CHAPTER VII.

The Toleration Act.--Impropriety of making Catholic Emancipation (or any

other Important Matter) an Open Question.--Joint Responsibility of all

the Ministers.--Detention of Napoleon at St. Helena.--Question whether

the Regent could Give Evidence in a Court of Law in a Civil

Action.--Agitation for Reform.--Public Meetings.--The Manchester

Meeting.--The Seditious Meetings Prevention Bill.--Lord Sidmouth's Six

Acts.

The war was daily becoming of more exciting interest, and, so far as our

armies were concerned, was rapidly assuming greater proportions. While

the Duke of Portland was still at the head of affairs, Napoleon, by his

unprovoked attacks on both the Peninsular kingdoms, had at last opened a

field of action to our armies, in which even the most sanguine of those

who placed a loyal confidence in the old invincibility of English

prowess could not have anticipated the unbroken series of glories which

were to reward their efforts. For four years Lord Wellington had

contended against all the most renowned marshals of the Empire,[172]

driving them back from impregnable lines of defence, defeating them in

pitched battles, storming their strongest fortresses, without ever

giving them room to boast of even the most momentary advantage obtained

over himself; and he was now on the eve of achieving still more

brilliant and decisive triumphs, which were never to cease till he had

carried his victorious march far into the heart of France itself.

At such a time it may well be supposed that the attention of the new

ministry was too fully occupied with measures necessary for the conduct

of the war to leave it much time for domestic legislation. Yet even its

first session was not entirely barren.

In the first excitement of the Restoration, when the nation was still

exasperated at the recollection of what it had suffered under the

triumphant domination of the Puritans, two laws had been framed to

chastise them, conceived in a spirit as intolerant and persecuting as

had dictated the very worst of their own. One, which was called the

Conventicle Act, inflicted on all persons above the age of sixteen, who

should be present at any religious service performed in any manner

differently from the service of the Church of England, in any

meeting-house, where more than five persons besides the occupiers of the

house should be present, severe penalties, rising gradually to

transportation; and gave a single magistrate authority to convict and to

pass sentence on the offenders. The other, commonly known as the Five

Mile Act, forbade all ministers, of any sect, who did not subscribe to

the Act of Uniformity, and who refused to swear to their belief in the

doctrine of passive obedience, from teaching in any school, and from

coming within five miles of any city, corporate town, or borough sending

members to Parliament, or any town or village in which they themselves

had resided as ministers. The latter statute had fallen into complete

disuse, and many of the provisions of the former had been relaxed,

though magistrates in general construed the relaxing enactments as

leaving the relaxations wholly at their discretion to grant or to

withhold, and were very much in the habit of withholding or abridging

them. Other statutes, such as the Test Act, had subsequently been passed

against every sect of Dissenters, though they had only imposed civil

disabilities, and had not inflicted penalties. But the new

Prime-minister was a man to whose disposition anything resembling

persecution was foreign and repugnant. Before his predecessor's unhappy

death he had already discussed with him the propriety of abolishing laws

conceived in such a spirit; and he no sooner found himself at the head

of the government than he prepared a bill to carry out his views. He

drew a distinction between the acts inflicting penalties and those which

only imposed disabilities. With these latter he did not propose to

interfere; but, in July, his colleague, Lord Castlereagh, introduced

into the House of Commons a bill to repeal the Conventicle Act and the

Five Mile Act altogether, and, when it had passed the Commons, he

himself moved its adoption by the Lords, enforcing his recommendation by

the argument, that "an enlarged and liberal toleration was the best

security to the Established Church, a Church not founded on the

exclusion of religious discussion, but, in its homilies, its canons, and

all the principles on which it rested, courting the investigation of the

Scriptures, upon which it founded its doctrines." At the same time,

while urging the repeal of acts which he truly branded as a disgrace to

the statute-book, he was not blind to the duty imposed on him, as

responsible for the public tranquillity, of taking care that meetings

held ostensibly for purposes of devotion should not be perverted to the

designs of political agitators; and therefore he provided in the bill

for the registration of all places appropriated to religious worship,

and for the exaction from "the preachers and teachers in those meetings

of some test or security in the oaths to be taken by them." He had

already secured the acquiescence of the bishops, and he was equally

successful now in winning the assent of the House. The conditions, such

as they were, did not prevent the bill from being entirely acceptable to

the Non-conformists; and though their spokesman in the House of Commons,

Mr. W. Smith, member for Norwich, confessed a wish "that it had gone a

little farther, and had granted complete religious liberty," he at the

same time expressed sincere gratitude on the part of the Non-conformists

for what was thus done for them; and declared that, "as an act of

toleration, it certainly was the most complete which had hitherto been

passed in this country." It was, in fact, the beginning of the

abandonment of that system of discouragement of and hostility to all

sects except the Established Church, which had hitherto been regarded by

a large party as one of the most essential principles of the

constitution. And as such it makes the year 1812 in some respects a

landmark in our constitutional history.

Mr. Smith had referred to an omission which prevented him from speaking

of the bill as complete. He was alluding to the Test and Corporation

Acts, which had been passed ten years later than the Conventicle Act, in

the same reign of Charles II., and which many of the Non-conformists,

and especially the Unitarians, had urged Lord Liverpool to include in

this measure of repeal, but which he decided on retaining. As has been

said above, he drew a distinction between acts inflicting penalties and

those which went no farther than imposing political disabilities,

feeling that any relief of Protestant Dissenters from such disabilities

must inevitably lead to the concession of a similar indulgence to Roman

Catholics, and not being as yet prepared to admit to Parliament the

members of a Church which recognized the duty of obedience in any matter

to a foreign sovereign; for, as the disabilities had been originally

imposed on the Roman Catholics, so they were now maintained on

political, not religious, grounds; and even those most opposed to a

relaxation of them were careful to explain their resistance to be one

which time and a change of circumstances might mitigate.[173]

As a fitter opportunity for discussing the question will be afforded by

the Duke of Wellington's bill, in 1829, we should not have mentioned it

at all in this place, had not Lord Liverpool, in arranging his

administration, adopted a mode of dealing with it which, though rather a

parliamentary or departmental than a constitutional innovation, was,

nevertheless, one of so strange a character as to seem to call for

examination. Ever since the formation of Walpole's ministry it had been

the invariable rule and practice for all the members of the cabinet to

act in concert on all measures of importance, or, indeed it may be said,

on all measures on which a Parliamentary vote was taken. But, in

arranging his administration after Mr. Perceval's death, Lord Liverpool

found it absolutely impossible to form one satisfactory either to the

nation or to himself if it were to be confined to members in perfect

agreement with himself on the subject of the retention of the

disabilities affecting the Roman Catholics; and therefore, in order to

be able to form a ministry generally strong and respected, he adopted

the strange expedient of allowing every member of it to act

independently on this one question. He made it what was called an open

question. The arrangement, as explained to the House of Commons by Lord

Castlereagh, the ministerial leader of that assembly, was that, "in

submission to the growing change of public opinion in favor of those

claims (the Roman Catholic claims), and the real sentiments of certain

members of the government, it had been resolved upon, as a principle,

that the discussion of this question should be left free from all

interference on the part of the government, and that every member of

that government should in it be left to the free and unbiassed

suggestions of his own conscientious discretion."

It was an arrangement which secured the Prime-minister the co-operation

of Lord Castlereagh himself, and eventually of Mr. Canning; but it

failed to propitiate the Opposition, the leader of which in the House of

Commons, Mr. Ponsonby, turned it into open ridicule, affirming that

"nothing could be more absurd than a cabinet professing to have no

opinion on such an important subject." And it must be confessed that Mr.

Ponsonby's language on the subject seems the language of common-sense.

So far from the importance of a question justifying such an arrangement,

that importance appears rather to increase, if possible, the necessity

for absolute unanimity in the administration than to diminish it; and on

a grave and momentous subject to leave each member of a ministry free to

pronounce a separate and different judgment, so that one may resist what

his colleague advocates, is to abdicate the functions of government

altogether. To permit such liberty was either a proof that the ministry

was weak altogether--which it was not--or that its conduct on this

question was weak. In either case, it was a mischievous precedent that

was thus set;[174] and the fact that it has since been followed in more

than one instance, is so far from being any justification of it, that it

rather supplies an additional reason for condemning it, as being the

cause of wider mischief than if it had been confined to one single

question, or had influenced the conduct of one cabinet only. It has

often been said that the name "cabinet" is unknown to the law, and that

what we call the cabinet is, in fact, only a committee of the Privy

Council. As a statement of law the assertion may be correct, but it is

certain that for more than a century and a half the constitution has

adopted the principle that the cabinet consists of the holders of a

certain, to some extent a fluctuating, number of the principal state

officers; and, recognizing the responsibility of all for the actions of

each member of it, does by that recognition sanction an expectation that

on all questions, or at all events on all but those of the most trivial

character, they will speak and act with that unanimity which is

indispensable, not only to the strength of the government itself, but to

its being held in respect by the people; such respect being, indeed,

among the most essential elements of its strength.

The incidents of the war itself do not belong to a work such as this;

but, tantalizing as it must be to an historian of any class to pass over

the brilliant series of achievements which gave Britain the glory of

being twice[175] the principal agent in the deliverance of Continental

Europe, the glories of Salamanca, Victoria, Orthes, and Waterloo must be

left to other writers, who, it is not unpatriotic to hope, may never

again have similar cause for exulting descriptions. But out of the

crowning triumph of Waterloo a difficulty arose which, though it may be

difficult to characterize the principle on which it was settled, since

it was not strictly a question of constitutional, international, or

military law; and though the circumstances were so peculiar that the

conclusion adopted is never likely to be referred to as a precedent,

seems still deserving of a brief mention, especially as an act of

Parliament was passed to sanction the decision of the cabinet. Baffled

by the vigilance of our cruisers in every attempt to escape from one of

the western ports of France to America, Napoleon was at last compelled

to surrender himself to a British squadron. But, though he was our

prisoner, the Prime-minister considered us, in all our dealings with

him, as so bound by engagements to our allies, that he was to be

regarded as "the common prisoner of all, so far that we should not give

him up or release him without the joint consent of all." The question

was full of difficulty. There were, probably, very few persons in this

or any other country who did not coincide in the impropriety of

releasing him, and so putting it in his power once more to rekindle a

war in Europe. But it was a political view of the case, founded on a

consideration of what was required by the tranquillity of Europe; and it

was not easy to lay down any legal ground to justify the determination.

Some regarded him as a French subject, and, if that view were correct,

he could hardly be detained by us as a prisoner of war after we had

concluded a treaty of peace with France. But, again, it seemed to some,

the Lord Chancellor being among them, a questionable point whether in

the last campaign we had been at war with France; whether, on the

contrary, we had not assumed the character of an ally of France against

him. And, on the supposition that we had been at war with France, a

second question was raised by Lord Ellenborough, the Chief-justice,

"what rights result on principle from a state of war, as against all the

individuals of the belligerent nations--rights, whatever they may be,

seldom, if ever, enforced against individuals, because individuals

hardly ever make war but as part of an aggregate nation." The

question--as, after consultation with Lord Ellenborough and his own

brother, Sir William Scott, it finally appeared to Lord Eldon, on whom

the Prime-minister naturally depended, as his chief legal counsellor,

though in its political aspect he judged for himself--was, firstly,

"whether it could possibly be inconsistent with justice or the law of

nations that, till some peace were made by treaty with some person

considered as Napoleon's sovereign, or till some peace were made with

himself, we should keep him imprisoned in some part of our King's

dominions." And, secondly, "whether there were any person who could

possibly be considered his sovereign, after the treaty of 1814 had

clothed him with the character of Emperor of Elba, with imperial dignity

and imperial revenue." Lord Liverpool himself, however, raised another

question: whether, by his invasion of France, he had not forfeited his

right to be regarded as an independent sovereign; resting this doubt on

a suggestion which, among others, he proposed to the Lord Chancellor,

that "at Elba he enjoyed only a limited and conditional sovereignty,

which ceased when the condition on which he held it was violated."

This last suggestion, it must be confessed, appears untenable, as

totally inconsistent with the language of the Treaty of Fontainebleau,

under the provisions of which Napoleon became sovereign of Elba, and

which does not contain a single article which bears out the opinion that

his sovereignty was limited or conditional. On the contrary, the words

of the treaty expressly agree that "Elba should form during his life a

separate principality, which should be possessed by him in full

sovereignty and property."

There is no need to discuss the views of Blucher. On the news of

Napoleon's landing at Frejus reaching the plenipotentiaries assembled at

the Congress of Vienna, they at once issued a declaration that, "in

breaking the convention which had established him at Elba, Buonaparte"

(for they refused him his imperial appellation of Napoleon) "had

destroyed the only legal title on which his existence depended.... He

had placed himself out of the pale of civil and social relations, and,

as the enemy and disturber of the peace of the world, he was delivered

over to public justice." And the old Prussian, burning with a desire to

avenge the indignities and injuries which he had inflicted on Prussia,

avowed his determination to execute him as an outlaw, if he should fall

into his hands. And it is still less worthwhile to inquire--though Lord

Holland in his place in Parliament did desire the House to consult the

judges on the point--whether, if Napoleon were a prisoner of war, he

"were not entitled to his _habeas corpus_, if detained after the

signature of a treaty of peace with all the powers, or any of which he

could be considered as the subject."

On the whole, the simplest view of the position and of our detention of

him, the view most reconcilable with the principles which regulate the

waging and the relinquishing a state of war, seems to be to consider

that Napoleon was a sovereign with whom we were at war; that that war

could only be terminated by a treaty of peace between ourselves and him;

that it rested with us to conclude, or to abstain from concluding, any

such treaty; and that, till we should conclude it, we had clearly a

right to detain him as a prisoner of war. It must, at the same time, be

admitted that modern history afforded no precedent for the detention of

a prisoner for his whole life (unless, indeed, Elizabeth's imprisonment

of the Queen of Scots may be considered as one), and that the most solid

justification for it was necessity. To quote the language of Lord Eldon,

"I believe it will turn out that, if you can't make this a _casus

exceptionis_ or _omissus_ in the law of nations, founded upon necessity,

you will not really know what to say upon it. _Salus Reipublicae suprema

lex_, as to one state; _Salus omnium Rerumpublicarum_ must be the

_suprema lex_ as to this case."[176]

In the course of the year 1818 a somewhat singular question as to the

position of the Regent was raised by a claim advanced by Colonel

Berkeley to produce his Royal Highness as a witness in a court of law.

The Prince consulted the Prime-minister, and the Prime-minister referred

it to the Attorney and Solicitor General, not concealing his own

impression that it could not be consistent with his constitutional

position and prerogative for the King to appear as a witness to be

subjected to examination and cross-examination.[177] They, in their

statement of opinion, assumed it to be an undeniable principle of the

constitution that the sovereign, "by reason of his royal character,

could not give testimony." And therefore they had no doubt that the

Regent, exercising his authority, was equally prevented from so doing.

Colonel Berkeley's counsel had urged that, even if he could not appear

in open court and be sworn, he had the privilege of communicating his

evidence in a peculiar mode, by certificate under the Sign Manual or

Great Seal. But the Attorney and Solicitor General professed that they

could not discover whence this last privilege was derived; they urged,

as an insurmountable objection to such a contrivance, that "all

instruments under the Sign Manual or Great Seal must, in point of form,

be in the name of and on behalf of the King, which would manifestly be

incongruous when the evidence certified was not that of the King, but of

the Regent himself." And they quoted a case in which Lord Chief-justice

Willes had said "that the certificate of the King, under his Sign

Manual, of a fact (except in an old case in Chancery) had always been

refused." As it had been urged also, on Colonel Berkeley's behalf, that

the Prince had formerly "joined in proving the will of the Duke of

Brunswick," his brother-in-law, they farther expressed an opinion that

"he ought not to have done so, but should have left it to the other

executors."

On the point whether "the King himself could give evidence orally or in

any other manner," their opinion expressed very plainly the principle on

which they maintained that he could not. "That he was not compellable to

do so; that he could not be sworn (there being no power capable of

administering an oath to him in a court of justice). That, whether his

testimony be given _vivâ voce_ or otherwise, no question in chief or on

cross-examination could be proposed to him, was admitted by Colonel

Berkeley's counsel. And that his testimony must be conclusive as to the

facts stated by him, appeared necessarily to follow from the perfection

ascribed by law to his royal character. For such remarkable exceptions,

therefore, to the case of all other witnesses they could not but think

that strong and decisive authority ought to be produced; while the

silence of text-writers on the subject, so far from being favorable to

the notion that the King can give evidence, appeared to afford a

directly contrary inference." And they summed up their opinion in a few

words: "that his Royal Highness the Prince Regent, while in the personal

exercise of the royal authority, was in the situation of the King in

this respect, and that the King could not by any mode give evidence as a

witness in a civil suit."

It is very improbable that Colonel Berkeley should have made the

application without previously ascertaining the willingness of the

Prince to give evidence, could such a course be permitted. And as his

Royal Highness, on receiving this opinion of the law-officers of the

crown, did not come forward as a witness, that opinion may be held to

have settled the question. And, apart from the constitutional objections

relied on by those able lawyers, it is evident that there would be

serious practical objections to the sovereign being made a witness. It

would be derogatory to his royal character to put himself in a position

where comments could be made, either by the opposing barrister or by the

public outside, on his evidence. And, on the other hand, it would be

perilously unfair to one litigant for his adversary to be able to

produce a witness who was not subject to cross-examination, nor to

remarks upon his testimony.

The reign of George III. was now drawing to its close, and, if it

produced no legislation affecting the principles of the constitution (it

will presently be seen that it did produce one measure which its

opponents branded as a violation of these principles), yet in its last

years it witnessed the revival of an agitation which was kept up with

varying animation till it was temporarily quieted by the concession of

its demands. We have seen that one of Pitt's earliest efforts at

legislation had been directed to a reform in Parliament, an object which

to the end of his life he considered of great importance, though the

revolutionary spirit aroused by the troubles in France, and the open

sympathy with the French Jacobins and Republicans avowed by a party

among ourselves--which, if numerically weak, was sufficiently loud and

active to be dangerous--prevented him from ever re-opening the subject.

But, though the French Revolution in this way proved for the time an

insurmountable obstacle to the success of the reformers, in another way

it insured the revival of the question, by the general spirit of inquiry

which it awakened among the population at large, and which soon went

beyond the investigation of any single abuse or anomaly. For even less

far-sighted statesmen than Pitt confessed the existence of much that was

not only theoretically indefensible, but practically mischievous. The

period, little short of a century, which elapsed between the death of

William III. and Pitt's accession to office had been one of almost

complete stagnation and apathy. The Scotch Union, the Septennial Bill,

the establishment of a militia, and the Place Bill of 1743 were the only

instances of any legislation deserving the name of constitutional which

made the reigns of Anne and the first two Georges memorable. And in the

very nature of things it was impossible that, after so long a slumber,

there should not be much to do, and many, whether capable or incapable,

eager to bear a share in the work. The sudden cessation of the

excitement of war had begotten a restless craving for some other

excitement to take its place, and none seemed so creditable as energy

and acuteness in the discovery and removal of abuses. Complaints were

made, and not without reason, of the working of the poor-law; of the

terrible severity of our criminal code; of the hardships and sufferings

of the younger members of the working classes, especially in the

factories; of the ignorance of a large portion of the people, in itself

as prolific a cause of mischief and crime as any other. But, though

committees and commissions were appointed by Parliament to investigate

the condition of the kingdom in respect of these matters, a feeling was

growing up that no effectual remedy would be applied till the

constitution of the House of Commons itself were reformed, so as to make

it a more real representation of the people than it could as yet be

considered. And a farther stimulus to this wish for such a Parliamentary

reform was supplied by the distress which a combination of circumstances

spread among almost all classes in the years immediately following the

conclusion of the second treaty of peace.[178] The harvests of the years

1816 and 1817 were unusually deficient, and this pressed heavily on the

farmers and landed proprietors. The merchants and manufacturers, who,

while every part of the Continent was disturbed or threatened by the

operations of contending armies, had practically enjoyed almost a

monopoly of the trade of the world, found their profits reduced, by the

new competition to which the re-establishment of peace exposed them, to

a point which compelled them to a severe reduction of expenditure. The

uncertainty felt as to the results to be brought about by the inevitable

repeal of the Bank Act of 1797, and the return to cash payments--results

which it was impossible to estimate correctly beforehand--had a tendency

to augment the distress, by the general feeling of uneasiness and

distrust which it created. And the employers of labor could not suffer

without those who depended on them for employment suffering still more

severely. The consequence was, that there was a general stagnation of

trade; numbers of artisans and laborers of every kind were thrown out of

work, and their enforced idleness and poverty, which was its result,

made them ready to become the tools of demagogues such as are never

wanting in the hour of distress and perplexity. Meetings were convened,

ostensibly to petition for reform, but in reality to afford

opportunities for mob-orators, eager for notoriety, to denounce the

government and those whom they styled the "ruling classes," as the

causes of the present and past evils. From these meetings multitudes

issued forth ripe for mischief. In some places they rose against the

manufacturers, and destroyed their machines, to the recent introduction

of which they attributed their want of employment. In others, still more

senselessly, they even set fire to the stores of grain in the

corn-dealers' warehouses, aggravating by their destruction the most

painful of their own sufferings. On one occasion, a mob which had

assembled in one of the eastern districts of London, on pretence of

framing a petition to be presented to the Prince Regent, at the close of

the meeting paraded the streets with a tricolor flag, the emblem of the

French Revolutionists, and pillaged a number of shops, especially those

of the gun-makers, spreading terror through all that side of the

metropolis. In at least one instance the violence of the rioters rose to

the height of treason. Assassins fired at the Regent in the Park as he

was returning from the House of Lords, whither he had been to open

Parliament; and when it was found that they had missed their aim, the

mob attacked the royal carriage, pelting it with large stones, and

breaking the windows; nor was it without some difficulty that the escort

of troops cleared a path for him through the mob, and enabled him to

reach Carlton House in safety.

The first effect of these outrages was to damage the cause of Reform

itself, even such uncompromising reformers as Lord Grey denouncing

"meetings at which extensive schemes of Reform were submitted to

individuals incapable of judging of their propriety." The second

consequence was to compel the ministers to take steps to prevent a

recurrence of such tumults and crimes. At first they were contented with

a temporary suspension of the _Habeas Corpus_ Act; but, even while that

suspension was in force, it did not entirely prevent meetings, at some

of which the language of the speakers certainly bordered on sedition;

and when the suspension was taken off, fresh meetings on a larger scale,

and of a more tumultuous character than ever, were held in more than one

rural district; finally, in July of 1819, the whole kingdom was thrown

into a violent state of excitement by a meeting held at Birmingham, at

which the leaders, assuming the newly-invented party name of Radicals,

not only demanded the remodelling of the whole system of government,

but, because Birmingham as yet sent no members to the House of Commons,

took it upon themselves to elect Sir Charles Wolseley, a baronet of

respectable family, as their representative to the Parliament, and

charged him to claim a place in the House of Commons in the next

session, by the side of those elected in obedience to the royal writs.

Sir Charles was at once arrested on the charge of having at this meeting

used seditious language calculated to lead to a breach of the peace; but

the Radical leaders, far from being intimidated by this demonstration of

vigor on the part of the government, immediately summoned a similar

meeting in Manchester, announcing their intention to elect a

representative of that great town likewise, which, though the largest of

all the manufacturing towns, was also unrepresented in the Imperial

Parliament. The magistrates prohibited the meeting. It was only

postponed for a week, when the people assembled in such formidable

numbers (no estimate reckoned them at fewer than 60,000), that the

ordinary civil authorities deemed themselves unequal to dealing with it,

and called in the aid first of the Yeomanry and then of a hussar

regiment. The soldiers behaved with great forbearance, as soldiers

always do behave on such occasions; but they were bound to execute the

orders which were given them to arrest some of the leaders, and, in the

tumult which was the inevitable consequence of their attempt to force a

way through so dense a crowd, three or four lives were, unfortunately,

lost.

So unusual a catastrophe called out the energies of both parties. The

Radical leaders published manifestoes declaring the people had been

"massacred" by the soldiers by the orders of the government. Meetings

were held to denounce the conduct of the ministers, one being even

promoted by Lord Fitzwilliam, as Lord-lieutenant of Yorkshire, a dignity

of which he was instantly deprived; while, on the other hand, the

grand-juries of Cheshire and Lancashire made reports of the condition of

those counties to the Secretary of State, which showed that a most

alarming spirit prevailed over the greater part of the district. "The

most inflammatory publications had been issued in the principal towns,

at a price which put them within the reach of the poorest classes of

society. The training and military drilling of large bodies of men under

regular leaders had been carried on to a great extent for some time,

chiefly by night; and there was no doubt that an extensive manufacture

of arms was going on." What was a hardly inferior symptom of danger was

a system of intimidation which prevailed to a most serious degree. Many

magistrates had received notices threatening their lives, and

combinations had been formed to withhold custom from publicans and

shopkeepers who had come forward to support the civil power. In many

parts of the two counties the grand-juries declared "that no warrant of

arrest or other legal process could be executed; the payment of taxes

had ceased, and the landlords were threatened with the discontinuance of

their rents."

It was admitted that the spirit of disaffection was local, confined to

three or four counties; but those counties were, next to Middlesex

itself, the most populous and among the most important in the kingdom,

and there was danger lest the feeling, if not checked, might spread. The

crisis seemed so momentous, that some even of the Opposition leaders

volunteered their counsels and aid to the ministers in dealing with it.

And the ministers, after long deliberation, decided on calling

Parliament together in November, and introducing some bills which they

conceived necessary to enable them to restore and preserve tranquillity.

They were six in number; and--perhaps, with some sarcastic reference to

Gardiner's Six Acts in the sixteenth century--they were very commonly

spoken of as Lord Sidmouth's Six Acts, that noble lord being the

Home-secretary, to whose department they belonged. It is not necessary

here to do more than mention the general purport of five of them. One

prohibited military training without the sanction of the government;

another empowered magistrates to search for arms which they had reason

to believe were collected for illegal purposes; the third authorized the

seizure of seditious and blasphemous libels; the fourth subjected

publications below a certain size to the same stamp as that required for

a newspaper; the fifth regulated the mode of proceeding in trials for

misdemeanor of a political character. But these enactments were regarded

as little more than arrangements of detail or procedure involving no

principles, and some of them were admitted even by the most steadfast

opponents of the ministers to be necessary. But the sixth, designed to

restrain the practice of holding large open-air meetings--not, indeed,

forever, but for a certain period, fixed at five years--was strongly

resisted by the greater portion of the Whig party in both Houses, as a

denial to the people of one of their most ancient and constitutional

rights.[179]

Its principal clauses enacted that "no meeting exceeding the number of

fifty persons (except a meeting of any county or division of any county,

called by the Lord-lieutenant or sheriff of such county, etc., or by

five or more acting justices of the peace for such county, or by the

major part of the grand-jury; or any meeting of any city, borough, etc.,

called by the mayor or other head officer of such city, etc.) should be

holden for the purpose or on the pretext of deliberating upon any public

grievance, or upon any matter relating to any trade, manufacture, etc.,

or upon any matter of Church or State, or of considering, proposing, or

agreeing to any petition, address, etc., etc., unless in the parish or

township within which the persons calling any such meeting usually

dwell;" and it required six days' notice of the intention to hold such

meetings, with their time, place, and object, to be given to a

magistrate. It empowered the magistrate to whom such notice was given to

alter the time and place. It forbade adjournments intended to evade

these prohibitions. It forbade any one to attend such meetings except

freeholders of the county, or parishioners of the parish, or members of

the corporation of the city or borough in which they were held, or

members of the House of Commons for such places. It empowered

magistrates to proceed to the places where such meetings were being

held, and, if they thought it necessary, to require the aid of

constables. It enacted that any meeting, the tendency of which should be

"to incite or stir up the people to hatred and contempt of the person of

his Majesty, his heirs and successors, or of the government or

constitution of this country as by law established, should be deemed an

unlawful assembly." It empowered one or more justices of the peace, in

the event of any meeting being held contrary to the provisions of this

act, to warn every one present, in the King's name, to depart; and made

those who did not depart in obedience to such warning liable to

prosecution for felony, and, if convicted, to seven years'

transportation. It forbade the display of flags, banners, or ensigns at

any meeting, and the employment of any drum, or military or other music;

but it excepted from its operation "any meeting or assembly which should

be wholly holden in any room."

There was one peculiarity in the line taken by the opponents of the

bill, that they did not deny that the meetings which had induced the

ministers to propose it were an evil, dangerous to the general

tranquillity; but it was strongly urged by Lord Erskine and others that

the existing laws were quite strong enough to deal with them, so that a

new enactment was superfluous; and by others, in both Houses, that such

meetings were "an ancient and constitutional mode of discussing abuses

or petitioning Parliament," any interference with which was a greater

evil than the meetings themselves, as being a violation of the

constitution. Mr. Brougham in particular admitted, to the full extent of

the assertions of the ministers themselves, "the wickedness and folly of

many of the speeches" made at the recent meetings. He expressed with

great force his entire disapproval of the system on which these meetings

had been conducted, and admitted that the martial array which had been

exhibited, and the vastness of the numbers of those who had attended,

were of themselves calculated to excite alarm; but he declared that "he

could not on that account acquiesce in a total subversion of a popular

right." On the other hand, the ministers themselves did not deny "the

general right of the people to petition the Legislature, or to carry

their addresses to the foot of the throne. And therefore (as Lord

Harrowby, the President of the Council, admitted) there could be no

doubt of their right to assemble, so far as was necessary to agree to

their petitions or addresses. It was a right that did not depend on the

Bill of Rights, on which it was usually grounded, but had existed long

before. But this bill," he contended, "imposed no restrictions on the

legitimate enjoyment of that privilege; it only regulated the meetings

at which it was to be exercised." And Lord Liverpool affirmed that the

bill was not only "consistent with the existing laws and principles of

the constitution, but was even proposed in furtherance of those

principles, and for the purpose of protecting the people of this country

against a series of evils which, if not checked, must subvert their laws

and liberties."

In attempting to form a correct judgment on the question whether this

bill were constitutional or unconstitutional, it must, I think, be

admitted that, as has been remarked before, the terms "constitutional"

and "unconstitutional" are somewhat vague and elastic. There is no one

document--not Magna Charta, nor the Petition of Eight, nor the Bill of

Rights--which can be said to contain the whole of the British

constitution. Its spirit and principles are, indeed, to be found in all

the laws, to which they give animation and life, but not in any one law.

And among its leading principles are those which embrace the right of

every individual to freedom of action and freedom of speech, so long as

he does not commit any crime himself, nor tempt others to do so. Yet it

does not follow that a new enactment which for a while abridges or

suspends that freedom of action or speech is inconsistent with those

constitutional principles.

Ministers, to whom the government of a country is intrusted, do wrong if

they limit their operations to the punishment of offences which have

been committed. It is at least equally their duty, as far as possible,

to prevent their commission; to take precautionary measures, especially

at times when there is notorious danger of offences being committed. At

the same time they are bound not to legislate under the influence of

panic; not to yield to fears having no substantial ground. And in their

measures of precaution they are farther bound to depart from or overstep

the ordinary law as little as is compatible with the attainment of their

object. In all such cases each action of theirs must stand or fall by

its own merits; by the greatness of the emergency which has caused it,

and by its sufficiency for its end. For as no law, except such as

forbids moral crimes, is invariable, so even the dearest privileges of

each subject, being his for the common good, are liable to temporary

suspension for that common good. But the burden of justification lies on

those who propose that suspension.

Now, that this bill was such a suspension of the long-established rights

of the subject, and so far an overstepping of the principles of the

constitution, is admitted by the very fact of its framers only proposing

for it a temporary authority. Had it not invaded a valuable and real

right, it might have been made of perpetual obligation. But it is not

easy to see how it can be denied that the dangers against which it was

intended to guard were also real. It was certain that itinerant

demagogues were visiting districts with which they had no connection,

for the sole purpose of stirring up political agitation. It was clear

that such meetings as they convened, where those assembled could only be

counted by tens of thousands, were too large for deliberation, and were

only meant for intimidation; and equally clear that, though the existing

laws may have armed the magistrate with authority to disperse such

meetings, they did not furnish him with the means of doing so without at

least the risk of bloodshed (for such a risk must be involved in the act

of putting soldiers in motion), and still less did they invest him with

the desirable power of preventing such meetings. It was necessary,

therefore, to go back to the original principles and objects of every

constitution, the tranquillity, safety, and welfare of the nation at

large. And it does not appear that this bill went beyond what was

necessary for that object. Indeed, though party divisions are not always

trustworthy tests of the wisdom or propriety of a measure, the unusual

magnitude of the majorities by which on this occasion the minister was

supported in both Houses may fairly be regarded as a testimony to the

necessity of the bill,[180] while its sufficiency was proved by the

abandonment of all such meetings, and the general freedom from agitation

in every part Of the country which prevailed in the following year,

though its most remarkable incident was one of which demagogues might

well have taken advantage, if they had not had so convincing a proof of

the power of government, and of the resolution of the ministers to exert

it.[181]

Notes:

[Footnote 172: Against Junot, at Vimiera and Rolica, in 1808; Soult, at

Oporto, and Victor, at Talavera, in 1809; Massena and Ney, at Busaco and

Torres Vedras, in 1810; Masséna and Bessiéres, at Fuentes d'Onor, in

1811. Ciudad Rodrigo and Badajoz had been taken in 1812, in spite of the

neighborhood of Soult and Marmont. In July, 1813, a month after the

formation of Lord Liverpool's ministry, he routed Marmont at Salamanca;

in 1813 he took Madrid, and routed Jourdain at Vittoria; and, having

subsequently defeated Soult at Sauroren, he crossed the French frontier

in October.]

[Footnote 173: A resolution, moved by Mr. Canning, to take the claims of

the Roman Catholics into consideration in the next session had been

carried in June by the large majority of 129; and when Lord Wellesley

brought forward a similar motion in the House of Lords, not only did

Lord Liverpool "protest against its being inferred from any declaration

of his that it was, or ever had been, his opinion that under no

circumstances would it be possible to make any alteration in the laws

respecting the Roman Catholics," but the Chancellor, Lord Eldon, who was

generally regarded as the stoutest champion of the existing law, rested

his opposition entirely on political grounds, explaining carefully that

he opposed the motion, "not because he quarrelled with the religion of

the Roman Catholics, but because their religious opinions operated on

their political principles in such a way as to render it necessary to

adopt some defence against them," and met the motion by moving the

previous question, avowedly because "he did not wish, at once and

forever, to shut the door of conciliation;" and the previous question

was only carried by a single vote--126 to 125.]

[Footnote 174: "It (difference on the Catholic question) was an evil

submitted to by the government, of which Mr. Fox, Lord Grenville, and

Lord Grey were members, in the years 1806, 1807, as well as by the

governments of Mr. Perceval, Lord Liverpool, and the Duke of

Wellington."--_Peel's Memoirs_, i., 62. This passage would seem to imply

that Peel believed the Catholic question to have been left "open" in

1806; but there is not, so far as the present writer is aware, any trace

of such an arrangement on record, and Lord Liverpool's letter to the

King, of November 10, 1826 ("Life," iii., 436), shows clearly that he

was not aware of such a precedent for the arrangement which, in 1812,

"he and others advised his Majesty" to consent to. Moreover, the

condemnation passed on it by Mr. Ponsonby, who had been Chancellor of

Ireland in 1806 and 1807, seems a clear proof that he knew nothing of

it, though it is hardly possible that he should have been ignorant of it

if it had existed.]

[Footnote 175: To whom the chief glory of the Waterloo campaign belongs

there can, of course, be no doubt; and though the Austrians and

Prussians put forward a claim to an equal share, and Russia even to a

preponderating one, in the first deposition of Napoleon, he himself

constantly attributed his fall more to the Peninsular contest than to

any of his wars east of the Rhine. And, indeed, it is superfluous to

point out that almost to the last he gained occasional victories over

the Continental armies, but that he never gained one advantage over the

British force; and that Wellington invaded France the first week of

October, 1813--nearly three months before a single Russian or German

soldier crossed the Rhine.]

[Footnote 176: Letter to Sir W. Scott, Twiss's "Life of Lord Eldon,"

ii., 272. It is remarkable that in his "Life of Lord Ellenborough" Lord

Campbell takes no notice of this case.]

[Footnote 177: The opinion of the Attorney and Solicitor General, Sir S.

Shepperd and Sir R. Gifford, is given at length in the author's "Life of

Lord Liverpool," ii., 373.]

[Footnote 178: It is a shrewd observation of Sully, that it is never any

abstract desire for theoretical reforms, or even for increased

privileges, which excites in lower classes to discontent and outrage,

but only impatience under actual suffering.]

[Footnote 179: The bill (entitled "The Seditious Meetings Prevention

Bill"), 60 George III., c. 6, is given at full length in Hansard's

"Parliamentary Debates," series 1., vol. xli., p. 1655.]

[Footnote 180: In the House of Lords the majority was 135 to 38; in the

House of Commons, 851 to 128. And even of this minority, many would have

supported the bill, if the ministers would have consented to adopt an

amendment proposed by Lord Althorp, to limit its operation to a few of

the northern and midland counties, in which alone, as he contended, any

spirit of dangerous disaffection had been exhibited.]

[Footnote 181: It may be as well to mention that these pages were

written in the autumn of 1880.]

The Constitutional History of England from 1760 to 1860 · 第 8 / 15 章