Charles Duke Yonge.

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own laws, belonged to the House alone." And he pressed strongly on the
House that it was "the duty of the House to fight the battle to the
last," though he confessed that "it was with pain that he had come to
the determination of entering into a contest with the courts of law." On
one point the judges agreed with the House of Commons. The House
committed the sheriffs; but, when they sued out their _habeas corpus_,
the judges decided that the return of the Sergeant-at-arms that they
were committed by the House for breach of privilege was a sufficient
return. Stockdale brought fresh actions. But meantime the case was
arousing a strong excitement in the country.[257] The singular hardship
of the position of the sheriffs excited general sympathy: if they obeyed
the House of Commons, which prohibited them from paying over to
Stockdale the damages which they had received for him, the Court of
Queen's Bench would be bound to attach them for disobedience to its
order. If they obeyed the Queen's Bench, the House would imprison them
for breach of privilege. And the national feeling is always in favor of
the strictly defined authority of the courts of law, rather than of the
somewhat indefinite claims of Parliament to interpret, and even to make,
privilege. Another consideration, probably, weighed a little with the
champions of the House - that their power of imprisonment ended with the
session. As matters went on, it was found that even the Attorney and
Solicitor-general differed as to the course to be pursued; and
eventually Lord John Russell consented to adopt the advice which had
been given by a former Attorney-general, Sir F. Pollock, and to bring in
a bill to legalize all similar proceedings of Parliament in future, by
enacting that a certificate that the publication of any document had
been ordered by either House should be a sufficient defence against any
action. The introduction of such a bill was in some degree an
acknowledgment of defeat; but it can hardly be denied to have been not
only a judicious step, but the only one practicable, if the contest
between Parliament and the courts of law were not to be everlasting; and
it met with general approval. If it was a compromise, it was one that
satisfied both parties and both ends. It upheld the authority of the
courts of law, and at the same time it practically asserted the
reasonableness of the claim advanced by the House of Commons, by giving
it for the future the power which it had claimed. Nor were people in
this day inclined to be jealous of the privileges of Parliament, so long
as they were accurately defined. They felt that it was for the advantage
and dignity of the nation that its powers and privileges should be
large; what they regarded with distrust was, a claim of power of which
no one knew the precise bounds, and which might, therefore, be expanded
as the occasion served.


[Footnote 245: Fifty-two mills and 30,000 persons were thrown out of
employment for ten weeks at Ashton in 1830 by the turning out of 3000
"coarse spinners," who could clear at the time from 28s. to 31s. per
week. The following passage is extracted from an oath said to have been
administered by the combined spinners in Scotland in 1823: "I, A B, do
voluntarily swear, in the awful presence of God Almighty, and before
these witnesses, that I will execute with zeal and alacrity, as far as
in me lies, every task or injunction which the majority of my brethren
shall impose upon me in furtherance of our common welfare, as the
chastisement of _knobs_, the assassination of oppressive and tyrannical
masters, or the demolition of shops that shall be deemed
incorrigible." - _Annual Register_, 1838, pp. 204-207.]

[Footnote 246: See page 221.]

[Footnote 247: The question was examined with great minuteness by Lord
Brougham a fortnight after the ministerial explanation. See
"Parliamentary Debates," 3d series, xlvii., 1164.]

[Footnote 248: It is stated on good authority that Lord Melbourne, in
private conversation, justified or explained the line he had taken by
his consideration for his friends, scores of whom would have had their
hopes blighted by his retirement.]

[Footnote 249: See "Life of the Prince Consort," i., 55.]

[Footnote 250: "Life of the Prince Consort," i., 57.]

[Footnote 251: Macaulay's "History of England," i., 386.]

[Footnote 252: This is the name which the Liberal historian of the time,
Miss Martineau, gives it. "The so-called Registration Bill was, in fact,
an unannounced new Reform Bill for Ireland." - _History of the Peace_,
book v., c. vi.]

[Footnote 253: See _ante_, p. 127.]

[Footnote 254: In one instance the rebels were aided by a party of
citizens of the United States, who, without any sanction from their own
government, seized an island on the St. Lawrence belonging to us, and
attacked some of the Canadian villages. And this led to the discussion
of a question of international combined with constitutional law, which
Lord Campbell thus describes: "'Whether, if the subjects or citizens of
a foreign state with which we are at peace, without commission or
authority from their own or any other government, invade the English
territory in a hostile manner, and levy war against the Queen in her
realm, we are entitled to treat them as traitors?' The Canadian courts
held that we could not, as they had never acknowledged even a temporary
allegiance to our sovereign. And of this opinion was Sir William
Follett. But, after reading all that is to be found on the subject, I
come to the conclusion that they owed allegiance when, as private
individuals, they voluntarily crossed the English frontier; that it was
no defence for them to say that they then had arms in their hands and
intended to murder the Queen's subjects." - _Life of Lord Campbell_,
ii.,119. It certainly would have been no _defence_; but would it not
have taken their conduct from under the definition of _treason_, and
made it an act of _piracy_?]

[Footnote 255: See Fox's words, quoted by Lord Stanhope. - _Life of
Pitt_, ii., 90.]

[Footnote 256: A couple of years after the period which is the boundary
of the present work, this Canadian constitution of 1841 was superseded
by a measure uniting Canada, Nova Scotia, and New Brunswick in one
federal government, with, as the act recites, "a constitution similar in
principle to that of the United Kingdom." The act farther provided for
the admission of other dependencies of the crown in North America,
Newfoundland, Prince Edward Island, British Columbia, and Rupert's Land
into the union, and established as the constitution of the whole one
scarcely differing from that of 1841, with the exception that both the
Houses of the Legislature - called in the act the Senate and the House of
Commons - were to be representative bodies, and that powers were
conferred on them so absolutely free and independent, that it was
thought necessary to add a clause providing that their "privileges,
immunities, and powers were never to exceed those at the passing of the
act held, enjoyed, and exercised by the Commons House of Parliament of
the United Kingdom of Great Britain and Ireland, and by the members

[Footnote 257: Lord Campbell, in his autobiography, puts the
transaction, in the phase at which it had now arrived, in a very serious
light: "Next came a proceeding which placed me in a most difficult
position; and the public never knew the danger which then existed of a
convulsion unexampled in our history. The sheriffs sued out a writ of
_habeas corpus_, directed to the Sergeant-at-arms, commanding him to
produce before the Court of Queen's Bench the sheriffs of Middlesex,
alleged to be illegally in custody, with the cause of their detention.
Wilde, the Solicitor-general, was strong for refusing to make any return
to the writ, and for setting the Court of Queen's Bench at defiance. Had
I concurred in this opinion it would certainty have been acted on. The
consequences would have been that the Sergeant-at-arms, even with the
mace in his hand, would have been sent to Newgate by the Court of
Queen's Bench. The House must have retaliated by committing the judges.
The crown would then have had to determine on which side the army should
be employed, and for a time we must have lived under a military
government" (ii., 129). The noble and learned autobiographer does not
explain why it should have been indispensable to employ the army on
either side.]


Sir Robert Peel becomes Prime-minister. - Commercial Reforms. -
Free-trade. - Religious Toleration. - Maynooth. - The Queen's
University. - Post-office Regulations. - The Opening of Letters. -
Naturalization of Aliens. - Recall of Lord Ellenborough. - Reversal of the
Vote on the Sugar Duties. - Refusal of the Crown to Sanction a Bill. - The
Question of Increase in the Number of Spiritual Peers. - Repeal of the
Corn-laws. - Revolution in France, and Agitation on the Continent. - Death
of Sir Robert Peel. - Indifference of the Country to Reform. - Repeal of
the Navigation Laws. - Resolutions in Favor of Free-trade. - The Great
Exhibition of 1851.

The transactions mentioned in the last chapter were among the last
events of Lord Melbourne's ministry. He had for some time been aware of
his impending defeat in the House of Commons, and, greatly to his
credit, had endeavored to make the return to office easier to his
successors by the friendly counsels he had given to the Queen on the
subject.[258] A dissolution of Parliament in the summer of 1841 only
weakened his party, and in September he resigned, and was succeeded by
Sir Robert Peel, who, comparatively short as was his tenure of
office,[259] found it long enough to establish for himself a reputation
as the greatest financier of Europe since the days of Pitt. It may be
worth remarking that, in the "Memoirs of the Prince Consort," it is
mentioned that in the course of his administration Peel found reason to
change his judgment on the question of which House of Parliament it was
the more desirable for the Prime-minister to be a member. Canning had
more than once asserted his conviction that the public business would be
more satisfactorily conducted when the Prime-minister was a commoner,
founding his opinion chiefly on the paramount importance of financial
questions, the discussion of which is almost confined to the House of
Commons, and conceiving it to be supported by the history of the
administration of Pitt, from whom, indeed, he had imbibed the idea; and
in former years Peel had more than once expressed his concurrence with
that view of the subject. But, from papers which were intrusted to him
for the execution of his great work, Sir Theodore Martin learned that
Peel had subsequently found reason to come to the opposite conclusion,
not from any change in his view of the relative importance of the
different departments of administration, but solely because "the amount
of work imposed upon the first minister in the House of Commons, in
addition to what he had to go through elsewhere, was too great for any
human strength. In the House of Lords the Prime-minister would escape
the necessity for being in a position to vindicate all the details of
administration, and to answer the multiplicity of questions on all sorts
of subjects, the putting of which has almost degenerated into a vice. He
had, therefore, come to the conclusion that it was there he ought to
be."[260] And, indeed, the subjects which demanded the care of the
minister, and attracted the attention of Parliament, were constantly
increasing in number, variety, and importance to the very end of his
administration. Not only were the financial difficulties of the country,
the depressed state of agriculture and commerce (the result of a
succession of bad harvests), sufficient causes for grave anxiety, but
the terrible war, of which mention has already been made, which we had
now been carrying on for nearly three years in Afghanistan, and which,
before the end of this very year, was about to be signalized by a
disaster such as had never before befallen a British army, threatened to
kindle the flames of war in Europe also, from the share which the
intrigues of Russia had had in fomenting the quarrel; and the same
danger was more than once in the course of the next five years imminent,
from the irritation with which France regarded us, and which, commencing
in Syria, while Lord Melbourne was still at the helm, lost no
opportunity of displaying itself, whether in transactions in the remote
Pacific Ocean or the old battle-field of the two nations, the Spanish
peninsula; and finally, these embarrassing perplexities were crowned by
the appalling visitation of famine, which, at the end of the fourth year
of the administration, fell upon Ireland with a severity surpassing any
similar event in modern history.

With all these multiform difficulties the new minister grappled with
unflinching courage, and with conspicuous success. Peace was preserved
abroad, and financial prosperity was restored at home. Into the details
of his measures devised for this last-mentioned object, though the
leading features of his administration, and those on which his fame
chiefly rests, it would be beside the purpose of the present work to
enter. It is sufficient to say here that, in the spirit of Pitt's great
financial reform of 1787, he revised the whole of the import duties of
our commercial tariff, especially reducing the duties on raw
material;[261] making up the deficiency so caused by an income tax,
which he described as a temporary imposition, since he doubted not that
the great increase of lawful trade, which would be the consequence of
the reduction of duties, would soon enable the revenue to dispense with
a tax to the objections of which he was not blind. In recommending this
great change to the House, he laid down as the soundest maxim of
financial legislation, in which "all were now agreed, the principle that
we should buy in the cheapest market and sell in the dearest," a
doctrine which, when more fully carried out, as it was sure to be, led
almost inevitably to the great measure for which his administration is
most celebrated, the repeal of the Corn-laws. There could be no doubt
that, in the most modified application of it, it struck at the root of
the principle of protection, which had hitherto been the fundamental
principle of our finance, and made a farther extension of it inevitable.

And, as he had been one of the leading members of the ministry which
carried Catholic Emancipation, so he now proceeded on the same path of
religious toleration; and, in the session of 1844, successfully
recommended to the House of Commons a bill which had already been passed
by the Lords, repealing a number of penal acts affecting the Roman
Catholics, which, though they had long been practically obsolete, still
encumbered, and it may be said disgraced, the statute book, and were, so
to say, a standing degradation of and insult to the Roman Catholic body.
One of them, passed in the reign of William and Mary, still forbade any
Roman Catholic to come within ten miles of London, to have either sword
or pistol in his house, or to possess a horse worth more than five
pounds. Another, enacted under Elizabeth, still made every Roman
Catholic who omitted to take certain oaths guilty of high-treason,
though no attempt to administer those oaths had been made since the
Revolution. Another, of the time of Charles I., deprived any Roman
Catholic who should send his son to a foreign school of all protection
of the law; he could neither sue nor defend an action. It may fairly be
said that the credit of Parliament and of the nation was concerned in
the abrogation of laws so ridiculously oppressive, and not the less
obnoxious for being practically invalid. And in the same spirit another
measure was framed and carried by the Lord Chancellor, whose object was
the confirmation of religious endowments belonging to different sects of
Protestant Dissenters, and their protection from vexatious and unjust
litigation, by making a continued possession of any kind of endowment or
property for twenty years a valid title.

These enactments may be regarded as indispensable supplements to the
repeal of the Test Act and Catholic Emancipation. They were the
coping-stone of the great edifice of religious toleration, of which the
former acts had laid the foundation. And the next year Peel carried out
still farther the same principle, by a measure which could not fail to
be regarded as an especial boon in Ireland, since the great majority of
the population of that kingdom were of the Roman Catholic persuasion. It
has been seen that when the troubled state into which the Continent was
thrown by the French Revolution threw hinderances in the way of the
Irish students designed for the Roman Catholic priesthood going to one
of the great Continental colleges, such as St. Omer or Salamanca, for
their education, Pitt established for them a college at Maynooth, for
the endowment of which Parliament was annually asked for a grant of
about £9000. The sum had long been felt to be altogether inadequate to
the requirements of the foundation. As early as the year 1807, Lord
Liverpool, then Home-secretary, had contemplated a large increase of the
grant, though the weakness of the government, then presided over by the
Duke of Portland, prevented him from carrying out that and other
measures which he had conceived in a kindred spirit. Moreover, the grant
was rarely proposed without giving rise to a warm debate raised by a
party whose too tender consciences forbade them to sanction any measure
appearing to foster a religion from which they dissented. And to remedy
the two evils (the one arising from the want of a sufficient provision,
the other from the spirit of religious controversy, for which the House
of Commons was certainly very ill-calculated), Peel, in 1845, proposed
to treble the grant, so as to put the college on a more satisfactory
footing, by providing sufficient incomes for the professors, and a
revenue adequate to the respectable maintenance of an increased number
of pupils; and also to place the charge for the future on the
Consolidated Fund, by which step its yearly discussion in Parliament
would be altogether avoided. The measure was vigorously resisted, partly
on the religious ground already mentioned, and partly by an argument,
urged with some plausibility, that the design with which the college had
originally been founded had not been realized; that, in fact, it had not
proved a benefit to the country, but rather the reverse, by tempting
into the service of the Roman Catholic Church a humbler and poorer class
of students than could devote themselves to it when the preliminary
education involved the expense of a protracted residence in a foreign
country. But the obvious advantages of the change prevailed over these
considerations, and the bill was carried by large majorities.[262]

And now that the long cessation of controversy on the subject - which,
indeed, has been not the least beneficial fruit of this bill of
1845 - permits a candid consideration of it in all its bearings, it will
probably be thought that Parliament had not often come to a wiser
decision, one more dictated by judicious liberality of sentiment, and
more imperatively required on every ground of statesman-like policy. If
the countervailing objections and advantages be calmly weighed, it may
almost be said that there was no alternative between enlarging the
endowment and putting it on a new footing, or suppressing the college
altogether. In its existing condition it was notoriously inadequate to
fulfil the design of its founder; and any establishment visibly
inadequate to its design tends to bring the design itself into some
degree of contempt. Yet even if it should be granted that there might
have been no fair ground of complaint if the college had never been
founded, to close it after its benefits, however scanty, had been
enjoyed for half a century, could not fail to have been regarded as an
unpardonable injustice and injury. The other alternative, therefore, was
practically the only one that remained; and in embracing it Peel was but
carrying out the original principle on which the college was founded. It
had been intended to be efficient; through lack of means it had proved
inefficient. The obvious and just remedy was to supply such increased
means as to create or bestow the efficiency originally aimed at. And it
was a felicitous idea to place the charge for the future on such a
footing as to combine with such an increase an avoidance of the
irritation which its yearly discussion had never failed to excite.

And at the same time, to carry still farther the principle of religious
toleration, or rather of religious equality, he induced the Parliament
to found a new university, consisting of three colleges, one in each of
the three provinces of Ulster, Munster and Connaught (Leinster, as
having Trinity College and Maynooth, being regarded as already
sufficiently provided with university education), which should be open
to students of every religious denomination, and at which, while every
kind of secular education, both literary and scientific, should be
given, the stirring up of religious controversy and animosity should be
guarded against, by the absence of any theological professorships. He
did not, indeed, design that the still greater benefits of religious
education should be withheld from the pupils, but he proposed to provide
for that object by confiding their religious education to the care of
the clergy of each persuasion, some of whom in each town which was the
seat of a college - Belfast, Cork, and Galway - might be trusted for
willingness to superintend it. It was hoped that one fruit of this
scheme, and that by no means its least valuable result, would be that
the association of pupils of various creeds in their studies and
amusements from an early age would lead them to maintain, in their more
mature years, the harmony of which the foundation had thus been laid in
their youth; and that thus the religious animosities which were the
principal obstacle to the prosperity of the country would be softened,
and in time extinguished. And this object has been achieved to a great
extent, though the disfavor with which the Roman Catholic Church regards
any educational system which is not under the superintendence of its
priesthood has prevented the scheme from attaining the full development
which was hoped for. The number of students of each of the principal
sects - the Church of Ireland, the Roman Catholics, and the
Presbyterians - steadily increases.[263] Members of each religious body
are among the professors in each college, and all accounts represent the
most perfect harmony and cordiality as existing throughout the whole

Yet, important as was the principle contained in these measures, none of
them, perhaps, caused such excitement at the moment as an exercise by
the government of what was, in point of fact, one of its most ancient,
as well as most essential, powers: the occasional opening of letters
which passed through the post, in compliance with a warrant of the
Secretary of State. England had at all times been the refuge of those
unquiet spirits who, in pursuit of their schemes of rebellion and
revolution, had incurred the displeasure of their own governments, and
had too easily found accomplices here. And in the course of the summer
some notorious offenders of this class found a member of the House of
Commons to present a petition, in which they complained that some
letters which they had posted had been stopped and opened by the
officers of the Post-office. The member who presented the petition
appears to have fancied it an unprecedented and wholly unlawful exercise
of authority; but Sir James Graham, the Home-secretary, not only at once
avowed that the statement was true, and that he had issued his warrant
for the opening of the letters mentioned, but also showed that the power
to issue such an order was reserved to the Secretary of State in all the
statutes which regulated the proceedings of the Post-office. The clause
in the act which conferred the power had been originally framed by Lord
Somers, a statesman certainly as little open as any of his time to the
suspicion of desiring to encroach on the rightful liberty of the
subject; and it had been exercised from time to time in every reign
since the Revolution. It was a power intrusted to the Secretaries of
State for the public safety, and exercised by them on their own
responsibility. The practice and its justification were assailed in both

Online LibraryCharles Duke YongeThe Constitutional History of England from 1760 to 1860 → online text (page 36 of 43)