The Constitutional History of England From 1760 to 1860

by Charles Duke Yonge

  Nor was this by any means the only instance in which the barbarity of the law defeated its object. And its combined impolicy and inhumanity had some years before attracted the notice of Sir Samuel Romilly, who had been Solicitor-general in the administration of 1806, and who, shortly after its dissolution, began to apply himself to the benevolent object of procuring the repeal of many of the statutes in question, and in the course of a few years did succeed in obtaining the substitution of milder penalties for several of the less flagitious offences. He died in 1818; but the work which he had began was continued by Sir James Mackintosh, a man of even more conspicuous ability, and one who could adduce his own experience in favor of the changes which he recommended to the Parliament, since he had filled the office of Recorder of Bombay for eight years, and had discharged his duties with a most diligent and consistent avoidance of capital punishment, which he had never inflicted except for murder; his lenity, previously unexampled in that land, having been attended with a marked diminution of crime. He procured the substitution of milder penalties in 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 the example which he now set, enforced as it was with all the authority of the government, was followed in many subsequent sessions, till at last our code, instead of the most severe, has become the most humane in Europe, and death is now never inflicted except for murder, or crimes intended or calculated to lead to murder. It is worth remarking, however, that neither Romilly, Mackintosh, nor Peel ever entertained the slightest doubt of the right of a government to inflict capital punishment. In the last address which Mackintosh delivered to the grand-jury at Bombay he had said: "I have no doubt of the right of society to inflict the punishment of death on enormous crimes, wherever an inferior punishment is not sufficient. I consider it as a mere modification of the right of self-defence, which may as justly be exercised in deterring from attack as in repelling it."[187] And in his diary, when speaking of a death-warrant which he had just signed, he says: "I never signed a paper with more perfect tranquillity of mind. I felt agitation in pronouncing the sentence, but none in subscribing the warrant; I had no scruple of conscience on either occasion."

  And it seems that his position is unassailable. The party whose interest is to be kept in view by the Legislature in imposing punishments on offences is society, the people at large, not the offender. The main object of punishment is to deter rather than to reform; to prevent crime, not to take vengeance on the criminal. And, if crime be more effectually prevented by moderate than by severe punishments, society has a right to demand, for its own security (as a matter of policy, not of justice), that the moderate punishment shall, on that ground, be preferred. That punishments disproportioned in their severity 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 prevalence of these feelings afforded them. Wherever the sympathy of the public does not go along with the law, it must, to a great extent, fail; and that the terrible frequency of sanguinary punishment had failed in all its objects, was proved by the fact that, in spite of the numerous executions which took place, crimes increased in a still greater proportion than the population. Under the reformed system, now first inaugurated on an extensive scale, crimes have become rarer, detection and punishment more certain-a combination of results which must be the object equally of the law-giver and the philanthropist.

  It is not quite foreign to this subject to relate that, a year or two before, a mode of trial had been abolished which, though long disused, by some curious oversight had still been allowed to remain on the statute-book. In the feudal times either the prosecutor or the prisoner, in cases of felony, had a right to claim that the cause should be decided by "wager of battle;" but it was an ordeal which, with one exception in the reign of George II., had not been mentioned for centuries. In 1817, however, the relatives of a woman who had been murdered, being dissatisfied with the acquittal of a man who had been indicted as her murderer, sued out "an appeal of murder" against him, on which he claimed to have the appeal decided by "wager of battle," 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. Fortunately for them, the alleged murderer was so superior in bodily strength to his adversary, that the latter declined the contest. But the public advancement of the claim for such a mode of decision was fatal to any subsequent exercise of it; and, in spite of the Common Council of London, who, confiding, perhaps, in the formidable appearance presented by some of the City Champions on Lord Mayor's Day, petitioned Parliament to preserve it, the next year the Attorney-general brought in a bill to abolish it, and the judges were no longer compelled to pronounce an absurd sentence in obedience to an obsolete law, framed at a time when personal prowess was a virtue to cover a multitude of sins, and might was the only right generally acknowledged.

  The foundation, too, was laid for other reforms. Lord Liverpool was more thoroughly versed than any of his predecessors, except Pitt, in the soundest principles of political economy; and in one of the first speeches which he made in the new reign he expressed a decided condemnation, not only of any regulations which were designed to favor one trade or one interest at the expense of another, but generally of the 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 to the consumer at all times as nearly equal as possible. At first, however, it was vehemently denounced by the bulk of the agriculturists, who were re-enforced on this occasion by a large party from among the Whigs, and especially by some of those connected with Ireland. But a more suitable period for discussing the establishment of Free-trade as the ruling principle of our financial policy will occur hereafter.

  The introduction of the sliding-scale was almost th
e last act of Lord Liverpool's ministry. At the beginning of 1827 he was preparing a fresh measure on the same subject, the effect of which 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 this subject, by the King's favorite brother, the Duke of York.[189] But, a few days after the meeting of Parliament, he was struck down by an attack of paralysis, from which he never recovered.

  In his post as Prime-minister he was succeeded by Canning, not without great reluctance on the part of the King; not, probably, so much because he feared to find in him any desire to depart from the policy of Lord Liverpool, except on the Catholic question (for even on matters of foreign policy, on which Canning had always been supposed most to fix his attention, he had adopted the line which Lord Liverpool had laid down for the cabinet with evident sincerity),[190] as because his Majesty had never wholly forgiven him for the attitude which he had taken, differing on one or two points from that of his colleagues on the Queen's case. And, as has been mentioned in a former chapter, he even, with the object of evading the necessity of appointing him, suggested to the Duke of Wellington the singular scheme of allowing the remaining members of Lord Liverpool's cabinet to select their own chief,[191] which the Duke, though 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 death, the Duke was prevailed on to resume the command. It is evident that no arrangement could possibly be more inconsistent with every principle of the constitution. The very foundation of parliamentary government is, that every officer of every department is responsible to Parliament for the proper discharge of his duties. But the investiture of the sovereign with ministerial office of any kind must involve either the entire withdrawal of that department from parliamentary control, or the exposure of the sovereign to constant criticism, which, however essential to the efficiency of the department, and consequently to the public service, would be wholly inconsistent with the respect due to the crown. The first alternative it is certain that no Parliament would endure for a moment; the second, by impairing the dignity of the monarch, could scarcely fail in some degree to threaten the stability of the monarchy itself.

  Canning's ministry was too brief to give time for any transaction of internal importance. That of Lord Goderich, who succeeded him, though longer by the almanac, was practically briefer still, since it never met Parliament at all, but was formed and fell to pieces between the prorogation and the next meeting of the Houses. But that which followed, under the presidency of the Duke of Wellington, though after 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 the larger measure of the two was proposed by the Duke after those members of his cabinet who had originally been supposed to give it something of a Liberal complexion had quitted it. The Reform Bill of 1832-to which we shall come in the next chapter-has been often called a peaceful revolution. The Toleration Acts, as we may call the bills of 1828 and 1829, are scarcely less deserving of that character.

  The constitution, as it had existed for the last hundred and forty years, had been not only a Protestant but a Church of England constitution. Not only all Roman Catholics, but all members of Protestant Non-conforming sects, all who refused to sign a declaration against the doctrine of Transubstantiation, and also to take the Sacrament according to the rites of the one Established Church, were disqualified for any appointment of trust. That the object with which the Test Act had been framed and supported was rather political than religious is notorious; indeed, it was supported by the Protestant Dissenters, though they themselves were to suffer by its operation, so greatly at that time did the dread of Popery and the French King overpower every other consideration.[192] On the Roman Catholics, after the reign of James II. had increased that apprehension, the restrictions were tightened. 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; and in the first year of George II.'s reign (by which time it was notorious that many Protestant Non-conformists had obtained seats in municipal corporations, and even in the House of Commons, who yet had never qualified themselves by compliance with the act of 1673) a bill of indemnity was introduced by the minister, with at least the tacit consent of the English bishops, to protect all such persons from the penalties which they had incurred. And the bill, which was only annual in its operation, was renewed almost every year, till, in respect of all such places or dignities (if a seat in the House of Commons can be described by either of those names), no one thought of inquiring whether a man, so long as he were a Protestant, adhered to the Established Church or not; members of the House of Commons even openly avowing their nonconformity, and at times founding arguments on the fact.

  The practical nullification of the Test Act by these periodical bills of indemnity had been for some time used by two opposite parties-both that which regarded the maintenance of the exclusive connection of the constitution with the Church of England as of vital importance to both Church and constitution, and that which was opposed to all restrictions or disqualiflcations on religious grounds-as an 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 defeated without attracting any great notice; but in the spring of 1828 Lord John Russel, then a comparatively young member, but rapidly rising into influence with his party, carried a motion in the House of Commons for leave to bring in a bill to repeal the act, so far as it concerned the Protestant Non-conformists, by a very decisive majority,[194] in spite of all the efforts of Peel and his colleagues.

  The ministry was placed in a difficult position by his success, since the usual practice for a cabinet defeated on a question of principle was to resign; and it is probable that they would not have departed from that rule now, had not this defeat occurred so early in their official life. But on this occasion it seemed to them that other questions had to be considered besides the constitutional doctrine of submission on the part of a ministry to the judgment of the Parli
ament.[195] Theirs was now the fourth administration that had held office within twelve months; and their resignation, which would compel the construction of a fifth, could hardly fail not only to embarrass the sovereign, but to shake public confidence in government generally. It was also certain that they could rely on a division in the House of Lords being favorable to them, if they chose to appeal from one House to the other. Under these circumstances, they had to consider what their line of conduct should be, and there never were two ministers better suited to deal with an embarrassment of that kind than the Duke of 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 more for the real interests of the Church and of religion to consent to an alteration in the law" than to trust to the result of the debate in the House of Lords to maintain the existing state of things. Accordingly, after several conferences with the most influential members of the Episcopal Bench, he framed a declaration to be substituted for the Sacramental test, binding all who should be required to subscribe it-a description which included all who should be appointed to a civil or corporate office-never to exert any power or influence which they might thus acquire to subvert, or to endeavor to subvert, the Protestant Church of England, Scotland, or Ireland, as by law established. The declaration was amended in the House of Lords by the addition of the statement, that this declaration was subscribed "on the true faith of a Christian," introduced at the instigation of Lord Eldon, who had not held the Great Seal since the dissolution of Lord Liverpool's administration, but who was still looked up to by a numerous party as the foremost champion of sound Protestantism in either House.