Charles Duke Yonge.

The Constitutional History of England from 1760 to 1860 online

. (page 39 of 43)
Online LibraryCharles Duke YongeThe Constitutional History of England from 1760 to 1860 → online text (page 39 of 43)
Font size
QR-code for this ebook


equal impropriety, and to a great extent justify him as against the
Prime-minister, whose condemnation of his language, if he were conscious
that he had held the same himself, would be inexplicable. But it
certainly does not justify him in respect of her Majesty or the cabinet
collectively, since the Queen's complaint was, not that he held
unofficial conversations as a private individual, and not as "the organ
of a previously consulted cabinet," but that the tenor of the
conversation which he had held was in direct contradiction to the tone
which the cabinet had decided should be taken on the subject; that his
language was calculated to draw the government into a course of action
which it had been deliberately resolved to avoid. And, in spite of the
deference due to Lord Palmerston's great experience, it is hard to see
how a conversation between our Foreign Secretary and the French
Ambassador on an action, the result of which is as yet undecided, can be
wholly unofficial, in the sense of having no influence on the conduct of
affairs, or, as he expressed it, "in no degree or way fettering the
action of the government."

The result was, as has been mentioned before, that the Prime-minister
recommended the removal of Lord Palmerston from his office, and that he
was removed accordingly. And this conclusion of the case seems to show
that the statement of the position of the Prime-minister in the cabinet
is rather understated by Mr. Gladstone in one of his essays,[280] where
he says: "The head of the British government is not a Grand Vizier. He
has no powers, properly so called, over his colleagues; on the rare
occasions when a cabinet determines its course by the votes of its
members, his vote only counts as one of theirs." He admits at the same
time that "they are appointed and dismissed by the sovereign on his
advice." And surely to have the right of giving this advice is to have
the greatest possible power over his colleagues; not power, perhaps, to
change their opinions (though it possibly at times has had power to
prevent the expression of them), but power to compass their immediate
removal from the administration, as was exercised in this instance, and
as had been exercised by Pitt with regard to Lord Thurlow. That a
difference of opinion, even on an important subject, is not always
regarded as a sufficient cause for such a dismissal; that a
Prime-minister, especially if conscious of his strength, occasionally
consents to retain colleagues who differ from him on some one subject,
the same work to which we are partly indebted for our knowledge of the
details of this affair - the "Life of the Prince Consort" - furnishes two
remarkable instances in which the Prime-minister, then Lord Palmerston
himself, submitted to be overruled. We read there that on one occasion,
when "Count Persigny sought the active intervention of England by the
way of 'moral support' to a demand" which France proposed to address to
Austria, "Lord Palmerston and Lord John Russell (then Foreign Secretary)
were disposed to accede; but a different view was taken both by her
Majesty and by the cabinet, and Count Persigny's request was accordingly
declined."[281] On this occasion, it is true, he was yielding to an
overwhelming majority of his colleagues (her Majesty's approval must, of
course, have been expressed subsequently to their decision). But in
another instance we find the same Prime-minister consenting to the
introduction of a bill by one of his colleagues, Mr. Gladstone, then
Chancellor of the Exchequer, of which he disapproved so highly that,
after it had been passed by a very slender majority of the House of
Commons,[282] he expressed to the Queen a hope that the closeness of the
division "might encourage the House of Lords to throw out the bill when
it should come to their House, and that he was bound in duty to say
that, if they should do so, they would perform a good public service;"
and after they had rejected it by a majority of eighty-nine, he
pronounced that "they had done a right and useful thing," reporting to
her Majesty, as a corroboration of this opinion, and as a proof that it
was largely shared by the public out-of-doors, that "the people in the
gallery of the House of Lords are said to have joined in the cheers
which broke out when the numbers of the division were announced."[283]
And on a third occasion also he bore with the same colleague's
opposition to a measure which he and all the rest of the cabinet justly
thought of vital importance to the best interests of the country, the
fortification of our great seaports, allowing him to object for a time
in private, and even to threaten public opposition to it the next year,
since he felt assured that his opposition, if carried out, which he
doubted, would be wholly ineffectual.[284]

The personal interest in politics which this laudable habit of judging
of everything for herself naturally engendered in the Queen's mind led,
however, to the adoption by her Majesty, in more than one instance, of a
course at variance not only with all historical precedent, but, with
deference be it said, with constitutional principle, sanctioned though
it was by more than one ministry. When the First Napoleon, after his
elevation to the head of the French government as First Consul,
proposed, by an autograph letter to George III., to treat with that
sovereign for the conclusion of peace between the two nations, Pitt, to
whom his Majesty communicated the letter, had no difficulty in deciding
that it would be unseasonable for the King "to depart from the forms
long established in Europe for transacting business with foreign
states,"[285] and, under his guidance, the cabinet instructed Lord
Grenville, as Foreign Secretary, to address the reply to the First
Consul's letter to the French Foreign Secretary, M. de Talleyrand.

But this reign has witnessed several departures from the old and
convenient rule. Its violation was not begun by her Majesty, but by the
Emperor Nicholas of Russia in the year preceding the Crimean war. He
wrote to the Queen herself to discuss some of the points in dispute, and
she answered his letter with her own hand.[286] The outbreak of war
which soon ensued prevented any continuation of that correspondence; but
the close alliance which that war for a time produced between England
and France, strengthened as it was by an interchange of visits between
the royal and imperial families, which led to the establishment of a
strong mutual friendliness and regard, led also to an occasional
interchange of letters on some of the gravest questions affecting the
policy of the two nations. The correspondence was sanctioned by
successive English cabinets, every letter which the Queen either
received from, or sent to, any foreign prince on political affairs being
invariably communicated by her either to the Prime-minister or to the
Foreign Secretary; and they, in one instance, even suggesting to her
Majesty to write to Louis Napoleon[287] with an object so delicate as
that of influencing the language with which he was about to open his
Chambers.

But we must think the line recommended by Pitt to George III. both more
constitutional and more safe. A letter from one sovereign to another on
political subjects cannot be divested of the character of a state-paper,
and for every state-paper some one must be responsible. The sovereign
cannot be, but for every one of his actions the ministers are. And it
follows, therefore, that they are thus made responsible for documents of
which they have not been the original authors; of which, were it not for
the courtesy of the sovereign, they might by possibility be wholly
ignorant; and with parts of which, even with the knowledge which that
courtesy has afforded them, they may not fully coincide, since they
could hardly venture to subject a composition of their royal mistress to
a vigorous criticism. Such a correspondence, therefore, places them so
far in a false position, and it runs the risk of placing the sovereign
himself in one equally false and unpleasant, since, if the opinions
expressed or the advice given fail of their effect, the adviser is so
far lowered in the eyes of his correspondent and of the world.

As has been incidentally mentioned, in the spring of 1854 war broke out
with Russia, nominally on account of the Sultan's refusal to concede
some of the Czar's demands concerning the condition of the Greek Church
in Palestine, but more really because, believing the Turkish empire to
be in the last stage of decay, he hoped by hastening its destruction to
obtain the lion's share of its spoils. And for the first time for two
centuries an English and French army stood together in a field of battle
as allies. In the field our armies were invariably victorious,
inflicting severe defeats on the enemy at Alma and Inkerman, and
wresting from them the mighty fortress of Sebastopol, in the Crimea,
which hitherto they had believed to be absolutely impregnable. Our fleet
was, if possible, still more triumphant, destroying Bomarsund and
Sweaborg, in the Baltic, without the Russian ships daring to fire a
single gun in their defence, while their Black Sea fleet was even sunk
by its own admiral, as the only expedient to save it from capture. And
in the spring of 1856 the war was terminated by a treaty of peace, in
which, for the first time since the days of Peter the Great, Russia was
compelled to submit to a cession of territory. But (it may almost be
said) to the credit of the nation these successes, glorious and
substantial as they were, made at the time scarcely so great an
impression on the people as the hardships which, in the first winter of
the war, our troops suffered from the defective organization of our
commissariat. Want of shelter and want of food proved more destructive
than the Russian cannon; presently our gallant soldiers were reported to
be perishing by hundreds for lack of common necessaries; and the news
awakened so clamorous a discontent throughout the whole of the United
Kingdom as led to another change of ministry, and Lord Aberdeen was
succeeded by Lord Palmerston. While a war on so large a scale was being
waged there was but little time to spare for the work of the legislator,
though it is not foreign to our subject to relate that in 1855 the last
of those taxes which the political economists denounced as taxes on
knowledge, the tax on newspapers, was abolished. Originally it had been
fourpence; in 1836 Mr. Spring Rice, Chancellor of the Exchequer in Lord
Melbourne's ministry, had reduced it to a penny; and now, with a very
general acquiescence, it was abolished altogether.

The entire abolition of a tax is not properly to be called a financial
measure, that epithet belonging rather to those which aim at an
augmentation of revenue by an increase in the number of contributors to
a tax, while lessening the amount paid by each. But the abandonment of
the tax in question should rather be regarded as a sacrifice of revenue
for the instruction of the people in political knowledge; a price paid
to enable and induce the poorer classes to take a well-instructed
interest in the affairs of the state and the general condition of the
country. And, viewed in this light, the abolition of this tax must be
allowed to have been a political measure of great importance, and to
have contributed greatly to the end which was aimed at. Till 1836 a
daily paper, costing sevenpence, was the luxury of the few; and the sale
even of those which had the largest circulation was necessarily limited.
But the removal of the tax at once gave birth to a host of penny
newspapers, conducted for the most part with great ability, and soon
attaining a circulation which reached down to all but the very poorest
class; so that the working-man has now an opportunity of seeing the most
important questions of the day discussed from every point of view, and
of thus acquiring information and forming a judgment on them which the
subsequent extension of the franchise makes it more than ever desirable
that he should be able to form for himself. Every movement in that
direction renders it the more necessary to raise the intelligence of the
great mass of the people to a level which may enable them to make a safe
and salutary use of the power placed in their hands. And no mode of
implanting a wholesome political feeling in the masses can equal candid
political discussion: discussion one ruling principle of which shall be
to teach that the greatest differences of opinion may be honestly
entertained; that, with scarcely an exception, the leading men of each
party, those who have any title to the name of statesman, are animated
with an honest, patriotic desire to promote the best interests of the
nation; and that the elucidation of truth is not aided by unreasoning
invective and the undeserved imputation of base motives.

One of the last topics discussed by Mr. Hallam was the introduction of a
bill to limit for the future the prerogative of the crown in a field in
which its exercise had previously been unrestrained, the creation of
peers;[288] and among the last which we shall have to examine was one of
an exactly opposite character, though relating to the same subject, the
creation of a life peerage. In the winter of 1855 Sir James Parke, one
of the Barons of the Exchequer, was created Lord Wenslydale, by
letters-patent which conferred the title limiting it also to the new
peer's own life. The professed object of the measure was to strengthen
the judicial power of the House of Lords. But it was not denied that the
limitation of the peerage conferred on him for his own life (a
limitation which made no practical difference to Sir James himself,
since he had no children) was intended to raise the question whether the
crown could or could not create a life peerage with a seat in the House
of Lords. A creation so limited was so novel, or at all events so long
disused a proceeding, that it inevitably provoked examination and
discussion. And, as it was found that the lawyers in general regarded it
as indefensible, at the beginning of the session of 1856 Lord Lyndhurst
brought the matter before the House of Lords by a motion for the
appointment of a committee of privileges to investigate and report upon
it. There were two aspects of the case which naturally came to be
considered in the debates on it which ensued: the advantages or
disadvantages, in other words, the political expediency, of such a form
of letters-patent, and their legal or constitutional propriety. It was,
of course, with the latter alone that the committee of privileges had to
deal. And this part of the question was examined with great legal and
antiquarian learning, though, as was almost inevitable, it was argued as
a party question, except, indeed, by the lawyers. They, with the
exception of the Chancellor, Lord Cranworth, who had advised the
measure, were unanimous in their condemnation of it; the Whig peers,
Lord Brougham and Lord Campbell, then Chief-justice, being as positive
in their denial of the right so to exercise the prerogative as those on
the Opposition side of the House, Lord Lyndhurst or Lord St.
Leonards.[289]

The arguments against the measure were chiefly these: The objectors drew
a distinction between what was legal according to the strict letter of
the law, and what was constitutional; contending that there might be
exercises of the prerogative which could not be affirmed to be illegal,
but which no one would deny to be altogether inconsistent with the
principles and practice of the constitution, since a great part of the
constitution rested on unwritten law, on long-continued usage, _Lex et
consuetudo Parliamenti_. And they affirmed that this measure was so
opposed to that usage, that "no instance had occurred within a period of
four hundred years in which a commoner had been raised to a seat in the
House of Lords by a patent of peerage containing only an estate for
life;"[290] one most essential, if not the most essential character of
the peerage being that it was an hereditary dignity, and one which
combined with its rank an hereditary seat in the House of Lords. That
one or two instances of life peerages were to be found in the annals of
the Plantagenet kings was not denied, though none exactly similar in
character.[291] But Lord Lyndhurst argued that precedents which had
occurred "at a time when the constitution of the country was neither
understood nor fully formed" were entitled to but little respect; and
Lord Derby, limiting the age of valid precedents a little more strictly,
"said frankly that he had no respect for any precedent affecting the
prerogatives of the crown that dated farther back than the year 1688."
And since that time, or indeed since the time of Henry VIII., it was
certain that no life peerage had ever been granted, except by Charles
II., James II., and George I. and II., to some of their mistresses,
instances wholly beside the present case, since, of course, none of
those ladies could claim seats in the House of Lords. Indeed, it was
believed that both Mr. Pitt, at the time of the Union, and Lord Grey, in
1832, had considered the question, and had both decided against the
propriety of advising a creation of life peerages.

In defence of the measure Lord Granville refused to admit the
distinction between what was legal and what was constitutional; if a
measure were both legal, that is, warranted by the letter of the law,
and also expedient, these two concurrent qualities, he contended, made
it constitutional. He denied, also, that any legal prerogatives of the
crown could be held to have lapsed through disuse; _nullum tempus
occurrit Regi_; and he challenged any peer to assert that the sovereign
had lost the right of refusing his royal assent to a measure passed by
the two Houses, merely because no sovereign since William III. had so
exercised his royal prerogative. And against the authority of Mr. Pitt
and Lord Grey he quoted that of Lord John Russell, who, in 1851, had
offered a life peerage to an eminent judge, who, though he had declined
the offer, had been influenced in his refusal by no doubt of the right
of the crown to make it.

On the expediency of the measure its opponents had urged that it would
effect a remodelling of the House of Peers, a total change of its
constitution, by the introduction of a second and distinct class of
peerages; and Lord Campbell, with a not unbecoming jealousy for what he
regarded as the interests of his brother lawyers, argued that it would
"henceforth prevent any lawyer, however eminent he might have been as an
advocate, whatever services he might have rendered to the state in the
House of Commons, whatever fame or fortune he might have acquired, from
aspiring to an hereditary peerage, or to becoming the founder of a
family, since, to make a distinction between the Chancellor and the
Chief-justice, between one Chancellor or Chief-justice and another, when
coming into the Upper House, as to the tenure of their honors, would be
intolerable; all must be under the same rule, 'no son of theirs
succeeding.'" And Lord Lyndhurst closed his argument by drawing a
comparison between the House of Lords and the French Senate: "It was but
a few weeks since he had read an official comment in the _Moniteur_,
coming from the highest source, on the inefficiency, the want of
patriotism, energy, and the backwardness to fulfil the high destinies to
which they were called, that characterized that illustrious body, the
Senate of France. He had no disposition to cut down our tribunal to that
life interest on which the Senate of France is based, as he believed the
hereditary character of the House of Lords to be one from which great
and important advantages are derived.... The hereditary principle," he
added, "is intwined in every part of our constitution; we in this House
enjoy our hereditary rights in common with the crown; we mutually
support and assist each other, and we form a barrier and defence to
protect both those branches of the constitution against any by whom they
may be assailed."

As Lord Granville had made the expediency of any measure the quality
which, combined with legality, was sufficient to establish its
constitutional character, he naturally labored this point with especial
diligence. He dwelt upon the great importance of strengthening the
judicial element in the House, since it was the great ultimate court of
appeal. He produced a letter of the great Chancellor, Lord Eldon, which
quoted instances in which various administrations had found difficulties
in the way of introducing eminent lawyers into the House, because their
want of adequate fortune to support the rank had disinclined them to
encumber their descendants with an hereditary peerage. He showed also
that that difficulty had made so great an impression on their own
Chairman of Committees, Lord Redesdale, that on one occasion he had
intimated a feeling in favor of allowing "the Law, in the same way as
the Church, to be, to a certain extent, represented in the House by the
holders of certain offices, who should be admitted to that House as
Peers of Parliament during the continuance of holding such office" (to
which argument Earl Grey added another, that the instance of bishops,
who were but life peers, proved that the holders of life peerages were
not considered inferior to hereditary peers).

He dwelt, too, on the evil consequence of the Lords "placing themselves
before the country as seeking to limit the prerogative of the crown,
when that prerogative was exercised with a view to remedy something that
was weak, and to remove a certain imminent danger." What the danger was
he certainly did not explain. But Lord Grey, in supporting him, took
wider ground, and, applying the argument derived from Lord Eldon's
letter to other professions, extolled the idea of instituting life
peerages as one whose effect would be "more easily to open the doors of
the House to men whom it was desirable should be admitted - to
distinguished officers; to eminent writers; to members of the House of
Commons, who in their different lines might have rendered good service
to the state, but who, though possessing means amply sufficient to
support their rank during their own life, yet, from having only a life
income, or a numerous family to be provided for, might be unable to
accept an hereditary peerage without injury to their family. In such
instances," he contended, "it would be most desirable to grant peerages
for life only. Such a proceeding would, he was convinced, by no means
disincline others in different circumstances to accept hereditary
titles, nor indispose the ministry to confer them. Nor did he see any
reason for fearing that the practice of creating life peerages would be
more likely to be abused for the purpose of increasing the power of the
minister than the creation of hereditary peerages."

The committee of privileges was appointed, and reported it as the
opinion of the members that "neither the letters-patent by themselves,
or with, the addition of the usual writ of summons, could entitle the
grantee to sit and vote in Parliament." And the House, by a majority of
ninety-two to fifty-seven, adopted their report. The ministers yielded
to its judgment, and ennobled Lord Wenslydale by a new patent in the
usual form, as Lord Derby had suggested. But Lord Derby desired to show
that his objection had been founded on principle only; and, as he was
willing to admit that, apart from the principle involved, "some
advantages in certain cases, and under certain modifications, might
arise from peerages for life," he proposed the appointment of a select
committee "to consider the expediency of making provision for the more
efficient discharge of the duties of the House as a court of appeal."
The committee was appointed, and, after careful consideration,
recommended the creation of two new offices, to be held by two law
lords, as "Deputy Speakers of the House of Lords," who should be judges
of at least five years' standing, and should be enabled "by authority of
Parliament to sit and vote in the House, and enjoy all the rights and
privileges of a peer of Parliament under a patent conferring a peerage
for life only, if the crown may have granted or shall grant the same to
such persons in preference to an hereditary peerage, provided always
that not more than four persons shall have seats in the House at one
time as peers for life." Such an arrangement would have introduced a new
practice, but not a new principle, since the annexation of a seat in the
House of Lords to certain offices had existed from time immemorial in



Online LibraryCharles Duke YongeThe Constitutional History of England from 1760 to 1860 → online text (page 39 of 43)