In spite, however, of the unanimity of the two Houses on the question, it will probably be thought that the authors of the amendment, by which it was proposed to address the King with an entreaty to name in the bill the person to whom he desired to intrust the Regency, acted more in the spirit of the constitution than those who were contented that the name should be omitted; indeed, that statesmen of the present century agree in holding that an arrangement of such importance should be made by the Houses of Parliament, in concurrence with the sovereign, and not by the sovereign alone, is shown by the steps taken to provide for a Regency in the event of the demise of the reigning sovereign while the heir was a minor, in the last and in the present reign, the second bill (that of 1840) being in this respect of the greater authority, since Lord Melbourne, the Prime-minister, did not propose it without previously securing the approval of the Duke of Wellington, in his character of leader of the Opposition.

We pass over for a moment the administration of Lord Rockingham, as we have already passed over the taxation of our North American Colonies by Mr. Grenville, because it will be more convenient to take all the transactions relating to that subject together when we arrive at the time when the troubles arising out of the policy of the different administrations toward those Colonies were brought to a head by the breaking out of civil war. Lord Rockingham's ministry, which succeeded Mr. Grenville's, had, as is well known, but a brief existence, and was replaced by the cabinet so whimsically composed by Mr. Pitt, who reserved to himself the office of Privy Seal, with the Earldom of Chatham; the Duke of Grafton being the nominal head of the Treasury, but the direction of affairs being wholly in the hands of the new Earl, till the failure of his health compelled his temporary retirement from public life. Lord Chatham was brother-in-law to Mr. Grenville, to whom in the occasional arrogance and arbitrariness of his disposition he bore some resemblance; and one of the earliest acts of his administration, when coupled with the language which he held on the subject in the House of Lords, displayed that side of his character in a very conspicuous light.

The summer of 1766 had been unusually wet and cold, both at home and abroad, and the harvest had, in consequence, been so deficient as to cause a very general apprehension of scarcity, while rumors were spread that the high prices which the shortness of the crops could not fail to produce were artificially raised by the selfish covetousness of some of the principal corn-dealers, who were buying up all the grain which came into the market, and storing it, with the object of making an exorbitant profit out of the necessities of the consumer, not only at home but abroad. The poorer classes, seeing themselves, as they believed, threatened with famine, rose in riotous crowds, in some places attacking the barns in which the corn was stored, and threatening destruction to both the storehouses and the owners. The ministry first tried to repress the discontent by the issue of a proclamation against "forestallers and regraters," framed in the language and spirit of the Middle Ages; and, when that proved ineffectual to restore confidence, they issued an Order in Council absolutely prohibiting the exportation of any kind of grain, and authorizing the detention of any vessels lying in any British harbor which might be loaded with such a cargo. Our annals furnished no instance of such an embargo having been laid on any article of commerce in time of peace; but the crisis was difficult, the danger to the tranquillity of the kingdom was great and undeniable, the necessity for instant action seemed urgent, and probably few would have been inclined to cavil at Lord Chatham's assertion, that the embargo "was an act of power which, during the recess of Parliament, was justifiable on the ground of necessity," had the ministry at once called Parliament together to sanction the measure by an act of indemnity. But Lord Chatham was at all times inclined to carry matters with a high hand, and willingly adopted the opinion advanced by the Chancellor (Lord Northington), that "the measure was strictly legal, and that no indemnity was necessary." Lord Northington's language on the subject Lord Campbell describes as "exhibiting his characteristic rashness and recklessness, which seemed to be aggravated by age and experience,"[19] and the censure does not seem too severe, since he presently "went so far as to maintain that the crown had a right to interfere, even against a positive act of parliament, and that proof of the necessity amounted to a legal justification." But, however ill-considered his language may have been, Lord Chatham adopted it, and acted on it so far as to decline calling the Parliament together before the appointed time, though, when the Houses did meet, he allowed General Conway, as Secretary of State, to introduce a bill of indemnity in the House of Commons. It was warmly opposed in that House, partly on the ground that, if such a measure as the embargo had been necessary, it would have been easy to have assembled Parliament before the Order in Council was issued (for, in fact, the proclamation against forestallers and regraters had been issued on the 10th of September, when Parliament, if not farther prorogued, would have met within a week). But on that same day Parliament was farther prorogued from the 16th of September till the 11th of November,[20] and it was not till after that prorogation, on the 24th of September, that the Order in Council was issued.

In the House of Lords it seems to have been admitted that the embargo was, under all the circumstances, not only desirable, but "indispensably necessary."[21] But the Opposition in that House, being led by a great lawyer (Chief-justice Lord Mansfield), took a wider view of the whole case; and, after denouncing the long prorogation of Parliament as having been so culpably advised that there was no way left of meeting the emergency but by an interposition of the royal power, directed the principal weight of their argument against the doctrine of the existence of any dispensing power. It was urged that the late Order in Council could only be justified by "the general proposition that of any, and, if of any, of every, act of parliament the King, with the advice of the Privy Council, may suspend the execution and effect whenever his Majesty, so advised, judges it necessary for the immediate safety of the people." And this proposition was denounced as utterly inconsistent with the principles of the Revolution, which had been "nothing but a most lawless and wicked invasion of the rights of the crown," if such a dispensing power were really one of the lawful prerogatives of the sovereign. Reference was made to the powers in more than one instance, and especially in the case of ship-money claimed and exercised by Charles I.; and it was affirmed that "the dispensing and suspending power, and that of raising money without the consent of Parliament, were precisely alike, and stood on the very same ground. They were born twins; they lived together, and together were buried in the same grave at the Revolution, past all power of resurrection." It was even argued that the dispensing or suspending power was yet more dangerous than that of raising money without a Parliamentary vote, since it was a power which might do the most mischief, and with the greatest speed, so many were the subjects which it included. It would be a return to the maxims of the idolators of prerogative as understood in those earlier days, that is, of absolute and arbitrary power, a Deo Rex, a Rege Lex. It was farther argued that, unless it could be said that the moment Parliament breaks up the King stands in its place, and that the continuance of acts is consigned into his hands, he cannot of right suspend any more than he can make laws, both acts requiring the same power. The law is above the King, and the crown as well as the subject is bound by it as much during the recess as in the session of Parliament; and therefore the wisdom of the constitution has excluded every discretion in the crown over a positive statute, and has emancipated Parliament from the royal prerogative, leaving the power of suspension, which is but another name for a temporary repeal, to reside where the legislative power is lodged—that is, in King, Lords, and Commons, who together constitute the only supreme authority of this government. Precedents were cited to prove that in former times different ministries had avoided thus taking the law into their own hands, as when, in 1709 and again in 1756, there was a similar apprehension of scarcity, even though both those years were years of war. And the Bill of Rights was quoted as the statute in which every sort of dispensing power was condemned, though, as exercised by James II., it had only been exerted in dispensing with penal laws and remitting penalties.

"Finally," said one speaker, who perhaps was Lord Mansfield himself, "he is not a moderate minister who would rashly decide in favor of prerogative in a question where the rights of Parliament are involved, nor a prudent minister who, even in a doubtful case, commits the prerogative, by a wanton experiment, to what degree the people will bear the extent of it. The opposite course was that by which a minister would consult the best interests of the crown, as well as of the people. The safety of the crown, as well as the security of the subject, requires the closing up of every avenue that can lead to tyranny."[22]

These arguments prevailed, and the indemnity bill was passed, to quote the words of the "Annual Register"—at that time written by Burke—"very much to the satisfaction of the public." And that it should have been so accepted is creditable to the good-sense of both parties. The precedent which was thus established does, indeed, seem to rest on a principle indispensable to the proper working of a constitutional government. In so extensive an empire as ours, it is scarcely possible that sudden emergencies, requiring the instant application of some remedy, should not at times arise; and, unless Parliament be sitting at the time, such can only be adequately dealt with if the ministers of the crown have the courage to take such steps as are necessary, whether by the suspension of a law or by any other expedient, on their own responsibility, trusting in their ability to satisfy the Parliament, instantly convoked to receive their explanation, of the necessity or wisdom of their proceedings; and in the candor of the Parliament to recognize, if not the judiciousness of their action, at all events the good faith in which it has been taken, and the honest, patriotic intention which has dictated it. The establishment of the obligation instantly to submit the question to the judgment of Parliament will hardly be denied to be a sufficient safeguard against the ministerial abuse of such a power; and the instances in which such a power has since been exercised, coupled with the sanction of such exercise by Parliament, are a practical approval and ratification by subsequent Parliaments of the course that was now adopted.[23]

The next year a not very creditable job of the ministry led to the enactment of a statute of great importance to all holders of property which had ever belonged to the crown. In the twenty-first year of James I. a bill had been passed giving a secure tenure of their estates to all grantees of crown lands whose possession of them had lasted sixty years. The Houses had desired to make the enactment extend to all future as well as to all previous grants. But to this James had refused to consent; and, telling the Houses that "beggars must not be choosers," he had compelled them to content themselves with a retrospective statute. Since his time, and especially in the reigns of Charles II. and William III., the crown had been more lavish and unscrupulous than at any former period in granting away its lands and estates to favorites. And no one had been so largely enriched by its prodigality as the most grasping of William's Dutch followers, Bentinck, the founder of the English house of Portland. Among the estates which he had obtained from his royal master's favor was one which went by the name of the Honor of Penrith. Subsequent administrations had augmented the dignities and importance of his family. Their Earldom had been exchanged for a Dukedom; but the existing Duke was an opponent of the present ministry, who, to punish him, suggested to Sir James Lowther, a baronet of ancient family, and of large property in the North of England, the idea of applying to the crown for a grant of the forest of Inglewood, and of the manor of Carlisle, which hitherto had been held by Portland as belonging to the Honor of Penrith, but which, not having been expressly mentioned in the original grant by William III., it was now said had been regarded as included in the honor only by mistake. It was not denied that Portland had enjoyed the ownership of these lands for upward of seventy years without dispute; and, had the statute of James been one of continual operation, it would have been impossible to deprive him of them. But, as matters stood, the Lords of the Treasury willingly listened to the application of Sir James Lowther; they even refused permission to the Duke to examine the original deed and the other documents in the office of the surveyor, on which he professed to rely for the establishment of his right; and they granted to Sir James the lands he prayed for at a rent which could only be regarded as nominal. The injustice of the proceeding was so flagrant, that in the beginning of 1768 Sir George Savile brought in a bill to prevent any repetition of such an act by making the statute of James I. perpetual, so that for the future a possession for sixty years should confer an indisputable and indefeasible title. The ministers opposed it with great vehemence, even taking some credit to themselves for their moderation in not requiring from the Duke a repayment of the proceeds of the lands in question for the seventy years during which he had held them. But the case was so bad that they could only defeat Sir George Savile by a side-wind and a scanty majority, carrying an amendment to defer any decision of the matter till the next session. Sir George, however, was not discouraged; he renewed his motion in 1769, when it was carried by a large majority, with an additional clause extending its operation to the Colonies in North America; and thus, in respect of its territorial rights, the crown was placed on the same footing as any private individual, and the same length of tenure which enabled a possessor to hold a property against another subject henceforth equally enabled him to hold it against the crown. The policy not less than the justice of such an enactment might have been thought to commend it to every thinking man as soon as the heat engendered by a party debate had passed away. It had merely placed the sovereign and the subject on the same footing in respect of the security which prescription gave to possession. And it might, therefore, have been thought that the vote of 1769 had settled the point in every case; since what was the law between one private individual and another, and between the sovereign and a subject, might well have been taken to be of universal application. But the ministry were strangely unwilling to recognize such a universal character in the late act, and found in the peculiar character of ecclesiastical bodies and ecclesiastical property a pretext for weakening the force of the late enactment, by denying the applicability of the principle to the claims of ecclesiastical chapters. In 1772 Mr. Henry Seymour, one of the members for Huntingdon, moved for leave to bring in a bill, which he described as one "for quieting the subjects of the realm against the dormant claims of the Church;" or, in other words, for putting the Church on the same footing with respect to property which had passed out of its possession as the crown had been placed in by the act of 1769. He contended that such a bill ought to be passed, not only on the general principle that possessors who derived their property from one source ought not to be less secure than they who derived it from another, but also on the grounds that, as ecclesiastical bodies occasionally used their power, "length of possession, which fortified and strengthened legal right and just title in every other case, did in this alone render them more weak and uncertain," from the difficulty which often occurred in finding documentary proof of very ancient titles; and that this was not an imaginary danger, since a member of the House then present had recently lost L120,000 by a bishop reviving a claim to an estate after the gentleman's family had been in undisturbed possession of it above a hundred years. The defence of the Church, however, was taken up by Mr. Skinner, Attorney-general for the Duchy of Lancaster, who argued that though, in the case of the crown, the nullum tempus which it had formerly claimed, and which had been put an end to in 1769, was "an engine in the hands of the strong to oppress the weak, the nullum tempus of the Church was a defence to the weak against the strong," as its best if not its sole security "against the encroachment of the laity." The "Parliamentary History" records that in the course of a long debate Lord North opposed the bringing in of the bill, as did "the Lord-advocate of Scotland, who gave as a reason in favor of the bill, though he voted against it, that a law of similar nature had passed in Scotland, and that the whole kingdom, clergy as well as laity, found the very best effects from it."[24] Burke argued in favor of the bill with great force, declaring that in so doing "he did not mean anything against the Church, her dignities, her honor, her privileges, or her possessions; he should wish even to enlarge them all; but this bill was to take nothing from her but the power of making herself odious." But the ministerial majority was too well disciplined to be broken, and Mr. Seymour could not even obtain leave to bring in the bill.

The year 1772 was marked by the discussion of a measure which the King seems to have regarded as one of private interest only, affecting his personal rights over his own family. But it is impossible to regard transactions which may affect the right of succession to the throne as matters of only private interest. And indeed the bill was treated as one involving a constitutional question by both sides of both Houses, and as such was discussed with remarkable earnestness, and with vehemence equalling that of any other debate which had as yet taken place since the commencement of the reign. The bill had its origin in the personal feelings of the King himself, who had been greatly annoyed at the conduct of his brother, the Duke of Cumberland, in marrying a widow of the name of Horton, daughter of Lord Irnham, and sister of the Colonel Luttrell whom the vote of the House of Commons had seated as member for Middlesex; and perhaps still more at the discovery that his other brother, the Duke of Gloucester, to whom he was greatly attached, had married another subject, the widowed Lady Waldegrave. His Majesty's dissatisfaction was, perhaps, heightened by the recollection that he himself, in early manhood, had also been strongly attracted by the charms of another subject, and had sacrificed his own inclinations to the combined considerations of pride of birth and the interests of his kingdom. And, though there was a manifest difference between the importance of the marriage of the sovereign himself and that of princes who were never likely to become sovereigns, he thought it not unreasonable that he should be empowered to exercise such a general guardianship over the entire family, of which he was the head, as might enable him to control its members in such arrangements, by making his formal sanction indispensable to the validity of any matrimonial alliances which they might desire to contract. A somewhat similar question had been raised in 1717, when George I., having quarrelled with the Prince of Wales (afterward George II.), asserted a claim to control and direct the education of all the Prince's children, and, when they should be of marriageable age, to arrange their marriages. The Prince, on the other hand, insisted on his natural and inalienable right, as their father, to have the entire government of his own offspring, a right which, as he contended, no royal prerogative could be enabled or permitted to override. That question was not, however, brought before Parliament, to which, at that time, the King could, probably, not have trusted for any leanings in his favor; but he referred it, in an informal way, to the Lord Chancellor (Lord Cowper) and the Common-law Judges. They investigated it with great minuteness. A number of precedents were adduced for the marriage and education of the members of the royal family being regulated by the sovereign, beginning with Henry III., who gave his daughter Joan, without her own consent, in marriage to the King of Scotland, and coming down to the preceding century, at the commencement of which the Council of James I. committed the Lady Arabella Stuart and Mr. Seymour to the Tower for contracting a secret marriage without the King's permission, and at the end of which King William exercised the right of selecting a tutor for the Duke of Gloucester, the son of the Princess Anne, without any consultation with the Princess herself; and finally the judges, with only two dissenting voices, expressed their conviction that the King was entitled to the prerogative which he claimed. The case does not, however, seem to have been regularly argued before them; there is no trace of their having been assisted in their deliberations by counsel on either side, and their extra-judicial opinion was clearly destitute of any formal authority;[25] so that it came before Parliament in some degree as a new question.

But George III. was not of a disposition to allow such matters to remain in doubt, and, in compliance with his desire, a bill was, in 1772, introduced by Lord Rochfort, as Secretary of State, which proposed to enact that no descendants of the late King, being children or grandchildren, and presumptive heirs of the sovereign, male or female, other than the issue of princesses who might be married into foreign families, should be capable of contracting a valid marriage without the previous consent of the reigning sovereign, signified under his sign-manual, and that any marriage contracted without such consent should be null and void. The King or the ministers apparently doubted whether Parliament could be prevailed on to make such a prohibition life-long, and therefore a clause was added which provided that if any prince or princess above the age of twenty-five years should determine to contract a marriage without such consent of the sovereign, he or she might do so on giving twelve months' notice to the Privy Council; and such marriage should be good and valid, unless, before the expiration of the twelve months, both Houses of Parliament should declare their disapproval of the marriage. The concluding clause of the bill made it felony "to presume to solemnize, or to assist, or to be present, at the celebration of any such marriage without such consent being first obtained."

The bill was stoutly resisted in both Houses at every stage, both on the ground of usage and of general principle. It was positively denied that the "sovereign's right of approving of all marriages in the royal family," which was asserted in the preamble of the bill, was either founded in law, or established by precedent, or warranted by the opinion of the judges. And it was contended that there never had been a time when the possession of royal rank had been considered necessary to qualify any one to become consort of an English prince or princess. It had not even been regarded as a necessary qualification for a queen. Three of the wives of Henry VIII. had been English subjects wholly unconnected with the royal family; nor had the Parliament nor the people in general complained of any one of those marriages; moreover, two of his children, who had in their turn succeeded to the crown, had been the offspring of two of those wives; and in the last century James II., while Duke of York, had married the daughter of an English gentleman; and, though it had not been without notorious reluctance that his royal brother had sanctioned that connection, it was well known that Charles II. himself had proposed to marry the niece of Cardinal Mazarin. In the House of Peers, Lord Camden especially objected to the clause annulling a marriage between persons of full age; and in the Commons, Mr. Dowdeswell, who had been Chancellor of the Exchequer in Lord Rockingham's administration, dwelt with especial vigor on the unreasonableness of the clause which fixed twenty-five as the age before which no prince or princess could marry without the King's consent. "Law, positive law," he argued, "and not the arbitrary will of an individual, should be the only restraint. Men who are by law allowed at twenty-one[26] to be fit for governing the realm may well be supposed capable of choosing and governing a wife."[27] Lord Folkestone condemned with great earnestness the expression in the preamble that the bill was dictated "by the royal concern for the honor and dignity of the crown," as implying a doctrine that an alliance of a subject with a branch of the royal family is dishonorable to the crown—a doctrine which he denounced as "an oblique insult" to the whole people, and which, as such, "the representatives of the people were bound to oppose." And he also objected to the "vindicatory part," as he termed the clause which declared those who might assist, or even be present, at a marriage contracted without the royal permission guilty of felony.[28]

The ministry, however, had a decided majority in both Houses, and the bill became and remains the law of the land, though fourteen peers, including one bishop, entered a protest against it on nine different grounds, one of which condemned it as "an extension of the royal prerogative for which the great majority of the judges found no authority;" while another, with something of prophetic sagacity, urged that the bill "was pregnant with civil discord and confusion, and had a natural tendency to produce a disputed title to the crown."

It may be doubted whether the circumstances which had induced George III. to demand such a power as that with which the bill invested him justified its enactment. He was already the father of a family so numerous as to render it highly improbable that either of his brothers or any of their children would ever come to the throne; while, as a previously existing law barred any prince or princess who might marry a Roman Catholic from the succession, the additional restraint imposed by the new statute practically limited their choice to an inconveniently small number of foreign royal houses, many of which, to say the least, are not superior in importance or purity of blood to many of our own nobles.

Nor can it be said to have been successful in accomplishing his Majesty's object. It is notorious that two of his sons, and very generally believed that one of his daughters, married subjects; the Prince of Wales having chosen a wife who was not only inferior in rank and social position to Lady Waldegrave or Mrs. Horton, but was moreover a Roman Catholic; and that another of his sons petitioned more than once for permission to marry an English heiress of ancient family. And our present sovereign may be thought to have pronounced her opinion that the act goes too far, when she gave one of her younger daughters in marriage to a nobleman who, however high in rank, has no royal blood in his veins. The political inconvenience which might arise from the circumstance of the reigning sovereign being connected by near and intimate relationship with a family of his British subjects will, probably, always be thought to render it desirable that some restriction should be placed on the marriage of the heir-apparent; but where the sovereign is blessed with a numerous offspring, there seems no sufficient reason for sending the younger branches of the royal house to seek wives or husbands in foreign countries. And as the precedent set in the case of the Princess Louise has been generally approved, it is probable that in similar circumstances it may be followed, and that such occasional relaxation of the act of 1772 will be regarded as justified by and consistent with the requirements of public policy as well as by the laws of nature.[29] Generally speaking, the two Houses agreed in their support of the ministerial policy both at home and abroad; but, in spite of this political harmony, a certain degree of bad feeling existed between them, which on one occasion led to a somewhat singular scene in the House of Commons. The Commons imputed its origin to the discourtesy of the Lords, who, when members of the Commons were ordered by their House to carry its bills up to the peers, sometimes kept them "waiting three hours in the lobby among their lordships' footmen before they admitted them." Burke affirmed that this had happened to himself, and that he "spoke of it, not out of any personal pride, nor as an indignity to himself, but as a flagrant disgrace to the House of Commons, which, he apprehended, was not inferior in rank to any other branch of the Legislature, but co-ordinate with them." And the irritation which such treatment excited led the Commons, perhaps not very unnaturally, to seek some opportunity to vindicate their dignity. They found it in an amendment which the Lords made on a corn bill. In the middle of April, 1772, resolutions had been passed by the Commons, in a committee of the whole House, imposing certain duties on the importation of wheat[30] and other grain when they were at a certain price, which was fixed at 48s., and granting bounties on exportation when the price fell below 44s. The Lords made several amendments on the bill, and, among others, one to strike out the clause which granted bounties. But when the bill thus amended came back to the Commons, even those who disliked the principle of bounties resented this act of the Lords in meddling with that question, which they regarded as a violation of their peculiar and most cherished privilege, the exclusive right of dealing with questions of taxation. Governor Pownall, who had charge of the bill, declared that the Lords had forgotten their duty when they interfered in raising money by the insertion of a clause that "no bounty should be paid upon exported corn." And on this ground he moved the rejection of the bill.[31] In the last chapter of this volume, a more fitting occasion for examining the rights and usages of the House of Lords with respect to money-bills will be furnished by a series of resolutions on the subject, moved by the Prime-minister of the day. It is sufficient here to say that the power of rejection is manifestly so different from that of originating grants—which is admitted to belong exclusively to the Commons—and that there were so many precedents for the Lords having exerted this power of rejection in the course of the preceding century, that they probably never conceived that in so doing now they were committing any encroachment on the constitutional rights and privileges of the Lower House. But on this occasion the ill-feeling previously existing between the two Houses may be thought to have predisposed the Commons to seek opportunity for a quarrel. And there never was a case in which both parties in the House were more unanimous. Governor Pownall called the rejection of the clause by the Lords "a flagrant encroachment upon the privileges of the House," and affirmed that the Lords had "forgotten their duty." Burke termed it "a proof that the Lords did not understand the principles of the constitution, an invasion of a known and avowed right inherent in the House as the representatives of the people," and expressed a hope that "they were not yet so infamous and abandoned as to relinquish this essential right," or to submit to "the annihilation of all their authority." Others called it "an affront which the House was bound to resent, and the more imperatively in consequence of the absence of a good understanding between the two Houses." And the Speaker, Sir John Cust, went beyond all his brother members in violence, declaring that "he would do his part in the business, and toss the bill over the table." The bill was rejected nem. con., and the Speaker tossed it over the table, several of the members on both sides of the question kicking it as they went out;[32] and to such a pitch of exasperation had they worked themselves up, that "the Game Bill, in which the Lords had made alterations, was served in a similar manner," though those alterations only referred to the penalties to be imposed for violations of the Game-law, and could by no stretch of ingenuity be connected with any question of taxation.

Notes:

[Footnote 16: A motion was, indeed, made (but the "Parliamentary History," xvi., 55, omits to state by whom) that the House should "humbly entreat his Majesty, out of his tender and paternal regard for his people, that he would be graciously pleased to name the person or persons whom, in his royal wisdom, he shall think fit to propose to the consideration of Parliament for the execution of those high trusts, this House apprehending it not warranted by precedent nor agreeable to the principles of this free constitution to vest in any person or persons not particularly named and approved of in Parliament the important offices of Regent of these kingdoms and guardian of the royal offspring heirs to the crown." But "it passed in the negative," probably, if we may judge by other divisions on motions made by the same party, by an overwhelming majority.]

[Footnote 17: No one doubted that this choice had been made under the influence of Lord Bute, and was designed for the preservation of that influence.—Lord Stanhope, History of England, v., 41.]

[Footnote 18: In his speech in the House of Lords on the Regency Bill of 1840, the Duke of Sussex stated that George III. had nominated the Queen as Regent in the first instance, and, in the event of her death, the Princess Dowager.]

[Footnote 19: "Lives of the Chancellors," c. cxli.]

[Footnote 20: It appears from these dates that it was not yet understood that Parliament could not be prorogued for a longer period than forty days.]

[Footnote 21: These words occur in a speech attributed to Lord Mansfield. There is no detailed account of the debates on this subject in either House. All that exists in the "Parliamentary History" is a very brief abstract of the discussion in the Commons, and a document occupying above sixty pages of the same work (pp. 251-314), entitled "A Speech on behalf of the Constitution against the Suspending and Dispensing Prerogative," etc., with a foot-note explaining that "this speech was supposed to be penned by Lord Mansfield, but was, in fact, written by Mr. Macintosh, assisted by Lord Temple and Lord Lyttleton." It certainly seems to contain internal evidence that it was not written by any lawyer, from the sneers at and denunciations of lawyers which it contains, as a class of men who "have often appeared to be the worst guardians of the constitution, and too frequently the wickedest enemies to, and most treacherous betrayers of, the liberties of their country." But, by whomsoever it was "penned" and published, the arguments which it contains against the dispensing power were, probably, those which had been urged by the great Chief-justice, and as such I have ventured to cite them here.]

[Footnote 22: In his "Lives of the Chief-justices" (c. xxxvi., life of Lord Mansfield), Lord Campbell says, with reference to this case: "The Chief-justice's only considerable public exhibition during this period was his attack on the unconstitutional assertion of Lord Chatham and Lord Camden, that, in a case of great public emergency, the crown could by law dispense with an act of parliament. The question arising from the embargo on the exportation of corn, in consequence of apprehended famine, he proved triumphantly that, although the measure was expedient and proper, it was a violation of law, and required to be sanctioned by an act of indemnity." And Lord Campbell adds, in a note: "This doctrine, acted upon in 1827, during the administration of Mr. Canning, and on several subsequent occasions, is now universally taken for constitutional law" (ii., 468).]

[Footnote 23: To adduce a single instance, worthy of remark as affecting the personal liberty of the subject, in 1818 a bill of indemnity was passed to sanction the action of the ministry in arresting and detaining in prison, without bringing them to trial, several persons accused of being implicated in seditious proceedings (vide infra).]

[Footnote 24: Vol. xvii., 304.]

[Footnote 25: The case is mentioned by Lord Campbell in his "Lives of the Chancellors," c. cxxi. (life of Lord Macclesfield) and c. cxxiv. (life of Lord Chancellor King).]

[Footnote 26: In fact, however, the age at which a young prince was considered competent to exercise the royal authority in person had been fixed at eighteen; and it is so stated in the speech in which the King, in 1765, recommended the appointment of a Regent to Parliament.— Parliamentary History, xvi., 52.]

[Footnote 27: This idea was expanded into an epigram, which appeared in most of the daily papers, and has been thought worthy of being preserved in the "Parliamentary History," xvii., 401 (note):

"Quoth Dick to Tom, 'This act appears Absurd, as I'm alive, To take the crown at eighteen years, A wife at twenty-five. The mystery how shall we explain? For sure, as Dowdeswell said, Thus early if they're fit to reign, They must be fit to wed.' Quoth Tom to Dick, 'Thou art a fool, And nothing know'st of life; Alas! it's easier far to rule A kingdom than a wife.'"]

[Footnote 28: It is remarkable that this clause on one occasion proved an obstacle to the punishment of the abettors of such a marriage. In 1793 the Duke of Sussex married Lady Augusta Murray, first at Rome, and afterward, by banns, at St. George's, Hanover Square. And when the affair came to be investigated by the Privy Council, Lord Thurlow denounced the conduct of the pair in violent terms, and angrily asked the Attorney-general, Sir John Scott, why he had not prosecuted all the parties concerned in this abominable marriage. Sir John's reply, as he reported it himself, was sufficiently conclusive: "I answered that it was a very difficult business to prosecute; that the act, it was understood, had been drawn by Lord Mansfield, the Attorney-general Thurlow, and the Solicitor-general Wedderburn, who, unluckily, had made all persons present at the marriage guilty of felony. And as nobody could prove the marriage except a person who had been present at it, there could be no prosecution, because nobody present could be compelled to be a witness."—THORP'S Life of Eldon, i., 235.]

[Footnote 29: A protest against the bill, entered by fourteen peers, including one bishop (of Bangor), denounced it, among other objections, as "contrary to the original inherent rights of human nature ... exceeding the power permitted by Divine Providence to human legislation ... and shaking many of the foundations of law, religion, and public security."—Parliamentary History, xvii., 391.]

[Footnote 30: The import duty on wheat was fixed at 6d. a quarter on grain, and 2d. per cwt. on flour, when the price of wheat in the kingdom should be at or above 48s.; when it was at or above 44s., the exportation was to be altogether prohibited.—Parliamentary History, xvii., 476.]

[Footnote 31: See Hallam, "Constitutional History," iii., 38-46, ed. 1833, where, as far as the imperfection of our early Parliamentary records allows, he traces the origin of the assertion of this peculiar privilege by the Commons, especially referring to a discussion of the proper limits of this privilege in several conferences between the two Houses; where, as on some other occasions, he sees, in the assertion of their alleged rights by the Commons, "more disposition to make encroachments than to guard against those of others." A few years before (in 1763), the House of Lords showed that they had no doubt of their right to reject a money-bill, since they divided on the Cider Bill, which came under that description. As, however, the bill was passed, that division was not brought under the notice of the House. But in 1783, in the time of the Coalition Ministry, the peers having made amendments on the American Intercourse Bill, "the Speaker observed that, as the bill empowered the crown to impose duties, it was, strictly speaking, a money-bill, and therefore the House could not, consistently with its own orders, suffer the Lords to make any amendments on it, and he recommended that the consideration of their amendments should be postponed for three months, and in the mean time a new bill framed according to the Lords' amendments should be passed." The recommendation was approved by Mr. Pitt, as leader of the Opposition, and approved and acted on by Mr. Fox, as leader of the ministry in that House. But, at the same time, Mr. Fox fully admitted the right of the Lords to discuss such questions, "for it would be very absurd indeed to send a loan bill to the Lords for their concurrence, and at the same time deprive them of the right of deliberation. To lay down plans and schemes for loans belonged solely to the Commons; and he was willing, therefore, that the amended bill should be rejected, though he was of opinion that the order of the House respecting money-bills was often too strictly construed." And he immediately moved for leave to bring in a new bill, which was verbatim the same with the amended bill sent down by the Lords.—Parliamentary History, xxiii., 895. The question was revived in the present reign, on the refusal of the Lords to concur in the abolition of the duty on paper, when the whole subject was discussed with such elaborate minuteness, and with so much more command of temper than was shown on the present occasion, that it will be better to defer the examination of the principle involved till we come to the history of that transaction.]

[Footnote 32: "Parliamentary History," xvii., 515.]



CHAPTER III.

Mr. Grenville imposes a Duty on Stamps in the North American Colonies.—Examination of Dr. Franklin.—Lord Rockingham's Ministry Repeals the Duty.—Lord Mansfield affirms a Virtual Representation in the Colonies.—Mr. C. Townsend imposes Import Duties in America.—After some Years, the Civil War breaks out.—Hanoverian Troops are sent to Gibraltar.—The Employment of Hanoverian Regiments at Gibraltar and Minorca.—End of the War.—Colonial Policy of the Present Reign.—Complaints of the Undue Influence of the Crown.—Motions for Parliamentary Reform.—Mr. Burke's Bill for Economical Reform.—Mr. Dunning's Resolution on the Influence of the Crown.—Rights of the Lords on Money-bills.—The Gordon Riots.

But during these years another matter had been gradually forcing its way to the front, which, though at first it attracted but comparatively slight notice, when it came to a head, absorbed for several years the whole attention, not only of these kingdoms, but of foreign countries also. It was originally—in appearance, at least—merely a dispute between Great Britain and her Colonies in North America on the mode of obtaining a small revenue from them. But, in its progress, it eventually involved us in a foreign war of great magnitude, and thus became the one subject of supreme interest to every statesman in Europe. England had not borne her share in the seven years' war without a considerable augmentation of the national debt, and a corresponding increase in the amount of yearly revenue which it had become necessary to raise;[33] and Mr. Grenville, as Chancellor of the Exchequer, had to devise the means of meeting the demand. A year before, he had supported with great warmth the proposal of Sir Francis Dashwood, his predecessor at the Exchequer, to lay a new tax upon cider. Now that he himself had succeeded to that office, he cast his eyes across the Atlantic, and, on the plea that the late war had to a certain extent been undertaken for the defence of the Colonies in North America, he proposed to make them bear a share in the burden caused by enterprises from which they had profited. Accordingly, in March, 1764, he proposed a series of resolutions imposing a variety of import duties on different articles of foreign produce imported into "the British Colonies and plantations in America," and also export duties on a few articles of American growth when "exported or conveyed to any other place except to Great Britain." Another resolution affirmed "that, toward defraying the said expense, it might be proper to charge certain stamp-duties in the said Colonies and plantations."

The resolutions imposing import and export duties were passed by both Houses almost without comment. That relating to a stamp-duty he did not press at the moment, announcing that he postponed it for a year, in order to ascertain in what light it would be regarded by the Colonists themselves; and as most, if not all, of the Colonies had a resident agent in London, he called them together, explained to them the object and anticipated result of the new imposition (for such he admitted it to be), and requested them to communicate his views to their constituents, adding an offer that, if they should prefer any other tax likely to be equally productive, he should be desirous to consult their wishes in the matter.

He probably regarded such language on his part as a somewhat superfluous exercise of courtesy or conciliation, so entire was his conviction of the omnipotence of Parliament, and of the impossibility of any loyal man or body of men calling its power in question. But he was greatly deceived. His message was received in America with universal dissatisfaction. Of the thirteen States which made up the body of Colonies, there was scarcely one whose Assembly did not present a petition against the proposed measure, and against any other which might be considered as an alternative. Grenville, however, was not a man to be moved by petitions or remonstrances. He was rather one whom opposition of any kind hardened in his purpose; and, as no substitute had been suggested, at the opening of the session of 1765 he proposed a series of resolutions requisite to give effect to the vote of the previous year, and imposing "certain stamp-duties and other duties" on the settlements in America, perhaps thinking to render his disregard of the objections which had been made less unpalatable by the insertion of words binding the government to apply the sums to be thus raised to "the expenses of defending, protecting, and securing" the Colonies themselves. The resolutions were passed, as the "Parliamentary History" records, "almost without debate," on the 6th of March.[34] But the intelligence was received in every part of the Colonies with an indignant dissatisfaction, which astonished even their own agents in England.[35] Formidable riots broke out in several provinces. In Massachusetts the man who had been appointed Distributor of Stamps was burnt in effigy; the house of the Lieutenant-governor was attacked by a furious mob, who avowed their determination to murder him if he fell into their hands; and resolutions were passed by the Assemblies of the different States to convene a General Congress at New York in the autumn, to organize a resistance to the tax, and to take the general state of affairs into consideration.

Before, however, that time came, a series of events having no connection with these transactions had led to a change of ministry in England, and the new cabinet was less inclined to carry matters with a high hand. Indeed, even the boldest statesman could hardly have learned the state of feeling which had been excited in America without apprehension, and those who had the chief weight in the new administration were not men to imperil the state by an insistance on abstract theories of right and prerogative. Accordingly, when, after Lord Rockingham had become Prime-minister, Parliament met in December, 1765, the royal speech recommended the state of affairs in America to the consideration of Parliament (a recommendation which manifestly implied a disposition on the part of the King's advisers to induce the House of Commons to retrace its steps), papers were laid before Parliament, and witnesses from America were examined, and among them a man who had already won a high reputation by his scientific acquirements, but who had not been previously prominent as a politician, Dr. Benjamin Franklin. He had come over to England as agent for Pennsylvania, and his examination, as preserved in the "Parliamentary History," may be taken as a complete statement of the matter in dispute from the American point of view, and of the justification which the Colonists conceived themselves to have for refusing to submit to pay such a tax as had now been imposed upon them. At a later day he was one of the most zealous, as he was probably one of the earliest, advocates of separation from England; but as yet neither his language nor his actions afforded any trace of such a feeling.

He affirmed[36] the general temper of the Colonists toward Great Britain to have been, till this act was passed, the best in the world. They considered themselves as a part of the British empire, and as having one common interest with it. They did not consider themselves as foreigners. They were jealous for the honor and prosperity of this nation, and always were, and always would be, ready to support it as far as their little power went. They considered the Parliament of Great Britain as the great bulwark and security of their liberties and privileges, and always spoke of it with the utmost respect and veneration. They had given a practical proof of their goodwill by having raised, clothed, and paid during the last war nearly 25,000 men, and spent many millions; nor had any Assembly of any Colony ever refused duly to support the government by proper allowances from time to time to public officers. They had always been ready, and were ready now, to tax themselves. The Colonies had Assemblies of their own, which were their Parliaments. They were, in that respect, in the same situation as Ireland. Their Assemblies had a right to levy money on the subject, then to grant to the crown, and, indeed, had constantly done so; and he himself was specially instructed by the Assembly of his own State to assure the ministry that, as they always had done, so they should always think it their duty to grant such aids to the crown as were suitable to their circumstances and abilities, whenever called upon for the purpose in a constitutional manner; and that instruction he had communicated to the ministry. But the Colonies objected to Parliament laying on them such a tax as that imposed by the Stamp Act. Some duties, they admitted, the Parliament had a right to impose, but he drew a distinction between "those duties which were meant to regulate commerce and internal taxes." The authority of Parliament to regulate commerce had never been disputed by the Colonists. The sea belonged to Britain. She maintained by her fleets the safety of navigation on it; she kept it clear of pirates; she might, therefore, have a natural and equitable right to some toll or duty, on merchandise carried through that part of her dominions, toward defraying the expenses she was at in ships to maintain the safety of that carriage. But the case of imposition of internal taxes was wholly different from this. The Colonists held that, by the charters which at different times had been granted to the different States, they were entitled to all the privileges and liberties of Englishmen. They found in the Great Charters, and the Petition and Declarations of Right, that one of the privileges of English subjects is that they are not to be taxed but by their common consent; and these rights and privileges had been confirmed by the charters which at different times had been granted to the different States. In reply to a question put to him, he allowed that in the Pennsylvania charter there was a clause by which the King granted that he would levy no taxes on the inhabitants unless it were with the consent of the Colonial Assembly, or by an act of Parliament; words which certainly seemed to reserve a right of taxation to the British Parliament; but he also demonstrated that, in point of fact, the latter part of the clause had never been acted on, and the Colonists had, therefore, relied on it, from the first settlement of the province, that the Parliament never would nor could, by the color of that clause in the charter, assume a right of taxing them till it had qualified itself to exercise such right by admitting representatives from the people to be taxed. And, in addition to objections on principle, he urged some that he regarded as of great force as to the working of this particular tax imposed by the Stamp Act. It was not an equal tax, as the greater part of the revenue derived from it must arise from lawsuits for the recovery of debts, and be paid by the lower sort of people; it was a heavy tax on the poor, and a tax on them for being poor. In the back settlements, where the population was very thin, the inhabitants would often be unable to get stamps without taking a long journey for the purpose. The scarcity of specie, too, in the country would cause the pressure to be felt with great severity, as, in his opinion, there was not gold and silver enough in the Colonies to pay the stamp-duty for a single year. In reply to another question, whether the Colonists would be satisfied with a repeal of the Stamp Act without a formal renunciation of the abstract right of Parliament to impose it, he replied that he believed they would be satisfied. He thought the resolutions of right would give them very little concern, if they were never attempted to be carried into practice. The Colonies would probably consider themselves in the same situation in that respect as Ireland. They knew that the English Parliament claimed the same right with regard to Ireland, but that it never exercised it; and they might believe that they would never exercise it in the Colonies any more than in Ireland. Indeed, they would think that it never could exercise such a right till representatives from the Colonies should be admitted into Parliament, and that whenever an occasion arose to make Parliament regard the taxation of the Colonies as indispensable, representatives would be ordered.

This last question put to the witness, like several others in the course of his examination, had been framed with the express purpose of eliciting an answer to justify the determination on the subject to which Lord Rockingham and his colleagues had come. It could not be denied that the government was placed in a situation of extreme difficulty— difficulty created, in part, by the conduct of the Colonists themselves. That, as even their most uncompromising advocate, Mr. Pitt, admitted, had been imprudent and intemperate, though it was the imprudence of men who "had been driven to madness by injustice." On the one hand, to repeal an act the opposition to which had been marked by fierce riots, such as those of Boston, and even in the Assemblies of some of the States by language scarcely short of treason,[37] seemed a concession to intimidation scarcely compatible with the maintenance of the dignity of the crown or the legitimate authority of Parliament. On the other hand, to persist in the retention of a tax which the whole population affected by it was evidently determined to resist to the uttermost, was to incur the still greater danger of rebellion and civil war. In this dilemma, the ministers resolved on a course calculated, as they conceived, to avoid both evils, by combining a satisfaction of the complaints of the Colonists with an assertion of the absolute supremacy of the British crown and Parliament for every purpose. And on February 24, 1766, the Secretary of State brought in a bill which, after declaring, in its first clause, "that the King's Majesty, by and with the consent of the Lords spiritual and temporal, and Commons of Great Britain, in Parliament assembled, had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the Colonists and people of America, subjects of the crown of Great Britain, in all cases whatsoever," proceeded to repeal the Stamp Act, giving a strong proof of the sincerity of the desire to conciliate the Colonists by the unusual step of fixing the second reading of the bill for the next day.

But in its different clauses it encountered a twofold opposition, which he had, probably, not anticipated. It is unnecessary to notice that which rested solely on the inexpediency of repealing the Stamp Act, "the compulsory enforcement of which was required by the honor and dignity of the kingdom." But the first clause was even more strenuously resisted, on grounds which its opponents affirmed to rest on the fundamental principles of the constitution. It was urged in the House of Commons by Mr. Pitt that, "as the Colonies were not represented in Parliament, Great Britain had no legal right nor power to lay a tax upon them—that taxation is no part of the governing or legislative power. Taxes," said the great orator, "are the voluntary gift and grant of the Commons alone. In legislation the three estates of the realm are alike concerned; but the concurrence of the peers and the crown to a tax is only necessary to clothe it with the form of a law; the gift and grant is in the Commons alone.... The distinction between legislation and taxation is essentially necessary to liberty."

Mr. Pitt had no claim to be considered as a great authority in the principles of constitutional law. George II., slight as was his political knowledge or wisdom, complained on one occasion of the ignorance of a Secretary of State who had never read Vattel; and in this very debate he even boasted of his ignorance of "law-cases and acts of Parliament." But his coadjutor in the House of Lords (Lord Camden, at this time Chief-justice of the Common Pleas) owed the chief part of the respect in which he was held to his supposed excellence as a constitutional lawyer, and he fully endorsed and expanded Pitt's arguments when the bill came up to the House of Lords. He affirmed that he spoke as "the defender of the law and the constitution; that, as the affair was of the greatest consequence, and in its consequences might involve the fate of kingdoms, he had taken the strictest review of his arguments, he had examined and re-examined all his authorities; and that his searches had more and more convinced him that the British Parliament had no right to tax the Americans. The Stamp Act was absolutely illegal, contrary to the fundamental laws of nature, contrary to the fundamental laws of this constitution—a constitution governed on the eternal and immutable laws of nature. The doctrine which he was asserting was not new; it was as old as the constitution; it grew up with it; indeed, it was its support. Taxation and representation are inseparably united. God hath joined them; no British government can put them asunder. To endeavor to do so is to stab our very vitals." And he objected to the first clause (that which declared the power and right to tax), on the ground that if the ministers "wantonly pressed this declaration, although they were now repealing the Stamp Act, they might pass it again in a month." He even argued that "they must have future taxation in view, or they would hardly assert their right to enjoy the pleasure of offering an insult." He was answered by Lord Northington (the Chancellor) and by Lord Mansfield (the Chief-justice), both of whom supported the motion to repeal the tax, but who also agreed in denying the soundness of his doctrine that, as far as the power was concerned, there was any distinction between a law to tax and a law for any other purpose; and Lord Mansfield farther denied the validity of the argument which it had been attempted to found on the circumstance that the Colonies were not represented in Parliament, propounding, on the contrary, what Lord Campbell calls "his doctrine of virtual representation." "There can," said he, "be no doubt but that the inhabitants of the Colonies are represented in Parliament, as the greatest part of the people of England are represented, among nine millions of whom there are eight who have no votes in electing members of Parliament. Every objection, therefore, to the dependency of the Colonies upon Parliament which arises upon the ground of representation goes to the whole present constitution of Great Britain.... For what purpose, then, are arguments drawn from a distinction in which there is no real difference of a virtual and an actual representation? A member of Parliament chosen for any borough represents not only the constituents and inhabitants of that particular place, but he represents the inhabitants of every other borough in Great Britain. He represents the City of London and all the other Commons of the land, and the inhabitants of all the colonies and dominions of Great Britain, and is in duty and conscience bound to take care of their interests."

Lord Mansfield's doctrine of a virtual representation of the Colonies must be admitted to be overstrained. The analogy between the case of colonists in a country from no part of which representatives are sent to Parliament, and that of a borough or county where some classes of the population which may, in a sense, be regarded as spokesmen or agents of the rest form a constituency and return members, must be allowed to fail; yet the last sentences of this extract are worth preserving, as laying down the important constitutional principle, subsequently expanded and enforced with irresistible learning and power of argument by Burke, that a member of the House of Commons is not a delegate, bound, under all circumstances, to follow the opinions or submit to the dictation of his constituents, but that from the moment of his election he is a councillor of the whole kingdom, bound to exercise an independent judgment for the interests of the whole people, rather than to guide himself by the capricious or partial judgments of a small section of it. But in its more immediate objects—that of establishing the two principles, that the constitution knows of no limitation to the authority of Parliament, and of no distinction between the power of taxation and that of any other kind of legislation—Lord Mansfield's speech is now universally admitted to have been unanswerable.[38]

The abstract right was unquestionably on the side of the minister and the Parliament who had imposed the tax. But he is not worthy of the name of statesman who conceives absolute rights and metaphysical distinctions to be the proper foundation for measures of government, and pays no regard to custom, to precedent, to the habits and feelings of the people to be governed; who, disregarding the old and most true adage, summum jus summa injuria, omits to take into his calculations the expediency of his actions when legislating for a nation which he is in the daily habit of weighing in his private affairs. The art or science of government are phrases in common use; but they would be void of meaning if all that is requisite be to ascertain the strict right or power, and then unswervingly to act upon it in all its rigor. And, therefore, while it must be admitted that the character of the power vested in King, Lords, and Commons assembled in Parliament is unlimited and illimitable, and that the legal competency to enact a statute depends in no degree whatever on the wisdom or folly, the justice or wickedness, of the statute, the advice given to a constitutional sovereign by his advisers must be guided by other considerations. To quote by anticipation the language addressed to the Commons on this subject by Burke eight years afterward, the proper policy was "to leave the Americans as they anciently stood ... To be content to bind America by laws of trade. Parliament had always done it. And this should be the reason for binding their trade. Not to burden them by taxes; Parliament was not used to do so from the beginning; and this should be the reason for not taxing. These are the arguments of states and kingdoms."[39]

The ministry were strong enough to carry their resolutions through both Houses. Their measure was divided into two acts, one known as the Declaratory Act, asserting the absolute and universal authority of Parliament; the other repealing the Stamp Act of the preceding year. And both were passed without alteration, though the Lords divided against them on both the second and third readings of the bill for repeal founded on them,[40] some of them entering long protests in the journals of the House. The right to tax was asserted, but the tax itself was repealed. And Franklin's estimate of the feelings on the subject entertained by his countrymen was fully verified by the reception which the intelligence met with in the Colonies. To quote the description of Lord Stanhope: "In America the repeal of the Stamp Act was received with universal joy and acclamation. Fireworks and festivals celebrated the good news, while addresses and thanks to the King were voted by all the Assemblies.... The words of the Declaratory Act, indeed, gave the Americans slight concern. They fully believed that no practical grievance could arise from it. They looked upon it merely as a salve to the wounded pride of England; as only that 'bridge of gold' which, according to the old French saying, should always be allowed to a retreating assailant."[41]

A recent writer, however, has condemned the addition of the declaration of the abstract right to tax with great vehemence. "Nothing," says Lord Campbell,[42] "could exceed the folly of accompanying the repeal of the Stamp Act with the statutable declaration of the abstract right to tax." But it does not seem difficult to justify the conduct of the ministry in this particular. For, besides the great weight deservedly attached to Franklin's assurance that the declaration would not be objected to by the Colonists, and besides the consideration that, on a general view, it was desirable, if not indispensable, to impress on all classes of subjects, whether at home or abroad, the constitutional doctrine of the omnipotence of Parliament, the line of argument adopted by Mr. Pitt and Lord Camden, in denying that omnipotence, left the ministers no alternative but that of asserting it, unless they were prepared to betray their trust as guardians of the constitution. Forbearance to insist on the Declaratory Act could not fail to have been regarded as an acquiescence on their part in a doctrine which Lord Campbell in the same breath admits to be false. It may be added, as a consideration of no small practical weight, that, without such a Declaratory Act, the King would have been very reluctant to consent to the other and more important Repealing Act. And, on the whole, the conduct of the ministry may, we think, be regarded as the wisest settlement both of the law and of the practice. It asserted the law in a manner which offended no one; and it made a precedent for placing the spirit of statesmanship above the letter of the law, and for forbearing to put forth in its full strength the prerogatives whose character was not fully understood by those who might be affected by them, and also could plead that Parliament itself had contributed to lead them to misunderstand it by its own conduct in never before exerting it.

For the moment, then, contentment and tranquillity were restored in the Colonies. Unhappily, they were not lasting. The same year which saw the triumph of the Rockingham administration in the repeal of the Stamp Act, witnessed also its fall before a discreditable intrigue. And the ministry which succeeded it had not been a year in office before the new Chancellor of the Exchequer, Charles Townsend, revived the discontents in America which Lord Rockingham had appeased. It cannot be said, however, that the blame should all belong to him; or that the Rockingham party in the House of Commons were entirely free from a share in it. They were—not unnaturally, perhaps—greatly irritated at the intrigue by which Lord Chatham had superseded them, and were not disinclined to throw difficulties in the way of their successors, for which the events of the next year afforded more than one opportunity. Lord Chatham, as has been mentioned, was universally recognized as the chief of the new ministry, though he abstained from taking the usual office of First Lord of the Treasury, and contented himself with the Privy Seal; but he had constructed it of such discordant elements[43] that no influence but his own could preserve consistency in its acts or harmony among its members, as nothing but his name could give it consideration either in Parliament or in the country. In the first months of the next year, 1767, he was attacked with an illness which for a time disabled him from attending the cabinet, being, apparently, the forerunner of that more serious malady which, before the end of the summer, compelled his long retirement from public life; and the Opposition took advantage of the state of disorganization and weakness which his illness caused among his colleagues, to defeat them on the Budget in the House of Commons, by an amendment to reduce the land-tax, which caused a deficiency in the supplies of half a million. This deficiency it, of course, became necessary to meet by some fresh tax; and Townsend—who, though endowed with great richness of eloquence, was of an imprudent, not to say rash, temper, and was possessed of too thorough a confidence in his own ingenuity and fertility of resource ever to be inclined to take into consideration any objections to which his schemes might be liable—proposed to raise a portion of the money which was needed by taxes on glass, paper, tea, and one or two other articles, to be paid as import duties in the American Colonies. His colleagues, and especially the Duke of Grafton himself, the First Lord of the Treasury, and as such the nominal Prime-minister, having been also, as Secretary of State, a member of Lord Rockingham's ministry, which had repealed the former taxes, did not consent to the measure without great and avowed reluctance; but yielded their own judgment to the strong feeling in its favor which notoriously existed in the House of Commons.[44] Indeed, that House passed the clauses imposing these import duties without hesitation, being, probably, influenced in no small degree by the evidence given in the preceding year by Dr. Franklin, who, as has been already seen, had explained that the Colonists drew a distinction between what he called "internal taxes" and import duties "intended to regulate commerce," and that to the latter class they were not inclined to object. And a second consideration was, that these new duties were accompanied and counterbalanced by a reduction of some other taxes; so that the ministry contended that the effect of these financial measures, taken altogether, would be to lower to the Colonists the price of the articles affected by them rather than to raise it. But one of the resolutions adopted provided that the whole of the money to be raised from these taxes should not be spent in America, but that, after making provision for certain Colonial objects specified, "the residue of such duties should be paid into the receipt of his Majesty's Exchequer, and there reserved, to be from time to time disposed of by Parliament toward defraying the necessary expenses of defending, protecting, and securing the said Colonies and plantations." And this clause seems to have been understood as designed to provide means for augmenting the number of regular troops to be maintained in the Colonies, whose employment in the recent disturbances had made them more unpopular than formerly.[45]

At all events, the intelligence of these new taxes, though only import duties, found the Colonists in a humor to resist any addition of any kind to their financial burdens. The events of the last two years had taught them their strength. It was undeniable that the repeal of the Stamp Act had been extorted by the riots in Boston and other places, and the success of this system of intimidation could not fail to encourage its repetition. Accordingly, the news of this fresh attempt at taxation was met by a unanimous determination to resist it. Newspaper writers and pamphleteers denounced not only the duties but the ministry which imposed them. Petitions from almost every State were sent over to England, addressed to the King and to the Parliament; but the violent temper of the leaders of the populace was not content to wait for answers to them. Associations were at once formed in Boston and one or two other cities, where resolutions were adopted in the spirit of retaliation (as their framers avowed), to desist from the importation of any articles of British commerce, and to rely for the future on American manufactures. The principal Custom-house officers at Boston were badly beaten, and others were compelled to seek refuge in a man-of-war which happened to be in the harbor.

It would be painful, and at the present day useless, to trace the steps by which these local disturbances gradually grew into one general insurrection. The spirit of resistance was undoubtedly fanned by a party which from the first contemplated a total separation from England as its ultimate result,[46] if, indeed, they had not conceived the design even before Grenville had given the first provocation to discontent. But the Colonists were not without advocates in England, even among the members of the government. The Duke of Grafton, while he remained Prime-minister, was eager to withdraw all the duties of which they complained; but he was overruled by the majority of his colleagues. He prevailed, however, so far that Lord Hillsborough, the Secretary of State, was authorized to write a circular-letter to the governors of the different provinces, in which he disowned, in the most distinct language possible, "a design to propose to Parliament to lay any farther taxes upon America for the purpose of raising a revenue," and promised for the next session a repeal of all the taxes except that on tea; and when the Duke retired from the Treasury, and was succeeded by Lord North, that statesman himself brought forward the promised repeal in an elaborate speech,[47] in which he explained that the duty on tea, which he alone proposed to retain, had been originally a boon to the Americans rather than an injury, as being accompanied by the removal of a far heavier tax. But he admitted that even that consideration was not the one which influenced him in his opinion that that duty should be maintained, so greatly was the perception that the real object of those who complained of it was, not the redress of a grievance, but the extinction of a right which was an essential part of "the controlling supremacy of England." The fact that the right to tax had been denied made it a positive duty on the part of the English minister to exert that right. "To temporize would be to yield, and the authority of the mother country, if now unsupported, would be relinquished forever." And he avowed his idea of the policy proper to be pursued to be "to retain the right of taxing America, but to give it every relief that might be consistent with the welfare of the mother country." He carried his resolution, though the minority—which on this occasion was led by Mr. Pownall, who had himself been Governor of Massachusetts, and who moved an amendment to include tea in the list of taxes proposed to be repealed—was stronger than usual.[48] But the concession failed to conciliate a single Colonist; it had become, as Burke said four years afterward, a matter of feeling,[49] and the irritation fed on itself, till, in 1773, a fresh act, empowering the East India Company to export tea to the Colonies direct from their own warehouses without its being subject to any duty in England—which Lord North undoubtedly intended as a boon to the Colonists—only increased the exasperation. The ships which brought the tea to Boston were boarded and seized by a formidable body of rioters disguised as native savages, and the tea was thrown into the sea. The intelligence was received in England with very different feelings by the different parties in the state. The ministers conceived themselves forced to assert the dignity of the crown, and proposed bills to inflict severe punishment on both the City of Boston and the whole Province of Massachusetts. The Opposition insisted on removing the cause of these disturbances by a total repeal of the tea-duty. The minister prevailed by a far larger majority than before, but his success only increased the exasperation in the Colonies; and it was an evil omen for peace that the leaders of the resistance began to search the records of the English Long Parliament "for the revolutionary precedents and forms of the Puritans of that day."[50] The next year saw fresh attempts to procure the repeal of the obnoxious tax rejected by the House of Commons; but, before the news of this division reached America, blood had already been shed.[51] Civil war began. The next year the Colonies, now united in one solid body, asserted their Independence, taking the title of the United States; and, though the government at home made more than one effort to recall the Colonists to their allegiance, and sent out commissioners of high rank, with large powers of concession; and though in one remarkable instance the mission of Mr. Penn, in the summer of 1775, with the petition to the King known as "the Olive Branch," seemed to show a desire for a maintenance of the union on the part of the Colonial Congress,[52] from the moment that the sword was drawn all hope of preserving the connection of the Colonies must have been seen by all reasonable men to be at an end.

It is beside our present purpose to recapitulate the military operations of the war, though they verified another of Burke's warnings, that, supposing all moral difficulties to be got over, the ocean remained—that could not be dried up; and, as long as it continued in its present bed, so long all the causes which weakened authority by distance must continue. In fact, distance from England was one of the main circumstances which decided the contest. The slowness of communication—almost inconceivable to the present generation—rendered impossible that regularity in the transport of re-enforcements and supplies which was indispensable to success; and, added to the strange absence of military skill shown by every one of the British generals, soon placed the eventual issue of the war beyond a doubt. But one measure by which Lord North's government endeavored to provide for the strengthening of the army employed in America was so warmly challenged on constitutional grounds, that, though the fortunate separation of Hanover from Great Britain has prevented the possibility of any recurrence of such a proceeding, it would be improper to pass it over.

In his speech at the opening of the autumnal session of 1775, the King announced to the Houses that, in order to leave a larger portion of the established forces of the kingdom available for service in North America, he "had sent a part of his Electoral troops to the garrisons of Gibraltar and Port Mahon." And the announcement aroused a vehement spirit of opposition, which found vent in the debates of both Houses on the address, and in two substantive motions condemning the measure as a violation of the constitution as established by the Bill of Rights and the Act of Settlement. It was strenuously maintained that both these statutes forbade the raising or keeping on foot a standing army in the kingdom in time of peace, and also the introduction of foreign troops into this kingdom, without the previous consent of Parliament, on any pretence whatever; and that "the fact that Gibraltar and Minorca were detached from these islands did not exclude them from the character of forming a part of the British dominion." And on these grounds Lord Shelburne, who supported Lord Rockingham on an amendment to the address, did not hesitate to denounce this employment of the Hanoverian regiments, as "fundamentally infringing the first principles of our government," and to declare it "high-treason against the constitution." He asked, "if there were a settled plan to subdue the liberties of this country, what surer means could be adopted than those of arming Roman Catholics and introducing foreign troops?"[53] and compared the measure under discussion to the case of the Dutch regiments of William III., "which the Parliament wisely refused to allow him to retain." In the House of Commons, the Opposition was led by Sir James Lowther and Governor Johnstone, the latter of whom "appealed to the clause in the Act of Settlement which enacted that no person born of other than English parents should enjoy any office or place of trust, civil or military, within the kingdom;" and argued that to employ foreign officers in the protection of a British fortress was to place them in an "office of great military trust."

The discussion brought to light strange divisions and weakness in the ministry. The ministerial lawyers differed on the grounds on which they relied, the Attorney-general, Thurlow, denying that the expression "this kingdom" in the Bill of Rights included the foreign dependencies of the crown[54] (a narrowing of its force which the Chancellor, Lord Bathurst, wholly repudiated), while the argument on which he himself insisted most strongly, that the existence of rebellion in America put end to all conditions which supposed the kingdom to be at peace, could not obtain the support of any one of his colleagues. But a plea urged by an independent member, Lord Denbigh, was regarded by some of the speakers with greater favor; his contention being that neither the Bill of Rights nor the Act of Settlement had been violated, since both those great statutes must be interpreted with reference to the time at which they were framed, and to the recent acts of James II. and William III., the recurrence of which they had been designed to prevent, acts to which the present proceeding bore no resemblance.

A stronger justification, however, might have been found in very recent precedents. In 1745 the ministers had brought over six thousand Dutch troops to re-enforce the army of the Duke of Cumberland, and their act had been subsequently approved by Parliament. And in 1756, at the commencement of the seven years' war, when the loss of Minorca had led to such a distrust of our fleets that a French invasion was very generally apprehended, both Houses presented addresses to George II., begging him to bring over some Hanoverian regiments; and, in the course of the next year, other addresses to thank him for compliance with their entreaty.

Looking at the strict law of the question, few lawyers doubt that the expression "this kingdom" in the Bill of Rights includes the entire dominions of the crown, or that that great statute was undoubtedly intended to protect the privileges of all their inhabitants, whether within the four seas or in foreign settlements. But it also seems that the clause against raising and keeping on foot a standing army without the consent of Parliament was not more violated by keeping a mixed garrison in Gibraltar and Port Mahon than garrisons consisting of native soldiers only; and undoubtedly the keeping of an armed force in both these fortresses had been sanctioned by Parliament. Nor could the colonel of a foreign regiment in garrison under the command of a British governor be fairly said to be in an office of great military trust. So far, therefore, the charge against the ministry may be thought to have failed. But the accusation of having transgressed the clause which prohibits "the introduction of foreign troops into this kingdom without the previous consent of Parliament on any pretence whatever," must, on the other hand, be regarded as proved. And, indeed, Lord North himself may be taken to have shown some consciousness that it was so, since he justified his conduct in omitting to procure that previous consent by the necessity of the case, by the plea that, as Parliament was in vacation, the time which would have been consumed in waiting for its sanction would have neutralized the advantage desired from the employment of the Hanoverians, since the regiments which they were to replace at Gibraltar and Port Mahon could not, after such delay, have reached America in time to be of service; and since he also consented eventually to ask Parliament for an Act of Indemnity, the preamble of which affirmed the existence of doubts as to the legality of the step which had been taken. And the fate of this act afforded a still more striking proof of the divisions in the ministry, since, after Lord North himself had proposed it in the House of Commons, and it had been passed there by a large majority, it was rejected in the House of Lords, where his own colleagues, Lord Gower, Lord Suffolk, and Lord Weymouth, spoke and voted against it as needless, because, in their judgment, no doubt of the state of the law on the subject could exist.

From a statesman-like point of view, the employment of the Hanoverians seems abundantly defensible, if force were still to be employed to bring back the Colonists to their obedience. The circumstance of their being subjects of our sovereign in his other character of Elector of Hanover, clearly distinguished it from the hiring of the Hessian and Brunswick mercenaries, which has been deservedly condemned. And, as the entire number fell short of two thousand,[55] Lord Shelburne's expression of fear for the liberties and religion of Englishmen was an absurd exaggeration. Moreover, the warm approval which, less than twenty years before, Parliament had given to the introduction of a far larger body of the same troops into England itself, justified the anticipation that a similar sanction would now be cheerfully given. That sanction—which, indeed, might have been thought to be invited by the announcement of the measure in the King's speech—was undoubtedly requisite. And, if it was, a Bill of Indemnity for having acted without it was equally necessary. But, as has been seen in the last chapter, for an administration, on urgent occasions, to take action on its own responsibility, and then to apply for indemnity, is a course in strict harmony with the practice of the constitution; and if in this instance the ministers are in any respect blamable, their error would seem to have been limited to their abstaining from instantly calling Parliament together to sanction their act, and being contented to wait for the ordinary time of the Houses meeting.

The war, therefore, went on. The assertion of their independence by the Colonies divided, and, so far, weakened, the advocates of their cause in Parliament, one section of whom, led by Lord Chatham, regarded any diminution of our dominion as not only treasonable, but ruinous; on the other hand, it procured them the alliance of France and Spain. But it cannot be said that either of these incidents produced any practical effect on the result of the war. Lord Chatham's refusal to contemplate their independence could not retard its establishment; and the alliance of France and Spain, which brought nothing but disaster to those countries, could not accelerate it by a single moment. For nearly six years the war continued with alternations of success, the victories gained by the British arms being the more numerous, the triumphs of the Americans being incomparably the more important, involving as they did the surrender of two entire armies, the latter of which, that of Lord Cornwallis, in 1781, did, in fact, terminate the war, and with the war the existence of the ministry which had conducted it. A singularly rapid succession of new administrations ensued—so rapid that the negotiations for peace which the first, that of Lord Rockingham, opened, were not formally completed till the third,[56] known as the Coalition Ministry, was on the point of dismissal. It would be beside our purpose to enter into the details of the treaty which constituted the United States, as they were now called, a nation by our formal recognition of their independence. Even in that recognition, which was the most important article of the treaty, no constitutional principle was involved, though it affords the only instance in our history which can seem to throw a doubt on our inheritance of that capacity for government which the Roman poet claimed as, in ancient times, the peculiar attribute of his own countrymen. It presents the only instance of a loss of territory peopled by men who came of our blood, and who still spoke our language. It was a stern and severe lesson; and yet, fraught with discredit and disaster as it was, it nevertheless bore fruit in a later age which we may be excused for regarding as an example of the generally predominating influence of sober practical sense in our countrymen, when not led away by the temporary excitement of passion, as shown in our capacity to take home to ourselves and profit by the teachings of experience. The loss of the American Colonies was caused by the submission of the Parliament and nation to men of theory rather than of practice; ideologists, as Napoleon called them; doctrinaires, to use the modern expression; men who, because Parliament had an abstract right of universal legislation, regarded it as a full justification for insisting on its exercise, without giving a thought to the feelings, or prejudices, or habits of those who might be affected by their measures. Abstractedly considered, Lord Chatham and Lord Camden were undoubtedly wrong in denying the power of Parliament to tax the Colonies; but there was better judgment in their counsels, though founded on false premises, than in those of Grenville and Townsend, though theirs was the more correct view of the constitutional power of legislation. The two peers were wrong in their principle; the two Chancellors of the Exchequer were unwise in their application of their principle; and the practical error was the more disastrous one.