The Constitutional History of England From 1760 to 1860

by Charles Duke Yonge

  It has been seen how Pitt was baffled in his efforts to remodel the House of Commons, and to remove the disabilities under which the Roman Catholics labored, the reasons for which, even granting that they had been sufficient to justify their original imposition, had, in his judgment, long passed away. His pursuit of the other 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 hoped to diffuse by his commercial treaty with her. But, as in the case of other men in advance of their age, the principles which he had asserted were destined to bear fruit at a later period. And the mere fact of a change in the person of the sovereign seemed to make a change in the policy hitherto pursued less unnatural.

  Yet, memorable as the reforms which it witnessed were destined to make it, no reign ever commenced with more sinister omens than that at which we have now arrived. The new King had not been on the throne a month, 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 brought to punishment, the public mind was yet more generally and profoundly agitated by a scandal which, in one point of view, was still more painful, as in some degree involving the whole kingdom in its disgrace.

  The marriage of the present sovereign to Mrs. Fitzherbert has already been mentioned. A few years afterward, in the year 1795, regarding that marriage as illegal, he had contracted a second with his cousin, the Princess Caroline of Brunswick. But, even in royal families, a more unfortunate alliance had never taken place. They had never met till she arrived in England for the wedding; and, as he had never professed any other motive for consenting to the match than a desire to obtain the payment of his debts, he did not think it necessary to disguise his feelings, or to change his habits, or even to treat her with decency for a single day. On his very first introduction to her he behaved to her with marked discourtesy.[183] Shortly after the marriage he formally separated himself from her, and, both before and after the separation, lived in undisguised licentiousness. She, on her part, indignant at his neglect and infidelity, and exasperated at the restrictions which he presently placed on her intercourse with their only child, made no secret of her feelings, and on many occasions displayed such disregard of the ordinary rules of prudence and propriety, that he had some color for charges of infidelity to her marriage vows which, after a few years, he brought against her. The King, her uncle, could not refuse to appoint a 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 believe that the Princess herself would willingly acquiesce. He was so far correct, that her legal advisers were willing to advise her to consent to "a formal separation, to be ratified by an act of Parliament." But such an arrangement fell far short of the Prince's wishes. The Princess Charlotte, the heiress to his throne, had died in childbirth two years before, and he was anxious to be set free to marry again. The ministers were placed in a situation of painful embarrassment. There was an obvious difficulty in pointing out to one who already stood toward them in the character of their sovereign, and who must inevitably soon become so, that his own conduct made the prospect of obtaining a divorce from the Ecclesiastical Courts hopeless; and the only other expedients calculated to attain his end, "a direct application to Parliament for relief, founded upon the special circumstances of the case," or "a proceeding against the Princess for high-treason," were but little more promising. Indeed, it was afterward ascertained to be the unanimous opinion of the judges that the charge of high-treason could not be legally sustained, since the individual who was alleged to be the partner in the criminality imputed to her was a foreigner, and therefore, "owing no allegiance to the crown," could not be said to have violated it.[184]

  He chafed under their resistance to his wish, and would have deprived them of their offices, could he have relied on any successors whom he might give them proving more complaisant; but, before he could make up his mind, the death of George III. forced upon both him and them the consideration of his and his wife's position, since it made it necessary to remodel the prayer for the royal family, and instantly to decide whether her name and title as Queen were to be inserted in it. He was determined that they should not be mentioned; and, as the practice of praying for a Queen Consort by name appeared not to have been invariable, they were willing to gratify him on this point, though it was evidently highly probable that she would consider this as a fresh insult, sufficient to justify her in carrying out a threat, which she had recently held out, of returning to England. Her ablest advisers did not, indeed, regard it in this light, since 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 L35,000 to L50,000, 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's acquiescence in this proposal, though he called it a "great and painful sacrifice of his personal feelings." They sought to conciliate her acceptance of it by mentioning her in it by her title of "Queen," and by coupling with it a sanction to her appointment of her law-officers, an Attorney and Solicitor General, an act which could only be exercised by a Queen. And, though a part of the condition of her residence abroad required that she should do so under some other title, that seemed only a conforming to an ordinary practice of royal princes on their travels. At the same time, the ministers stated frankly to Mr. Brougham, a lawyer of the highest reputation as an advocate, whom she had appointed her Attorney-general, that, if she should reject the offer, and come to England, as she had already announced her intention of doing, such a course would leave them no alternative, but would compel them to institute proceedings against her.

  Eventually she preferred the advice of others to that of Mr. Brougham, or, as it may, perhaps, be more consistent with the real fact to say, she yielded to her own feelings of hatred of her husband, which, it must be confessed, were far from unnatural. She believed, or professed to believe, that he had more to dread from an exposure of his conduct than she had from any revelations of her actions; and, under this impress
ion, in the spring she crossed the Channel and took up her residence in London. It was a step which seemed to Lord Liverpool to 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 when the committee had reported that the documents containing "allegations deeply affecting the honor of the Queen, etc., ... appeared to the committee calculated to affect not only the honor of the Queen, but also the dignity of the crown and the moral feelings and honor of the country, so that in their opinion, they should become the subject of a solemn inquiry, which might be best effected in the course of a legislative proceeding," he introduced a "Bill of Pains and Penalties" to deprive her of her title of Queen, and to annul her marriage.

  No one would willingly dwell on so melancholy and disgraceful a subject. As far as the Queen was concerned, a protracted investigation, during which a number of witnesses, favorable and unfavorable, were examined, left no doubt on the mind of almost all dispassionate people that the misconduct alleged 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 majority in favor of the bill, as it proceeded through its several stages, that Lord Liverpool, who had already abandoned the clause annulling the marriage, eventually withdrew the whole bill, perceiving the impossibility of inducing the House of Commons to pass it when it should go down to that House.

  No act of Lord Liverpool's ministry has been attacked with greater bitterness than that of allowing any proceedings whatever to be taken against the Queen, partly on the ground that, however profligate her conduct had been, it had certainly not been more gross than that of her husband, which had provoked and given opportunity for her errors; partly because a great scandal was thus published to the world, and a shock was given to the national decency and morality which the ministers, above all men, were bound to avoid; partly, also, because the mode of proceeding 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 contract a second marriage; on the contrary, so long as the Queen remained abroad, no language could be more distinct, consistently with the respect due to his royal dignity, than that in which they expressed to him their insurmountable objection to every mode of proceeding against her which he had suggested, founded almost equally on considerations of "the interests of his Majesty and of the monarchy,"[186] and "the painful obligation" under which they conceived themselves to lie "of postponing their regard for his Majesty's feelings to great public interests."

  But when the Queen came to England the case was greatly altered. The question now forced on the consideration of the cabinet was, not the mode of avoiding an intolerable scandal, but the choice between two scandals, both of the gravest character. The scandal to be dreaded from the revelations of the conduct of both King and Queen, that could not fail to result from the investigation which, in justice, must precede any attempt to legislate on the subject, was, indeed, as great as ever; but it had now to be compared with the alternative scandal of allowing a woman lying under such grievous imputations to preside 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 employment of every means of defence, including recrimination, the scandal was yet one which would, to a certain extent, pass away with the close of the inquiry. But, if she were left undisturbed in the enjoyment of her royal rank, and of privileges which could not be separated from it, that scandal would last as long as her life-longer, in all probability, than the reign. It is hardly too much to say that the monarchy itself might have been endangered by the spectacle of such a King and such a Queen; and the ministers might fairly contend that, of two great dangers and evils, they had, on the whole, chosen the least.

  Lastly, if the Queen's conduct was to be investigated, though the mode adopted was denounced as unconstitutional by the Opposition (for, not greatly to their credit, the leading Whigs made her guilt or innocence a party question), it does not seem to deserve the epithet, though it may be confessed to have been unsupported by any direct precedent. Isabella, the faithless wife of Edward II., had, indeed, been condemned by "the Lords" to the forfeiture of many of the estates which she had illegally appropriated; but it does not appear that her violation of her marriage vows, or even her probable share 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 impeachment for high-treason could lie against her. She could not be an accomplice in such an offence of one who, being a foreigner, could not have committed it. It was equally impossible for the King to sue for a divorce, as one of his subjects might have done; because it was the established practice of Parliament not to entertain a bill of divorce without the judgment of the Ecclesiastical Court being previously obtained and produced. And, under the circumstances, to obtain from the Ecclesiastical Court such a sentence as could alone lay the foundation for a bill of divorce was clearly out of the question.

  The case was a new and extraordinary one, and, being such, could only be dealt with in some new and extraordinary manner. And in all such cases an appeal to Parliament seems the most, if not the only, constitutional mode of solving the difficulty. Where the existing laws are silent or inapplicable, the most natural resource clearly is, to go back 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 great principle, that the solution of all matters of moment to the state belongs to the Parliament alone: a principle which, in its legitimate completeness, carries with it a condemnation of many a modern association whose object, whether avowed or disguised, is clearly to supersede where it fails to intimidate the sole constitutional Legislature.

  The abandonment of the bill was naturally hailed as a triumph by the Queen and her partisans; but with the excitement of the struggle against the government the interest taken in her case died away. The next year, when she demanded to be crowned with her husband, his refusal to admit her claim elicited scarcely any sympathy for her unde
r this renewed grievance; in truth, it was one as to which precedent was unfavorable to her demand. And the mortification at finding herself already almost forgotten contributed to bring on an illness of which she died in less than a year after the termination of what was called her trial; and in a short time both she and it were forgotten.

  For the next few years the history of the kingdom is one of progressive correction of abuses or defects. The King paid visits to Ireland and Scotland, parts of his dominions which his father had never once visited, and in both was received with the most exultant and apparently sincere acclamations. And, though one great calamity fell on the ministry in the loss of Lord Castlereagh-who, in a fit of derangement, brought on by the excitement of overwork, unhappily laid violent hands on himself-his death, sad as it was, could not be said to weaken or to affect the general policy of the cabinet. Indeed, as he was replaced at the Foreign Office by his old colleague and rival, Mr. Canning, in one point of view the administration may be said to have been strengthened by the change, since, as an orator, Canning had confessedly no equal in either House of Parliament. Another change was productive of still more practical advantage. Lord Sidmouth retired from the Home Office, and was succeeded by Mr. Peel, previously Secretary for Ireland; and the transfer of that statesman to an English office facilitated reforms, some of which were as yet little anticipated even 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 hop-garden, robbing a rabbit-warren or a fish-pond, personating an out-pensioner of Greenwich Hospital, or even being found on a high-road with a blackened face, the intention to commit a crime being inferred from the disguise, even though no overt act had been committed. An act of Elizabeth made picking a pocket a capital offence; another, passed as late as the reign of William III., affixed the same penalty to shop-lifting, even when the article stolen might not exceed the value of five shillings. And the fault of these enactments was not confined to their unreasonable cruelty; they were as mischievous even to those whom they were designed to protect as they were absurd, as some owners began to perceive. In the list of capital offences was that of stealing linen from a bleaching-ground. And a large body of bleachers presented a petition to Parliament entreating the repeal of the statute which made it such on the ground that, practically, it had been found not to strike terror into the thieves, but almost to secure them impunity from the reluctance of juries to find a verdict which would sentence a fellow-creature to the gallows for such an offence.