The incidents of the war itself do not belong to a work such as this; but, tantalizing as it must be to an historian of any class to pass over the brilliant series of achievements which gave Britain the glory of being twice[175] the principal agent in the deliverance of Continental Europe, the glories of Salamanca, Victoria, Orthes, and Waterloo must be left to other writers, who, it is not unpatriotic to hope, may never again have similar cause for exulting descriptions. But out of the crowning triumph of Waterloo a difficulty arose which, though it may be difficult to characterize the principle on which it was settled, since it was not strictly a question of constitutional, international, or military law; and though the circumstances were so peculiar that the conclusion adopted is never likely to be referred to as a precedent, seems still deserving of a brief mention, especially as an act of Parliament was passed to sanction the decision of the cabinet. Baffled by the vigilance of our cruisers in every attempt to escape from one of the western ports of France to America, Napoleon was at last compelled to surrender himself to a British squadron. But, though he was our prisoner, the Prime-minister considered us, in all our dealings with him, as so bound by engagements to our allies, that he was to be regarded as "the common prisoner of all, so far that we should not give him up or release him without the joint consent of all." The question was full of difficulty. There were, probably, very few persons in this or any other country who did not coincide in the impropriety of releasing him, and so putting it in his power once more to rekindle a war in Europe. But it was a political view of the case, founded on a consideration of what was required by the tranquillity of Europe; and it was not easy to lay down any legal ground to justify the determination. Some regarded him as a French subject, and, if that view were correct, he could hardly be detained by us as a prisoner of war after we had concluded a treaty of peace with France. But, again, it seemed to some, the Lord Chancellor being among them, a questionable point whether in the last campaign we had been at war with France; whether, on the contrary, we had not assumed the character of an ally of France against him. And, on the supposition that we had been at war with France, a second question was raised by Lord Ellenborough, the Chief-justice, "what rights result on principle from a state of war, as against all the individuals of the belligerent nations—rights, whatever they may be, seldom, if ever, enforced against individuals, because individuals hardly ever make war but as part of an aggregate nation." The question—as, after consultation with Lord Ellenborough and his own brother, Sir William Scott, it finally appeared to Lord Eldon, on whom the Prime-minister naturally depended, as his chief legal counsellor, though in its political aspect he judged for himself—was, firstly, "whether it could possibly be inconsistent with justice or the law of nations that, till some peace were made by treaty with some person considered as Napoleon's sovereign, or till some peace were made with himself, we should keep him imprisoned in some part of our King's dominions." And, secondly, "whether there were any person who could possibly be considered his sovereign, after the treaty of 1814 had clothed him with the character of Emperor of Elba, with imperial dignity and imperial revenue." Lord Liverpool himself, however, raised another question: whether, by his invasion of France, he had not forfeited his right to be regarded as an independent sovereign; resting this doubt on a suggestion which, among others, he proposed to the Lord Chancellor, that "at Elba he enjoyed only a limited and conditional sovereignty, which ceased when the condition on which he held it was violated."

This last suggestion, it must be confessed, appears untenable, as totally inconsistent with the language of the Treaty of Fontainebleau, under the provisions of which Napoleon became sovereign of Elba, and which does not contain a single article which bears out the opinion that his sovereignty was limited or conditional. On the contrary, the words of the treaty expressly agree that "Elba should form during his life a separate principality, which should be possessed by him in full sovereignty and property."

There is no need to discuss the views of Blucher. On the news of Napoleon's landing at Frejus reaching the plenipotentiaries assembled at the Congress of Vienna, they at once issued a declaration that, "in breaking the convention which had established him at Elba, Buonaparte" (for they refused him his imperial appellation of Napoleon) "had destroyed the only legal title on which his existence depended.... He had placed himself out of the pale of civil and social relations, and, as the enemy and disturber of the peace of the world, he was delivered over to public justice." And the old Prussian, burning with a desire to avenge the indignities and injuries which he had inflicted on Prussia, avowed his determination to execute him as an outlaw, if he should fall into his hands. And it is still less worthwhile to inquire—though Lord Holland in his place in Parliament did desire the House to consult the judges on the point—whether, if Napoleon were a prisoner of war, he "were not entitled to his habeas corpus, if detained after the signature of a treaty of peace with all the powers, or any of which he could be considered as the subject."

On the whole, the simplest view of the position and of our detention of him, the view most reconcilable with the principles which regulate the waging and the relinquishing a state of war, seems to be to consider that Napoleon was a sovereign with whom we were at war; that that war could only be terminated by a treaty of peace between ourselves and him; that it rested with us to conclude, or to abstain from concluding, any such treaty; and that, till we should conclude it, we had clearly a right to detain him as a prisoner of war. It must, at the same time, be admitted that modern history afforded no precedent for the detention of a prisoner for his whole life (unless, indeed, Elizabeth's imprisonment of the Queen of Scots may be considered as one), and that the most solid justification for it was necessity. To quote the language of Lord Eldon, "I believe it will turn out that, if you can't make this a casus exceptionis or omissus in the law of nations, founded upon necessity, you will not really know what to say upon it. Salus Reipublicae suprema lex, as to one state; Salus omnium Rerumpublicarum must be the suprema lex as to this case."[176]

In the course of the year 1818 a somewhat singular question as to the position of the Regent was raised by a claim advanced by Colonel Berkeley to produce his Royal Highness as a witness in a court of law. The Prince consulted the Prime-minister, and the Prime-minister referred it to the Attorney and Solicitor General, not concealing his own impression that it could not be consistent with his constitutional position and prerogative for the King to appear as a witness to be subjected to examination and cross-examination.[177] They, in their statement of opinion, assumed it to be an undeniable principle of the constitution that the sovereign, "by reason of his royal character, could not give testimony." And therefore they had no doubt that the Regent, exercising his authority, was equally prevented from so doing. Colonel Berkeley's counsel had urged that, even if he could not appear in open court and be sworn, he had the privilege of communicating his evidence in a peculiar mode, by certificate under the Sign Manual or Great Seal. But the Attorney and Solicitor General professed that they could not discover whence this last privilege was derived; they urged, as an insurmountable objection to such a contrivance, that "all instruments under the Sign Manual or Great Seal must, in point of form, be in the name of and on behalf of the King, which would manifestly be incongruous when the evidence certified was not that of the King, but of the Regent himself." And they quoted a case in which Lord Chief-justice Willes had said "that the certificate of the King, under his Sign Manual, of a fact (except in an old case in Chancery) had always been refused." As it had been urged also, on Colonel Berkeley's behalf, that the Prince had formerly "joined in proving the will of the Duke of Brunswick," his brother-in-law, they farther expressed an opinion that "he ought not to have done so, but should have left it to the other executors."

On the point whether "the King himself could give evidence orally or in any other manner," their opinion expressed very plainly the principle on which they maintained that he could not. "That he was not compellable to do so; that he could not be sworn (there being no power capable of administering an oath to him in a court of justice). That, whether his testimony be given viva voce or otherwise, no question in chief or on cross-examination could be proposed to him, was admitted by Colonel Berkeley's counsel. And that his testimony must be conclusive as to the facts stated by him, appeared necessarily to follow from the perfection ascribed by law to his royal character. For such remarkable exceptions, therefore, to the case of all other witnesses they could not but think that strong and decisive authority ought to be produced; while the silence of text-writers on the subject, so far from being favorable to the notion that the King can give evidence, appeared to afford a directly contrary inference." And they summed up their opinion in a few words: "that his Royal Highness the Prince Regent, while in the personal exercise of the royal authority, was in the situation of the King in this respect, and that the King could not by any mode give evidence as a witness in a civil suit."

It is very improbable that Colonel Berkeley should have made the application without previously ascertaining the willingness of the Prince to give evidence, could such a course be permitted. And as his Royal Highness, on receiving this opinion of the law-officers of the crown, did not come forward as a witness, that opinion may be held to have settled the question. And, apart from the constitutional objections relied on by those able lawyers, it is evident that there would be serious practical objections to the sovereign being made a witness. It would be derogatory to his royal character to put himself in a position where comments could be made, either by the opposing barrister or by the public outside, on his evidence. And, on the other hand, it would be perilously unfair to one litigant for his adversary to be able to produce a witness who was not subject to cross-examination, nor to remarks upon his testimony.

The reign of George III. was now drawing to its close, and, if it produced no legislation affecting the principles of the constitution (it will presently be seen that it did produce one measure which its opponents branded as a violation of these principles), yet in its last years it witnessed the revival of an agitation which was kept up with varying animation till it was temporarily quieted by the concession of its demands. We have seen that one of Pitt's earliest efforts at legislation had been directed to a reform in Parliament, an object which to the end of his life he considered of great importance, though the revolutionary spirit aroused by the troubles in France, and the open sympathy with the French Jacobins and Republicans avowed by a party among ourselves—which, if numerically weak, was sufficiently loud and active to be dangerous—prevented him from ever re-opening the subject. But, though the French Revolution in this way proved for the time an insurmountable obstacle to the success of the reformers, in another way it insured the revival of the question, by the general spirit of inquiry which it awakened among the population at large, and which soon went beyond the investigation of any single abuse or anomaly. For even less far-sighted statesmen than Pitt confessed the existence of much that was not only theoretically indefensible, but practically mischievous. The period, little short of a century, which elapsed between the death of William III. and Pitt's accession to office had been one of almost complete stagnation and apathy. The Scotch Union, the Septennial Bill, the establishment of a militia, and the Place Bill of 1743 were the only instances of any legislation deserving the name of constitutional which made the reigns of Anne and the first two Georges memorable. And in the very nature of things it was impossible that, after so long a slumber, there should not be much to do, and many, whether capable or incapable, eager to bear a share in the work. The sudden cessation of the excitement of war had begotten a restless craving for some other excitement to take its place, and none seemed so creditable as energy and acuteness in the discovery and removal of abuses. Complaints were made, and not without reason, of the working of the poor-law; of the terrible severity of our criminal code; of the hardships and sufferings of the younger members of the working classes, especially in the factories; of the ignorance of a large portion of the people, in itself as prolific a cause of mischief and crime as any other. But, though committees and commissions were appointed by Parliament to investigate the condition of the kingdom in respect of these matters, a feeling was growing up that no effectual remedy would be applied till the constitution of the House of Commons itself were reformed, so as to make it a more real representation of the people than it could as yet be considered. And a farther stimulus to this wish for such a Parliamentary reform was supplied by the distress which a combination of circumstances spread among almost all classes in the years immediately following the conclusion of the second treaty of peace.[178] The harvests of the years 1816 and 1817 were unusually deficient, and this pressed heavily on the farmers and landed proprietors. The merchants and manufacturers, who, while every part of the Continent was disturbed or threatened by the operations of contending armies, had practically enjoyed almost a monopoly of the trade of the world, found their profits reduced, by the new competition to which the re-establishment of peace exposed them, to a point which compelled them to a severe reduction of expenditure. The uncertainty felt as to the results to be brought about by the inevitable repeal of the Bank Act of 1797, and the return to cash payments—results which it was impossible to estimate correctly beforehand—had a tendency to augment the distress, by the general feeling of uneasiness and distrust which it created. And the employers of labor could not suffer without those who depended on them for employment suffering still more severely. The consequence was, that there was a general stagnation of trade; numbers of artisans and laborers of every kind were thrown out of work, and their enforced idleness and poverty, which was its result, made them ready to become the tools of demagogues such as are never wanting in the hour of distress and perplexity. Meetings were convened, ostensibly to petition for reform, but in reality to afford opportunities for mob-orators, eager for notoriety, to denounce the government and those whom they styled the "ruling classes," as the causes of the present and past evils. From these meetings multitudes issued forth ripe for mischief. In some places they rose against the manufacturers, and destroyed their machines, to the recent introduction of which they attributed their want of employment. In others, still more senselessly, they even set fire to the stores of grain in the corn-dealers' warehouses, aggravating by their destruction the most painful of their own sufferings. On one occasion, a mob which had assembled in one of the eastern districts of London, on pretence of framing a petition to be presented to the Prince Regent, at the close of the meeting paraded the streets with a tricolor flag, the emblem of the French Revolutionists, and pillaged a number of shops, especially those of the gun-makers, spreading terror through all that side of the metropolis. In at least one instance the violence of the rioters rose to the height of treason. Assassins fired at the Regent in the Park as he was returning from the House of Lords, whither he had been to open Parliament; and when it was found that they had missed their aim, the mob attacked the royal carriage, pelting it with large stones, and breaking the windows; nor was it without some difficulty that the escort of troops cleared a path for him through the mob, and enabled him to reach Carlton House in safety.

The first effect of these outrages was to damage the cause of Reform itself, even such uncompromising reformers as Lord Grey denouncing "meetings at which extensive schemes of Reform were submitted to individuals incapable of judging of their propriety." The second consequence was to compel the ministers to take steps to prevent a recurrence of such tumults and crimes. At first they were contented with a temporary suspension of the Habeas Corpus Act; but, even while that suspension was in force, it did not entirely prevent meetings, at some of which the language of the speakers certainly bordered on sedition; and when the suspension was taken off, fresh meetings on a larger scale, and of a more tumultuous character than ever, were held in more than one rural district; finally, in July of 1819, the whole kingdom was thrown into a violent state of excitement by a meeting held at Birmingham, at which the leaders, assuming the newly-invented party name of Radicals, not only demanded the remodelling of the whole system of government, but, because Birmingham as yet sent no members to the House of Commons, took it upon themselves to elect Sir Charles Wolseley, a baronet of respectable family, as their representative to the Parliament, and charged him to claim a place in the House of Commons in the next session, by the side of those elected in obedience to the royal writs. Sir Charles was at once arrested on the charge of having at this meeting used seditious language calculated to lead to a breach of the peace; but the Radical leaders, far from being intimidated by this demonstration of vigor on the part of the government, immediately summoned a similar meeting in Manchester, announcing their intention to elect a representative of that great town likewise, which, though the largest of all the manufacturing towns, was also unrepresented in the Imperial Parliament. The magistrates prohibited the meeting. It was only postponed for a week, when the people assembled in such formidable numbers (no estimate reckoned them at fewer than 60,000), that the ordinary civil authorities deemed themselves unequal to dealing with it, and called in the aid first of the Yeomanry and then of a hussar regiment. The soldiers behaved with great forbearance, as soldiers always do behave on such occasions; but they were bound to execute the orders which were given them to arrest some of the leaders, and, in the tumult which was the inevitable consequence of their attempt to force a way through so dense a crowd, three or four lives were, unfortunately, lost.

So unusual a catastrophe called out the energies of both parties. The Radical leaders published manifestoes declaring the people had been "massacred" by the soldiers by the orders of the government. Meetings were held to denounce the conduct of the ministers, one being even promoted by Lord Fitzwilliam, as Lord-lieutenant of Yorkshire, a dignity of which he was instantly deprived; while, on the other hand, the grand-juries of Cheshire and Lancashire made reports of the condition of those counties to the Secretary of State, which showed that a most alarming spirit prevailed over the greater part of the district. "The most inflammatory publications had been issued in the principal towns, at a price which put them within the reach of the poorest classes of society. The training and military drilling of large bodies of men under regular leaders had been carried on to a great extent for some time, chiefly by night; and there was no doubt that an extensive manufacture of arms was going on." What was a hardly inferior symptom of danger was a system of intimidation which prevailed to a most serious degree. Many magistrates had received notices threatening their lives, and combinations had been formed to withhold custom from publicans and shopkeepers who had come forward to support the civil power. In many parts of the two counties the grand-juries declared "that no warrant of arrest or other legal process could be executed; the payment of taxes had ceased, and the landlords were threatened with the discontinuance of their rents."

It was admitted that the spirit of disaffection was local, confined to three or four counties; but those counties were, next to Middlesex itself, the most populous and among the most important in the kingdom, and there was danger lest the feeling, if not checked, might spread. The crisis seemed so momentous, that some even of the Opposition leaders volunteered their counsels and aid to the ministers in dealing with it. And the ministers, after long deliberation, decided on calling Parliament together in November, and introducing some bills which they conceived necessary to enable them to restore and preserve tranquillity. They were six in number; and—perhaps, with some sarcastic reference to Gardiner's Six Acts in the sixteenth century—they were very commonly spoken of as Lord Sidmouth's Six Acts, that noble lord being the Home-secretary, to whose department they belonged. It is not necessary here to do more than mention the general purport of five of them. One prohibited military training without the sanction of the government; another empowered magistrates to search for arms which they had reason to believe were collected for illegal purposes; the third authorized the seizure of seditious and blasphemous libels; the fourth subjected publications below a certain size to the same stamp as that required for a newspaper; the fifth regulated the mode of proceeding in trials for misdemeanor of a political character. But these enactments were regarded as little more than arrangements of detail or procedure involving no principles, and some of them were admitted even by the most steadfast opponents of the ministers to be necessary. But the sixth, designed to restrain the practice of holding large open-air meetings—not, indeed, forever, but for a certain period, fixed at five years—was strongly resisted by the greater portion of the Whig party in both Houses, as a denial to the people of one of their most ancient and constitutional rights.[179]

Its principal clauses enacted that "no meeting exceeding the number of fifty persons (except a meeting of any county or division of any county, called by the Lord-lieutenant or sheriff of such county, etc., or by five or more acting justices of the peace for such county, or by the major part of the grand-jury; or any meeting of any city, borough, etc., called by the mayor or other head officer of such city, etc.) should be holden for the purpose or on the pretext of deliberating upon any public grievance, or upon any matter relating to any trade, manufacture, etc., or upon any matter of Church or State, or of considering, proposing, or agreeing to any petition, address, etc., etc., unless in the parish or township within which the persons calling any such meeting usually dwell;" and it required six days' notice of the intention to hold such meetings, with their time, place, and object, to be given to a magistrate. It empowered the magistrate to whom such notice was given to alter the time and place. It forbade adjournments intended to evade these prohibitions. It forbade any one to attend such meetings except freeholders of the county, or parishioners of the parish, or members of the corporation of the city or borough in which they were held, or members of the House of Commons for such places. It empowered magistrates to proceed to the places where such meetings were being held, and, if they thought it necessary, to require the aid of constables. It enacted that any meeting, the tendency of which should be "to incite or stir up the people to hatred and contempt of the person of his Majesty, his heirs and successors, or of the government or constitution of this country as by law established, should be deemed an unlawful assembly." It empowered one or more justices of the peace, in the event of any meeting being held contrary to the provisions of this act, to warn every one present, in the King's name, to depart; and made those who did not depart in obedience to such warning liable to prosecution for felony, and, if convicted, to seven years' transportation. It forbade the display of flags, banners, or ensigns at any meeting, and the employment of any drum, or military or other music; but it excepted from its operation "any meeting or assembly which should be wholly holden in any room."

There was one peculiarity in the line taken by the opponents of the bill, that they did not deny that the meetings which had induced the ministers to propose it were an evil, dangerous to the general tranquillity; but it was strongly urged by Lord Erskine and others that the existing laws were quite strong enough to deal with them, so that a new enactment was superfluous; and by others, in both Houses, that such meetings were "an ancient and constitutional mode of discussing abuses or petitioning Parliament," any interference with which was a greater evil than the meetings themselves, as being a violation of the constitution. Mr. Brougham in particular admitted, to the full extent of the assertions of the ministers themselves, "the wickedness and folly of many of the speeches" made at the recent meetings. He expressed with great force his entire disapproval of the system on which these meetings had been conducted, and admitted that the martial array which had been exhibited, and the vastness of the numbers of those who had attended, were of themselves calculated to excite alarm; but he declared that "he could not on that account acquiesce in a total subversion of a popular right." On the other hand, the ministers themselves did not deny "the general right of the people to petition the Legislature, or to carry their addresses to the foot of the throne. And therefore (as Lord Harrowby, the President of the Council, admitted) there could be no doubt of their right to assemble, so far as was necessary to agree to their petitions or addresses. It was a right that did not depend on the Bill of Rights, on which it was usually grounded, but had existed long before. But this bill," he contended, "imposed no restrictions on the legitimate enjoyment of that privilege; it only regulated the meetings at which it was to be exercised." And Lord Liverpool affirmed that the bill was not only "consistent with the existing laws and principles of the constitution, but was even proposed in furtherance of those principles, and for the purpose of protecting the people of this country against a series of evils which, if not checked, must subvert their laws and liberties."

In attempting to form a correct judgment on the question whether this bill were constitutional or unconstitutional, it must, I think, be admitted that, as has been remarked before, the terms "constitutional" and "unconstitutional" are somewhat vague and elastic. There is no one document—not Magna Charta, nor the Petition of Eight, nor the Bill of Rights—which can be said to contain the whole of the British constitution. Its spirit and principles are, indeed, to be found in all the laws, to which they give animation and life, but not in any one law. And among its leading principles are those which embrace the right of every individual to freedom of action and freedom of speech, so long as he does not commit any crime himself, nor tempt others to do so. Yet it does not follow that a new enactment which for a while abridges or suspends that freedom of action or speech is inconsistent with those constitutional principles.

Ministers, to whom the government of a country is intrusted, do wrong if they limit their operations to the punishment of offences which have been committed. It is at least equally their duty, as far as possible, to prevent their commission; to take precautionary measures, especially at times when there is notorious danger of offences being committed. At the same time they are bound not to legislate under the influence of panic; not to yield to fears having no substantial ground. And in their measures of precaution they are farther bound to depart from or overstep the ordinary law as little as is compatible with the attainment of their object. In all such cases each action of theirs must stand or fall by its own merits; by the greatness of the emergency which has caused it, and by its sufficiency for its end. For as no law, except such as forbids moral crimes, is invariable, so even the dearest privileges of each subject, being his for the common good, are liable to temporary suspension for that common good. But the burden of justification lies on those who propose that suspension.

Now, that this bill was such a suspension of the long-established rights of the subject, and so far an overstepping of the principles of the constitution, is admitted by the very fact of its framers only proposing for it a temporary authority. Had it not invaded a valuable and real right, it might have been made of perpetual obligation. But it is not easy to see how it can be denied that the dangers against which it was intended to guard were also real. It was certain that itinerant demagogues were visiting districts with which they had no connection, for the sole purpose of stirring up political agitation. It was clear that such meetings as they convened, where those assembled could only be counted by tens of thousands, were too large for deliberation, and were only meant for intimidation; and equally clear that, though the existing laws may have armed the magistrate with authority to disperse such meetings, they did not furnish him with the means of doing so without at least the risk of bloodshed (for such a risk must be involved in the act of putting soldiers in motion), and still less did they invest him with the desirable power of preventing such meetings. It was necessary, therefore, to go back to the original principles and objects of every constitution, the tranquillity, safety, and welfare of the nation at large. And it does not appear that this bill went beyond what was necessary for that object. Indeed, though party divisions are not always trustworthy tests of the wisdom or propriety of a measure, the unusual magnitude of the majorities by which on this occasion the minister was supported in both Houses may fairly be regarded as a testimony to the necessity of the bill,[180] while its sufficiency was proved by the abandonment of all such meetings, and the general freedom from agitation in every part Of the country which prevailed in the following year, though its most remarkable incident was one of which demagogues might well have taken advantage, if they had not had so convincing a proof of the power of government, and of the resolution of the ministers to exert it.[181]

Notes:

[Footnote 172: Against Junot, at Vimiera and Rolica, in 1808; Soult, at Oporto, and Victor, at Talavera, in 1809; Massena and Ney, at Busaco and Torres Vedras, in 1810; Massena and Bessieres, at Fuentes d'Onor, in 1811. Ciudad Rodrigo and Badajoz had been taken in 1812, in spite of the neighborhood of Soult and Marmont. In July, 1813, a month after the formation of Lord Liverpool's ministry, he routed Marmont at Salamanca; in 1813 he took Madrid, and routed Jourdain at Vittoria; and, having subsequently defeated Soult at Sauroren, he crossed the French frontier in October.]

[Footnote 173: A resolution, moved by Mr. Canning, to take the claims of the Roman Catholics into consideration in the next session had been carried in June by the large majority of 129; and when Lord Wellesley brought forward a similar motion in the House of Lords, not only did Lord Liverpool "protest against its being inferred from any declaration of his that it was, or ever had been, his opinion that under no circumstances would it be possible to make any alteration in the laws respecting the Roman Catholics," but the Chancellor, Lord Eldon, who was generally regarded as the stoutest champion of the existing law, rested his opposition entirely on political grounds, explaining carefully that he opposed the motion, "not because he quarrelled with the religion of the Roman Catholics, but because their religious opinions operated on their political principles in such a way as to render it necessary to adopt some defence against them," and met the motion by moving the previous question, avowedly because "he did not wish, at once and forever, to shut the door of conciliation;" and the previous question was only carried by a single vote—126 to 125.]

[Footnote 174: "It (difference on the Catholic question) was an evil submitted to by the government, of which Mr. Fox, Lord Grenville, and Lord Grey were members, in the years 1806, 1807, as well as by the governments of Mr. Perceval, Lord Liverpool, and the Duke of Wellington."—Peel's Memoirs, i., 62. This passage would seem to imply that Peel believed the Catholic question to have been left "open" in 1806; but there is not, so far as the present writer is aware, any trace of such an arrangement on record, and Lord Liverpool's letter to the King, of November 10, 1826 ("Life," iii., 436), shows clearly that he was not aware of such a precedent for the arrangement which, in 1812, "he and others advised his Majesty" to consent to. Moreover, the condemnation passed on it by Mr. Ponsonby, who had been Chancellor of Ireland in 1806 and 1807, seems a clear proof that he knew nothing of it, though it is hardly possible that he should have been ignorant of it if it had existed.]

[Footnote 175: To whom the chief glory of the Waterloo campaign belongs there can, of course, be no doubt; and though the Austrians and Prussians put forward a claim to an equal share, and Russia even to a preponderating one, in the first deposition of Napoleon, he himself constantly attributed his fall more to the Peninsular contest than to any of his wars east of the Rhine. And, indeed, it is superfluous to point out that almost to the last he gained occasional victories over the Continental armies, but that he never gained one advantage over the British force; and that Wellington invaded France the first week of October, 1813—nearly three months before a single Russian or German soldier crossed the Rhine.]

[Footnote 176: Letter to Sir W. Scott, Twiss's "Life of Lord Eldon," ii., 272. It is remarkable that in his "Life of Lord Ellenborough" Lord Campbell takes no notice of this case.]

[Footnote 177: The opinion of the Attorney and Solicitor General, Sir S. Shepperd and Sir R. Gifford, is given at length in the author's "Life of Lord Liverpool," ii., 373.]

[Footnote 178: It is a shrewd observation of Sully, that it is never any abstract desire for theoretical reforms, or even for increased privileges, which excites in lower classes to discontent and outrage, but only impatience under actual suffering.]

[Footnote 179: The bill (entitled "The Seditious Meetings Prevention Bill"), 60 George III., c. 6, is given at full length in Hansard's "Parliamentary Debates," series 1., vol. xli., p. 1655.]

[Footnote 180: In the House of Lords the majority was 135 to 38; in the House of Commons, 851 to 128. And even of this minority, many would have supported the bill, if the ministers would have consented to adopt an amendment proposed by Lord Althorp, to limit its operation to a few of the northern and midland counties, in which alone, as he contended, any spirit of dangerous disaffection had been exhibited.]

[Footnote 181: It may be as well to mention that these pages were written in the autumn of 1880.]



CHAPTER VIII.

Survey of the Reign of George III.—The Cato Street Conspiracy.—The Queen's Return to England, and the Proceedings against her.—The King Visits Ireland and Scotland.—Reform of the Criminal Code.—Freedom of Trade.—Death of Lord Liverpool.—The Duke of Wellington becomes Prime-minister.—Repeal of the Test and Corporation Act.—O'Connell is Elected for Clare.—Peel Resigns his Seat for Oxford.—Catholic Emancipation.—Question of the Endowment of the Roman Catholic Clergy.—Constitutional Character of the Emancipation.—The Propriety of Mr. Peel's Resignation of his Seat for Oxford Questioned.

In the first month of 1820 George III. died. His had been an eventful reign, strangely checkered with disaster and glory; but, if we compare its close with its commencement, it was still more remarkably distinguished by a development of the resources and an increase in the wealth and power of the nation, to which the history of no other country in the same space of time affords any parallel.

Regarded from the first point of view, our successes greatly outweighed our disasters. The loss of our North American Colonies, the only event which can be so described, was far more than counterbalanced by our vast acquisitions in India, at the Cape of Good Hope, and Malta; while to our maritime supremacy, in the complete establishment of which Rodney and Nelson had crowned the work of Anson and Hawke, was now added a splendor of military renown far surpassing that achieved by any other of the nations which had borne their share in the overthrow of Napoleon.

The increase of our resources is sufficiently shown by a single fact. At his accession George III. found the kingdom engaged in the great seven years' war; one British army employed beyond the Rhine, another in India; fleets traversing the seas in every direction, capturing the Havana, in the West Indies; Manilla, in the East; and routing French squadrons in sight of their own harbors. While, to maintain these varied armaments, supplies were voted by Parliament in 1761 to what Lord Stanhope calls "the unprecedented amount of almost twenty millions." In 1813 the supplies reached nearly six times that amount,[182] and that prodigious sum was raised with greater ease than the revenue of 1761, the interest on the necessary loans being also lower than it had been on the former occasion.

The philosophical man of science will point with at least equal exultation to the great discoveries in art and science; to the achievements of the mechanic, the engineer, and the chemist; to the labors of Brindley and Arkwright and Watts, to which, indeed, this great expansion of the resources and growth of the wealth of the country is principally owing.

While, as the preceding chapters of this work have been designed to show, our political progress and advancement had been no less steady or valuable; yet, important from a constitutional point of view as were many of the labors of our legislators in these sixty years, they are surpassed in their influence on the future history of the nation, as well as in the reality and greatness of the changes which were produced by them in the constitution, by the transactions of the reigns of the next two sovereigns, though the two united scarcely equalled in their duration a quarter of that of their venerable father.

It has been seen how Pitt was baffled in his efforts to remodel the House of Commons, and to remove the disabilities under which the Roman Catholics labored, the reasons for which, even granting that they had been sufficient to justify their original imposition, had, in his judgment, long passed away. His pursuit of the other great object of his domestic policy, the emancipation of trade from the shackles which impeded its universal development, was rudely interrupted by the pressure of the war forced upon him by that very nation which he had desired to make the first partner, if one may use such an expression, in the prosperity which he hoped to diffuse by his commercial treaty with her. But, as in the case of other men in advance of their age, the principles which he had asserted were destined to bear fruit at a later period. And the mere fact of a change in the person of the sovereign seemed to make a change in the policy hitherto pursued less unnatural.

Yet, memorable as the reforms which it witnessed were destined to make it, no reign ever commenced with more sinister omens than that at which we have now arrived. The new King had not been on the throne a month, when a conspiracy was discovered, surpassing in its treasonable atrocity any that had been heard of in the kingdom since the days of the Gunpowder Plot; and, even before those concerned in that foul crime had been brought to punishment, the public mind was yet more generally and profoundly agitated by a scandal which, in one point of view, was still more painful, as in some degree involving the whole kingdom in its disgrace.

The marriage of the present sovereign to Mrs. Fitzherbert has already been mentioned. A few years afterward, in the year 1795, regarding that marriage as illegal, he had contracted a second with his cousin, the Princess Caroline of Brunswick. But, even in royal families, a more unfortunate alliance had never taken place. They had never met till she arrived in England for the wedding; and, as he had never professed any other motive for consenting to the match than a desire to obtain the payment of his debts, he did not think it necessary to disguise his feelings, or to change his habits, or even to treat her with decency for a single day. On his very first introduction to her he behaved to her with marked discourtesy.[183] Shortly after the marriage he formally separated himself from her, and, both before and after the separation, lived in undisguised licentiousness. She, on her part, indignant at his neglect and infidelity, and exasperated at the restrictions which he presently placed on her intercourse with their only child, made no secret of her feelings, and on many occasions displayed such disregard of the ordinary rules of prudence and propriety, that he had some color for charges of infidelity to her marriage vows which, after a few years, he brought against her. The King, her uncle, could not refuse to appoint a commission to investigate the truth of the accusation; but the commissioners unanimously acquitted her of any graver fault than imprudence. She was again received at court, from which she had been excluded while the inquiry was pending; but her husband's animosity toward her was not appeased. As time wore on, and as the King's derangement deprived her of her only protector, it even seemed as if he desired to give it all the notoriety possible, till at last, wearied out by his implacable persecution, she sought and obtained his permission to quit the country and take up her abode abroad. It was a most unfortunate resolution on her part. She fixed her residence in Italy, where she gradually learned to neglect the caution which she had observed in England, till, after a year or two, reports arose of her intimacy with a servant whom she had raised from a menial situation to that of the chief officer of her household, and whom she admitted to a familiarity of intercourse which others besides her husband thought quite incompatible with innocence. He sent agents into Italy to inquire into the truth of those rumors; and their report so greatly confirmed them that, even before the King's death, he laid it before the Prime-minister, with a demand that he should at once take steps to procure him a divorce, in which he professed to believe that the Princess herself would willingly acquiesce. He was so far correct, that her legal advisers were willing to advise her to consent to "a formal separation, to be ratified by an act of Parliament." But such an arrangement fell far short of the Prince's wishes. The Princess Charlotte, the heiress to his throne, had died in childbirth two years before, and he was anxious to be set free to marry again. The ministers were placed in a situation of painful embarrassment. There was an obvious difficulty in pointing out to one who already stood toward them in the character of their sovereign, and who must inevitably soon become so, that his own conduct made the prospect of obtaining a divorce from the Ecclesiastical Courts hopeless; and the only other expedients calculated to attain his end, "a direct application to Parliament for relief, founded upon the special circumstances of the case," or "a proceeding against the Princess for high-treason," were but little more promising. Indeed, it was afterward ascertained to be the unanimous opinion of the judges that the charge of high-treason could not be legally sustained, since the individual who was alleged to be the partner in the criminality imputed to her was a foreigner, and therefore, "owing no allegiance to the crown," could not be said to have violated it.[184]

He chafed under their resistance to his wish, and would have deprived them of their offices, could he have relied on any successors whom he might give them proving more complaisant; but, before he could make up his mind, the death of George III. forced upon both him and them the consideration of his and his wife's position, since it made it necessary to remodel the prayer for the royal family, and instantly to decide whether her name and title as Queen were to be inserted in it. He was determined that they should not be mentioned; and, as the practice of praying for a Queen Consort by name appeared not to have been invariable, they were willing to gratify him on this point, though it was evidently highly probable that she would consider this as a fresh insult, sufficient to justify her in carrying out a threat, which she had recently held out, of returning to England. Her ablest advisers did not, indeed, regard it in this light, since the prayer as now framed implored the Divine protection for "all the royal family" in general terms, in which she might be supposed to be included, and made no separate mention of any member of the family.[185] But, unfortunately, she was much more under the influence of counsellors who were neither lawyers nor statesmen, but who only desired to use her as a tool to obtain notoriety for themselves. A long negotiation ensued. It was inevitable that some application should be made to Parliament in connection with her affairs, since the annuity which had been settled upon her by Parliament in 1814, on the occasion of her departure from England, had expired with the life of the late King. And the ministers proposed that that annuity should now be raised from L35,000 to L50,000, on condition of her remaining abroad, having, by their positive refusal to concur in any proceedings against her while she remained abroad, extorted the King's acquiescence in this proposal, though he called it a "great and painful sacrifice of his personal feelings." They sought to conciliate her acceptance of it by mentioning her in it by her title of "Queen," and by coupling with it a sanction to her appointment of her law-officers, an Attorney and Solicitor General, an act which could only be exercised by a Queen. And, though a part of the condition of her residence abroad required that she should do so under some other title, that seemed only a conforming to an ordinary practice of royal princes on their travels. At the same time, the ministers stated frankly to Mr. Brougham, a lawyer of the highest reputation as an advocate, whom she had appointed her Attorney-general, that, if she should reject the offer, and come to England, as she had already announced her intention of doing, such a course would leave them no alternative, but would compel them to institute proceedings against her.

Eventually she preferred the advice of others to that of Mr. Brougham, or, as it may, perhaps, be more consistent with the real fact to say, she yielded to her own feelings of hatred of her husband, which, it must be confessed, were far from unnatural. She believed, or professed to believe, that he had more to dread from an exposure of his conduct than she had from any revelations of her actions; and, under this impression, in the spring she crossed the Channel and took up her residence in London. It was a step which seemed to Lord Liverpool to leave him no alternative, and, in consequence, he at once took the course which he had from the beginning conceived her arrival would render indispensable. He brought down to Parliament a royal message from the King, announcing that her return to England had made it necessary to communicate to the Houses documents relating to her conduct since her departure from the kingdom, which he recommended to their immediate and serious attention. He proposed the appointment by ballot of a committee of the House of Lords to examine those documents; and when the committee had reported that the documents containing "allegations deeply affecting the honor of the Queen, etc., ... appeared to the committee calculated to affect not only the honor of the Queen, but also the dignity of the crown and the moral feelings and honor of the country, so that in their opinion, they should become the subject of a solemn inquiry, which might be best effected in the course of a legislative proceeding," he introduced a "Bill of Pains and Penalties" to deprive her of her title of Queen, and to annul her marriage.

No one would willingly dwell on so melancholy and disgraceful a subject. As far as the Queen was concerned, a protracted investigation, during which a number of witnesses, favorable and unfavorable, were examined, left no doubt on the mind of almost all dispassionate people that the misconduct alleged against her had been abundantly proved. At the same time there was a feeling equally general that the King's treatment of her from the very beginning of their married life had disentitled him to any kind of relief; and this sentiment was so strongly shown by the gradual diminution of the majority in favor of the bill, as it proceeded through its several stages, that Lord Liverpool, who had already abandoned the clause annulling the marriage, eventually withdrew the whole bill, perceiving the impossibility of inducing the House of Commons to pass it when it should go down to that House.

No act of Lord Liverpool's ministry has been attacked with greater bitterness than that of allowing any proceedings whatever to be taken against the Queen, partly on the ground that, however profligate her conduct had been, it had certainly not been more gross than that of her husband, which had provoked and given opportunity for her errors; partly because a great scandal was thus published to the world, and a shock was given to the national decency and morality which the ministers, above all men, were bound to avoid; partly, also, because the mode of proceeding adopted was alleged to be wholly unprecedented; and because, as was contended, the power of Parliament ought not to be invoked to inflict penalties which, if deserved, should have been left to the courts of law. It cannot be denied that there is weight in these objections; but, in estimating their force, it must be considered that every part of the conduct of the ministers showed that their motive was not the gratification of the King's private feelings, whether directed to the object of indulging his enmity against his wife or to that of obtaining freedom to contract a second marriage; on the contrary, so long as the Queen remained abroad, no language could be more distinct, consistently with the respect due to his royal dignity, than that in which they expressed to him their insurmountable objection to every mode of proceeding against her which he had suggested, founded almost equally on considerations of "the interests of his Majesty and of the monarchy,"[186] and "the painful obligation" under which they conceived themselves to lie "of postponing their regard for his Majesty's feelings to great public interests."

But when the Queen came to England the case was greatly altered. The question now forced on the consideration of the cabinet was, not the mode of avoiding an intolerable scandal, but the choice between two scandals, both of the gravest character. The scandal to be dreaded from the revelations of the conduct of both King and Queen, that could not fail to result from the investigation which, in justice, must precede any attempt to legislate on the subject, was, indeed, as great as ever; but it had now to be compared with the alternative scandal of allowing a woman lying under such grievous imputations to preside over the British court, as, if resident in England, and in undisturbed possession of her royal rank, she of necessity must preside. The consequence would evidently have been that the court would have been deserted by all who could give lustre and dignity to it by their position and character; and, in the slights thus offered to her, royalty and the monarchy themselves would seem to be brought into contempt. The latter scandal, too, would be the more permanent. Grievous and shameful as might be the disclosures which must be anticipated from an investigation in which the person accused must be permitted the employment of every means of defence, including recrimination, the scandal was yet one which would, to a certain extent, pass away with the close of the inquiry. But, if she were left undisturbed in the enjoyment of her royal rank, and of privileges which could not be separated from it, that scandal would last as long as her life—longer, in all probability, than the reign. It is hardly too much to say that the monarchy itself might have been endangered by the spectacle of such a King and such a Queen; and the ministers might fairly contend that, of two great dangers and evils, they had, on the whole, chosen the least.

Lastly, if the Queen's conduct was to be investigated, though the mode adopted was denounced as unconstitutional by the Opposition (for, not greatly to their credit, the leading Whigs made her guilt or innocence a party question), it does not seem to deserve the epithet, though it may be confessed to have been unsupported by any direct precedent. Isabella, the faithless wife of Edward II., had, indeed, been condemned by "the Lords" to the forfeiture of many of the estates which she had illegally appropriated; but it does not appear that her violation of her marriage vows, or even her probable share or acquiescence in her husband's murder, formed any portion of the grounds of her deprivation. And the Parliament which attainted Catherine Howard proceeded solely on her confession of ante-nuptial licentiousness, without giving her any opportunity of answering or disproving the other charges which were brought against her. Unprecedented, therefore, the course now adopted may be admitted to have been. But it was the only practicable one. The different minutes of the cabinet, which the Prime-minister laid before the King, established most conclusively the correctness of their opinion that no impeachment for high-treason could lie against her. She could not be an accomplice in such an offence of one who, being a foreigner, could not have committed it. It was equally impossible for the King to sue for a divorce, as one of his subjects might have done; because it was the established practice of Parliament not to entertain a bill of divorce without the judgment of the Ecclesiastical Court being previously obtained and produced. And, under the circumstances, to obtain from the Ecclesiastical Court such a sentence as could alone lay the foundation for a bill of divorce was clearly out of the question.

The case was a new and extraordinary one, and, being such, could only be dealt with in some new and extraordinary manner. And in all such cases an appeal to Parliament seems the most, if not the only, constitutional mode of solving the difficulty. Where the existing laws are silent or inapplicable, the most natural resource clearly is, to go back to the fountain of all law; that is, to the Parliament, which alone is competent to make a new law. In one point of view the question may seem unimportant, since we may well hope that no similar case will ever arise to require the precedent now set to be appealed to; but not unimportant, if it in any way or degree contributes to establish the great principle, that the solution of all matters of moment to the state belongs to the Parliament alone: a principle which, in its legitimate completeness, carries with it a condemnation of many a modern association whose object, whether avowed or disguised, is clearly to supersede where it fails to intimidate the sole constitutional Legislature.

The abandonment of the bill was naturally hailed as a triumph by the Queen and her partisans; but with the excitement of the struggle against the government the interest taken in her case died away. The next year, when she demanded to be crowned with her husband, his refusal to admit her claim elicited scarcely any sympathy for her under this renewed grievance; in truth, it was one as to which precedent was unfavorable to her demand. And the mortification at finding herself already almost forgotten contributed to bring on an illness of which she died in less than a year after the termination of what was called her trial; and in a short time both she and it were forgotten.

For the next few years the history of the kingdom is one of progressive correction of abuses or defects. The King paid visits to Ireland and Scotland, parts of his dominions which his father had never once visited, and in both was received with the most exultant and apparently sincere acclamations. And, though one great calamity fell on the ministry in the loss of Lord Castlereagh—who, in a fit of derangement, brought on by the excitement of overwork, unhappily laid violent hands on himself—his death, sad as it was, could not be said to weaken or to affect the general policy of the cabinet. Indeed, as he was replaced at the Foreign Office by his old colleague and rival, Mr. Canning, in one point of view the administration may be said to have been strengthened by the change, since, as an orator, Canning had confessedly no equal in either House of Parliament. Another change was productive of still more practical advantage. Lord Sidmouth retired from the Home Office, and was succeeded by Mr. Peel, previously Secretary for Ireland; and the transfer of that statesman to an English office facilitated reforms, some of which were as yet little anticipated even by the new Secretary himself. The earliest of them, and one not the least important in its bearing on the well-doing of society, the mitigation of the severity of our Criminal Code, was, indeed, but the following up of a series of measures in the same direction which had been commenced in the time of the Duke of Portland's second administration, and, it must be added, in spite of its resistance. The influence of various trades, and of the owners of different kinds of property, pressing in turns upon our legislators, had rendered our code the most sanguinary that had, probably, ever existed in Christendom. Each class of proprietor regarded only the preservation of his own property, and had no belief in the efficacy of any kind of protection for it, except such as arose from the fear of death; nor any doubt that he was justified in procuring the infliction of that penalty to avert the slightest loss to himself. The consequence was that, at the beginning of the present century, there were above two hundred offences the perpetrators of which were liable to capital punishment, some of a very trivial character, such as cutting down a hop-vine in a Kentish hop-garden, robbing a rabbit-warren or a fish-pond, personating an out-pensioner of Greenwich Hospital, or even being found on a high-road with a blackened face, the intention to commit a crime being inferred from the disguise, even though no overt act had been committed. An act of Elizabeth made picking a pocket a capital offence; another, passed as late as the reign of William III., affixed the same penalty to shop-lifting, even when the article stolen might not exceed the value of five shillings. And the fault of these enactments was not confined to their unreasonable cruelty; they were as mischievous even to those whom they were designed to protect as they were absurd, as some owners began to perceive. In the list of capital offences was that of stealing linen from a bleaching-ground. And a large body of bleachers presented a petition to Parliament entreating the repeal of the statute which made it such on the ground that, practically, it had been found not to strike terror into the thieves, but almost to secure them impunity from the reluctance of juries to find a verdict which would sentence a fellow-creature to the gallows for such an offence.

Nor was this by any means the only instance in which the barbarity of the law defeated its object. And its combined impolicy and inhumanity had some years before attracted the notice of Sir Samuel Romilly, who had been Solicitor-general in the administration of 1806, and who, shortly after its dissolution, began to apply himself to the benevolent object of procuring the repeal of many of the statutes in question, and in the course of a few years did succeed in obtaining the substitution of milder penalties for several of the less flagitious offences. He died in 1818; but the work which he had began was continued by Sir James Mackintosh, a man of even more conspicuous ability, and one who could adduce his own experience in favor of the changes which he recommended to the Parliament, since he had filled the office of Recorder of Bombay for eight years, and had discharged his duties with a most diligent and consistent avoidance of capital punishment, which he had never inflicted except for murder; his lenity, previously unexampled in that land, having been attended with a marked diminution of crime. He procured the substitution of milder penalties in several additional cases; and at last, in 1822, he carried a resolution engaging the House of Commons "the next session to take into its serious consideration the means of increasing the efficacy of the criminal law by abating its undue rigor." And this success had the effect of inducing the new minister to take the question into his own hands. Peel saw that it was one which, if it were to be dealt with at all, ought to be regulated by the government itself, and not be left to independent members, who could not settle it with satisfactory completeness; and therefore, in 1823, he introduced a series of bills to carry out the principle implied in Mackintosh's resolution of the preceding year, not only simplifying the law, but abolishing the infliction of capital punishment in above a hundred cases. He was unable to carry out his principle as fully as he could have desired. The prejudice in favor of still retaining death as a punishment for forgery was too strong for even his resolution as yet to overbear, though many private bankers supplied him with the same arguments against it in their case which had formerly been alleged by the bleachers. But the example which he now set, enforced as it was with all the authority of the government, was followed in many subsequent sessions, till at last our code, instead of the most severe, has become the most humane in Europe, and death is now never inflicted except for murder, or crimes intended or calculated to lead to murder. It is worth remarking, however, that neither Romilly, Mackintosh, nor Peel ever entertained the slightest doubt of the right of a government to inflict capital punishment. In the last address which Mackintosh delivered to the grand-jury at Bombay he had said: "I have no doubt of the right of society to inflict the punishment of death on enormous crimes, wherever an inferior punishment is not sufficient. I consider it as a mere modification of the right of self-defence, which may as justly be exercised in deterring from attack as in repelling it."[187] And in his diary, when speaking of a death-warrant which he had just signed, he says: "I never signed a paper with more perfect tranquillity of mind. I felt agitation in pronouncing the sentence, but none in subscribing the warrant; I had no scruple of conscience on either occasion."

And it seems that his position is unassailable. The party whose interest is to be kept in view by the Legislature in imposing punishments on offences is society, the people at large, not the offender. The main object of punishment is to deter rather than to reform; to prevent crime, not to take vengeance on the criminal. And, if crime be more effectually prevented by moderate than by severe punishments, society has a right to demand, for its own security (as a matter of policy, not of justice), that the moderate punishment shall, on that ground, be preferred. That punishments disproportioned in their severity to the magnitude of the offence often defeated their object was certain. Not only had jurymen been known to confess that they had preferred violating their oaths to doing still greater violence to their consciences, by sending a man to the gallows for a deed which, in their opinion, did not deserve it, but the very persons who had been injured by thefts or forgeries were often deterred from prosecution of the guilty by the knowledge that the forfeiture of their lives must follow their conviction. It was almost equally certain that criminals calculated beforehand on the chance of impunity which the known prevalence of these feelings afforded them. Wherever the sympathy of the public does not go along with the law, it must, to a great extent, fail; and that the terrible frequency of sanguinary punishment had failed in all its objects, was proved by the fact that, in spite of the numerous executions which took place, crimes increased in a still greater proportion than the population. Under the reformed system, now first inaugurated on an extensive scale, crimes have become rarer, detection and punishment more certain—a combination of results which must be the object equally of the law-giver and the philanthropist.

It is not quite foreign to this subject to relate that, a year or two before, a mode of trial had been abolished which, though long disused, by some curious oversight had still been allowed to remain on the statute-book. In the feudal times either the prosecutor or the prisoner, in cases of felony, had a right to claim that the cause should be decided by "wager of battle;" but it was an ordeal which, with one exception in the reign of George II., had not been mentioned for centuries. In 1817, however, the relatives of a woman who had been murdered, being dissatisfied with the acquittal of a man who had been indicted as her murderer, sued out "an appeal of murder" against him, on which he claimed to have the appeal decided by "wager of battle," and threw down a glove on the floor of the court to make good his challenge. The claim was protested against by the prosecutor; but Lord Ellenborough, the Chief-justice, pronounced judgment that, "trial by battle having been demanded, it was the legal and constitutional mode of trial, and must be awarded. It was the duty of the judges to pronounce the law as it was, and not as they might wish it to be."[188] He gave sentence accordingly; and, had the two parties been of equal stature and strength, the Judges of the Common Pleas might have been seen, in their robes, presiding from sunrise till sunset over a combat to be fought, as the law prescribed, with stout staves and leathern shields, till one should cry "Craven," and yield up the field. Fortunately for them, the alleged murderer was so superior in bodily strength to his adversary, that the latter declined the contest. But the public advancement of the claim for such a mode of decision was fatal to any subsequent exercise of it; and, in spite of the Common Council of London, who, confiding, perhaps, in the formidable appearance presented by some of the City Champions on Lord Mayor's Day, petitioned Parliament to preserve it, the next year the Attorney-general brought in a bill to abolish it, and the judges were no longer compelled to pronounce an absurd sentence in obedience to an obsolete law, framed at a time when personal prowess was a virtue to cover a multitude of sins, and might was the only right generally acknowledged.

The foundation, too, was laid for other reforms. Lord Liverpool was more thoroughly versed than any of his predecessors, except Pitt, in the soundest principles of political economy; and in one of the first speeches which he made in the new reign he expressed a decided condemnation, not only of any regulations which were designed to favor one trade or one interest at the expense of another, but generally of the whole system and theory of protection; and one of his last measures made an alteration in the manner of taxing corn imported from foreign countries, which was greatly to the advantage of the consumer. It was known as the "sliding-scale," the tax on imported corn varying with the price in the market, rising when the price fell, and falling when it rose; the design with which it was framed being to keep the price to the consumer at all times as nearly equal as possible. At first, however, it was vehemently denounced by the bulk of the agriculturists, who were re-enforced on this occasion by a large party from among the Whigs, and especially by some of those connected with Ireland. But a more suitable period for discussing the establishment of Free-trade as the ruling principle of our financial policy will occur hereafter.

The introduction of the sliding-scale was almost the last act of Lord Liverpool's ministry. At the beginning of 1827 he was preparing a fresh measure on the same subject, the effect of which was intended to diminish still farther the protection which the former act had given, and which was in consequence denounced by many landholders of great wealth and influence, led, on this subject, by the King's favorite brother, the Duke of York.[189] But, a few days after the meeting of Parliament, he was struck down by an attack of paralysis, from which he never recovered.

In his post as Prime-minister he was succeeded by Canning, not without great reluctance on the part of the King; not, probably, so much because he feared to find in him any desire to depart from the policy of Lord Liverpool, except on the Catholic question (for even on matters of foreign policy, on which Canning had always been supposed most to fix his attention, he had adopted the line which Lord Liverpool had laid down for the cabinet with evident sincerity),[190] as because his Majesty had never wholly forgiven him for the attitude which he had taken, differing on one or two points from that of his colleagues on the Queen's case. And, as has been mentioned in a former chapter, he even, with the object of evading the necessity of appointing him, suggested to the Duke of Wellington the singular scheme of allowing the remaining members of Lord Liverpool's cabinet to select their own chief,[191] which the Duke, though coinciding with him in his dislike of Canning, of whom he entertained a very causeless suspicion, rejected without hesitation, as an abandonment of the royal prerogative in one of its most essential duties or privileges. Another of his Majesty's notions, if it had been carried out, would have been one of the strangest violations of constitutional principle and practice which it is possible to conceive. The Duke of York, who had for many years been Commander-in-chief, died in January of the same year, and on his death the King actually proposed to take that office on himself. For the moment Lord Liverpool was able to induce him to abandon the idea, and to confer the post on the Duke of Wellington. But it had taken such possession of his mind that he recurred to it again when, on Canning becoming Prime-minister, the Duke resigned the office; and he pressed it on the Cabinet with singular pertinacity till, on Canning's death, the Duke was prevailed on to resume the command. It is evident that no arrangement could possibly be more inconsistent with every principle of the constitution. The very foundation of parliamentary government is, that every officer of every department is responsible to Parliament for the proper discharge of his duties. But the investiture of the sovereign with ministerial office of any kind must involve either the entire withdrawal of that department from parliamentary control, or the exposure of the sovereign to constant criticism, which, however essential to the efficiency of the department, and consequently to the public service, would be wholly inconsistent with the respect due to the crown. The first alternative it is certain that no Parliament would endure for a moment; the second, by impairing the dignity of the monarch, could scarcely fail in some degree to threaten the stability of the monarchy itself.

Canning's ministry was too brief to give time for any transaction of internal importance. That of Lord Goderich, who succeeded him, though longer by the almanac, was practically briefer still, since it never met Parliament at all, but was formed and fell to pieces between the prorogation and the next meeting of the Houses. But that which followed, under the presidency of the Duke of Wellington, though after a few months its composition became entirely Tory, is memorable for the first great departure from those maxims of the constitution which had been reckoned among its most essential principles ever since the Revolution. Of the measures which bear that character, one was carried against the resistance of the ministry, the other by the ministers themselves. And it may at first sight appear singular that the larger measure of the two was proposed by the Duke after those members of his cabinet who had originally been supposed to give it something of a Liberal complexion had quitted it. The Reform Bill of 1832—to which we shall come in the next chapter—has been often called a peaceful revolution. The Toleration Acts, as we may call the bills of 1828 and 1829, are scarcely less deserving of that character.

The constitution, as it had existed for the last hundred and forty years, had been not only a Protestant but a Church of England constitution. Not only all Roman Catholics, but all members of Protestant Non-conforming sects, all who refused to sign a declaration against the doctrine of Transubstantiation, and also to take the Sacrament according to the rites of the one Established Church, were disqualified for any appointment of trust. That the object with which the Test Act had been framed and supported was rather political than religious is notorious; indeed, it was supported by the Protestant Dissenters, though they themselves were to suffer by its operation, so greatly at that time did the dread of Popery and the French King overpower every other consideration.[192] On the Roman Catholics, after the reign of James II. had increased that apprehension, the restrictions were tightened. But those which inflicted disabilities on the Protestant Non-conformists had been gradually relaxed. The repeal of two, the Five Mile and the Conventicle Acts, had, as we have seen in the last chapter, been recent measures of Lord Liverpool. But the Test Act still remained, though it had long been practically a dead letter. The Union with Scotland, where the majority of the population was Presbyterian, had rendered it almost impossible to maintain the exclusion of Englishmen resembling the Scotch in their religious tenets from preferments, and even from seats in the House of Commons, to which Scotchmen were admissible. And though one Prime-minister (Stanhope) failed in his attempt to induce Parliament to repeal the Test Act, and his successor (Walpole) refused his countenance to any repetition of the proposal, even he did not reject such a compromise as was devised to evade it; and in the first year of George II.'s reign (by which time it was notorious that many Protestant Non-conformists had obtained seats in municipal corporations, and even in the House of Commons, who yet had never qualified themselves by compliance with the act of 1673) a bill of indemnity was introduced by the minister, with at least the tacit consent of the English bishops, to protect all such persons from the penalties which they had incurred. And the bill, which was only annual in its operation, was renewed almost every year, till, in respect of all such places or dignities (if a seat in the House of Commons can be described by either of those names), no one thought of inquiring whether a man, so long as he were a Protestant, adhered to the Established Church or not; members of the House of Commons even openly avowing their nonconformity, and at times founding arguments on the fact.

The practical nullification of the Test Act by these periodical bills of indemnity had been for some time used by two opposite parties—both that which regarded the maintenance of the exclusive connection of the constitution with the Church of England as of vital importance to both Church and constitution, and that which was opposed to all restrictions or disqualiflcations on religious grounds—as an argument in their favor. The one contended that there could be no sufficient reason for repealing a law from which no one suffered; the other, that it was a needless provocation of ill-feeling to retain a law which no one ever dreamed of enforcing. Hitherto the latter had been the weaker party. One or two motions for the repeal of the Test Act, which had been made in former years,[193] had been defeated without attracting any great notice; but in the spring of 1828 Lord John Russel, then a comparatively young member, but rapidly rising into influence with his party, carried a motion in the House of Commons for leave to bring in a bill to repeal the act, so far as it concerned the Protestant Non-conformists, by a very decisive majority,[194] in spite of all the efforts of Peel and his colleagues.

The ministry was placed in a difficult position by his success, since the usual practice for a cabinet defeated on a question of principle was to resign; and it is probable that they would not have departed from that rule now, had not this defeat occurred so early in their official life. But on this occasion it seemed to them that other questions had to be considered besides the constitutional doctrine of submission on the part of a ministry to the judgment of the Parliament.[195] Theirs was now the fourth administration that had held office within twelve months; and their resignation, which would compel the construction of a fifth, could hardly fail not only to embarrass the sovereign, but to shake public confidence in government generally. It was also certain that they could rely on a division in the House of Lords being favorable to them, if they chose to appeal from one House to the other. Under these circumstances, they had to consider what their line of conduct should be, and there never were two ministers better suited to deal with an embarrassment of that kind than the Duke of Wellington and Mr. Peel. The Duke's doctrine of government was that "the country was never governed in practice according to the extreme principles of any party whatever;"[196] while Peel's disposition at all times inclined him to compromise. He was quite aware that on this and similar questions public feeling had undergone great alteration since the beginning of the century. There was a large and increasing party, numbering in its ranks many men of deep religious feeling, and many firm supporters of the principle of an Established Church, being also sincere believers in the pre-eminent excellence of the Church of England, who had a conscientious repugnance to the employment of the most solemn ordinance of a religion as a mere political test of a person's qualifications for the discharge of civil duties. In the opinion of the Bishop of Oxford (Dr. Lloyd), this was the feeling of "a very large majority of the Church itself," and of the University.[197] Peel, therefore, came to the conclusion—to which he had no difficulty in bringing his colleague, the Prime-minister—that "it might be more for the real interests of the Church and of religion to consent to an alteration in the law" than to trust to the result of the debate in the House of Lords to maintain the existing state of things. Accordingly, after several conferences with the most influential members of the Episcopal Bench, he framed a declaration to be substituted for the Sacramental test, binding all who should be required to subscribe it—a description which included all who should be appointed to a civil or corporate office—never to exert any power or influence which they might thus acquire to subvert, or to endeavor to subvert, the Protestant Church of England, Scotland, or Ireland, as by law established. The declaration was amended in the House of Lords by the addition of the statement, that this declaration was subscribed "on the true faith of a Christian," introduced at the instigation of Lord Eldon, who had not held the Great Seal since the dissolution of Lord Liverpool's administration, but who was still looked up to by a numerous party as the foremost champion of sound Protestantism in either House.

Not that the addition of these words at all diminished the dissatisfaction with which the great lawyer regarded the bill. On the contrary, he believed it to be not only a weapon wilfully put into the hands of the enemies of the Established Church, but a violation of the constitution, of which, as he regarded it "the existing securities were a part." He pointed out that "the King himself was obliged to take the sacrament at his coronation;" and he argued from this and other grounds that "the Church of England, combined with the state, formed together the constitution of Great Britain; and that the acts now to be repealed were necessary to the preservation of that constitution."

With every respect for that great lawyer, his argument on this point does not appear sustainable. For the bill in question did not sweep away securities for the Established Church, but merely substituted, for one which long disuse and indemnity had rendered wholly inoperative, a fresh security, which, as it would be steadily put in force, might fairly be expected to prove far more efficacious. And it can hardly be contended that it was not within the province of the Legislature to modify an existing law in this spirit and with this object, however important might be the purpose for which that law had originally been framed. Nay, it might fairly be argued that the more important that object was, the more were they who strengthened the means of attaining that object entitled to be regarded as faithful servants and supporters of the principle of the constitution.

The measure, however, relieved the Protestant Dissenters alone. Not only did Lord Eldon's amendment preserve the Christian character of the Legislature, but the requirement to sign the declaration against Transubstantiation, which was unrepealed, left the Roman Catholics still under the same disqualifications as before. But the days of those disqualifications were manifestly numbered. Indeed, many of those who had followed the ministers in their original resistance to the repeal of the Test Act had been avowedly influenced by the conviction that it could not fail to draw after it the removal of the disabilities affecting the Roman Catholics. As has been said before, the disabilities in question had originally been imposed on the Roman Catholics on political rather than on religious grounds. And the political reasons for them had been greatly weakened, if not wholly swept away, by the extinction of the Stuart line of princes. Their retention or removal had, therefore, now become almost wholly a religious question; and the late bill had clearly established as a principle that, though the state had a right to require of members of other religious sects that they should not abuse the power which might arise from any positions or employments to which they might be admitted, to the subversion or injury of the Established Church of England, yet, when security for their innocuousness in this respect was provided, it was not justified in inquiring into the details of their faith. And if this were to be the rule of government for the future, the conclusion was irresistible that a similar security was all that the state was justified in demanding from Roman Catholics, and that it could have no warrant for investigating their opinion on Transubstantiation, or any other purely theological tenet. There could be no doubt that the feelings of the public had been gradually and steadily coming round to this view of the question. The last House of Commons had not only passed a bill to remove Roman Catholic disabilities (which was afterward thrown out in the House of Lords), but had also passed, by a still larger majority, a resolution, moved by Lord Francis Leveson Gower (who was now the Secretary for Ireland), in favor of endowing the Roman Catholic priests in Ireland. And at the late general election the opinions of the candidates on what was commonly called Catholic Emancipation had been the great cardinal question with a great number, probably a majority, of the constituencies.

It may be remarked that it was not the Test Act which excluded Roman Catholics from Parliament, but a bill which, fifteen years later, had been passed (probably under the influence of Lord Shaftesbury) at the time when the whole kingdom was excited by the daily expanding revelations of the Popish Plot.[198] And this bill had a loop-hole which was never discovered till now but the discovery of which totally changed the whole aspect of the question. Even before the bill repealing the Test Act had passed through all its stages, Sir Francis Burdett had again induced the House of Commons to pass a resolution condemning the continuance of the Roman Catholic disabilities; to which, however, the peers, by a far larger majority, refused their concurrence.[199] But, within a month of this division, the aspect of the whole question was changed by the shrewdness of an Irish barrister, who had discovered the loop-hole or flaw in the bill of 1678 already alluded to, and by the energy and promptitude with which he availed himself of his discovery. Mr. O'Connell had a professional reputation scarcely surpassed by any member of the Irish Bar. He was also a man of ancient family in the county of Kerry. And, being a Roman Catholic, he had for several years been the spokesman of his brother Roman Catholics on most public occasions. He now, on examination of the bill of 1678, perceived that, though it forbade any Roman Catholic from taking a seat in either House of Parliament, it contained no prohibition to prevent any constituency from electing him its representative. And when, on the occasion of some changes which were made in the cabinet, the representation of the County Clare was vacated by its member, Mr. Vesey Fitzgerald, accepting the office of President of the Board of Trade, O'Connell instantly offered himself as a candidate in opposition to the new minister, who, of course, sought re-election.

Mr. Fitzgerald was a man who had always supported the demands of the Roman Catholics; he was also personally popular, and had the undivided support of nearly all the gentlemen and principal land-owners of the county, in which he himself had large property. But O'Connell's cause was taken up by the entire Roman Catholic priesthood; addresses in his favor were read at the altars of the different churches; and, after five days' polling, Mr. Fitzgerald withdrew from the contest. The Sheriff, in great perplexity, made a special return, reporting that "Mr. Fitzgerald was proposed, being a Protestant, as a fit person to represent the county in Parliament; that Mr. O'Connell, a Roman Catholic, was also proposed; that he, Mr. O'Connell, had declared before the Sheriff that he was a Roman Catholic, and intended to continue a Roman Catholic; and that a protest had been made by several electors against his return."

It was accepted as a return of O'Connell, who, however, made no attempt to take his seat, though when he first stood he had assured the electors that there was no law to prevent him from doing so; but the importance of his success was not to be measured by his actual presence or absence in the House of Commons for the remainder of a session. It had made it absolutely impossible to continue the maintenance of the disabilities; what one Irish constituency had done, other Irish constituencies might be depended on to do.[200] And it was quite certain that, as opportunity offered, almost every constituency in Munster and Connaught, and many in Leinster, would follow the example of Clare, and return Roman Catholic representatives; while to retain a law which prevented forty or fifty men duly elected by Irish constituencies from taking their seats must have appeared impossible to all but a few, whom respect for the undoubted sincerity of their attachment to their own religion and to the constitution, as they understood it, is the only consideration which can save them from being regarded as dangerous fanatics. At all events, the ministers were not among them. And the Duke of Wellington, though he had previously hoped, by postponing the farther consideration of the question for a year or two, to gain time for a calmer examination of it when the existing excitement had cooled down,[201] at once admitted the conviction that the result of the Clare election had rendered farther delay impossible. In his view, and that of those of his colleagues whose judgment he estimated most highly, the Irish constituencies and their probable action at future elections were not the only parties whose opinions or feelings must be regarded by a responsible statesman; but to them must be added the constituencies of the larger island also, since, while, to quote the language of Mr. Peel, "the general election of 1826 had taken place under circumstances especially calculated to call forth the manifestation of Protestant feeling throughout the country," they had returned a majority of members in favor of concession, as was proved by the recent division on Sir F. Burdett's motion. Moreover, apart from the merits or demerits of concession, taken by itself, there was a manifest danger that the keeping up of the excitement on the subject by a continued adherence to the policy of restriction might, especially among such a people as the Irish, so impulsive, and, in the lower classes, so absolutely under the dominion of the priests, kindle an excitement on other subjects also, still more difficult to deal with. It was even already certain that the Roman Catholic priests were endeavoring to tamper with the loyalty of the soldiers of their persuasion. Nor was it clerical influence alone that the government had to dread. A year or two before a Catholic Association had been formed, which included among its members all the wealthiest and ablest of the Roman Catholic laymen, noblemen, squires, and barristers. Its organization had been so skilfully conducted, and all its measures had been so carefully kept within the requirements of the law, that the crown lawyers, on being consulted, pronounced it impossible to interfere with it; and, by what may be called a peaceful agitation, it had attained such extraordinary power over the minds of the bulk of the Roman Catholics, that the Lord-lieutenant reported that "he was quite certain that they could lead on the people to open rebellion at a moment's notice, and that their organization was such that, in the hands of desperate and intelligent leaders, they would be extremely formidable[202]."

Under all these circumstances, the Duke had no hesitation in deciding that it had become absolutely necessary to concede the demands of the Roman Catholics and their supporters for a removal of their political disabilities. And it was equally obvious that, the more promptly the concession was made, the more gracious it would seem, and the greater was the probability of its having the conciliatory and tranquillizing effect the hope of which made it so desirable. He was not a man to lose time when he had once made up his mind. It was already too late in the session for anything to be done in 1828; but the Parliament had scarcely been prorogued before he put his views on the subject before the King, and began, in concert with the Home-secretary, to frame a bill such as he hoped might settle the long-agitated question, without doing more violence than was necessary to the feelings of those whose opposition or reluctance he was aware he should have to encounter: among whom was the King himself, who, though thirty years before he had, with an ostentation rather unbecoming, considering his position, put himself forward as an advocate of Emancipation, had subsequently changed his opinion, and had recently taken more than one occasion to declare that he had never doubted that, as the head and protector of the Protestant religion, he was bound to refuse his assent to any relaxation of the existing law.[203] The Duke, however, was too well acquainted with his royal master's character to apprehend any real firmness of resistance from him; but he knew that a great majority of the clergy, and no small portion of the country gentlemen, were conscientiously and immovably fixed in opposition to any concession at all, some refusing to regard the question in any but a purely religious light, and objecting to associate in the task of legislation for those whom they regarded as adherents of an idolatrous superstition; while those who mingled political reasoning with that founded on theology dwelt also on the danger to be apprehended to the state, if political power were given to those whose allegiance to the King was divided with another allegiance which they acknowledged to a foreign prelate. And he had presently an unmistakable proof afforded him how great was the strength of this party in the country. Peel was one of the representatives of the University of Oxford; and, as from his earliest enjoyment of a seat in Parliament he had been a prominent opponent of the Roman Catholic claims, he considered that it was to that maintenance of a policy identified in their eyes with that Protestant ascendency which his supporters took to be both the chief bulwark and one of the most essential parts of the constitution that he owed his position as their member. With a conscientiousness which was rather overstrained, and not quite consistent with the legitimate position of a member of the House of Commons as a representative, and not a delegate, he now conceived that his change of view on the subject made it proper for him to give his constituents an opportunity of making choice of some one else who should more faithfully represent them. He accordingly resigned his seat, offering himself at the same time for re-election. But he was defeated by a very large majority, though his competitor was one who could not possibly be put on a level with him either for university distinction or for parliamentary eminence.

Not the less, however, for all their difficulties and discouragements, did the ministers proceed in the course on which they had resolved. They inserted in the speech with which the King opened the session of 1829 a recommendation to the Houses "to take into consideration the whole condition of Ireland, and to review the laws which imposed civil disabilities on his Majesty's Roman Catholic subjects." And with as little delay as possible they introduced a bill to remove those disabilities. But there was another measure which they felt it to be indispensable should precede it. A previous sentence of the royal speech had described the Catholic Association as one "dangerous to the public peace, and inconsistent with the spirit of the constitution, keeping alive discord and ill-will among his Majesty's subjects, and one which must, if permitted to continue, effectually obstruct every effort permanently to improve the condition of Ireland." And the ministers naturally regarded it as their first duty to suppress a body which could deserve to be so described. They felt, too, that the large measure of concession and conciliation which they were about to announce would lose half its grace, and more than half its effect, if it could possibly be represented as a submission to an agitation and intimidation which they had not the power nor the courage to resist. They determined, therefore, to render such an imputation impossible, by previously suppressing the Association. It was evident that it could not be extinguished by any means short of an act of Parliament. And the course pursued, with the discussions which took place respecting it, show in a very clear and instructive manner the view taken by statesmen of the difference between what is loyal or illegal, constitutional or unconstitutional; their apprehension that conduct may be entirely legal, that is to say, within the letter of the law, but at the same time perfectly unconstitutional, outside of and adverse to the whole spirit of the constitution. The royal speech had not ventured to describe the Association as illegal. The Duke of Wellington expressly admitted that "in the original institution and formation of the society there was nothing strictly illegal."[204] And its founder and chief, Mr. O'Connell, had been at all times careful to inculcate on his followers the necessity of avoiding any violation of the law. But the speech had also declared the association to be "inconsistent with the spirit of the constitution." And its acts, as the Duke proceeded to describe them, certainly bore out that declaration. "Those acts consisted principally in levying a tax upon certain of his Majesty's subjects called Catholic rent, and this by means and acts of extreme violence; by appointing persons to collect these rents; and farther by adopting measures to organize the Catholic population; by appointing persons to superintend that organization; and by assuming to themselves the government of the country; and, still more, affecting to assume it. Besides, they expended this rent in a manner contrary to, and utterly inconsistent with, all law and order and the constitution of the country." No member of either House denied the accuracy of this description of the Association's proceedings. And if it were correct, it was incontrovertible that the denunciation of it as an utterly unconstitutional body was not too strong. Indeed, the fact of its "levying a tax" upon a portion of the King's subjects (to say nothing of the intimidation, amounting to compulsion, by which, as was notorious, it was in many instances exacted) was the assumption of one of the most important functions of the Imperial Parliament; it was the erection of an imperium in imperio, which no statesmen intrusted with the government of a country can be justified in tolerating. And this was felt by the Opposition as well as by the ministers; by the Whigs as fully as by the Tories. The most eloquent of the Whig party, Mr. Stanley, was as decided as Mr. Peel himself in affirming that the existence of the Association was "inconsistent with the spirit of the constitution," and that it was "dangerous that the people of a country should look up to any public body distinct from the government, opposed to the government, and monopolizing their attachment and obedience."[205]