The Constitutional History of England from 1760 to 1860

Chapter 5

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Pitt was now Prime-minister, with a degree of power in Parliament and of popularity out-of-doors that no former minister, not even his own father, had ever enjoyed. As such, by the confession of one who was certainly no friendly critic,[108] "he became the greatest master of Parliamentary government that has ever existed." His administration may be regarded as a fresh starting-point in the history of the country, as the inauguration of the principle of steady amendment, improvement, and progress, in place of the maxims which had guided all his predecessors since the Revolution, of regarding every thing as permanently settled by the arrangements made at that time, and their own duty, consequently, as binding them to keep everything in its existing condition. But, of all the ministers recorded in our annals, there is not one so greatly in advance of his time as Pitt; and from the very outset of his ministerial career he applied himself, not only to the removal or correction of admitted abuses or defects, but, in cases where the fault, being in our general system of policy, had been less conspicuous, to the establishment of new principles of action which have been the rules of all succeeding statesmen. He was not, indeed, the first raiser of the question of Parliamentary Reform, but he was the first to produce an elaborate scheme with that object, parts of which, such as the suppression of the smaller boroughs and the enfranchis.e.m.e.nt of places which had gradually become more important, have been leading features of every subsequent bill on the subject. He was the first to propose the removal of those political disabilities under which the Roman Catholics labored, which no one before him had regarded as consistent with the safety of the state, and to which he sacrificed office. He was the first to conceive the idea of developing our national industries and resources by commercial treaties with other nations, even choosing for his essay-piece a treaty with a country with which our relations for nearly five hundred years had been almost uninterruptedly hostile, and which Fox, in the heat of his opposition, objected even to consider in any other light than that of an enemy. He laid the foundation for all subsequent legislation connected with our colonies in his Bill for the Government of Canada; and he established a system for the government of our Indian dependencies on so statesman-like a principle, that all subsequent administrations concurred in upholding it, till subsequent events compelled the abolition of all the share in the government of the country previously possessed by the Company.

A great writer of the past generation,[109] who in some respects has done full justice to his genius and political virtue, has, however (partly, it can hardly be doubted, from regarding himself as a follower of his great rival, Fox), contrasted his capacity as a War-minister with that of his father, drawing a comparison on this point very disadvantageous to the son. We need not stop to examine how far the praises which he bestows on Lord Chatham"s talents as a planner of military operations are deserved; but it may very fairly be contended that the disparaging views of Pitt"s military policy which he has advanced are founded solely on what is in this as well as in many other instances a most delusive criterion, success. It is true, unquestionably, that in the campaigns of 1793-4-5 against the French revolutionists, while he took upon this country the entire burden of the naval war, on land he contented himself with playing a secondary part, and employing a comparatively small force (which, however, doubled that which his father had sent to Minden),[110] for the success of the military operations trusting chiefly to the far stronger Austrian and Prussian divisions, under the command of Prince Coburg and the Duke of Brunswick, to which the British regiments were but auxiliaries. It is true, also, that the result of their operations was unfortunate, and that the German generals proved wholly unable to contend with the fiery and more skilful impetuosity of Jourdan and Pichegru. But the question is not whether Pitt"s confidence in the prowess of his allies was misplaced, but whether he had not abundant reason to justify him in entertaining it. And, to judge fairly on this point, we must recollect the reputation which for the last forty years the Austrian and Prussian armies had enjoyed. The result of the seven years" war had established the renown of the Prussians, and the Duke of Brunswick was understood to be a favorite pupil of the Great Frederic. The same war had shown that the Austrians were not very unequal to the Prussians; while the reputation of the French troops had fallen to the lowest ebb, the most memorable event in their annals during the same war being the rout of Rosbach, when 60,000 of them fled before Frederic and 22,000. At the breaking out of the Revolution, it might be said that De Bouille was the only French general of the slightest reputation, and since the sad journey to Varennes he had been an exile from his country. And, though again in 1803 Pitt once more trusted for success on land to Continental alliances, not only does he deserve admiration for the diplomatic talent with which he united Austria, Prussia, and Russia against France, but it can hardly be doubted that confederacy would have been triumphant, had not the incompetent vanity of Alexander ruined all its prospects by his rash disregard at Austerlitz of the experienced warnings of his own staff.[111]

The new form of government which he established for India, and to which allusion has been made, has lost the greater part of its importance in the eyes of the present generation, from the more-recent abolition of the political authority of the East India Company, though of some of the principles which he avowed he had taken for his guides it is worth while to preserve the record; with such clearness, as well as statesman-like wisdom, do they affirm the objects which every one should keep in view who applies himself to legislation for distant dependencies where the privileges and interests of foreign fellow-subjects are to be regarded with as jealous a solicitude as those of our own countrymen. These objects may be briefly described as being the reconciling the vested and chartered interests of the Company with the legitimate authority of the King"s government; for, though Pitt admitted that "state necessity"

might occasionally be allowed as a valid reason for the abrogation of a charter, he affirmed that nothing short of such absolute necessity could excuse such a measure, and he relied on the previous history of the Company to prove the fallacy of an observation that had sometimes been made, that commercial companies could not govern empires. There were three interests to be considered: that of the native Indians, that of the Company, and that of this country; and the problem to be solved was, "how to do the most good to India and to the East India Company with the least injury to our const.i.tution." Some of his remarks contained unavoidable allusions to Fox"s bill of the previous year, since some of the provisions of his bill were entirely opposite to those which Fox had framed, the most material point of difference being the character of the Board of Control which he proposed to establish. Fox, as has been seen, had proposed to make the commissioners to be appointed under his bill irremovable for several years, whatever changes might take place in the home government; an arrangement which the opposers of the bill suspected of being designed to prevent any change in the home government from taking place. Pitt, on the other hand, laid down as one of his leading principles that "the board could not be permanent, that it must be subordinate to the administration of the day, and that permanency would be in itself a deviation from the principles of the const.i.tution, and would involve the board in contradictions to the executive government that could not fail to be attended with great public inconvenience. An inst.i.tution to control the government of India must be either totally independent of the government of this country or subordinate to it."

"The board was to consist of none but privy councillors," and instead of the vast amount of patronage which was to have been created by the bill of 1783, this board was "to create no increase of officers nor to impose any new burdens." ... "The first and leading ideas would be, to limit the subsisting patronage;" ... and so little was Pitt covetous to engross that which did and must continue to subsist, that he left even "the officers of the government of Bengal to the nomination of the Court of Directors, subject only to the negative of the crown; and the Court of Directors was also to have the nomination of the officers of all the subordinate governments, except only of the commander-in-chief, who, for various reasons, must remain to be appointed by the crown." Another very important part of the arrangement was, that "gradation and succession were to be the general rule of promotion," a regulation which of itself would be "a forcible check upon patronage, and tend greatly to its reduction." The governor of Bengal was to be the governor-general of the whole country, the governors of Madras and Bombay being subordinate to him; and each governor was to be a.s.sisted by a council of three members, of whom the commander of the forces was to be one.

The spirit in which a law or a government is administered is commonly of greater practical importance than the words in which the regulation or the system is framed or defined; and Pitt, therefore, concluded his speech by laying down a few "clear and simple principles as those from which alone a good government could arise. The first and princ.i.p.al object would be to take care to prevent the government from being ambitious and bent on conquest. Commerce was our object, and, with a view to its extension, a pacific system should prevail, and a system of defence and conciliation. The government there ought, therefore, in an especial manner, to avoid wars, or entering into alliances likely to create wars." It was not to forget "to pay a due regard to self-defence, or to guard against sudden hostilities from neighboring powers, and, whenever there was reason to apprehend attack, to be in a state of preparation. This was indispensably necessary; but whenever such circ.u.mstances occurred, the executive government in India was not to content itself with acting there as the circ.u.mstances of the case might require; it was also to send immediate advice home of what had happened, of what measures had been taken in consequence, and what farther measures were intended to be pursued; and a tribunal was to be established to take cognizance of such matters." The system of taking presents from the natives was to be absolutely prohibited, a regulation which he hoped would "tend effectually to check private corruption;"

and, lastly, it was proposed to establish a court of criminal judicature for the trial in England of certain cla.s.ses of delinquents after their return from India. The Judges of the court were to be men of the highest character; they were to be chosen by ballot, some being taken from the bench of judges, some from each House of Parliament. And they were "not to be tied down to strict rules of evidence, but to be upon their oaths to give their judgments conscientiously, and to p.r.o.nounce such judgment as the common law would warrant." Such a tribunal he admitted to be an innovation; but, "unless some new process were inst.i.tuted, offences shocking to humanity, opposite to justice, and contrary to every principle of religion and morality, must continue to prevail, unchecked, uncontrolled, and unrestrained, and the necessity of the case outweighed the risk and the hazard of the innovation."

These were the general outlines of the const.i.tution which in 1784 the Parliament established for India, and the skill with which it was adapted to the very peculiar character of the settlements to be governed is sufficiently proved by the fact that it was maintained with very little alteration equally by Whig and Tory administrations for three-quarters of a century, till the great convulsion of the Mutiny compelled an entire alteration in the system, and the abolition of the governing powers of the Company, as we shall have occasion to relate in a subsequent chapter. The principles which Pitt had laid down as the guiding maxims for the governors; the avoidance of ambitious views of conquest, the preservation of peace, and the limitation of the aims of the government to the encouragement and extension of commerce, were not equally adhered to. Undoubtedly, in some instances, the wars in which, even during Pitt"s too short lifetime, the Indian government was engaged, came under his description of wars which were justifiable on the ground of self-defence--wars undertaken for the preservation of what had been previously won or purchased, rather than for the acquisition of new territories at the expense of chiefs who had given us no provocation. But for others, though professedly undertaken with a view only of antic.i.p.ating hostile intentions, the development of which might possibly be reserved for a distant future, it is not easy to find a similar justification; and it may be feared that in more than one case governors-general, conscious of great abilities, have been too much inclined to adopt the pernicious maxim of Louis XIV., that the aggrandizement and extension of his dominions is the n.o.blest object which a ruler of nations can have in view. Yet, though unable on strictly moral grounds to justify all the warlike enterprises which make up so large a part of our subsequent Indian history, it is impossible, probably, for even the most rigid moralist to avoid some feelings of national pride in the genius of our countrymen, who in the short s.p.a.ce of a single century have built up an empire of a magnitude unequalled even by the Caesars, and have governed and still are governing it in so wise and beneficent a spirit, and with such a display of administrative capacity, that our rule is recognized as a blessing by the great majority of the nations themselves, as a protection from ceaseless intestine war, from rapine, and that worst of tyrannies, anarchy, which was their normal condition before Clive established our supremacy at Pla.s.sy, and into which they would surely and speedily fall back, if our controlling authority were to be withdrawn.

India was not the only British settlement for which the growth of our empire compelled Pitt to devise a const.i.tution. The year which saw his birth had also seen the conquest of Canada from the French; and in 1774 a system of government for the new province had been established which it is sufficient here to describe as one, which differed but little from a pure despotism, the administration being vested in a governor and Legislative Council, every member of which was to be nominated by the crown. But the working of this act had from the first proved very unsatisfactory, and had become more so as the population increased by the influx of fresh settlers from Great Britain, and also from the United States, here many of those who in the recent civil war had adhered the connection with the mother country had been exposed to constant malice and ill-treatment, and had preferred crossing the border and obtaining lands in Canada to returning to England. Pitt recognized the evil, and undertook to remedy it and in 1791 he introduced a bill to establish a const.i.tution for Canada, which a recent historian describes as "remarkable, as recognizing for the first time the wise and generous principle of independent colonial inst.i.tutions, which has since been fully developed in every dependency of the British crown capable of local self-government."[112] One peculiar difficulty in framing such a const.i.tution arose from the circ.u.mstance of the old French colonists, who greatly outnumbered the settlers of British blood, being attached to the Roman Catholic religion; while the British settlers were nearly, or perhaps all, Protestant, though of different denominations. The difficulty was, indeed, lessened by the circ.u.mstance that the French dwelt in Quebec and the district between that city and the mouth of the St. Lawrence, and that the English had for the most part betaken themselves to the more inland region. And this local separation of the two races the minister now took for his guide in the arrangement which he devised. The most important feature in it was the division of the province into two parts, as Upper and Lower Canada, and the establishment of a distinct local Legislature for each division, a House of a.s.sembly being created in each, and a Council, so as, in Pitt"s words, "to give both divisions the full advantages of the British const.i.tution." The a.s.semblies were to have the power of taxation (so that there was no room left for such perverse legislation by a British Parliament as had lately cost its sovereign the United States). The act of _habeas corpus_ was extended to the province (a privilege which no one of French blood had ever enjoyed before); the tenure of land was to be the socage[113] tenure so long and happily established in England.

Complete religious toleration was established, and a certain proportion of land was allotted in Upper Canada, as a provision for a Protestant clergy, and the foundation of an ecclesiastical establishment. So great was Pitt"s desire to complete the resemblance between the colony and Great Britain, that he even contemplated the creation of an aristocracy, by the introduction of a provision enabling the King to grant hereditary colonial t.i.tles, the possession of which should include hereditary seats in the provincial Council. The two latter clauses were opposed by Fox, and the latter of them, though sanctioned by Parliament, was never carried out in practice. But Fox, bitter as he was at this time in his general opposition to the government, agreed cordially in the general principles of the bill, avowing his conviction that "the only method of retaining distant colonies with advantage is to enable them to govern themselves," so that each party in the British Parliament is ent.i.tled to a share of the credit for this pattern of all subsequent colonial const.i.tutions--Pitt for the original genius for organization which his contrivance of all the complicated details of the measure displayed, and Fox for his frank adoption of the general principle inculcated by his rival, even while differing as to some of the minor details of the measure. During these years the country was increasing in prosperity, and the minister was daily rising in credit; more powerful and more popular than the most successful or the most brilliant of his predecessors. But during these same years two great const.i.tutional difficulties had arisen, one of which, indeed, the deep sense which both parties felt of the danger of investigating it shelved almost as soon as it was seen; but the other of which, besides the importance which it derived from the degree in which it involved the principle of the supreme authority of Parliament, and brought under discussion even that which regulates the succession to the crown, imperilled the existence of the ministry, and threatened a total change in both the domestic and foreign policy of the nation.

The Prince of Wales, who had come of age in the summer of 1783, had at once begun to make himself notorious for the violence of his opposition to his father"s ministers, carrying the openness of his hostility so far as, during the Westminster election to drive about the streets with a carriage and all his servants profusely decorated with Fox"s colors; and, still more discreditably, by most unmeasured profligacy of all kinds. The consequence was that he soon became deeply involved in debt, so deeply that, in 1787, a member of Fox"s party gave notice of his intention to move that the Parliament should pay his debts and increase his income. Pitt, without specifying his reasons, avowed that he should feel it his duty to oppose any grant of such a character; but another member of Parliament, Mr. Rolle, one of the members for Devonshire, being trammelled by no such feeling of responsibility, expressed a similar resolution in language which contained an allusion perfectly understood on both sides of the House. He said that "the question thus proposed to be brought forward went immediately to affect our const.i.tution in Church and State." And every one knew that he was referring to a report which had recently become general, that the Prince was married to a Roman Catholic lady of the name of Fitzherbert. No direct notice was taken of this allusion at the moment, Fox himself, who had the chief share of the Prince"s confidence, being accidentally absent; but a day or two afterward he referred to Rolle"s speech with great indignation, declaring that it referred to a "low, malicious calumny" which had no foundation whatever, and "was only fit to impose on the lowest order of persons." Being pressed as to the precise force of his a.s.sertion, and being asked whether it meant more than that under the existing laws, such as the Royal Marriage Act, there had been no marriage, because there could have been no _legal_ marriage, he declared that he meant no such evasion, but that no marriage ceremony, legal or illegal, had ever taken place; and farther, that in saying this he was speaking on the direct authority of the Prince himself. No more degrading act stains the annals of British royalty. For the fact was true--the very next evening Fox learned the deceit which the Prince had practised on him from a gentleman who had been one of the witnesses to the marriage, which had been solemnized by a Protestant clergyman fifteen months before.[114] And his indignation was such that for some time afterward he abstained from all interference in the Prince"s affairs; while the language held by the Prince"s other confidant, Mr.

Sheridan, was so evasive as to betray a consciousness that whatever had occurred would not bear the light of day; so that there were very few to whom the truth or falsehood of the report was a subject of interest who felt any uncertainty on the subject.

It may, probably, be regarded as fortunate for the peace of the kingdom that the Prince, who eventually became King George IV., left behind him no issue from his marriage with the Princess, the failure of heirs of his body thus removing any temptation to raise the question whether he had not himself forfeited all right to succeed to the throne by his previous marriage to a Roman Catholic. A clause of the Bill of Rights provides that any member of the royal family who should marry a Roman Catholic (with the exception of the issue of princesses who may be the wives of foreign princes) shall by that marriage be rendered incapable of inheriting the crown of England. And though the Royal Marriage Act (which, as we have seen, had been recently pa.s.sed) had enacted that no marriage of any member of the royal family contracted without the consent of the reigning sovereign should be valid, it by no means follows that an invalidity so created would exempt the contractor of a marriage with a Roman Catholic, which as an honorable man he must be supposed to have intended to make valid, from the penalties enacted by the Bill of Rights. It is a point on which the most eminent lawyers of the present day are by no means agreed. The spirit of the clause in that bill undoubtedly was, that no apparent or presumptive heirs to the crown should form a matrimonial connection with any one who should own allegiance to a foreign power, and that spirit was manifestly disregarded if a prince married a Roman Catholic lady, even though a subsequent law had enacted a conditional invalidity of such a marriage.

We may find an a.n.a.logy to such a case in instances where a man has abducted a minor, and induced her to contract a marriage with himself.

The lady may not have been reluctant; but the marriage has been annulled, and the husband has been criminally prosecuted, the nullity of the marriage not availing to save him from conviction and punishment. A bigamous marriage is invalid, but the bigamist is punished. And, apart from any purely legal consideration, it may be thought that public policy forbids such a construction of law as would make the illegality or invalidity of an act (and all illegal acts must be more or less invalid) such a protection to the wrong-doer as would screen him from punishment.

Whatever may be the judgment formed on the legal aspect and merits of the case, the conduct of the Prince could not fail to give the great body of the people, justly jealous at all times of their national adherence to truthfulness and honesty, a most unfavorable impression of his character. As has been already mentioned, Fox was so indignant at having been made the instrument to a.s.sure the Parliament and the nation of a falsehood, that he for a time broke off all communication with him.[115] Yet a singular caprice of fortune, or, it would be more proper to say, a melancholy visitation of Providence, before the end of the following year led Fox to carry his championship of the same Prince who had so abused his confidence to the length of p.r.o.nouncing the most extravagant eulogies on his principles, and on his right to the confidence and respect of the nation at large. In the autumn of 1788 the King fell into a state of bad health, which in no long time affected his mind, and, by the middle of November, had so deranged his faculties as to render him incapable of attending to his royal duties, or, in fact, transacting any business whatever. Parliament was not sitting, but its re-a.s.sembling had been fixed for the 4th of December, and before that day arrived the King"s illness had a.s.sumed so alarming a character, and it appeared so unsafe to calculate on his immediate recovery, that the minister summoned a Privy Council, the summons being addressed to the members of the Opposition as well as to his own followers, to receive the opinions of the physicians in attendance on his Majesty, as a necessary foundation for the measures which he conceived it to be his duty to propose to Parliament. Those opinions were, that it was almost certain that the disease would not be permanent, though no one could undertake to fix its duration with the least appearance of probability.

And, as the royal authority could not be left in abeyance, as it were, for an uncertain period, it was indispensable to appoint a Regent to conduct the affairs of the kingdom till the King should, happily, be once more in a condition to resume his functions.

In considering the line of conduct adopted in this emergency by Pitt and his great rival Fox, Pitt has one manifest advantage on his side, that it is impossible to attribute the course which he took to any personal motive, or any desire for the retention of official power; while it is equally impossible to doubt that Fox was in no slight degree,[116] and that Lord Loughborough, the prince"s chief adviser on points of law, was wholly influenced by the hope of supplanting the ministry. Pitt had never the least doubt that on the establishment of the Regency he should be dismissed, and was prepared to return to the Bar. But his knowledge of the preference which the Prince entertained for his rival did not lead him to hesitate for a single moment as to the propriety of placing him in a situation to exercise that preference. On the rea.s.sembling of Parliament, he at once took what he conceived to be the proper parliamentary course of proceeding; at his suggestion committees in both Houses were appointed to take a formal examination of the royal physicians; and, when those committees had reported that the King was for the present incapable of discharging his royal functions, though likely at some future period to be able to resume them, he moved the House of Commons to appoint another committee, to search for "precedents of such proceedings as might have been taken in the case of the personal exercise of the royal authority being prevented or interrupted by infancy, sickness, or infirmity, with a view to provide for the same."

Such a search for precedents was no novelty, and may be thought to have been especially proper in such a case as this, since history recorded the appointment of several regencies, one under circ.u.mstances strikingly resembling those now existing, when, in 1454, Henry VI. had fallen into a state of imbecility, and the Parliament appointed the Duke of York Protector[117] of the kingdom.

But Fox instantly opposed it with extreme vehemence, declaring that the appointment of such a committee would be a pure waste of time. It was notorious, he affirmed, that no precedent existed which could have any bearing on the present case, since there was in existence a person such as had never been found on any previous occasion, an heir-apparent of full age and capacity to exercise the royal authority; and he declared it to be his deliberate opinion that the Prince of Wales had "as clear and express a right to a.s.sume the reins of government, and to exercise all the powers of sovereignty, during the illness and incapacity of the sovereign, as if that sovereign were actually deceased." Such an a.s.sertion of indefeasible right was so totally at variance with the Whig doctrines which Pitt, equally with Fox, regarded as the true principles of the const.i.tution, that Pitt at once perceived the advantage which it gave him, by enabling him to stand forward as the supporter of the supreme authority of Parliament, which Fox had by implication denied. He instantly replied that to a.s.sert an inherent indefeasible right in the Prince of Wales, or any one else, independently of the decision of the two Houses, fell little short of treason to the const.i.tution; but, at the same time, to prevent any one pretending to misconceive his intentions, he allowed it to be seen with sufficient plainness that, when once the right of Parliament to appoint the Regent had been established, he should agree in the propriety of conferring that office on the Prince of Wales. The committee was appointed; but, even before it could report the result of its investigations, the doctrine advanced by Fox had been the subject of discussion in the House of Lords, where Lord Camden, who had presided over the meeting of the Privy Council a few days before, on moving for the appointment of a similar committee of peers, had taken occasion to declare that, if Fox had made such an a.s.sertion as rumor imputed to him, it was one which had no foundation in "the common law of the kingdom." He had never read nor heard of such a doctrine. Its a.s.sertors might raise expectations not easily laid, and might involve the country in confusion. And he contended, as Pitt had done in the Commons, that its a.s.sertion was a strong argument in favor of the appointment of a committee, that it might be at once seen whether it were warranted by any precedent whatever. The reports of the two committees bore out Fox"s statement, that no precedent entirely applicable to the case before them had ever occurred. But by this time Fox had learned that the argument which he had founded on it was in the highest degree unpalatable both to Parliament and to the nation; and for a moment he sought to modify it by an explanation that, though he had claimed for the Prince "the naked right, he had not by that expression intended to maintain that that right could be reduced into possession without the consent of Parliament;" an explanation not very reconcilable to common sense, since, if a right were inherent and indefeasible, Parliament could not, without absolute tyranny, refuse to sanction its exercise; and, in fact, his coadjutor, Sheridan, on the very same evening, re-a.s.serted his original doctrine in, if possible, still more explicit terms, warning the minister "of the danger of provoking the Prince to a.s.sert his right," while a still greater man (Burke) declared that "the minister had taken up an att.i.tude on the question tantamount to that of setting himself up as a compet.i.tor to the Prince." Such inconsiderate violence gave a great advantage to Pitt, one of whose most useful characteristics as a debater was a readiness and presence of mind that nothing could discompose. He repelled such menaces and imputations with an equally lofty scorn, and, after a few necessary preliminaries, brought forward a series of resolutions, one of which declared the fact of the sovereign"s illness, and consequent incapacity; a second affirmed it to be the right and duty of the two Houses of Parliament to provide the means for supplying the defect in the royal authority; and a third imposed on the Houses the task of deciding on the mode in which the royal a.s.sent necessary to give their resolutions the authority of law should be signified. It was impossible to object to the first; but the second was stubbornly contested by the Opposition, the chiefs of the Coalition Ministry once more fighting side by side; though Lord North contented himself with arguing that the affirmation of the right and duty of Parliament was a needless raising of a disputable point, and moving, therefore, that the committee should report progress, as the recognized mode of shelving it. Fox, however, carried away by the heat of debate, returned to the a.s.sertion of the doctrine of absolute right, overlooking his subsequent modification of it, and again gave Pitt the advantage, by condescending to impugn his motives for proposing the resolution, as being inspired, not by a zeal for the const.i.tution, but by a consciousness that he did not deserve the confidence of the Prince, and, therefore, antic.i.p.ated his instant dismissal by the Regent. The re-affirmation of the Prince"s inherent right was, indeed, necessary to Fox as the foundation for the objections which he took to other parts of Pitt"s scheme. For the minister, while admitting to its full extent the irresistible claim which the Prince of Wales possessed to the preference of Parliament for the Regency, proposed at the same time to impose certain limitations on his exercise of the authority, so long as there was a reasonable hope of his royal father"s recovery. He was not to have the power to create peerages, nor to alienate the property of the crown, nor to grant offices in reversion; and, as the Queen was to have the care of his Majesty"s person, she also was to have the appointment of all the offices in the royal household. Fox, on the other hand, objected with extreme earnestness to the impropriety of imposing any limitations whatever on the power of the Regent; and then the question whether the Prince was to derive his right to the Regency from the authority of Parliament, or from his natural position and inalienable preceding right as his father"s heir, became one of practical importance. If the Parliament had the right to confer authority, it had clearly the right to limit the authority it conferred. If the Prince had an indefeasible right to the Regency, independently of the will of Parliament, then Parliament could have no pretence to limit or restrain the exercise of an authority which in no degree flowed from itself. Fox, indeed, took another objection to the imposing of limitations to the authority to be intrusted to the Regent, contending that this would be to create a power unknown to the const.i.tution--a person in the situation of King without regal power. But, not to mention precedents drawn from the reigns of Edward III., Richard II., and Henry VI., in the twenty-fourth year of the very last reign, George II., on the death of his son, the father of the present King, had enjoined the Parliament to provide for the government, in the case of his own death, while the heir was still a minor, recommending to them the appointment of the Princess Dowager of Wales as Regent, "with such powers and limitations as might appear expedient." And, in conformity with his desire, the Parliament had appointed the Princess Regent, with a Council of Regency to a.s.sist her; and had enacted that "several portions of the regal power" should be withheld from the Regent, if she could not obtain the consent of the Council thus appointed.[118]

This part of the case was so plain, that when, after the different resolutions proposed by Pitt had been adopted in both Houses, Fox insisted that, instead of proceeding by a bill to create a Regency, and to appoint the Prince of Wales Regent, the only course which could be adopted with propriety would be to present an address to the Prince, to entreat him to a.s.sume the government, he failed to induce the House to agree with him; and finally, as if he were determined to find a battle-field in every clause, he made a vigorous resistance to the expedient by which Pitt proposed that the formal royal a.s.sent which was necessary to make the bill law should be given. Fox, on one occasion, had gone the length of denying that the two Houses had any right to be regarded as a Parliament while the King, an essential part of Parliament, was incapacitated. But such an objection could have had no force, even in the mind of him who raised it, since the proceedings of the two Convention Parliaments of 1660 and 1689 labored under a similar defect; and yet their acts had been recognized as valid, and ratified by subsequent Parliaments. And now, in reference to the expedient proposed by the minister, that the two Houses should empower and authorize the Lord Chancellor to affix the Great Seal to the bill, Burke, with great, but for him not unusual, violence, denounced both the proposal and the Chancellor, declaring that such a step would be the setting up of a phantom of sovereignty, a puppet, an idol, an idiot, to which he disclaimed all allegiance. A more perilous amendment was one proposed to another clause by Mr. Rolle, enacting that if the Regent should marry a Roman Catholic his authority should cease. Since the Bill of Rights, as we have seen, forbade a sovereign to marry a Roman Catholic without incurring the forfeiture of his crown, it was evidently reasonable that the same restriction should be imposed on every Regent; but it was hard at the moment altogether to dissociate such a clause from the discussions of the preceding year; and Mr. Rolle endeavored to give the clause a more pointed meaning by an amendment to enact that the forfeiture should be incurred by the mere celebration of any marriage ceremony, whether the marriage thus performed were legal and valid or not. His amendment, however, was unanimously rejected. The bill was pa.s.sed without alteration by the House of Commons; the Prince, while protesting in an elaborate and most able letter, drawn up for him by Burke, against the restrictions imposed by the bill, nevertheless consented to sacrifice his own judgment to the general good of the kingdom, and to accept the authority, limited as it was. And by the middle of February the bill was sent up to the House of Lords. There Lord Camden had charge of it, and his position as a former Chancellor gave irresistible weight to his opinion that the mode proposed to give the final sanction to the bill was strictly in accordance with the spirit and practice of the const.i.tution. The point with which he dealt was the previous one, how Parliament, which was to pa.s.s the bill, was to be opened, for, "circ.u.mstanced as it was, Parliament could not at present take a single step." The law, as he put it, declared that the King must be present, either in person or by a representative. When he could not attend personally, the legal and const.i.tutional process was to issue letters-patent under the Great Seal. In the present dilemma, therefore, he recommended that the two Houses should direct letters-patent to be issued under the Great Seal, authorizing commissioners to open Parliament in the name of his Majesty. He "must use the liberty to say that those who treated this proposal with ridicule were ignorant of the laws of their country. A fiction it might be termed, but it was a fiction admirably calculated to preserve the const.i.tution, and, by adopting its forms, to preserve its substance."

The authority of the Great Seal he explained to be such that, "even if the Lord Chancellor, by caprice, put it to any commission, it could not afterward be questioned;" and he adduced a precedent of a very similar character to the course now proposed, which occurred "at the commencement of the reign of Henry VI., when, the sovereign being an infant of nine months old, the Great Seal was placed in his hand, and it was supposed to be given to him by the Master of the Rolls, whereupon many commissions were sealed by it, and the government was carried on under its authority." That precedent, he reminded the peers, had been followed as recently as the year 1754, when, during an illness of George II., Lord Chancellor Hardwicke affixed the Great Seal to a commission for opening a session of Parliament. And, finally, he concluded by moving, "That it is expedient and necessary that letters-patent for opening the Parliament should pa.s.s under the Great Seal."[119] The motion was carried, and Parliament was opened in accordance with it; and, if it had been necessary, the same expedient would have sufficed to give the requisite a.s.sent to the Regency Bill, a necessity which was escaped by the fortunate recovery of the royal patient, which was announced by his medical advisers a day or two before that fixed for the third reading of the bill in the House of Lords.

Though the question was thus left undetermined for the moment, it was revived twenty-two years afterward, when the same sovereign was attacked by a recurrence of the same disease, and the existing ministry, then presided over by Mr. Perceval, brought forward a Regency Bill almost identical with that which on this occasion had been framed by Mr. Pitt; and the Opposition, led by Lord Grey and Sir Samuel Romilly, raised as nearly as possible the same objections to it which were now urged by Fox and his adherents. The ministerial measure was, however, again supported by considerable majorities; so that the course proposed by Mr. Pitt on this occasion may be said to have received the sanction of two Parliaments a.s.sembled and sitting under widely different circ.u.mstances; and may, therefore, be taken as having established the rule which will be adopted if such an emergency should, unfortunately, arise hereafter.

And indeed, though the propriety of Pitt"s proposals has, as was natural, been discussed by every historical and political writer who has dealt with the history of that time, there has been a general concurrence of opinion in favor of that statesman"s measure. Lord John Russell, while giving a doc.u.ment, ent.i.tled "Materials for a Pamphlet,"

in which he recognizes the handwriting of Lord Loughborough, and which "contains the grounds of the opinion advanced by him, and adopted by Mr.

Fox, that, from the moment the two Houses of Parliament declared the King unable to exercise his royal authority, a right to exercise that authority attached to the Prince of Wales," does not suppress his own opinion of the "erroneousness of this or any other doctrine that attributes to any individual or any const.i.tuted authority existing in the state a strict or legal right to claim or to dispose of the royal authority while the King is alive, but incapable of exercising it."[120]

The only writer, as far as I am aware, who advocates the opposite view is Lord Campbell, who, after quoting the speech of Lord Camden, from which extracts have been made, comments on it, and on the whole transaction, in the following terms: "From the course then adopted and carried through, I presume it is now to be considered part of our const.i.tution that if ever, during the natural life of the sovereign, he is unable by mental disease personally to exercise the royal functions, the deficiency is to be supplied by the two Houses of Parliament, who, in their _discretion_, will probably elect the heir-apparent Regent, under such restrictions as they may please to propose, but who may prefer the head of the ruling faction, and at once vest in him all the prerogatives of the crown. On the two occasions referred to in the reign of George III., the next heir being at enmity with the King and his ministers, this was considered the loyal and courtly doctrine; and, from its apparent advancement of the rights of Parliament, there was no difficulty in casting odium on those who opposed it. But I must avow that my deliberate opinion coincides with that of Burke, Fox, and Erskine, who p.r.o.nounced it to be unsupported by any precedent, and to be in accordance with the principles of the Polish, not the English, monarchy. The two Houses of Parliament would be the proper tribunal to p.r.o.nounce that the sovereign is unable to act; but then, as if he were naturally as well as civilly dead, the next heir ought of right to a.s.sume the government as Regent, ever ready to lay it down on the sovereign"s restoration to reason, in the same way as our Lady Victoria would have returned to a private station if, after her accession, there had appeared posthumous issue of William IV. by his queen. It is easy to point out possible abuses by the next heir as Regent, to the prejudice of the living sovereign; but there may be greater abuses of the power of election imputed to the two Houses, whereby a change of dynasty might be effected. I conceive, therefore, that the Irish Parliament[121] in 1789 acted more const.i.tutionally in acknowledging the _right_ of the next heir, in scouting the fiction of a commission or royal a.s.sent from the insane sovereign, and in addressing the Prince of Wales to take on himself the government as Regent."

Though the sneers at the possibility of Parliament preferring "the head of the ruling faction" to the heir-apparent be hardly consistent with the impartial candor which is one of the most imperative duties of an historical critic, and though the allusion to the principles of the Polish monarchy be not very intelligible, yet no one will refuse to attach due weight to the deliberate opinion of one who won for himself so high a professional reputation as Lord Campbell. But, with all respect to his legal rank, we may venture to doubt whether he has not laid down as law, speaking as a literary man and an historian, a doctrine which he would not have entertained as a judge. For, if we consider the common law of the kingdom, it is certain that, in the case of subjects, if a man becomes deranged, his next heir does not at once enter on his property "as if he were naturally as well as civilly dead."

And if, as in such cases is notoriously the practice, the Court of Chancery appoints a guardian of the lunatic"s property, a.n.a.logy would seem to require that the Houses of Parliament, as the only body which can possibly claim authority in such a matter, should exercise a similar power in providing for the proper management of the government to that which the law court would exercise in providing for the proper management of an estate; and that, therefore, the principles of const.i.tutional[122] statesmanship, which is deeply interested in upholding the predominant authority of Parliament, must justify the a.s.sertion of the ministers that the two Houses had the entire and sole right to make regulations for the government of the kingdom during the incapacity of the sovereign; and that the next heir, even when a son of full age, can have no more right to succeed to his father"s royal authority in his lifetime than, if that father were a subject, he would have to succeed to his estate.

The opposite doctrine would seem to impugn the legality of the whole series of transactions which placed William and Mary on the throne. The admission of an indefeasible right of the heir-apparent would have borne a perilous resemblance to a recognition of that divine right, every pretension to which the Revolution of 1688 had extinguished. If, again, as Fox and his followers at one time endeavored to argue, the Houses in 1789 had no right to the name or power of a Parliament, because the King had no part in their meetings, the convention that sat a century before (as, indeed, was admitted) was certainly far less ent.i.tled to that name or power, for it had not only never been called into existence by a King, but was a.s.sembled in direct defiance of the King. Similarly, it is admitted that the body which invited Charles II. to return and resume his authority was equally dest.i.tute of the validity which could only be given by a royal summons. Yet both these bodies had performed actions of greater importance than that which was looked for from this Parliament.

The one had abolished the existing and usurping government, and restored to his kingdom a King who had been long an exile. The other had, as it were, pa.s.sed sentence on the existing sovereign, on grounds which confessedly will not bear a strict examination, and had conferred the crown on a prince who had no hereditary claim to the t.i.tle. The justification of both acts was necessity. _Salus regni suprema Lex_. And the necessity was clearly more urgent in the present case than in either of the preceding instances. For, unless the Parliament interfered to create an authority, there was absolutely none in existence which was capable of acting. It should also be remembered that this Parliament of 1789, though not opened for the session by the King, had been originally elected in obedience to his order, and had been prorogued by his proclamation to the day of meeting;[123] and, though the opening of a session by a speech from the throne is the usual form for the commencement of its proceedings, it may be doubted whether it be so indispensable a part of them that none of their acts are valid without it.

The breaking out of the French Revolution, and the degree in which, in spite of all its atrocities and horrors, the revolutionary spirit for a time infected a large party in England, prevented Pitt from reviving the plan of Reform which he had framed with such care and genius for organization, and in which, though defeated in Parliament, both before and after he became minister, he had hitherto continued to cherish the hope of eventually succeeding. But when clubs and societies, where the most revolutionary and seditious doctrines were openly broached, were springing up in London and other large towns, and unscrupulous demagogues by speeches and pamphlets were busily disseminating theories which tended to the subversion of all legitimate authority, he not unnaturally thought it no longer seasonable to invite a discussion of schemes which would be supported in many quarters only, to quote his own words, "as a stepping-stone to ulterior objects, which they dared not avow till their power of carrying them into effect should be by this first acquisition secured." But the alarm which the spread of revolutionary ideas excited in his mind was displayed, not only pa.s.sively in this abstention from the advocacy of measures the expediency of which must at all times in some degree depend on the tone of their introduction, but also in active measures of repression, some of which were not, indeed, unwarranted by precedent, but others of which can hardly be denied to have been serious inroads on the const.i.tution, infringements of the freedom of opinion and discussion to which all Englishmen are ent.i.tled, and one of which was, to say the least, a very perilous extension of a law already sufficiently severe, the statute of treason. If the French had been content with the overthrow of their own government and inst.i.tutions, much as we should have lamented the indiscriminate rashness and abhorred the atrocities with which their design was carried out, we should still have adhered to the unquestionable maxim, that no nation is justified in interfering in the internal affairs of another. But the Jacobin and Girondin demagogues, who had now the undisputed sway in Paris, did not limit their views to their own country, but openly declared themselves the enemies of all established governments in every country; and the Convention pa.s.sed a formal resolution in which they proffered "fraternity and a.s.sistance" to every people which might be inclined to rise against their governments.

Their resolutions were officially communicated to the sympathizing societies in England, and emissaries were secretly encouraged to cross the Channel in the hope of gaining converts. Nor were their exertions barren. Two men were convicted in Scotland of a plot to seize Edinburgh Castle, to ma.s.sacre the garrison, to imprison the judges, and to rise in arms to compel the government to a change of policy. In London the King was fired at on his way to open Parliament, and on his return his carriage was attacked by a furious mob, and was only protected from serious injury by a troop of the Life Guards. Such outrages proved the existence of a new danger, against which no previous government had ever been called on to provide, and such as, in the opinion of the cabinet, could only be met by novel measures of precaution.

The first was directed against the foreign propagators of revolution.

The resolutions of the Convention had been promulgated in November, 1792; and at the meeting of Parliament in December, Lord Grenville, as Foreign Secretary of State, introduced in the House of Lords an alien bill, to enable the government to deal in a summary manner with any foreign visitors whose conduct or character might seem to call for its interference. It provided that all foreigners who had arrived in the kingdom since the preceding January should give in a statement of their names and residences; that any one who should arrive in future should furnish an account of his name, his station in life, and his object in visiting England; that the King, by proclamation, order in Council, or sign-manual, might direct all foreigners to reside in such districts as might be thought suitable; that no one might quit the residence in which he first settled without a pa.s.sport; and that the Secretary of State might order any suspected foreigner to quit the kingdom instantly.

The act was to be in operation for twelve months, and Lord Grenville, in introducing it, though he admitted it to be a measure of "rather a novel nature," explained at the same time that it was so far from being new in the powers which it gave, that Magna Charta distinctly recognized "the power and right of the crown to prevent foreigners from entering or residing within the realm." All that was really new was the defining of the manner in which that power should be exercised, since it had been so rarely needed that doubts might exist as to the proper mode of putting it in action. The bill, which was adopted in both Houses by large majorities, is remarkable, among other circ.u.mstances, from the fact that its discussion furnished the first instance of a public display of the difference between the two sections of the Opposition, subsequently described by Burke in one of his most celebrated pamphlets as the Old and New Whigs; those whom he called the Old Whigs (the Duke of Portland, Sir Gilbert Elliott, Mr. Windham, not to mention Burke himself) earnestly supporting it, while Lord Lansdowne, Mr. Fox, Mr. Sheridan, and Mr. Grey resisted it with equal zeal. Lord Lansdowne took the ground that it was a suspension of the _Habeas Corpus_ Act; while Fox and Grey denounced it, in more general terms, as a measure "utterly irreconcilable with the principles of the const.i.tution," Mr. Grey apparently referring chiefly to the power given by the bill to the Secretary of State to send any foreigners from the country, which he described as "making the bill a measure of oppression, giving power for the exercise of which no man was responsible." Sir Gilbert Elliott"s answer was singularly ingenious. He did not deny that the bill conferred additional power on the crown, though not more than was justified by existing circ.u.mstances; but he maintained that the right of giving extraordinary powers to the crown on occasions was so far from being inconsistent with the principles of the const.i.tution, that to grant extraordinary powers in extraordinary emergencies was a part of it essential to the character of a free government. If such powers were at all times possessed by the crown, its authority would be too great for a free government to co-exist with it; but if such could not be at times conferred on the crown, its authority would be too small for its own safety or that of the people.

The arguments of the ministers were, no doubt, greatly recommended, both to the Parliament and the people in general, by the notoriety of the fact that foreign agents were in many of our large towns busily, and not unsuccessfully, engaged in propagating what were known as Jacobin doctrines. But, even without that aid, it was clear that every government must, for the common good of all, be at times of extraordinary emergency invested with the power of suspending laws made for ordinary circ.u.mstances. And what would be an intolerable evil, if the supreme magistrate took upon himself to exercise it, ceases to be one when the right to exercise it is conferred by the nation itself in Parliament. If the bill did, as was argued, suspend the _Habeas Corpus_ Act, that statute had been enacted by Parliament, and therefore for Parliament, in a case of necessity, to suspend its operation was clearly within the spirit of the const.i.tution.

The bills affecting our own fellow-subjects were still more warmly contested. One was known as the Traitorous Correspondence Bill, which, according to Lord Campbell, was suggested by Lord Loughborough, who had lately become Lord Chancellor. The old law of high-treason, enacted in the reign of Edward III., had been in effect greatly mitigated by later statutes, which had made acts to which that character was imputed more difficult of proof, by a stricter definition of what was admissible evidence, and other safeguards; and the practice of the courts had by degrees practically reduced the list of treasons enumerated in the old law, indictments for many of the offences contained in it forbearing to a.s.sert that the persons accused had incurred the penalty of high-treason. But this new bill greatly enlarged the catalogue. It made it high-treason to hold any correspondence with the French, or to enter into any agreement to supply them with commodities of any kind, even such as were not munitions of war, but articles of ordinary merchandise, or to invest any money in the French Funds; and it enacted farther that any person who, by "any writing, preaching, or malicious and advised speaking," should encourage such designs as the old statute of Edward made treasonable, should be liable to the penalties of high-treason.

Another bill was designed to check the growing custom of holding public meetings, by providing that no meeting, the object of which was to consider any pet.i.tion to the King or Parliament, or to deliberate on any alleged grievance, should be held without those who convened it, and who must be householders, giving previous notice of it by public advertis.e.m.e.nt; and empowering any two justices of the peace, at their own discretion, to declare any such meeting an unlawful a.s.sembly, and to disperse it by force, if, from the subjects discussed, the language held, or any special circ.u.mstances, they should regard it as dangerous.

Fox, and those who still adhered to him, resisted almost every clause of these different bills. They maintained that one of the most fundamental maxims of law "in every country calling itself free was, that property was in the highest degree ent.i.tled to the protection of the law; and, if so, that the right of disposing of it or investing it in any manner must be considered under the same protection;" that any interference "with ordinary commercial transactions was equally repugnant to the spirit of the const.i.tution;" and, taking a practical view of the question, they warned the minister that such rigorous enactments imposing such extreme penalties would defeat their own end; for "it was a general and true maxim, that excess of punishment for a crime brings impunity along with it; and that no jury would ever find a verdict which would doom a fellow-creature to death for selling a yard of cloth and sending it to France." They protested, too, against inflicting on words, whether written or spoken, penalties which had hitherto been confined to overt acts. And the clauses conferring power on magistrates to prevent or disperse public meetings encountered still more vehement opposition; Fox insisting, with great eloquence, that "public meetings for the discussion of public subjects were not only lawful, but agreeable to the very essence of the const.i.tution; that, indeed, to them, under that const.i.tution, most of the liberties which Englishmen now enjoyed were particularly owing." The people, he maintained, had a right to discuss their grievances. "They had an inalienable right to complain by pet.i.tion, and to remonstrate to either House of Parliament, or to the King; and to make two magistrates, who might be strong partisans, irresponsible judges whether anything said or done at a meeting had a tendency to encourage sedition, was to say that a free const.i.tution was no longer suitable to us." Pitt justified these measures, partly on the ground of the special and unprecedented danger of the times, as proved by the late attempt on the King"s life, and partly by the open avowal of republican doctrines made at the meetings of different societies; partly, also, on the temporary character of the measures, since in each bill a period was fixed after which its operation should expire. And he argued, farther, that, as many of the actions specified in these bills as seditious or treasonable were by many lawyers considered capable of being reached by statutes already existing, though not universally understood, it was "humane, not cruel, to remove doubts, and to prevent men from being ensnared by the ambiguity of old laws."

And in May, 1794, he brought in another bill, founded on the report of a secret committee which, in compliance with a royal message, the House of Commons had appointed to investigate the proceedings and objects of certain societies which were known to exist in different parts of the kingdom. In obedience to a Secretary of State"s warrant, founded on sworn informations, their books and papers had been seized, and, having been sealed up, were now laid before the House, with the report of the committee that they proved that several of the societies which they named had, ever since the end of the year 1791, been uniformly pursuing a settled design for the subversion of the const.i.tution; one society, in particular, having approved a plan for a.s.sembling a Convention, in imitation of the French a.s.sembly sitting under that t.i.tle, in order to overturn the established government, and to wrest from the Parliament the power which the const.i.tution placed in its hands.

To prevent the dissemination of such principles, and to defeat such schemes, Pitt now asked leave to bring in a bill to empower his Majesty--acting, of course, through the Secretary of State--to secure and detain such persons as he should suspect of conspiring against the King"s person and government. He admitted that the power which he thus proposed to confer amounted to a suspension of the _Habeas Corpus_ Act in every part of the United Kingdom; nor did he deny that it was an unusually strong measure, but he contended that it was one justified by absolute necessity, by the manifest danger of such a conspiracy as the committee had affirmed to exist to the tranquillity of the nation and the safety of the government.

Fox, it may almost be said as a matter of course, opposed the introduction of any such measure; but his opposition was hardly marked by his usual force of argument. He was hampered by the impossibility of denying either the existence of the societies which the committee and the minister had mentioned, or the dangerous character of some of their designs; but he objected to the measures of repression which were proposed, partly on the absence of all attempts at concealment on the part of the promoters of these societies, partly on the contemptible character of the Convention which it was designed to summon, and the impossibility that such an a.s.sembly should have the slightest influence.

He even made their avowed hostility to the const.i.tution a plea for a panegyric on that const.i.tution, and on the loyal attachment to it evinced by the vast majority of the people; and from that he proceeded to found a

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