_Decline of the Jacobites._--No extensive conspiracy of the jacobite

faction seems ever to have been in agitation after the fall of

Atterbury. The Pretender had his emissaries perpetually alert; and it

is understood that an enormous mass of letters from his English

friends is in existence;[363] but very few had the courage, or rather

folly, to plunge into so desperate a course as rebellion. Walpole's

prudent and vigilant administration, without transgressing the

boundaries of that free constitution for which alone the house of

Brunswick had been preferred, kept in check the disaffected. He wisely

sought the friendship of Cardinal Fleury, aware that no other power in

Europe than France could effectually assist the banished family. After

his own fall and the death of Fleury, new combinations of foreign

policy arose; his successors returned to the Austrian connection; a

war with France broke out; the grandson of James II. became master,

for a moment, of Scotland, and even advanced to the centre of this

peaceful and unprotected kingdom. But this was hardly more ignominious

to the government than to the jacobites themselves; none of them

joined the standard of their pretended sovereign; and the rebellion of

1745 was conclusive, by its own temporary success, against the

possibility of his restoration.[364] From this time the government,

even when in search of pretexts for alarm, could hardly affect to

dread a name grown so contemptible as that of the Stuart party. It

survived however for the rest of the reign of George II. in those

magnanimous compotations, which had always been the best evidence of

its courage and fidelity.

_Prejudices against the reigning family._--Though the jacobite party

had set before its eyes an object most dangerous to the public

tranquillity, and which, could it have been attained, would have

brought on again the contention of the seventeenth century; though, in

taking oaths to a government against which they were in conspiracy,

they showed a systematic disregard of obligation, and were as little

mindful of allegiance, in the years 1715 and 1745, to the prince they

owned in their hearts, as they had been to him whom they had professed

to acknowledge, it ought to be admitted that they were rendered more

numerous and formidable than was necessary by the faults of the

reigning kings or of their ministers. They were not actuated for the

most part (perhaps with very few exceptions) by the slavish principles

of indefeasible right, much less by those of despotic power. They had

been so long in opposition to the court, they had so often spoken the

language of liberty, that we may justly believe them to have been its

friends. It was the policy of Walpole to keep alive the strongest

prejudice in the mind of George II., obstinately retentive of

prejudice, as such narrow and passionate minds always are, against the

whole body of the tories. They were ill received at court, and

generally excluded, not only from those departments of office which

the dominant party have a right to keep in their power, but from the

commission of the peace, and every other subordinate trust.[365] This

illiberal and selfish course retained many, no doubt, in the

Pretender's camp, who must have perceived both the improbability of

his restoration, and the difficulty of reconciling it with the safety

of our constitution. He was indeed, as well as his son, far less

worthy of respect than the contemporary Brunswick kings: without

absolutely wanting capacity or courage, he gave the most undeniable

evidence of his legitimacy by constantly resisting the counsels of

wise men, and yielding to those of priests; while his son, the

fugitive of Culloden, despised and deserted by his own party, insulted

by the court of France, lost with the advance of years even the

respect and compassion which wait on unceasing misfortune, the last

sad inheritance of the house of Stuart.[366] But they were little

known in England, and from unknown princes men are prone to hope

much: if some could anticipate a redress of every evil from Frederic

Prince of Wales, whom they might discover to be destitute of

respectable qualities, it cannot be wondered at that others might draw

equally flattering prognostics from the accession of Charles Edward.

It is almost certain that, if either the claimant or his son had

embraced the protestant religion, and had also manifested any superior

strength of mind, the German prejudices of the reigning family would

have cost them the throne, as they did the people's affections.

Jacobitism, in the great majority, was one modification of the spirit

of liberty burning strongly in the nation at this period. It gave a

rallying point to that indefinite discontent, which is excited by an

ill opinion of rulers, and to that disinterested, though ignorant

patriotism which boils up in youthful minds. The government in

possession was hated, not as usurped, but as corrupt; the banished

line was demanded, not so much because it was legitimate, but because

it was the fancied means of redressing grievances and regenerating the

constitution. Such notions were doubtless absurd; but it is undeniable

that they were common, and had been so almost from the revolution. I

speak only, it will be observed, of the English jacobites; in Scotland

the sentiments of loyalty and national pride had a vital energy, and

the Highland chieftains gave their blood, as freely as their southern

allies did their wine, for the cause of their ancient kings.

No one can have looked in the most cursory manner at the political

writings of these two reigns, or at the debates of parliament, without

being struck by the continual predictions that our liberties were on

the point of extinguishment, or at least by apprehensions of their

being endangered. It might seem that little or nothing had been gained

by the revolution, and by the substitution of an elective dynasty.

This doubtless it was the interest of the Stuart party to maintain or

insinuate; and, in the conflict of factions, those who, with far

opposite views, had separated from the court, seemed to lend them aid.

The declamatory exaggerations of that able and ambitious body of men

who co-operated against the ministry of Sir Robert Walpole have long

been rejected; and perhaps in the usual reflux of popular opinion, his

domestic administration (for in foreign policy his views, so far as he

was permitted to act upon them, appear to have been uniformly

judicious) has obtained of late rather an undue degree of favour. I

have already observed that, for the sake of his own ascendancy in the

cabinet, he kept up unnecessarily the distinctions of the whig and

tory parties, and thus impaired the stability of the royal house,

which it was his chief care to support. And, though his government was

so far from anything oppressive or arbitrary that, considered either

relatively to any former times, or to the extensive disaffection known

to subsist, it was uncommonly moderate; yet, feeling or feigning alarm

at the jacobite intrigues on the one hand, at the democratic tone of

public sentiment and of popular writings on the other, he laboured to

preserve a more narrow and oligarchical spirit than was congenial to

so great and brave a people, and trusted not enough, as indeed is the

general fault of ministers, to the sway of good sense and honesty over

disinterested minds. But, as he never had a complete influence over

his master, and knew that those who opposed him had little else in

view than to seize the reins of power and manage them worse, his

deviations from the straight course are more pardonable.

The clamorous invectives of this opposition, combined with the

subsequent dereliction of avowed principles by many among them when in

power, contributed more than anything else in our history to cast

obloquy and suspicion, or even ridicule, on the name and occupation of

patriots. Men of sordid and venal characters always rejoice to

generalise so convenient a maxim as the non-existence of public

virtue. It may not however be improbable, that many of those who took

a part in this long contention, were less insincere than it has been

the fashion to believe, though led too far at the moment by their own

passions, as well as by the necessity of colouring highly a picture

meant for the multitude, and reduced afterwards to the usual

compromises and concessions, without which power in this country is

ever unattainable. But waiving a topic too generally historical for

the present chapter, it will be worth while to consider what sort of

ground there might be for some prevalent subjects of declamation; and

whether the power of government had not, in several respects, been a

good deal enhanced since the beginning of the century. By the power of

government I mean not so much the personal authority of the sovereign

as that of his ministers, acting perhaps without his directions;

which, since the reign of William, is to be distinguished, if we look

at it analytically, from the monarchy itself.

I. The most striking acquisition of power by the Crown in the new

model of government, if I may use such an expression, is the

permanence of a regular military force. The reader cannot need to be

reminded that no army existed before the civil war, that the guards in

the reign of Charles II. were about 5000 men, that in the

breathing-time between the peace of Ryswick and the war of the Spanish

succession, the Commons could not be brought to keep up more than 7000

troops. Nothing could be more repugnant to the national prejudices

than a standing army. The tories, partly from regard to the ancient

usage of the constitution, partly, no doubt, from a factious or

disaffected spirit, were unanimous in protesting against it. The most

disinterested and zealous lovers of liberty came with great suspicion

and reluctance into what seemed so perilous an innovation. But the

court, after the accession of the house of Hanover, had many reasons

for insisting upon so great an augmentation of its power and security.

It is remarkable to perceive by what stealthy advances this came on.

Two long wars had rendered the army a profession for men in the higher

and middling classes, and familiarised the nation to their dress and

rank; it had achieved great honour for itself and the English name;

and in the nature of mankind the patriotism of glory is too often an

overmatch for that of liberty. The two kings were fond of warlike

policy, the second of war itself; their schemes, and those of their

ministers, demanded an imposing attitude in negotiation, which an

army, it was thought, could best give; the cabinet was for many years

entangled in alliances, shifting sometimes rapidly, but in each

combination liable to produce the interruption of peace. In the new

system which rendered the houses of parliament partakers in the

executive administration, they were drawn themselves into the

approbation of every successive measure, either on the propositions of

ministers, or as often happens more indirectly, but hardly less

effectually, by passing a negative on those of their opponents.

_Permanent military force._--The number of troops for which a vote was

annually demanded, after some variations, in the first years of George

I., was, during the whole administration of Sir Robert Walpole, except

when the state of Europe excited some apprehension of disturbance,

rather more than 17,000 men, independent of those on the Irish

establishment, but including the garrisons of Minorca and Gibraltar.

And this continued with little alteration to be our standing army in

time of peace during the eighteenth century.

This army was always understood to be kept on foot, as it is still

expressed in the preamble of every mutiny bill, for better preserving

the balance of power in Europe. The Commons would not for an instant

admit that it was necessary as a permanent force, in order to maintain

the government at home. There can be no question however that the

court saw its advantage in this light; and I am not perfectly sure

that some of the multiplied negotiations on the continent in that age

were not intended as a pretext for keeping up the army, or at least as

a means of exciting alarm for the security of the established

government. In fact, there would have been rebellions in the time of

George I., not only in Scotland, which perhaps could not otherwise

have been preserved, but in many parts of the kingdom, had the

parliament adhered with too pertinacious bigotry to their ancient

maxims. Yet these had such influence that it was long before the army

was admitted by every one to be perpetual; and I do not know that it

has ever been recognised as such in our statutes. Mr. Pulteney, so

late as 1732, a man neither disaffected nor democratical, and whose

views extended no farther than a change of hands, declared that he

"always had been, and always would be, against a standing army of any

kind; it was to him a terrible thing, whether under the denomination

of parliamentary or any other. A standing army is still a standing

army, whatever name it be called by; they are a body of men distinct

from the body of the people; they are governed by different laws;

blind obedience and an entire submission to the orders of their

commanding officer is their only principle. The nations around us are

already enslaved, and have been enslaved by those very means; by means

of their standing armies they have every one lost their liberties; it

is indeed impossible that the liberties of the people can be preserved

in any country where a numerous standing army is kept up."[367]

This wholesome jealousy, though it did not prevent what was indeed for

many reasons not to be dispensed with, the establishment of a regular

force, kept it within bounds which possibly the administration, if

left to itself, would have gladly overleaped. A clause in the mutiny

bill, first inserted in 1718, enabling courts-martial to punish mutiny

and desertion with death, which had hitherto been only cognisable as

capital offences by the civil magistrate, was carried by a very small

majority in both houses.[368] An act was passed in 1735, directing

that no troops should come within two miles of any place, except the

capital or a garrisoned town, during an election;[369] and on some

occasions, both the Commons and the courts of justice showed that they

had not forgotten the maxims of their ancestors as to the supremacy of

the civil power.[370] A more important measure was projected by men of

independent principles, at once to secure the kingdom against attack,

invaded as it had been by rebels in 1745, and thrown into the most

ignominious panic on the rumours of a French armament in 1756, to take

away the pretext for a large standing force, and perhaps to furnish a

guarantee against any evil purposes to which in future times it might

be subservient, by the establishment of a national militia, under the

sole authority, indeed of the Crown, but commanded by gentlemen of

sufficient estates, and not liable, except in war, to be marched out

of its proper county. This favourite plan, with some reluctance on the

part of the government, was adopted in 1757.[371] But though, during

the long periods of hostilities which have unfortunately ensued, this

embodied force had doubtless placed the kingdom in a more respectable

state of security, it has not much contributed to diminish the number

of our regular forces; and, from some defects in its constitution,

arising out of too great attention to our ancient local divisions, and

of too indiscriminate a dispensation with personal service, which has

filled the ranks with the refuse of the community, the militia has

grown unpopular and burthensome, rather considered of late by the

government as a means of recruiting the army than as worthy of

preservation in itself, and accordingly thrown aside in time of peace;

so that the person who acquired great popularity as the author of this

institution, lived to see it worn out and gone to decay, and the

principles, above all, upon which he had brought it forward, just

enough remembered to be turned into ridicule. Yet the success of that

magnificent organisation which, in our own time, has been established

in France, is sufficient to evince the possibility of a national

militia; and we know with what spirit such a force was kept up for

some years in this country, under the name of volunteers and yeomanry,

on its only real basis, that of property, and in such local

distribution as convenience pointed out.

Nothing could be more idle, at any time since the revolution, than to

suppose that the regular army would pull the speaker out of his chair,

or in any manner be employed to confirm a despotic power in the Crown.

Such power, I think, could never have been the waking dream of either

king or minister. But as the slightest inroads upon private rights and

liberties are to be guarded against in any nation that deserves to be

called free, we should always keep in mind not only that the military

power is subordinate to the civil, but, as this subordination must

cease where the former is frequently employed, that it should never be

called upon in aid of the peace without sufficient cause. Nothing

would more break down this notion of the law's supremacy than the

perpetual interference of those who are really governed by another

law; for the doctrine of some judges, that the soldier, being still a

citizen, acts only in preservation of the public peace, as another

citizen is bound to do, must be felt as a sophism, even by those who

cannot find an answer to it. And, even in slight circumstances, it is

not conformable to the principles of our government to make that vain

display of military authority which disgusts us so much in some

continental kingdoms. But, not to dwell on this, it is more to our

immediate purpose that the executive power has acquired such a

coadjutor in the regular army that it can, in no probable emergency,

have much to apprehend from popular sedition. The increased facilities

of transport, and several improvements in military art and science,

which will occur to the reader, have in later times greatly enhanced

this advantage.

II. It must be apparent to every one that since the restoration, and

especially since the revolution, an immense power has been thrown into

the scale of both houses of parliament, though practically in more

frequent exercise by the lower, in consequence of their annual session

during several months, and of their almost unlimited rights of

investigation, discussion, and advice. But, if the Crown should by any

means become secure of an ascendancy in this assembly, it is evident

that, although the prerogative, technically speaking, might be

diminished, the power might be the same, or even possibly more

efficacious; and that this result must be proportioned to the degree

and security of such an ascendancy. A parliament absolutely, and in

all conceivable circumstances, under the control of the sovereign,

whether through intimidation or corrupt subservience, could not,

without absurdity, be deemed a co-ordinate power, or, indeed, in any

sense, a restraint upon his will. This is however an extreme

supposition, which no man, unless both grossly factious and ignorant,

will ever pretend to have been realised. But, as it would equally

contradict notorious truth to assert that every vote has been

disinterested and independent, the degree of influence which ought to

be permitted, or which has at any time existed, becomes one of the

most important subjects in our constitutional policy.

I have mentioned in the last chapter both the provisions inserted in

the act of settlement, with the design of excluding altogether the

possessors of public office from the House of Commons, and the

modifications of them by several acts of the queen. These were deemed

by the country party so inadequate to restrain the dependents of power

from overspreading the benches of the Commons that perpetual attempts

were made to carry the exclusive principle to a far greater length. In

the two next reigns, if we can trust to the uncontradicted language of

debate, or even to the descriptions of individuals in the lists of

each parliament, we must conclude that a very undue proportion of

dependents on the favour of government were made its censors and

counsellors. There was still, however, so much left of an independent

spirit, that bills for restricting the number of placemen, or

excluding pensioners, met always with countenance; they were sometimes

rejected by very slight majorities; and, after a time, Sir Robert

Walpole found it expedient to reserve his opposition for the surer

field of the other house.[372] After his fall, it was imputed with

some justice to his successors, that they shrunk in power from the

bold reformation which they had so frequently endeavoured; the king

was indignantly averse to all retrenchment of his power, and they

wanted probably both the inclination and the influence to cut off all

corruption. Yet we owe to this ministry the place bill of 1743, which,

derided as it was at the time, seems to have had a considerable

effect; excluding a great number of inferior officers from the House

of Commons, which has never since contained so revolting a list of

court-deputies as it did in the age of Walpole.[373]

_Secret corruption._--But while this acknowledged influence of

lucrative office might be presumed to operate on many staunch

adherents of the actual administration, there was always a strong

suspicion, or rather a general certainty, of absolute corruption. The

proofs in single instances could never perhaps be established; which,

of course, is not surprising. But no one seriously called in question

the reality of a systematic distribution of money by the Crown to the

representatives of the people; nor did the corrupters themselves, in

whom the crime seems always to be deemed less heinous, disguise it in

private.[374] It is true that the appropriation of supplies, and the

established course of the exchequer, render the greatest part of the

public revenue secure from misapplication; but, under the head of

secret service money, a very large sum was annually expended without

account, and some other parts of the civil list were equally free from

all public examination.[375] The committee of secrecy appointed after

the resignation of Sir Robert Walpole endeavoured to elicit some

distinct evidence of this misapplication; but the obscurity natural to

such transactions, and the guilty collusion of subaltern accomplices,

who shrouded themselves in the protection of the law, defeated every

hope of punishment, or even personal disgrace.[376] This practice of

direct bribery continued, beyond doubt, long afterwards, and is

generally supposed to have ceased about the termination of the

American war.

There is hardly any doctrine with respect to our government more in

fashion than that a considerable influence of the Crown (meaning of

course a corrupt influence) in both houses of parliament, and

especially in the Commons, has been rendered indispensable by the vast

enhancement of their own power over the public administration. It is

doubtless most expedient that many servants of the Crown should be

also servants of the people; and no man who values the constitution

would separate the functions of ministers of state from those of

legislators. The glory that waits on wisdom and eloquence in the

senate should always be the great prize of an English statesman, and

his high road to the sovereign's favour. But the maxim that private

vices are public benefits is as sophistical as it is disgusting; and

it is self-evident, both that the expectation of a clandestine

recompense, or what in effect is the same thing, of a lucrative

office, cannot be the motive of an upright man in his vote, and that

if an entire parliament should be composed of such venal spirits,

there would be an end of all control upon the Crown. There is no real

cause to apprehend that a virtuous and enlightened government would

find difficulty in resting upon the reputation justly due to it;

especially when we throw into the scale that species of influence

which must ever subsist, the sentiment of respect and loyalty to a

sovereign, of friendship and gratitude to a minister, of habitual

confidence in those intrusted with power, of averseness to confusion

and untried change, which have in fact more extensive operation than

any sordid motives, and which must almost always render them

unnecessary.

III. _Commitments for breach of privilege._--The co-operation of both

houses of parliament with the executive government enabled the latter

to convert to its own purpose what had often in former times been

employed against it, the power of inflicting punishment for breach of

privilege. But as the subject of parliamentary privilege is of no

slight importance, it will be convenient on this occasion to bring the

whole before the reader in as concise a summary as possible,

distinguishing the power, as it relates to offences committed by

members of either house, or against them singly, or the houses of

parliament collectively, or against the government and the public.

1. It has been the constant practice of the House of Commons to

repress disorderly or indecent behaviour by a censure delivered

through the speaker. Instances of this are even noticed in the

journals under Edward VI. and Mary; and it is in fact essential to the

regular proceedings of any assembly. In the former reign they also

committed one of their members to the Tower. But in the famous case of

Arthur Hall in 1581, they established the first precedent of punishing

one of their own body for a printed libel derogatory to them as a part

of the legislature; and they inflicted the threefold penalty of

imprisonment, fine, and expulsion.[377] From this time forth it was

understood to be the law and usage of parliament, that the Commons

might commit to prison any one of their members for misconduct in the

house, or relating to it. The right of imposing a fine was very rarely

asserted after the instance of Hall. But that of expulsion, no earlier

precedent whereof has been recorded, became as indubitable as frequent

and unquestioned usage could render it. It was carried to a great

excess by the long parliament, and again in the year 1680. These,

however, were times of extreme violence; and the prevailing faction

had an apology in the designs of the court, which required an energy

beyond the law to counteract them. The offences, too, which the whigs

thus punished in 1680, were in their effect against the power and even

existence of parliament. The privilege was far more unwarrantably

exerted by the opposite party in 1714, against Sir Richard Steele,

expelled the house for writing the "Crisis," a pamphlet reflecting on

the ministry. This was, perhaps, the first instance wherein the House

of Commons so identified itself with the executive administration,

independently of the sovereign's person, as to consider itself

libelled by those who impugned its measures.[378]

In a few instances an attempt was made to carry this farther, by

declaring the party incapable of sitting in parliament. It is hardly

necessary to remark that upon this rested the celebrated question of

the Middlesex election in 1769. If a few precedents, and those not

before the year 1680, were to determine all controversies of

constitutional law, it is plain enough from the journals that the

house have assumed the power of incapacitation. But as such an

authority is highly dangerous and unnecessary for any good purpose,

and as, according to all legal rules, so extraordinary a power could

not be supported except by a sort of prescription which cannot be

shown, the final resolution of the House of Commons, which condemned

the votes passed in times of great excitement, appears far more

consonant to just principles.

2. The power of each house of parliament over those who do not belong

to it is of a more extensive consideration, and has lain open, in some

respects, to more doubt than that over its own members. It has been

exercised, in the first place, very frequently, and from an early

period, in order to protect the members personally, and in their

properties, from anything which has been construed to interfere with

the discharge of their functions. Every obstruction in these duties,

by assaulting, challenging, insulting any single representative of the

Commons, has from the middle of the sixteenth century downwards, that

is, from the beginning of their regular journals, been justly deemed a

breach of privilege, and an offence against the whole body. It has

been punished generally by commitment, either to the custody of the

house's officer, the serjeant-at-arms, or to the king's prison. This

summary proceeding is usually defended by a technical analogy to what

are called attachments for contempt, by which every court of record is

entitled to punish by imprisonment, if not also by fine, any

obstruction to its acts or contumacious resistance of them. But it

tended also to raise the dignity of parliament in the eyes of the

people, at times when the government, and even the courts of justice,

were not greatly inclined to regard it; and has been also a necessary

safeguard against the insolence of power. The majority are bound to

respect, and indeed have respected, the rights of every member,

however obnoxious to them, on all questions of privilege. Even in the

case most likely to occur in the present age, that of libels, which

by no unreasonable stretch come under the head of obstructions, it

would be unjust that a patriotic legislator, exposed to calumny for

his zeal in the public cause, should be necessarily driven to a

troublesome and uncertain process at law, when the offence so

manifestly affects the real interests of parliament and the nation.

The application of this principle must of course require a discreet

temper, which was not perhaps always observed in former times,

especially in the reign of William III. Instances at least of

punishment for breach of privilege by personal reflections are never

so common as in the journals of that turbulent period.

The most usual mode, however, of incurring the animadversion of the

house was by molestations in regard to property. It was the most

ancient privilege of the Commons to be free from all legal process,

during the term of the session and for forty days before and after,

except on charges of treason, felony, or breach of the peace. I have

elsewhere mentioned the great case of Ferrers, under Henry VIII.,

wherein the house first, as far as we know, exerted the power of

committing to prison those who had been concerned in arresting one of

its members; and have shown that, after some little intermission, this

became their recognised and customary right. Numberless instances

occur of its exercise.[379] It was not only a breach of privilege to

serve any sort of process upon them, but to put them under the

necessity of seeking redress at law for any civil injury. Thus

abundant cases are found in the journals, where persons have been

committed to prison for entering on the estates of members, carrying

away timber, lopping trees, digging coal, fishing in their waters.

Their servants, and even their tenants, if the trespass were such as

to affect the landlord's property, had the same protection.[380] The

grievance of so unparalleled an immunity must have been notorious,

since it not only suspended at least the redress of creditors, but

enabled rapacious men to establish in some measure unjust claims in

respect of property; the alleged trespasses being generally founded on

some disputed right. An act however was passed, rendering the members

of both houses liable to civil suits during the prorogation of

parliament.[381] But they long continued to avenge the private

injuries, real or pretended, of their members. On a complaint of

breach of privilege by trespassing on a fishery (Jan. 25, 1768), they

heard evidence on both sides, and determined that no breach of

privilege had been committed; thus indirectly taking on them the

decision of a freehold right. A few days after they came to a

resolution, "that in case of any complaint of a breach of privilege,

hereafter to be made by any member of this house, if the house shall

adjudge there is no ground for such complaint, the house will order

satisfaction to the person complained of for his costs and expenses

incurred by reason of such complaint."[382] But little opportunity was

given to try the effect of this resolution, an act having passed in

two years afterwards, which has altogether taken away the exemption

from legal process, except as to the immunity from personal arrest,

which still continues to be the privilege of both houses of

parliament.[383]

3. A more important class of offences against privilege is of such as

affect either house of parliament collectively. In the reign of

Elizabeth we have an instance of one committed for disrespectful words

against the Commons. A few others, either for words spoken or

published libels, occur in the reign of Charles I. even before the

long parliament; but those of 1641 can have little weight as

precedents, and we may say nearly the same of the unjustifiable

proceedings in 1680. Even since the revolution we find too many proofs

of encroaching pride or intemperate passion, to which a numerous

assembly is always prone, and which the prevalent doctrine of the

house's absolute power in matters of privilege has not contributed

much to restrain. The most remarkable may be briefly noticed.

The Commons of 1701, wherein a tory spirit was strongly predominant,

by what were deemed its factious delays in voting supplies, and in

seconding the measures of the king for the security of Europe, had

exasperated all those who saw the nation's safety in vigorous

preparations for war, and led at last to the most angry resolution of

the Lords, which one house of parliament in a matter not affecting its

privileges has ever recorded against the other.[384] The grand jury of

Kent, and other freeholders of the county, presented accordingly a

petition on the 8th of May 1701, imploring them to turn their loyal

addresses into bills of supply (the only phrase in the whole petition

that could be construed into disrespect), and to enable his majesty to

assist his allies before it should be too late. The tory faction was

wrought to fury by this honest remonstrance. They voted that the

petition was scandalous, insolent, and seditious, tending to destroy

the constitution of parliament, and to subvert the established

government of this realm; and ordered that Mr. Colepepper, who had

been most forward in presenting the petition, and all others concerned

in it, should be taken into custody of the serjeant.[385] Though no

attempt was made on this occasion to call the authority of the house

into question by habeas corpus or other legal remedy, it was discussed

in pamphlets and in general conversation, with little advantage to a

power so arbitrary, and so evidently abused in the immediate

instance.[386]

A very few years after this high exercise of authority, it was called

forth in another case, still more remarkable and even less

warrantable. The House of Commons had an undoubted right of

determining all disputed returns to the writ of election, and

consequently of judging upon the right of every vote. But, as the

house could not pretend that it had given this right, or that it was

not, like any other franchise, vested in the possessor by a legal

title, no pretext of reason or analogy could be set up for denying

that it might also come, in an indirect manner at least, before a

court of justice, and be judged by the common principles of law. One

Ashby, however, a burgess of Aylesbury, having sued the returning

officer for refusing his vote; and three judges of the king's bench,

against the opinion of Chief-Justice Holt, having determined for

different reasons that it did not lie, a writ of error was brought in

the House of Lords, when the judgment was reversed. The House of

Commons took this up indignantly, and passed various resolutions,

asserting their exclusive right to take cognisance of all matters

relating to the election of their members. The Lords repelled these by

contrary resolutions; That by the known laws of this kingdom, every

person having a right to give his vote, and being wilfully denied by

the officer who ought to receive it, may maintain an action against

such officer to recover damage for the injury; That the contrary

assertion is destructive of the property of the subject, and tends to

encourage corruption and partiality in returning officers; That the

declaring persons guilty of breach of privilege for prosecuting such

actions, or for soliciting and pleading in them, is a manifest

assuming a power to control the law, and hinder the course of justice,

and subject the property of Englishmen to the arbitrary votes of the

House of Commons. They ordered a copy of these resolutions to be sent

to all the sheriffs, and to be communicated by them to all the

boroughs in their respective counties.

A prorogation soon afterwards followed, but served only to give

breathing time to the exasperated parties; for it must be observed,

that though a sense of dignity and privilege no doubt swelled the

majorities in each house, the question was very much involved in the

general whig and tory course of politics. But Ashby, during the

recess, having proceeded to execution on his judgment, and some other

actions having been brought against the returning officer of

Aylesbury, the Commons again took it up, and committed the parties to

Newgate. They moved the court of king's bench for a habeas corpus;

upon the return to which, the judges, except Holt, thought themselves

not warranted to set them at liberty against the commitment of the

house.[387] It was threatened to bring this by writ of error before

the Lords; and, in the disposition of that assembly, it seems probable

that they would have inflicted a severe wound on the privileges of the

lower house, which must in all probability have turned out a sort of

suicide upon their own. But the Commons interposed by resolving to

commit to prison the counsel and agents concerned in prosecuting the

habeas corpus, and by addressing the queen not to grant a writ of

error. The queen properly answered, that as this matter, relating to

the course of judicial proceedings, was of the highest consequence,

she thought it necessary to weigh very carefully what she should do.

The Lords came to some important resolutions: That neither house of

parliament hath any power by any vote or declaration to create to

themselves any new privilege that is not warranted by the known laws

and customs of parliament; That the House of Commons, in committing to

Newgate certain persons for prosecuting an action at law, upon

pretence that their so doing was contrary to a declaration, a contempt

of the jurisdiction, and a breach of the privileges of that house,

have assumed to themselves alone a legislative power, by pretending to

attribute the force of law to their declaration, have claimed a

jurisdiction not warranted by the constitution, and have assumed a new

privilege, to which they can show no title by the law and custom of

parliament; and have thereby, as far as in them lies, subjected the

rights of Englishmen, and the freedom of their persons, to the

arbitrary votes of the House of Commons; That every Englishman, who is

imprisoned by any authority whatsoever, has an undoubted right to a

writ of habeas corpus, in order to obtain his liberty by the due

course of law; That for the House of Commons to punish any person for

assisting a prisoner to procure such a writ is an attempt of dangerous

consequence, and a breach of the statutes provided for the liberty of

the subject; That a writ of error is not of grace but of right, and

ought not to be denied to the subject when duly applied for, though at

the request of either house of parliament.

These vigorous resolutions produced a conference between the houses,

which was managed with more temper than might have been expected from

the tone taken on both sides. But, neither of them receding in the

slightest degree, the Lords addressed the queen, requesting her to

issue the writs of error demanded upon the refusal of the king's bench

to discharge the parties committed by the House of Commons. The queen

answered the same day, that she should have granted the writs of error

desired by them, but finding an absolute necessity of putting an

immediate end to the session, she was sensible there could have been

no further proceeding upon them. The meaning of this could only be,

that by a prorogation all commitments by order of the lower house of

parliament are determined, so that the parties could stand in no need

of a habeas corpus. But a great constitutional question was thus

wholly eluded.[388]

We may reckon the proceedings against Mr. Alexander Murray, in 1751,

among the instances wherein the House of Commons has been hurried by

passion to an undue violence. This gentleman had been active in a

contested Westminster election, on an anti-ministerial and perhaps

jacobite interest. In the course of an inquiry before the house,

founded on a petition against the return, the high-bailiff named Mr.

Murray as having insulted him in the execution of his duty. The house

resolved to hear Murray by counsel in his defence, and the

high-bailiff also by counsel in support of the charge, and ordered the

former to give bail for his appearance from time to time. These,

especially the last, were innovations on the practice of parliament,

and were justly opposed by the more cool-headed men. After hearing

witnesses on both sides, it was resolved that Murray should be

committed to Newgate, and should receive this sentence upon his knees.

This command he steadily refused to obey, and thus drew on himself a

storm of wrath at such insolence and audacity. But the times were no

more, when the Commons could inflict whippings and pillories on the

refractory; and they were forced to content themselves with ordering

that no person should be admitted to him in prison, which, on account

of his ill-health, they soon afterwards relaxed. The public voice is

never favourable to such arbitrary exertions of mere power: at the

expiration of the session, Mr. Murray, thus grown from an intriguing

jacobite into a confessor of popular liberty, was attended home by a

sort of triumphal procession amidst the applause of the people. In the

next session he was again committed on the same charge; a proceeding

extremely violent and arbitrary.[389]

It has been always deemed a most important and essential privilege of

the houses of parliament, that they may punish in this summary manner

by commitment all those who disobey their orders to attend as

witnesses, or for any purposes of their constitutional duties. No

inquiry could go forward before the house at large or its committees,

without this power to enforce obedience; especially when the

information is to be extracted from public officers against the secret

wishes of the court. It is equally necessary (or rather more so, since

evidence not being on oath in the lower house, there can be no

punishment in the course of law) that the contumacy or prevarication

of witnesses should incur a similar penalty. No man would seek to take

away this authority from parliament, unless he is either very ignorant

of what has occurred in other times and his own, or is a slave in the

fetters of some general theory.

But far less can be advanced for several exertions of power on record

in the journals, which under the name of privilege must be reckoned by

impartial men irregularities and encroachments, capable only at some

periods of a kind of apology from the unsettled state of the

constitution. The Commons began, in the famous or infamous case of

Floyd, to arrogate a power of animadverting upon political offences,

which was then wrested from them by the upper house. But in the first

parliament of Charles I. they committed Montagu (afterwards the noted

semi-popish bishop) to the serjeant, on account of a published book,

containing doctrines they did not approve.[390] For this was evidently

the main point, though he was also charged with reviling two persons

who had petitioned the house, which bore a distant resemblance to a

contempt. In the long parliament, even from its commencement, every

boundary was swept away; it was sufficient to have displeased the

majority by act or word; but no precedents can be derived from a

crisis of force struggling against force. If we descend to the reign

of William III., it will be easy to discover instances of commitments,

laudable in their purpose, but of such doubtful legality and dangerous

consequence that no regard to the motive should induce us to justify

the precedent. Graham and Burton, the solicitors of the treasury in

all the worst state prosecutions under Charles and James, and Jenner,

a baron of the exchequer, were committed to the Tower by the council

immediately after the king's proclamation, with an intention of

proceeding criminally against them. Some months afterwards, the

suspension of the habeas corpus, which had taken place by bill, having

ceased, they moved the king's bench to admit them to bail; but the

House of Commons took this up, and, after a report of a committee as

to precedents, put them in custody of the serjeant at arms.[391] On

complaints of abuses in victualling the navy, the commissioners of

that department were sent for in the serjeant's custody, and only

released on bail ten days afterwards.[392] But, without minutely

considering the questionable instances of privilege that we may regret

to find, I will select one wherein the House of Commons appear to have

gone far beyond either the reasonable or customary limits of

privilege, and that with very little pretext of public necessity. In

the reign of George I., a newspaper called _Mist's Journal_ was

notorious as the organ of the jacobite faction. A passage full of the

most impudent longings for the Pretender's restoration having been

laid before the house, it was resolved, May 28, 1721, "that the said

paper is a false, malicious, scandalous, infamous, and traitorous

libel, tending to alienate the affections of his majesty's subjects,

and to excite the people to sedition and rebellion, with an intention

to subvert the present happy establishment, and to introduce popery

and arbitrary power." They went on after this resolution to commit the

printer Mist to Newgate, and to address the king that the authors and

publishers of the libel might be prosecuted.[393] It is to be observed

that no violation of privilege either was, or indeed could be alleged

as the ground of this commitment; which seems to imply that the house

conceived itself to be invested with a general power, at least in all

political misdemeanours.

I have not observed any case more recent than this of Mist, wherein

any one has been committed on a charge which could not possibly be

interpreted on a contempt of the house, or a breach of its privilege.

It became however the practice, without previously addressing the

king, to direct a prosecution by the attorney-general for offences of

a public nature, which the Commons had learned in the course of any

inquiry, or which had been formally laid before them.[394] This seems

to have been introduced about the beginning of the reign of Anne, and

is undoubtedly a far more constitutional course than that of arbitrary

punishment by overstraining their privilege. In some instances, libels

have been publicly burned by the order of one or other house of

parliament.

I have principally adverted to the powers exerted by the lower house

of parliament, in punishing those guilty of violating their

privileges. It will of course be understood that the Lords are at

least equal in authority. In some respects indeed they have gone

beyond. I do not mean that they would be supposed at present to have

cognisance of any offence whatever, upon which the Commons could not

animadvert. Notwithstanding what they claimed in the case of Floyd,

the subsequent denial by the Commons, and abandonment by themselves,

of any original jurisdiction, must stand in the way of their assuming

such authority over misdemeanours, more extensively at least than the

Commons, as has been shown, have in some instances exercised it. But,

while the latter have, with very few exceptions, and none since the

restoration, contented themselves with commitment during the session,

the Lords have sometimes imposed fines, and, on some occasions in the

reign of George II., as well as later, have adjudged parties to

imprisonment for a certain time. In one instance, so late as that

reign, they sentenced a man to the pillory; and this had been done

several times before. The judgments however of earlier ages give far

less credit to the jurisdiction than they take from it. Besides the

ever memorable case of Floyd, one John Blount, about the same time

(27th Nov. 1621), was sentenced by the Lords to imprisonment and hard

labour in Bridewell during life.[395]

_Privileges of the house not controllable by courts of law._--It may

surprise those who have heard of the happy balance of the English

constitution, of the responsibility of every man to the law, and of

the security of the subject from all unlimited power, especially as to

personal freedom, that this power of awarding punishment at discretion

of the houses of parliament is generally reputed to be universal and

uncontrollable. This indeed was by no means received at the time when

the most violent usurpations under the name of privilege were first

made; the power was questioned by the royalist party who became its

victims, and, among others, by the gallant Welshman, Judge Jenkins,

whom the long parliament had shut up in the Tower. But it has been

several times brought into discussion before the ordinary tribunals;

and the result has been, that if the power of parliament is not

unlimited in right, there is at least no remedy provided against its

excesses.

The House of Lords in 1677 committed to the Tower four peers, among

whom was the Earl of Shaftesbury, for a high contempt; that is, for

calling in question, during a debate, the legal continuance of

parliament after a prorogation of more than twelve months. Shaftesbury

moved the court of king's bench to release him upon a writ of habeas

corpus. But the judges were unanimously of opinion that they had no

jurisdiction to inquire into a commitment by the Lords of one of their

body, or to discharge the party during the session, even though there

might be, as appears to have been the case, such technical informality

on the face of the commitment as would be sufficient in an ordinary

case to set it aside.[396]

Lord Shaftesbury was at this time in vehement opposition to the court.

Without insinuating that this had any effect upon the judges, it is

certain that a few years afterwards they were less inclined to magnify

the privileges of parliament. Some who had been committed, very

wantonly and oppressively, by the Commons in 1680, under the name of

abhorrers, brought actions for false imprisonment against Topham, the

serjeant-at-arms. In one of these he put in what is called a plea to

the jurisdiction, denying the competence of the court of king's bench,

inasmuch as the alleged trespass had been done by order of the

knights, citizens, and burgesses of parliament. But the judges

overruled this plea, and ordered him to plead in bar to the action. We

do not find that Topham complied with this; at least judgments appear

to have passed against him in these actions.[397] The Commons, after

the revolution, entered on the subject, and summoned two of the late

judges, Pemberton and Jones, to their bar. Pemberton answered that he

remembered little of the case; but if the defendant should plead that

he did arrest the plaintiff by order of the house, and should plead

that to the jurisdiction of the king's bench, he thought, with

submission, he could satisfy the house that such a plea ought to be

overruled, and that he took the law to be so very clearly. The house

pressed for his reasons, which he rather declined to give. But on a

subsequent day he fully admitted that the order of the house was

sufficient to take any one into custody, but that it ought to be

pleaded in bar, and not to the jurisdiction, which would be of no

detriment to the party, nor affect his substantial defence. It did not

appear however that he had given any intimation from the bench of so

favourable a leaning towards the rights of parliament; and his present

language might not uncharitably be ascribed to the change of times.

The house resolved that the orders and proceedings of this house being

pleaded to the jurisdiction of the court of king's bench, ought not to

be overruled; that the judges had been guilty of a breach of

privilege, and should be taken into custody.[398]

I have already mentioned that, in the course of the controversy

between the two houses on the case of Ashby and White, the Commons had

sent some persons to Newgate, for suing the returning officer of

Aylesbury in defiance of their resolutions; and that, on their

application to the king's bench to be discharged on their habeas

corpus, the majority of the judges had refused it. Three judges,

Powis, Gould, and Powell, held that the courts of Westminster Hall

could have no power to judge of the commitments of the houses of

parliament; that they had no means of knowing what were the privileges

of the Commons, and consequently could not know their boundaries; that

the law and custom of parliament stood on its own basis, and was not

to be decided by the general rules of law; that no one had ever been

discharged from such a commitment, which was an argument that it could

not be done. Holt, the chief justice, on the other hand, maintained

that no privilege of parliament could destroy a man's right, such as

that of bringing an action for a civil injury; that neither house of

parliament could separately dispose of the liberty and property of the

people, which could only be done by the whole legislature; that the

judges were bound to take notice of the customs of parliament, because

they are part of the law of the land, and might as well be learned as

any other part of the law. "It is the law," he said, "that gives the

queen her prerogative; it is the law gives jurisdiction to the House

of Lords, as it is the law limits the jurisdiction of the House of

Commons." The eight other judges having been consulted, though not

judicially, are stated to have gone along with the majority of the

court, in holding that a commitment by either house of parliament was

not cognisable at law. But from some of the resolutions of the Lords

on this occasion which I have quoted above, it may seem probable that,

if a writ of error had been ever heard before them, they would have

leaned to the doctrine of Holt, unless indeed withheld by the

reflection that a similar principle might easily be extended to

themselves.[399]

It does not appear that any commitment for breach of privilege was

disputed until the year 1751; when Mr. Alexander Murray, of whom

mention has been made, caused himself to be brought before the court

of king's bench on a habeas corpus. But the judges were unanimous in

refusing to discharge him. "The House of Commons," said Mr. Justice

Wright, "is a high court, and it is agreed on all hands that they have

power to judge of their own privileges; it need not appear to us what

the contempt is for; if it did appear, we could not judge

thereof."--"This court," said Mr. Justice Denison, "has no

jurisdiction in the present case. We granted the habeas corpus, not

knowing what the commitment was; but now it appears to be for a

contempt of the privileges of the House of Commons. What the

privileges of either house are we do not know; nor need they tell us

what the contempt was, because we cannot judge of it; for I must call

this court inferior to the Commons with respect to judging of their

privileges, and contempts against them." Mr. Justice Foster agreed

with the two others, that the house could commit for a contempt,

which, he said, "Holt had never denied in such a case as this before

them."[400] It would be unnecessary to produce later cases which have

occurred since the reign of George II., and elicited still stronger

expressions from the judges of their incapacity to take cognisance of

what may be done by the Houses of Parliament.

Notwithstanding such imposing authorities, there have not been wanting

some who have thought that the doctrine of uncontrollable privilege is

both eminently dangerous in a free country, and repugnant to the

analogy of our constitution. The manly language of Lord Holt[401] has

seemed to rest on better principles of public utility, and even

perhaps of positive law. It is not however to be inferred that the

right of either house of parliament to commit persons, even not of

their own body, to prison, for contempts or breaches of privilege,

ought to be called in question. In some cases this authority is as

beneficial, and even indispensable, as it is ancient and established.

Nor do I by any means pretend that if the warrant of commitment merely

recites the party to have been guilty of a contempt or breach of

privilege, the truth of such allegation could be examined upon a

return to a writ of habeas corpus, any more than in an ordinary case

of felony. Whatever injustice may thus be done cannot have redress by

any legal means; because the House of Commons (or the Lords, as it may

be) are the fit judges of the fact, and must be presumed to have

determined it according to right.

But it is a more doubtful question, whether, if they should pronounce

an offence to be a breach of privilege, as in the case of the

Aylesbury men, which a court of justice should perceive to be clearly

none, or if they should commit a man on a charge of misdemeanour, and

for no breach of privilege at all, as in the case of Mist the printer,

such excesses of jurisdiction might not legally be restrained by the

judges. If the resolutions of the Lords in the business of Ashby and

White are constitutional and true, neither house of parliament can

create to itself any new privilege; a proposition surely so consonant

to the rules of English law, which require prescription or statute as

the basis for every right, that few will dispute it; and it must be

still less lawful to exercise a jurisdiction over misdemeanours, by

committing a party who would regularly be only held to bail on such a

charge. Of this I am very certain, that if Mist, in the year 1721, had

applied for his discharge on a habeas corpus, it would have been far

more difficult to have opposed it on the score of precedent or of

constitutional right, than it was for the attorney-general of Charles

I., nearly one hundred years before, to resist the famous arguments of

Selden and Littleton, in the case of the Buckinghamshire gentlemen

committed by the council. If a few scattered acts of power can make

such precedents as a court of justice must take as its rule, I am sure

the decision, neither in this case nor in that of ship-money, was so

unconstitutional as we usually suppose: it was by dwelling on all

authorities in favour of liberty, and by setting aside those which

made against it, that our ancestors overthrew the claims of unbounded

prerogative. Nor is this parallel less striking when we look at the

tone of implicit obedience, respect, and confidence with which the

judges of the eighteenth century have spoken of the houses of

parliament, as if their sphere were too low for the cognisance of such

a transcendant authority.[402] The same language, almost to the words,

was heard from the lips of the Hydes and Berkeleys in the preceding

age, in reference to the king and to the privy council. But as, when

the spirit of the government was almost wholly monarchical, so since

it has turned chiefly to an aristocracy, the courts of justice have

been swayed towards the predominant influence, not, in general, by any

undue motives, but because it is natural for them to support power, to

shun offence, and to shelter themselves behind precedent. They have

also sometimes had in view the analogy of parliamentary commitments to

their own power of attachment for contempt, which they hold to be

equally uncontrollable; a doctrine by no means so dangerous to the

subject's liberty, but liable also to no trifling objections.[403]

The consequences of this utter irresponsibility in each of the two

houses will appear still more serious, when we advert to the unlimited

power of punishment which it draws with it. The Commons indeed do not

pretend to imprison beyond the session; but the Lords have imposed

fines and definite imprisonment; and attempts to resist these have

been unsuccessful.[404] If the matter is to rest upon precedent, or

upon what overrides precedent itself, the absolute failure of

jurisdiction in the ordinary courts, there seems nothing (decency and

discretion excepted) to prevent their repeating the sentences of James

I.'s reign, whipping, branding, hard labour for life. Nay, they might

order the usher of the black rod to take a man from their bar, and

hang him up in the lobby. Such things would not be done, and, being

done, would not be endured; but it is much that any sworn ministers of

the law should, even by indefinite language, have countenanced the

legal possibility of tyrannous power in England. The temper of

government itself, in modern times, has generally been mild; and this

is probably the best ground of confidence in the discretion of

parliament; but popular, that is, numerous bodies, are always prone to

excess, both from the reciprocal influences of their passions, and the

consciousness of irresponsibility; for which reasons a democracy, that

is, the absolute government of the majority, is in general the most

tyrannical of any. Public opinion, it is true, in this country,

imposes a considerable restraint; yet this check is somewhat less

powerful in that branch of the legislature which has gone the farthest

in chastising breaches of privilege. I would not be understood,

however, to point at any more recent discussions on this subject; were

it not, indeed, beyond the limits prescribed to me, it might be shown

that the House of Commons, in asserting its jurisdiction, has receded

from much of the arbitrary power which it once arrogated, and which

some have been disposed to bestow upon it.

IV. It is commonly and justly said that civil liberty is not only

consistent with, but in its terms implies, the restrictive limitations

of natural liberty which are imposed by law. But, as these are not the

less real limitations of liberty, it can hardly be maintained that the

subject's condition is not impaired by very numerous restraints upon

his will, even without reference to their expediency. The price may be

well paid; but it is still a price that it costs some sacrifice to

pay. Our statutes have been growing in bulk and multiplicity with the

regular session of parliament, and with the new system of government;

all abounding with prohibitions and penalties, which every man is

presumed to know, but which no man, the judges themselves included,

can really know with much exactness. We literally walk amidst the

snares and pitfalls of the law. The very doctrine of the more rigid

casuists, that men are bound in conscience to observe all the laws of

their country, has become impracticable through their complexity and

inconvenience; and most of us are content to shift off their penalties

in the _mala prohibita_ with as little scruple as some feel in

risking those of graver offences. But what more peculiarly belongs to

the present subject is the systematic encroachment upon ancient

constitutional principles, which has for a long time been made through

new enactments, proceeding from the Crown, chiefly in respect to the

revenue.[405] These may be traced indeed in the statute-book, at least

as high as the restoration, and really began in the arbitrary times of

revolution which preceded it. They have, however, been gradually

extended along with the public burthens, and as the severity of these

has prompted fresh artifices of evasion. It would be curious, but not

within the scope of this work, to analyse our immense fiscal law, and

to trace the history of its innovations. These consist, partly in

taking away the cognisance of offences against the revenue from

juries, whose partiality in such cases there was in truth much reason

to apprehend, and vesting it either in commissioners of the revenue

itself or in magistrates; partly in anomalous and somewhat arbitrary

power with regard to the collection; partly in deviations from the

established rules of pleading and evidence, by throwing on the accused

party in fiscal causes the burthen of proving his innocence, or by

superseding the necessity of rigorous proof as to matters wherein it

is ordinarily required; and partly in shielding the officers of the

Crown, as far as possible, from their responsibility for illegal

actions, by permitting special circumstances of justification to be

given in evidence without being pleaded, or by throwing impediments

of various kinds in the way of the prosecutor, or by subjecting him

to unusual costs in the event of defeat.

_Extension of penal laws._--These restraints upon personal liberty,

and what is worse, these endeavours, as they seem, to prevent the fair

administration of justice between the Crown and the subject, have in

general, more especially in modern times, excited little regard as

they have passed through the houses of parliament. A sad necessity has

over-ruled the maxims of ancient law; nor is it my business to censure

our fiscal code, but to point out that it is to be counted as a

set-off against the advantages of the revolution, and has in fact

diminished the freedom and justice which we claim for our polity. And,

that its provisions have sometimes gone so far as to give alarm to not

very susceptible minds, may be shown from a remarkable debate in the

year 1737. A bill having been brought in by the ministers to prevent

smuggling, which contained some unusual clauses, it was strongly

opposed, among other peers, by Lord Chancellor Talbot himself, of

course, in the cabinet, and by Lord Hardwicke, then chief justice, a

regularly bred Crown lawyer, and in his whole life disposed to hold

very high the authority of government. They objected to a clause

subjecting any three persons travelling with arms, to the penalty of

transportation, on proof by two witnesses that their intention was to

assist in the clandestine landing, or carrying away prohibited or

uncustomed goods. "We have in our laws," said one of the opposing

lords, "no such thing as a crime by implication, nor can a malicious

intention ever be proved by witnesses. Facts only are admitted to be

proved, and from those facts the judge and jury are to determine with

what intention they were committed; but no judge or jury can ever, by

our laws, suppose, much less determine, that an action, in itself

innocent or indifferent, was attended with a criminal and malicious

intention. Another security for our liberties is, that no subject can

be imprisoned unless some felonious and high crime be sworn against

him. This, with respect to private men, is the very foundation stone

of all our liberties; and, if we remove it, if we but knock off a

corner, we may probably overturn the whole fabric. A third guard for

our liberties is that right which every subject has, not only to

provide himself with arms proper for his defence, but to accustom

himself to the use of those arms, and to travel with them whenever he

has a mind." But the clause in question, it was contended, was

repugnant to all the maxims of free government. No presumption of a

crime could be drawn from the mere wearing of arms, an act not only

innocent, but highly commendable; and therefore the admitting of

witnesses to prove that any of these men were armed, in order to

assist in smuggling, would be the admitting of witnesses to prove an

intention, which was inconsistent with the whole tenor of our

laws.[406] They objected to another provision, subjecting a party

against whom information should be given that he intended to assist in

smuggling, to imprisonment without bail, though the offence itself

were in its nature bailable; to another, which made informations for

assault upon officers of the revenue triable in any county of England;

and to a yet more startling protection thrown round the same favoured

class, that the magistrates should be bound to admit them to bail on

charges of killing or wounding any one in the execution of their duty.

The bill itself was carried by no great majority; and the provisions

subsist at this day, or perhaps have received a further extension.

It will thus appear to every man who takes a comprehensive view of our

constitutional history, that the executive government, though shorn of

its lustre, has not lost so much of its real efficacy by the

consequences of the revolution as is often supposed; at least, that

with a regular army to put down insurrection, and an influence

sufficient to obtain fresh statutes of restriction, if such should

ever be deemed necessary, it is not exposed, in the ordinary course of

affairs, to any serious hazard. But we must here distinguish the

executive government, using that word in its largest sense, from the

Crown itself, or the personal authority of the sovereign. This is a

matter of rather delicate inquiry, but too material to be passed by.

_Diminution of personal authority of the Crown._--The real power of

the prince, in the most despotic monarchy, must have its limits from

nature, and bear some proportion to his courage, his activity, and his

intellect. The tyrants of the East become puppets or slaves of their

vizirs; or it turns to a game of cunning, wherein the winner is he who

shall succeed in tying the bow-string round the other's neck. After

some ages of feeble monarchs, the titular royalty is found wholly

separated from the power of command, and glides on to posterity in its

languid channel, till some usurper or conqueror stops up the stream

for ever. In the civilised kingdoms of Europe, those very

institutions which secure the permanence of royal families, and

afford them a guarantee against manifest subjection to a minister,

take generally out of the hands of the sovereign the practical

government of his people. Unless his capacities are above the level of

ordinary kings, he must repose on the wisdom and diligence of the

statesmen he employs, with the sacrifice, perhaps, of his own

prepossessions in policy, and against the bent of his personal

affections. The power of a king of England is not to be compared with

an ideal absoluteness, but with that which could be enjoyed in the

actual state of society by the same person in a less bounded monarchy.

The descendants of William the Conqueror on the English throne, down

to the end of the seventeenth century, have been a good deal above the

average in those qualities which enable or at least induce, kings to

take on themselves a large share of the public administration; as will

appear by comparing their line with that of the house of Capet, or

perhaps most others during an equal period. Without going farther

back, we know that Henry VII., Henry VIII., Elizabeth, the four kings

of the house of Stuart, though not always with as much ability as

diligence, were the master-movers of their own policy, not very

susceptible of advice, and always sufficiently acquainted with the

details of government to act without it. This was eminently the case

also with William III., who was truly his own minister, and much

better fitted for that office than those who served him. The king,

according to our constitution, is supposed to be present in council,

and was in fact usually, or very frequently, present, so long as the

council remained as a deliberative body for matters of domestic and

foreign policy. But, when a junto or cabinet came to supersede that

ancient and responsible body, the king himself ceased to preside, and

received their advice separately, according to their respective

functions of treasurer, secretary, or chancellor, or that of the whole

cabinet through one of its leading members. This change however was

gradual; for cabinet councils were sometimes held in the presence of

William and Anne; to which other counsellors, not strictly of that

select number, were occasionally summoned.

But on the accession of the house of Hanover, this personal

superintendence of the sovereign necessarily came to an end. The fact

is hardly credible that, George I. being incapable of speaking

English, as Sir Robert Walpole was of conversing in French, the

monarch and his minister held discourse with each other in

Latin.[407] It is impossible that, with so defective a means of

communication (for Walpole, though by no means an illiterate man,

cannot be supposed to have spoken readily a language very little

familiar in this country), George could have obtained much insight

into his domestic affairs, or been much acquainted with the characters

of his subjects. We know, in truth, that he nearly abandoned the

consideration of both, and trusted his ministers with the entire

management of this kingdom, content to employ its great name for the

promotion of his electoral interests. This continued in a less degree

to be the case with his son, who, though better acquainted with the

language and circumstances of Great Britain, and more jealous of his

prerogative, was conscious of his incapacity to determine on matters

of domestic government, and reserved almost his whole attention for

the politics of Germany.

_Party connections._--The broad distinctions of party contributed to

weaken the real supremacy of the sovereign. It had been usual before

the revolution, and in the two succeeding reigns, to select ministers

individually at discretion; and, though some might hold themselves at

liberty to decline office, it was by no means deemed a point of honour

and fidelity to do so. Hence men in the possession of high posts had

no strong bond of union, and frequently took opposite sides on public

measures of no light moment. The queen particularly was always loth to

discard a servant on account of his vote in parliament; a conduct

generous perhaps, but feeble, inconvenient, when carried to such

excess, in our constitution, and in effect holding out a reward to

ingratitude and treachery. But the whigs having come exclusively into

office under the line of Hanover (which, as I have elsewhere observed,

was inevitable), formed a sort of phalanx, which the Crown was not

always able to break, and which never could have been broken, but for

that internal force of repulsion by which personal cupidity and

ambition are ever tending to separate the elements of factions. It

became the point of honour among public men to fight uniformly under

the same banner, though not perhaps for the same cause; if indeed

there was any cause really fought for, but the advancement of a party.

In this preference of certain denominations, or of certain leaders, to

the real principles which ought to be the basis of political

consistency, there was an evident deviation from the true standard of

public virtue; but the ignominy attached to the dereliction of friends

for the sake of emolument, though it was every day incurred, must have

tended gradually to purify the general character of parliament.

Meanwhile the Crown lost all that party attachments gained; a truth

indisputable on reflection, though while the Crown and the party in

power act in the same direction, the relative efficiency of the two

forces is not immediately estimated. It was seen, however, very

manifestly in the year 1746; when, after long bickering between the

Pelhams and Lord Granville, the king's favourite minister, the former,

in conjunction with a majority of the cabinet, threw up their offices,

and compelled the king, after an abortive effort at a new

administration, to sacrifice his favourite, and replace those in power

whom he could not exclude from it. The same took place in a later

period of his reign, when after many struggles he submitted to the

ascendency of Mr. Pitt.[408]

It seems difficult for any king of England, however conscientiously

observant of the lawful rights of his subjects, and of the limitations

they impose on his prerogative, to rest always very content with this

practical condition of the monarchy. The choice of his counsellors,

the conduct of government, are intrusted, he will be told, by the

constitution to his sole pleasure. Yet both in the one and the other

he finds a perpetual disposition to restrain his exercise of power;

and, though it is easy to demonstrate that the public good is far

better promoted by the virtual control of parliament and the nation

over the whole executive government, than by adhering to the letter of

the constitution, it is not to be expected that the argument will be

conclusive to a royal understanding. Hence, he may be tempted to play

rather a petty game, and endeavour to regain, by intrigue and

insincerity, that power of acting by his own will, which he thinks

unfairly wrested from him. A king of England, in the calculations of

politics, is little more than one among the public men of the day;

taller indeed, like Saul or Agamemnon, by the head and shoulders, and

therefore with no slight advantages in the scramble; but not a match

for the many, unless he can bring some dexterity to second his

strength, and make the best of the self-interest and animosities of

those with whom he has to deal. And of this there will generally be so

much, that in the long run he will be found to succeed in the greater

part of his desires. Thus George I. and George II., in whom the

personal authority seems to have been at the lowest point it has ever

reached, drew their ministers, not always willingly, into that course

of continental politics which was supposed to serve the purposes of

Hanover far better than of England. It is well known that the Walpoles

and the Pelhams condemned in private this excessive predilection of

their masters for their native country, which alone could endanger

their English throne.[409] Yet after the two latter brothers had

inveighed against Lord Granville, and driven him out of power for

seconding the king's pertinacity in continuing the war of 1743, they

went on themselves in the same track for at least two years, to the

imminent hazard of losing for ever the Low Countries and Holland, if

the French government, so indiscriminately charged with ambition, had

not displayed extraordinary moderation at the treaty of Aix la

Chapelle. The twelve years that ensued gave more abundant proofs of

the submissiveness with which the schemes of George II. for the good

of Hanover were received by his ministers, though not by his people;

but the most striking instance of all is the abandonment by Mr. Pitt

himself of all his former professions in pouring troops into Germany.

I do not inquire whether a sense of national honour might not render

some of these measures justifiable, though none of them were

advantageous; but it is certain that the strong bent of the king's

partiality forced them on against the repugnance of most statesmen, as

well as of the great majority in parliament and out of it.

Comparatively however with the state of prerogative before the

revolution, we can hardly dispute that there has been a systematic

diminution of the reigning prince's control, which, though it may be

compensated or concealed in ordinary times by the general influence of

the executive administration, is of material importance in a

constitutional light. Independently of other consequences which might

be pointed out as probable or contingent, it affords a real security

against endeavours by the Crown to subvert or essentially impair the

other parts of our government. For, though a king may believe himself

and his posterity to be interested in obtaining arbitrary power, it is

far less likely that a minister should desire to do so--I mean

arbitrary, not in relation to temporary or partial abridgments of the

subject's liberty, but to such projects as Charles I. and James II.

attempted to execute. What indeed might be effected by a king, at once

able, active, popular, and ambitious, should such ever unfortunately

appear in this country, it is not easy to predict; certainly his reign

would be dangerous, on one side or other, to the present balance of

the constitution. But against this contingent evil, or the far more

probable encroachments of ministers, which, though not going the full

length of despotic power, might slowly undermine and contract the

rights of the people, no positive statutes can be devised so effectual

as the vigilance of the people themselves and their increased means of

knowing and estimating the measures of their government.

_Influence of political writings._--The publication of regular

newspapers, partly designed for the communication of intelligence,

partly for the discussion of political topics, may be referred, upon

the whole, to the reign of Anne, when they obtained great circulation,

and became the accredited organs of different factions. The tory

ministers, towards the close of that reign, were annoyed at the

vivacity of the press both in periodical and other writings, which led

to a stamp-duty, intended chiefly to diminish their number, and was

nearly producing more pernicious restrictions, such as renewing the

licensing act, or compelling authors to acknowledge their names.[410]

These however did not take place, and the government more honourably

coped with their adversaries in the same warfare; nor, with Swift and

Bolingbroke on their side, could they require, except indeed through

the badness of their cause, any aid from the arm of power.[411]

In a single hour these two great masters of language were changed from

advocates of the Crown to tribunes of the people; both more

distinguished as writers in this altered scene of their fortunes, and

certainly among the first political combatants with the weapons of the

press whom the world has ever known. Bolingbroke's influence was of

course greater in England; and, with all the signal faults of his

public character, with all the factiousness which dictated most of his

writings and the indefinite declamation or shallow reasoning which

they frequently display, they have merits not always sufficiently

acknowledged. He seems first to have made the tories reject their old

tenets of exalted prerogative and hereditary right, and scorn the

high-church theories which they had maintained under William and Anne.

His _Dissertation on Parties_, and _Letters on the History of

England_, are in fact written on whig principles (if I know what is

meant by that name) in their general tendency; however a politician,

who had always some particular end in view, may have fallen into

several inconsistencies. The same character is due to the _Craftsman_,

and to most of the temporary pamphlets directed against Sir Robert

Walpole. They teemed, it is true, with exaggerated declamations on the

side of liberty; but that was the side they took; it was to generous

prejudices they appealed, nor did they ever advert to the times before

the revolution but with contempt or abhorrence. Libels there were

indeed of a different class, proceeding from the jacobite school; but

these obtained little regard; the jacobites themselves, or such as

affected to be so, having more frequently espoused that cause from a

sense of dissatisfaction with the conduct of the reigning family than

from much regard to the pretensions of the other. Upon the whole

matter it must be evident to every person who is at all conversant

with the publications of George II.'s reign, with the poems, the

novels, the essays, and almost all the literature of the time, that

what are called the popular or liberal doctrines of government were

decidedly prevalent. The supporters themselves of the Walpole and

Pelham administrations, though professedly whigs, and tenacious of

revolution principles, made complaints, both in parliament and in

pamphlets, of the democratical spirit, the insubordination to

authority, the tendency to republican sentiments, which they alleged

to have gained ground among the people. It is certain that the tone of

popular opinion gave some countenance to these assertions, though much

exaggerated to create alarm in the aristocratical classes, and furnish

arguments against redress of abuses.

_Publication of debates._--The two houses of parliament are supposed

to deliberate with closed doors. It is always competent for any one

member to insist that strangers be excluded; not on any special

ground, but by merely enforcing the standing order for that purpose.

It has been several times resolved, that it is a high breach of

privilege to publish any speeches or proceedings of the Commons;

though they have since directed their own votes and resolutions to be

printed. Many persons have been punished by commitment for this

offence; and it is still highly irregular, in any debate, to allude to

the reports in newspapers, except for the purpose of animadverting on

the breach of privilege.[412] Notwithstanding this pretended

strictness, notices of the more interesting discussions were

frequently made public; and entire speeches were sometimes circulated

by those who had sought popularity in delivering them. After the

accession of George I. we find a pretty regular account of debates in

an annual publication, Boyer's _Historical Register_, which was

continued to the year 1737. They were afterwards published monthly,

and much more at length, in the _London_ and the _Gentleman's

Magazines_; the latter, as is well known, improved by the pen of

Johnson yet not so as to lose by any means the leading scope of the

arguments. It follows of course that the restriction upon the presence

of strangers had been almost entirely dispensed with. A transparent

veil was thrown over this innovation by disguising the names of the

speakers, or more commonly by printing only initial and final letters.

This ridiculous affectation of concealment was extended to many other

words in political writings, and had not wholly ceased in the American

war.

It is almost impossible to over-rate the value of this regular

publication of proceedings in parliament, carried as it has been in

our own time to nearly as great copiousness and accuracy as is

probably attainable. It tends manifestly and powerfully to keep within

bounds the supineness and negligence, the partiality and corruption,

to which every parliament, either from the nature of its composition

or the frailty of mankind, must more or less be liable. Perhaps the

constitution would not have stood so long, or rather would have stood

like an useless and untenanted mansion, if this unlawful means had not

kept up a perpetual intercourse, a reciprocity of influence between

the parliament and the people. A stream of fresh air, boisterous

perhaps sometimes as the winds of the north, yet as healthy and

invigorating, flows in to renovate the stagnant atmosphere, and to

prevent that _malaria_, which self-interest and oligarchical

exclusiveness are always tending to generate. Nor has its importance

been less perceptible in affording the means of vindicating the

measures of government, and securing to them, when just and

reasonable, the approbation of the majority among the middle ranks,

whose weight in the scale has been gradually increasing during the

last and present centuries.

_Increased influence of the middle ranks._--This augmentation of the

democratical influence, using that term as applied to the commercial

and industrious classes in contradistinction to the territorial

aristocracy, was the slow but certain effect of accumulated wealth and

diffused knowledge, acting however on the traditional notions of

freedom and equality which had ever prevailed in the English people.

The nation, exhausted by the long wars of William and Anne, recovered

strength in thirty years of peace that ensued; and in that period,

especially under the prudent rule of Walpole, the seeds of our

commercial greatness were gradually ripened. It was evidently the most

prosperous season that England had ever experienced; and the

progression, though slow, being uniform, the reign perhaps of George

II. might not disadvantageously be compared, for the real happiness

of the community, with that more brilliant but uncertain and

oscillatory condition which has ensued. A distinguished writer has

observed that the labourer's wages have never, at least for many ages,

commanded so large a portion of subsistence as in this part of the

eighteenth century.[413] The public debt, though it excited alarms

from its magnitude, at which we are now accustomed to smile, and

though too little care was taken for redeeming it, did not press very

heavily on the nation; as the low rate of interest evinces, the

government securities at three per cent. having generally stood above

par. In the war of 1743, which from the selfish practice of relying

wholly on loans did not much retard the immediate advance of the

country, and still more after the peace of Aix la Chapelle, a striking

increase of wealth became perceptible.[414] This was shown in one

circumstance directly affecting the character of the constitution. The

smaller boroughs, which had been from the earliest time under the

command of neighbouring peers and gentlemen, or sometimes of the

Crown, were attempted by rich capitalists, with no other connection or

recommendation than one which is generally sufficient. This appears to

have been first observed in the general election of 1747 and

1754;[415] and though the prevalence of bribery is attested by the

statute-book, and the journals of parliament from the revolution, it

seems not to have broken down all floodgates till near the end of the

reign of George II. The sale of seats in parliament, like any other

transferable property, is never mentioned in any book that I remember

to have seen of an earlier date than 1760. We may dispense therefore

with the enquiry in what manner this extraordinary traffic has

affected the constitution, observing only that its influence must have

tended to counteract that of the territorial aristocracy, which is

still sufficiently predominant. The country gentlemen, who claimed to

themselves a character of more independence and patriotism than could

be found in any other class, had long endeavoured to protect their

ascendancy by excluding the rest of the community from parliament.

This was the principle of the bill, which, after being frequently

attempted, passed into a law during the tory administration of Anne,

requiring every member of the Commons, except those for the

universities, to possess, as a qualification for his seat, a landed

estate, above all incumbrances, of £300 a year.[416] By a later act of

George II., with which it was thought expedient, by the government of

the day, to gratify the landed interest, this property must be stated

on oath by every member on taking his seat, and, if required, at his

election.[417] The law is however notoriously evaded; and though much

might be urged in favour of rendering a competent income the condition

of eligibility, few would be found at present to maintain that the

freehold qualification is not required both unconstitutionally,

according to the ancient theory of representation, and absurdly,

according to the present state of property in England. But I am again

admonished, as I have frequently been in writing these last pages, to

break off from subjects that might carry me too far away from the

business of this history; and, content with compiling and selecting

the records of the past, to shun the difficult and ambitious office of

judging the present, or of speculating upon the future.

FOOTNOTES:

[294] 4 Anne, c. 8; _Parl. Hist._ 457 _et post_; Burnet, 429.