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.]