Charles Duke Yonge.

The Constitutional History of England from 1760 to 1860 online

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And on this occasion he distinguished the feelings of the King from
those which influenced the minister, affirming his confidence "that the
King's heart had no share in the present business."[101]

Pitt, on the other hand, in reply, affirmed that he was called on by
duty "to defend the rights of the other branches of the Legislature; the
just and constitutional prerogative of the sovereign," upon which the
Opposition was seeking to encroach, without even having shown a single
reason to justify such invasion. He freely admitted that, if the House
of Commons or either of the other branches of the Legislature
"disapproved of an administration on proper grounds, it would not be
well for that administration to retain office." But in the present
instance he contended that "no ground for disapprobation had been
shown." The existing administration "had, in fact, by an unaccountable
obstinacy and untowardness of circumstances, been deprived of all
opportunity" of showing its capacity or its intentions. "If any
accusations should be made and proved against it, if any charges should
be substantiated, it would, indeed be proper for the ministers to
resign; and if, in such a case he were afterward to continue in office,
he would suffer himself to be stigmatized as the champion of
prerogative, and the unconstitutional supporter of the usurpation of the
crown. But till this period arrived, he should reckon it his duty to
adhere to the principles of the constitution, as delivered to us by our
ancestors; to defend them against innovation and encroachment, and to
maintain them with firmness." "The constitution of this country," he
presently added, "is its glory; but in what a nice adjustment does its
excellence consist! Equally free from the distractions of democracy and
the tyranny of monarchy, its happiness is to be found in its mixture of
parts. It was this mixed government which the prudence of our ancestors
devised, and which it will be our wisdom to support. They experienced
all the vicissitudes and distractions of a republic; they felt all the
vassalage and despotism of a simple monarchy. They abandoned both; and,
by blending each together, extracted a system which has been the envy
and admiration of the world. This system it is the object of the present
address to defeat and destroy. It is the intention of this address to
arrogate a power which does not belong to the House of Commons; to place
a negative on the exercise of the prerogative, and to destroy the
balance of power in the government as it was settled at the Revolution."

Fox had urged that our history afforded no example of a ministry
retaining office after the House of Commons had passed a resolution
condemning it. Pitt, in reply, urged that our history equally failed to
furnish any instance of a ministry having been called on to retire
without any misconduct being alleged against them. And the result of the
division showed that his arguments and his firmness were producing an
impression on the House, for, though he was again defeated, the majority
against him (only twelve) was far smaller than on any previous
division.[102] A week later, this feeling in his favor was shown still
more decidedly, when Fox, on moving for a fresh address, or, as he
termed it, a representation to the King that the House had received his
Majesty's reply to their address "with surprise and affliction," he
could only carry it by a single vote.[103] And this division closed the
struggle. Fox made no farther effort. Before the end of the month the
Parliament was dissolved, and the general election which ensued sent to
the House a majority to support the ministers which Pitt was fairly
warranted in claiming as the full justification of the course which he
had pursued.

On a review of the whole of this extraordinary transaction, or series of
transactions, it is impossible to avoid regarding the issue of the
struggle as an all-important element in the case, and a test almost
decisive of the correctness of conduct of the rival leaders. We may
leave out of the question the action of the King in his communication to
Lord Temple, which, although sanctioned by the great legal authority of
Lord Thurlow, we are, for reasons already given, compelled to regard as
unconstitutional, but for which Mr. Pitt was only technically
responsible; having, indeed, made himself so by his subsequent
acceptance of office, but having had no previous suspicion of the royal
intentions. Similarly, we may dismiss from our consideration the merits
or demerits of Fox's India Bill, the designs which were imputed to its
framers, or the consequences which, whether intended or not by them,
were predicted as certain to flow from it. And we may confine ourselves
to the question whether, in the great Parliamentary struggle which
ensued, and which lasted for more than three months,[104] the doctrines
advanced by Mr. Fox, and the conduct pursued by him, were more or less
in accordance with the admitted rules and principles of the
constitution.

These doctrines may be reduced to two: the first a declaration that no
minister is justified in retaining office any longer than he is
sustained in it by the favorable judgment of the representatives of the
people. Taken by itself, this, but for one consideration, might be
pronounced the superfluous assertion of a truism; superfluous, because
it is obvious that a House of Commons hostile to a minister can compel
his resignation by obstructing all his measures. And Pitt himself
recognized this as fully as Fox, though we may hardly agree with him
that the Opposition was bound to allow him time to develop his policy,
and to bring forward his various measures, before it pronounced an
opinion adverse to them. In 1835, when Sir R. Peel first met Parliament
after his acceptance of office, consequent on the King's dismissal of
Lord Melbourne's ministry, the Opposition encountered and defeated him
twice in the first week of the session - on the choice of a Speaker, and
on the address, though the latter had been framed with the most skilful
care to avoid any necessity for objection; but no attempt was made by
him to call in question the perfect right of Lord J. Russell and his
followers in the House to choose their own time and field of battle. But
there is one farther consideration, that the authority belonging to the
judgment of the House of Commons depends on that judgment being not
solely its own, but the judgment also of the constituencies which have
returned it, and whose mouth-piece it is; and also that the House is not
immortal, but is liable to be sent back to those constituencies, to see
whether they will ratify the judgment which their representatives have
expressed; whether, in other words, their judgment be the judgment of
the nation also. This farther consideration was, in fact, Pitt's plea
for resisting the majorities which, through January and February, so
repeatedly pronounced against him. And in determining to appeal to the
constituencies, as the court of ultimate resort, he was clearly within
the lines of the constitution.

It follows that Fox, in protesting against a dissolution, in threatening
even to take steps to prevent it, was acting in self-evident violation
of all constitutional principle and precedent. He was denying one of the
most universally acknowledged of the royal prerogatives. The distinction
which he endeavored to draw between a dissolution at the close of a
session and one in the middle of it, had manifestly no validity in law
or in common-sense. The minister had a clear right to appeal from the
House of Commons to the people, and one equally clear to choose his own
time for making that appeal. The appeal was made, the judgment of the
nation was pronounced, and its pronouncement may be, and indeed must be,
accepted as a sufficient justification, in a constitutional point of
view, of Pitt's conduct both in accepting and retaining office. If he
retained it for three months, in opposition to the voice of the existing
House of Commons, he could certainly allege that he was retaining it in
accordance with the deliberate judgment of the nation.

And this is the verdict of a modern statesman, a very careful student of
the theory of our Parliamentary constitution, and one whom party
connection would notoriously have inclined to defend the line taken by
Mr. Fox, had it been possible to do so. Indeed, he may be said to show
his bias in that statesman's favor when he affirms that he would have
been right in moving a resolution of censure on Pitt for "his acceptance
of office," which he presently calls the result of "the success of a
court intrigue,"[105] and, without a particle of evidence to justify the
imputation, affirms to "have been prepared beforehand with much art and
combination." But _amicus Fox, sed magis arnica veritas_; and though he
thus passes censure on Pitt, where the facts on which he bases it are at
least unproved, on those points as to which the facts are clear and
certain he condemns Fox altogether, affirming that his "attempt to show
that the crown had not the prerogative of dissolving Parliament in the
middle of a session had neither law nor precedent in its support."[106]
And he proceeds to lay down, with great clearness and accuracy, "the
practice as well as the theory of our mixed government," which is, that
"when two of the powers of the state cannot" agree, and the business of
the state is stopped, the only appeal is to the people at large. Thus,
when in the reign of Queen Anne the House of Lords and the House of
Commons fulminated resolutions at each other, a dissolution cleared the
air and restored serenity. If no case had occurred since the Revolution
of a quarrel between the crown and the House of Commons, the cause is to
be sought in the prudence with which every sovereign who had reigned
since that event had wielded his constitutional authority. If George
III. had been wanting in that prudence, it did not follow that he was
debarred from the right of appealing to the people. Any other doctrine
would invest the House of Commons, elected for the ordinary business of
the state, with a supreme power over every branch of it. This supreme
power must rest somewhere; according to our constitution it rests in the
common assent of the realm, signified by the persons duly qualified to
elect the members of the House of Commons; and Lord Russell, in thus
expounding his ideas on this subject, was undoubtedly expressing the
view that ever since the transactions of which we have been speaking has
been taken of the point chiefly in dispute. Since that day there has
been more than one instance of Parliament being dissolved in the middle
of a session; but, though the prudence of the different ministers who
advised such dissolutions may, perhaps, have been questioned - nay,
though in one memorable instance it was undoubtedly a penal dissolution
in the fullest sense of the word[107] - no one has ever accused the
sovereign's advisers of seducing him into an unconstitutional exercise
of his prerogative.

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 enfranchisement 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 Pichégru. 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 constitution." 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 constitution, and
would involve the board in contradictions to the executive government
that could not fail to be attended with great public inconvenience. An
institution 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 assisted 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 principal
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
circumstances occurred, the executive government in India was not to
content itself with acting there as the circumstances 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 classes 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 pronounce such judgment
as the common law would warrant." Such a tribunal he admitted to be an
innovation; but, "unless some new process were instituted, 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 constitution 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 anticipating 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



Online LibraryCharles Duke YongeThe Constitutional History of England from 1760 to 1860 → online text (page 12 of 43)