produced by them in the constitution, by the transactions of the reigns of the next two sovereigns, though the two united scarcely equalled in their duration a quarter of that of their venerable father.