Charles Duke Yonge.

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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 constitution; one society, in
particular, having approved a plan for assembling a Convention, in
imitation of the French Assembly sitting under that title, in order to
overturn the established government, and to wrest from the Parliament
the power which the constitution 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 assembly should have the slightest influence.
He even made their avowed hostility to the constitution a plea for a
panegyric on that constitution, and on the loyal attachment to it
evinced by the vast majority of the people; and from that he proceeded
to found a fresh argument against the proposed measure, contending that
it made a fatal inroad on that very constitution which was so highly
valued by the whole nation. He described it as a measure "of infinitely
greater mischief than that which it proposed to remedy, since it would
give the executive authority absolute power over the personal liberty of
every individual in the kingdom." He did not deny that a similar measure
had been enacted under William III., again in 1715, and again in 1745;
but he contended that "the present peril bore no resemblance to the
dangers of those times. This measure went to overturn the very
corner-stone of the constitution, and if it passed, there was an end of
the constitution of England." The bill was passed in both Houses by very
large majorities.[124] It was originally enacted for six months only,
but was from time to time renewed till the end of the century.

If we take a general survey of all these measures together, as parts of
one great defensive scheme for the preservation of the public
tranquillity and the general safety of the empire, it may, probably, be
thought that, though undoubtedly suspensions of the constitution, they
are not open to the charge of being unconstitutional, since they were
enacted, not only for the welfare of the people, but with their consent
and concurrence, legitimately signified by their representatives in
Parliament. It is scarcely consistent with sound reason to contend that
the _habeas corpus_, which had been enacted by Parliament, could not be
suspended by the authority which had enacted it; that the constitution,
which exists for the benefit of the people, could not be suspended by
the people; or to deny, if it was in appearance transgressed by these
enactments, that it was yet transgressed by strictly constitutional
acts, by the decision of the Parliament, to whose power the constitution
prescribes no limits.

But it is not sufficient that in this point of view these measures may
have been defensible. In judging of their statesmanship, it is almost
equally to be considered whether they were expedient and politic,
whether the emergency or necessity were such as to justify such rigorous
methods of repression. It was fairly open to doubt whether some of them,
and especially the Traitorous Correspondence and the Seditious Meetings
Bills, did not treat as treasonable acts which did not go beyond
sedition, and whether so to treat them were not to invest them with an
importance which did not belong to them. And on this part of the
question the general judgment has, we think, been unfavorable to the
government; and it has been commonly allowed that the Chancellor, whose
advice on legal subjects the Prime-minister naturally took for his
guide, gave him impolitic counsel. In fact, it is well known that these
two acts, to a great extent, failed in their object through their
excessive severity, several juries having refused to convict persons who
were prosecuted for treason, who would certainly not have escaped had
they only been indicted for sedition; and it is deserving of remark that
these two bills were not regarded with favor by the King himself, if the
anecdote - which seems to rest on undeniable authority - be true, that he
expressed satisfaction at the acquittal of some prisoners, on the ground
that almost any evil would be more tolerable than that of putting men to
death "for constructive treason." It must therefore, probably, be
affirmed that these two acts, the Treason Act and the Seditious Meetings
Act, went beyond the necessity of the case; that they were not only
violations of the constitution - which, when the measures are temporary,
as these were, are not always indefensible - but that they were
superfluous, unjust, and impolitic; superfluous, when they proposed to
deal with acts already visitable with punishment by the ancient laws of
the kingdom; unjust, when they created new classes of offences; and
impolitic, as exciting that kind of disapproval of the acts of
government which in many minds has a tendency to excite a spirit of
discontent with and resistance to legitimate authority. And, indeed, it
must be inferred that such was the light in which these measures were
regarded by a statesman who in his general policy was proud to
acknowledge himself Mr. Pitt's pupil, as he was also the most skilful
and successful of his more immediate successors. Twenty-five years
afterward the distress caused by the reaction inevitably consequent on
the termination of twenty years of war produced a political excitement
scarcely inferior to that with which Pitt had now to deal, and seditious
societies and meetings scarcely less formidable; but, as we shall see,
Lord Liverpool, taking warning, perhaps, from the mistake into which Mr.
Pitt was led on this occasion, though compelled to bring forward new and
stern measures of repression, and even to suspend the _Habeas Corpus_
Act for a time, kept strictly within the lines of constitutional
precedent, and was careful to avoid confounding sedition with treason.

Notes:

[Footnote 73: He had been Lord-chamberlain in Lord Rockingham's
administration of 1765. He was now Lord-lieutenant of Ireland.]

[Footnote 74: In Lord Chatham's or the Duke of Grafton's ministry of
1766, and in the later administration of Lord Rockingham.]

[Footnote 75: It may be convenient to take this opportunity of pointing
out that, in this administration, Lord Shelburne altered the old, most
unreasonable, and inconvenient arrangement by which the departments of
the two Secretaries of State were distinguished by the latitude, and
called Northern and Southern. By a new division, one took charge of the
home affairs, the other of the foreign affairs. And in 1794 a third
Secretary was added for War, who, by a very singular arrangement, which
continued till very recently, had charge also of the colonies. But, in
the year 1855, the Colonial-office was intrusted to a separate minister;
and in 1858 a fifth Secretary of State, that for India, was added, on
the transfer of the government of that country from the East India
Company to the Crown. When there were only two Secretaries of State, the
rule was that one should sit in each House. At present it is not
_necessary_ that more than one should be a peer, though it is more usual
for two to be members of the Upper House. And it is usual also for the
Under-secretaries to be members of the House to which the
Chief-secretaries do not belong, though this rule is not invariably
observed.]

[Footnote 76: "Parliamentary History," xxiii., 163.]

[Footnote 77: The divisions were: 224 to 208, and 207 to 190.]

[Footnote 78: Lord Stanhope, quoting from an unpublished "Life of Lord
Barrington," compiled by the Bishop of Durham (meaning, I suppose,
Bishop Shute Barrington). - _History of England_, v., 174.]

[Footnote 79: Even with the first flush of triumph, the night after the
second defeat of Lord Shelburne in the House of Commons, Fox's great
friend, Mr. Fitzpatrick, writes to his brother, Lord Ossory: "To the
administration it is _cila mors_, but not _victoria loeta_ to us. The
apparent juncture with Lord North is universally cried out
against." - Lord J. Russell's _Memorials and Correspondence of C.J. Fox_,
ii., 18.]

[Footnote 80: Lord J. Russell's "Memorials and Correspondence of C.J.
Fox," ii., 90.]

[Footnote 81: _Ibid_., p. 118.]

[Footnote 82: In one division (161 to 137) they had only a majority of
twenty-four.]

[Footnote 83: In a letter to Lord Northington (Lord-lieutenant of
Ireland), dated July 17, Fox himself mentions that not one of his
colleagues, except the Duke of Portland and Lord Keppel (First Lord of
the Admiralty), approved of it. - _Memoirs of Fox_, ii., 116.]

[Footnote 84: November 22 he writes to the Duke of Rutland: "The bill
... is, I really think, the boldest and most unconstitutional measure
ever attempted, transferring at one stroke, in spite of all charters and
compacts, the immense patronage and influence of the East to Charles
Fox, in or out of office." - Stanhope's _Life of Pitt_, i., 140.]

[Footnote 85: The whole paper is given by the Duke of Buckingham,
"Courts and Cabinets of George III," i., 288, and quoted by Lord Russell
in his "Memorials and Correspondence of C. J. Fox," ii., 251. It is
endorsed, "Delivered by Lord Thurlow, December 1, 1783. Nugent Temple."]

[Footnote 86: "Life of Pitt," i., 148. Lord Stanhope does not pledge
himself to these being "the exact words of this commission, but as to
its purport and meaning there is no doubt." They are, however, the exact
words quoted by Fox in his speech in support of Mr. Baker's resolutions
on the 17th. - _Parliamentary History_, xxiv., 207.]

[Footnote 87: "Parliamentary History," xxiv., 151-154.]

[Footnote 88: 95 to 76. "Strange to say, one of the cabinet ministers,
Lord Stormont, president of the council, formed part of the final
majority against the bill." - _Life of Pitt_, ii., 154.]

[Footnote 89: "Life of Pitt," i., 155.]

[Footnote 90: "Lives of the Chancellors," c. clix. Lord Thurlow.]

[Footnote 91: "The Grenville Papers," iii., 374. It may, however, be
remarked, as tending to throw some doubt on Mr. Grenville's statement,
that Lord Campbell asserts that "Lord Mansfield, without entering into
systematic opposition, had been much alienated from the court during
Lord Rockingham's first administration." - _Lives of the Chief-justices_,
ii., 468.]

[Footnote 92: Vol. ii., pp. 229-232.]

[Footnote 93: It will be seen hereafter that this doctrine was admitted
in the fullest degree by Sir Robert Peel in the winter of 1884, when he
admitted that his acceptance of office made him alone responsible for
the dismissal of Lord Melbourne, though, in fact, he was taken entirely
by surprise by the King's act, being in Italy at the time.]

[Footnote 94: Lord John Russell, in his "Memorials of Fox" (ii., 253),
affirms that "Lord Temple's act was probably known to Pitt;" but Lord
Macaulay, in his "Essay on Pitt" (p. 326), fully acquits Pitt of such
knowledge, saying that "he could declare, with perfect truth, that, if
unconstitutional machinations had been employed, he was no party to
them."]

[Footnote 95: On Lord Effingham's motion, in condemnation of some of the
proceedings of the Commons, which was carried February 4, 1784, by 100
to 53.]

[Footnote 96: "Parliamentary History," xxiv., 383-385 - debate of January
20, 1784.]

[Footnote 97: _Ibid_, p. 283 - January 12.]

[Footnote 98: _Ibid_., pp. 251-257.]

[Footnote 99: "Parliamentary History," xxiv., 478 - February 2.]

[Footnote 100: _Ibid_., p. 663.]

[Footnote 101: "Parliamentary History," xxiv., 687, 695, 699.]

[Footnote 102: The numbers were 201 to 189. The week before, on Mr.
Powys's motion for a united and efficient administration, the majority
had been 20 - 197 to 177. On a motion made by Mr. Coke, February 3, the
majority had been 24 - 211 to 187. At the beginning of the struggle the
majorities had been far larger - 232 to 143 on Fox's motion for a
committee on the state of the nation, January 12.]

[Footnote 103: 191 to 190.]

[Footnote 104: From December 19, when Pitt accepted office, to March 24,
when the Parliament was dissolved.]

[Footnote 105: "Memorials and Correspondence of C.J. Fox," by Earl
Russell, ii., 229, 248.]

[Footnote 106: _Ibid_., p. 280.]

[Footnote 107: That of April, 1831, after the defeat of the Government
on General Gascoyne's amendment]

[Footnote 108: Lord Macaulay, "Miscellaneous Essays," ii., 330.]

[Footnote 109: Lord Macaulay, essay on William Pitt.]

[Footnote 110: Alison ("History of Europe," xiii., 971) states the
English force in the Netherlands in 1794 at 85,000 men. Lord Stanhope
calls the English at Minden 10,000 or 12,000.]

[Footnote 111: An eminent living writer (Mr. Leeky, "History of
England," ii., 474) quotes with apparent approval another comparison
between the father and son, made by Grattan, in the following words:
"The father was not, perhaps, so good a debater as his son, but was a
much better orator, a greater scholar, and a far greater man." The first
two phrases in this eulogy may, perhaps, balance one another; though,
when Mr. Lecky admits that "Lord Chatham's taste was far from pure, and
that there was much in his speeches that was florid and meretricious,
and not a little that would have appeared absurd bombast but for the
amazing power of his delivery," he makes a serious deduction from his
claim to the best style of eloquence which no one ever made from the
speeches of his son. But Grattan's assertion that the man who, as his
sister said of him, knew but two books, the "Æneid" and the "Faerie
Queene," was superior in scholarship to one who, with the exception of
his rival, Fox, had probably no equal for knowledge of the great authors
of antiquity in either House of Parliament, is little short of a
palpable absurdity. We may, however, suspect that Grattan's estimate of
the two men was in some degree colored by his personal feelings. With
Lord Chatham he had never been in antagonism. On one great subject, the
dispute with America, he had been his follower and ally, advocating in
the Irish House of Commons the same course which Chatham upheld in the
English House of Peers. But to Pitt he had been almost constantly
opposed. By Pitt he and his party, whether in the English, or, so long
as it lasted, in the Irish Parliament, had been repeatedly defeated. The
Union, of which he had been the indefatigable opponent, and to which he
was never entirely reconciled, had been carried in his despite; and it
was hardly unnatural that the recollection of his long and unsuccessful
warfare should in some degree bias his judgment, and prompt him to an
undeserved disparagement of the minister by whose wisdom and firmness he
had been so often overborne.]

[Footnote 112: Massey's "History of England," iii., 447; _confer_ also
Green's "History of the English People," vol. iv.]

[Footnote 113: Hallam ("Middle Ages," ii., 386, 481), extolling the
condition of "the free socage tenants, or English yeomanry, as the class
whose independence has stamped with peculiar features both our
constitution and our national character," gives two derivations for the
name; one "the Saxon _soe_, which signifies a franchise, especially one
of jurisdiction;" and the other, that adopted by Bracton, and which he
himself prefers, "the French word _soc_, a ploughshare."]

[Footnote 114: Lord Colchester's "Diary," i., 68, mentions that the
officiating clergyman was Mr. Burt, of Twickenham, who received £500 for
his services. Lord John Russell ("Memorials and Correspondence of Fox,"
ii., 284-389) agrees in stating that the marriage was performed in the
manner prescribed by the Common Prayer-book. Mr. Jesse, in his "Life of
George III.," ii., 506, gathering, as the present writer can say from
personal knowledge, his information from some papers left behind him by
the late J.W. Croker, says: "The ceremony was performed by a Protestant
clergyman, though in part, apparently, according to the rites of the
Roman Catholic Church." Lord John Russell avoids discussing the question
whether the marriage involved the forfeiture of the inheritance of the
crown, an avoidance which many will interpret as a proof that in his
opinion it did. Mr. Massey's language ("History of England," iii., 327)
clearly intimates that he holds the same opinion.]

[Footnote 115: Russell's "Life of Fox," ii., 187.]

[Footnote 116: Fox's private correspondence is full of anticipations
that the Regent's first act will be to dismiss Pitt, and to make him
minister. In a letter of December 15 he even fixes a fortnight as the
time by which he expects to be installed; while Lord Loughborough, who
was eager to possess himself of the Great Seal - an expectation in which,
though well-founded, he would, as it proved, have found himself
disappointed - was led by his hopes to give the Prince counsel of so
extraordinary a nature that it is said that the ministers, to whose
knowledge it had come, were prepared, if any attempt had been made to
act upon it, or even openly to avow it, to send the learned lord to the
Tower. ("Diary of Lord Colchester," i., 28.) In an elaborate paper which
he drew up and read to the Prince at Windsor, he assured his Royal
Highness, speaking as a lawyer, that "the administration of government
devolved to him of right. He was bound by every duty to assume it, and
his character would be lessened in the public estimation, if he took it
on any other ground but right, or on any sort of compromise. The
authority of Parliament, as the great council of the nation, would be
interposed, not to confer but to declare the right. The mode of
proceeding should be that in a short time his Royal Highness should
signify his intention to act by directing a meeting of the Privy
Council, when he should declare his intention to take upon himself the
care of the state, and should at the same time signify his desire to
have the advice of Parliament, and order it by proclamation to meet
early for the despatch of business.... It is of vast importance in the
outset that he should appear to act entirely of himself, and, in the
conferences he must necessarily have, not to consult, but to listen and
direct." The entire paper is given by Lord Campbell ("Lives of the
Chancellors," c. clxx.).]

[Footnote 117: Hume's account of this transaction is, that the Duke
"desired that it might be recorded in Parliament that this authority was
conferred on him from their own free motion, without any application on
his part; ... and he required that all the powers of his office should
be specified and defined by Parliament."]

[Footnote 118: "Parliamentary History," xxvii., 803 - speech of Mr.
Hardinge, one of the Welsh judges, and M.P. for Old Sarum.]

[Footnote 119: I take this report, or abstract, of Lord Camden's speech
from the "Lives of the Chancellors," c. cxlvii.]

[Footnote 120: "Memorials of Fox," ii., 292.]

[Footnote 121: The proceedings of the Irish Parliament on this occasion
will be mentioned in the next chapter.]

[Footnote 122: Mr. Hallam (iii., 144, ed. 1832) gives a definition of
the term "unconstitutional" which seems rather singular: "By
unconstitutional, as distinguished from 'illegal,' I mean a novelty of
much importance, tending to endanger the established laws." May not the
term rather be regarded as referring to a distinct class of acts - to
those at variance with the recognized _spirit_ of the constitution or
principles of government, with the preservation of the liberties of the
people, as expressed or implied in the various charters, etc., but not
forbidden by the express terms of any statute?]

[Footnote 123: The entry in the "Parliamentary History," November 20,
1788, is: "Both Houses met pursuant to the last prorogation. Later
meetings were in consequence of successive adjournments."]

[Footnote 124: In the Commons by 183 to 33; in the Lords by 119 to 11.]




CHAPTER V.


The Affairs of Ireland. - Condition of the Irish Parliament. - The
Octennial Bill. - The Penal Laws. - Non-residence of the Lord-
lieutenant. - Influence of the American War on Ireland. - Enrolment of the
Volunteers. - Concession of all the Demands of Ireland. - Violence of the
Volunteers. - Their Convention. - Violence of the Opposition in
Parliament: Mr. Brownlow, Mr. Grattan, Mr. Flood. - Pitt's Propositions
Fail. - Fitzgibbon's Conspiracy Bill. - Regency Question. - Recovery of the
King. - Question of a Legislative Union. - Establishment of Maynooth
College. - Lord Edward Fitzgerald. - Arguments for and against the
Union. - It passes the Irish Parliament. - Details of the Measure. -
General Character of the Union. - Circumstances which Prevented
its Completeness.


In describing the condition of Ireland and the feelings of its people,
in the latter years of the reign of George II., Mr. Hallam has fixed on
the year 1753 as that in which the Irish Parliament first began to give
vent to aspirations for equality with the English Parliament in audible
complaints; and the Irish House of Commons, finding the kingdom in the
almost unprecedented condition of having "a surplus revenue after the
payment of all charges," took steps to vindicate that equality by a sort
of appropriation bill.

There were, however, three fundamental differences between the
Parliaments of the two countries, which, above all others, stood in the
way of such equality as the Irish patriots desired: the first, that by a
law as old as the time of Henry VII., and called sometimes the Statute
of Drogheda, from the name of the town in which it was first
promulgated, and sometimes Poynings' Act, from the name of Sir Henry
Poynings, the Lord-deputy at the time, no bill could be introduced into
the Irish Parliament till it had received the sanction of the King and
Privy Council in England; the second, that the Parliament lasted for the
entire life of the King who had summoned it - a regulation which caused a
seat in the House of Commons to be regarded almost as a possession for
life, and consequently enormously increased the influence of the patrons
of boroughs, some of whom could return a number of members such as the
mightiest borough monger in England could never aspire to equal.[125]
The third difference, of scarcely inferior importance, was, that the
Parliament only sat in alternate years. But, though these arrangements
suited the patrons and the members of the House of Commons, it was not
strange that the constituencies, whose power over their representatives
was almost extinguished by them, regarded them with less complacency,
and, at the general election which was the consequence of the accession
of George III., pledges were very generally exacted from the candidates
that, if elected, they would endeavor to procure the passing of a
septennial act like that which had been the law in England ever since
the early years of George I. A bill with that object was introduced in
1761, and reported on not unfavorably as to its principle by the English
law advisers to whom the Privy Council referred it. But, as if it had
been designed to exemplify in the strongest possible manner the national
propensity for making blunders, it contained one clause which rendered
it not only impracticable but ridiculous. The clause provided that no
member should take his seat or vote till his qualification had been
proved before the Speaker in a full house. But the Speaker could not be



Online LibraryCharles Duke YongeThe Constitutional History of England from 1760 to 1860 → online text (page 15 of 43)