The Constitutional History of England From 1760 to 1860

CHAPTER IV. Changes of Administration.-The Coalition Ministry.-The Establishment of the Prince of Wales.-Fox's India Bill.-The King Defeats it by the Agency of Lord Temple.-The Ministry is Dismissed, and Succeeded by Mr. Pitt's Administration.-Opposition to the New Ministry in the House of Commons.-Merits of the Contest between the Old and the New Ministry.-Power of Pitt.-Pitt's India Bill.-Bill for the Government of Canada.-The Marriage of the Prince of Wales to Mrs. Fitzherbert.-The King becomes Deranged.-Proposal of a Regency.-Opinions of Various Writers on the Course adopted.-Spread of Revolutionary Societies and Opinions.-Bills for the Repression of Sedition and Treason.-The Alien Act.-The Traitorous Correspondence Act.-Treason and Sedition Bills.-Failure of some Prosecutions under them.

The occurrences of the next year brought the question of the influence of the crown into greater prominence. Lord Rockingham's administration, unfortunately, came to a premature termination by his death at the beginning of July. With a strange arrogance, Fox claimed the right of dictating the choice of his successor to the King, making his pretensions the more unwarrantable by the character of the person whom he desired to nominate, the Duke of Portland, who, though a man of vast property and considerable borough influence, was destitute of ability of any kind, and had not even any of that official experience which in some situations may at times compensate or conceal the want of talent.[73] The King preferred Lord Shelburne, a statesman whose capacity was confessedly of a very high order, who had more than once been Secretary of State,[74] and who had been recognized as the leader of what was sometimes called the Chatham section of the Whigs, ever since the death of the great Earl. Indeed, if George III. had been guided by his own wishes and judgment alone, he would have placed him at the Treasury, in preference to Lord Rockingham, three months before. But, during the last three months, jealousies had arisen between him and Fox, his colleague in office, who charged him with concealing from him the knowledge of various circumstances, the communication of which he had a right to require. It was more certain that on one or two points connected with the negotiations with the United States there had been divisions between them, and that the majority of the cabinet had agreed with Lord Shelburne. Lord Shelburne, therefore, became Prime-minister,[75] and Fox, with some of his friends, resigned; Fox indemnifying himself by a violent philippic against "those men who were now to direct the counsels of the country," and whom he proceeded to describe as "men whom neither promises could bind nor principles of honor could secure; who would abandon fifty principles for the sake of power, and forget fifty promises when they were no longer necessary to their ends; who, he had no doubt, to secure themselves in the power which they had by the labor of others obtained, would strive to strengthen it by any means which corruption could procure."[76]

Fox at once went into what even those most disposed to cherish his memory admit to have been a factious opposition. He caballed with the very men to whom he had hitherto been most vehemently opposed for the sole object of expelling Lord Shelburne from office. And when, at the beginning of the session of 1783, the merits of the preliminary articles of peace which had been provisionally concluded with the United States came under discussion, though the peers approved of them, in the House of Commons he defeated the ministers in two separate divisions,[77] and thus rendered their retention of office impossible. He had gained this victory by uniting with Lord North and a portion of the Tory party whom, ever since his dismissal from office in 1774, he had been unwearied in denouncing, threatening Lord North himself with impeachment. And he now used it to compel the King to intrust the chief office in the government to the very man whom his Majesty had refused to employ in such an office six months before.

The transactions of the next twelve months exhibit in a striking light more than one part of the practical working of our monarchical and parliamentary constitution, not only in its correspondence with, but, what is more important to notice, in its occasional partial deviations from, strict theory. The theory has sometimes been expressed in the formula, "The King reigns, but does not govern." But, like many another terse apophthegm, it conveys an idea which requires some modification before it can be regarded as an entirely correct representation of the fact; and the King himself, especially if endowed with fair capacity and force of character, imbued with earnest convictions, and animated by a genuine zeal for the honor and welfare of his kingdom, will be likely to dwell more on the possible modifications than on the rigid theory. Even those who insist most on the letter of the theory will not deny that, if the King has not actual power, he has at least great influence; and the line between authority and influence is hard to draw. One of George the Third's earliest ministers had explained to his Majesty that the principle of the constitution was, "that the crown had an undoubted right to choose its ministers, and that it was the duty of subjects to support them, unless there were some very strong and urgent reasons to the contrary."[78] And such a doctrine was too much in harmony with the feelings of George III. himself not to be cordially accepted. For George III. was by no means inclined to be a Roi faineant. No sovereign was ever penetrated with a more conscientious desire to do his duty to his people. Conscious, perhaps, that his capacity was rather solid than brilliant, he gave unremitting attention to the affairs of the nation in every department of the government; and, perhaps not very unnaturally, conceived that his doing so justified him, as far as he might be able, in putting a constraint on his ministers to carry out his views. Thus, he had notoriously induced Lord North to persevere in the late civil war in America long after that minister had seen the hopelessness of the contest; and it was, probably, only the knowledge of the strength of his feelings on that subject, and of his warm attachment to that minister, that caused the Parliament so long to withstand all the eloquence of the advocates of peace, and the still stronger arguments of circumstances. He might fairly think that he had now greater reason to adhere to his own judgment; for Fox's recommendation of the Duke of Portland in preference to Lord Shelburne was an act not only of unwarrantable presumption, but of inconceivable folly, since there was no comparison between the qualifications of the two men; and the coalition by which, six months afterward, he had, as it were, revenged himself for the rebuff, and had driven Lord Shelburne from office, was, as the King well knew, and as even Fox's own friends did not conceal from themselves, almost universally condemned out-of-doors.[79] To this combination, therefore, his Majesty tried every expedient to escape from yielding. And when Pitt's well-considered and judicious refusal of the government left him no alternative but that of submission to Fox's dictation, it would hardly have been very unnatural if his disposition and attitude toward a ministry which had thus forced itself upon him had been those attributed to him by Lord John Russell, of "an enemy constantly on the watch against it."[80] But for some time that was not the impression of the ministers themselves. In July, when they had been in office more than three months, Fox admitted that he had never behaved toward them as if he were displeased with them, and that he had no project of substituting any other administration for the present one.[81] And his temperate treatment of them was the more remarkable, because a flagrant blunder of Burke (who filled the post of Paymaster), in reinstating some clerks who had been dismissed by his predecessor for dishonesty, had manifestly weakened the ministry in the House of Commons;[82] while in another case, in which the King had clearly in no slight degree a personal right to have his opinion consulted and his wishes accepted by them as the guide for their conduct, the establishment to be arranged for the Prince of Wales, whose twenty-first birthday was approaching, Fox persuaded the Parliament to settle on the young Prince an allowance of so large an amount that some even of his own colleagues disliked it as extravagant;[83] while the King himself reasonably disapproved both of the amount and of the mode of giving it, the amount being large beyond all precedent, and the fact of its being given by Parliament rendering the Prince entirely independent of his parental control, of which his conduct had given abundant proof that he stood greatly in need.

That he presently changed his line of behavior toward them was caused by their introduction of a bill which he regarded as aimed in no small degree at his own prerogative and independence-the celebrated India Bill, by which, in the November session, Fox proposed to abrogate all the charters which different sovereigns had granted to the East India Company, to abolish all vested rights of either the Company or individuals, and to confer on a board of seven persons, to be named by Parliament, the entire administration of all the territories in any way occupied by the Company. It was at once objected to by the Opposition in the House of Commons, now led by Mr. Pitt, as a measure thoroughly unconstitutional, on the twofold ground that such an abrogation of formally granted charters, and such an extinction of vested rights, was absolutely without precedent; and also that one real, if concealed, object of the bill was to confer on the ministers who had framed and introduced it so vast an amount of patronage as would render them absolute masters of the House of Commons, and indirectly, therefore, of the King himself, who would be practically disabled from ever dismissing them. That such a revocation of ancient charters, and such an immovable establishment of an administration, were inconsistent with the principles of the constitution, was not a position taken up by Pitt in the heat of debate, but was his deliberate opinion, as may be fairly inferred from his assertion of it in a private letter[84] to his friend the Duke of Rutland. It may, however, be doubted whether the epithet "unconstitutional" could be properly applied to the bill on either ground. There is, indeed, a certain vagueness in the meaning, or at all events in the frequent use of this adjective. Sometimes it is used to imply a violation of the provisions of the Great Charter, or of its later development, the Bill of Rights; sometimes to impute some imagined departure from the principles which guided the framers of those enactments. But in neither sense does it seem applicable to this bill. To designate the infringement or revocation of a charter by such a description would be to affirm the existence of a right in the sovereign to invest a charter, from whatever motive it may originally have been granted, with such a character of inviolability or perpetuity that no Parliament should, on ever such strong grounds of public good, have the power of interfering with it. And to attribute such a power to the crown appears less consistent with the limitations affixed to the royal prerogative by the constitution, than to regard all trusts created by the crown as subject to parliamentary revision in the interests of the entire nation. On the second ground the description seems even less applicable. An arrangement of patronage is a mere matter of detail, not of principle. For the minister to propose such an arrangement as should secure for himself and his party a perpetual monopoly of power and office might be grasping and arrogant; for Parliament (and Parliament consists of the sovereign and the peers, as well as of the House of Commons) to assent to such an arrangement might be short-sighted and impolitic; but it is not clear that either the minister in proposing such an enactment, or the Parliament in adopting it, would be violating either the letter or the spirit of the constitution. Every member of the Governing Board was to be appointed by the Parliament itself; and, though unquestionably Fox would have the nomination, and though he could reckon on the support of the majority in the House of Commons for those whom he might select, still it was a strictly constitutional machinery that he was putting in motion.

A measure, however, may be very objectionable without being unconstitutional, and such a view of the India Bill the progress of the debates in the House of Commons disposed the King to take of it. In the House of Peers Lord Thurlow described the bill as one to take the crown off his head and place it on that of Mr. Fox; and, even without adopting that description to its full extent, the King might easily regard the bill as a very unscrupulous attempt to curtail his legitimate authority and influence. He became most anxious to prevent the bill from being presented to him for his royal assent. And it was presently represented to him that the knowledge of his desire would probably induce the Lords to reject it. Among the peers who had attacked the bill on its first introduction into their House was Earl Temple, whose father had taken so prominent a part in the negotiations for the formation of a new ministry in 1765, and who had himself been Lord-lieutenant of Ireland under Lord Shelburne's administration. But he had not thought it prudent to divide the House against its first reading, and felt great doubts as to his success in a division on the second, unless he could fortify his opposition by some arguments as yet untried. He had no difficulty in finding a willing and effective coadjutor. Since the retirement of Lord Bute from court, no peer had made himself so personally acceptable to the King as Lord Thurlow, who had been Lord Chancellor during the last four years of Lord North's administration, and, in consequence, as it was generally understood, of the earnest request of George III., had been allowed to retain the seals by Lord Rockingham, and afterward by Lord Shelburne. What special attraction drew the King toward him, unless it were some idea of his honesty and attachment to the King himself-on both of which points subsequent events proved his Majesty to be wholly mistaken-it is not very easy to divine; but his interest with the King at this time was notorious, and equally notorious was the deep resentment which he cherished against Fox and Lord North, of whom, as he alleged, the former had proscribed and the latter had betrayed him. To him, therefore, Lord Temple now applied for advice as to the best mode of working on the King's mind, and, with his assistance, drew up a memorial on the character of the India Bill, on its inevitable fruits if it should pass (which it described as an extinction of "more than half of the royal power, and a consequent disabling of his Majesty for the rest of his reign"), and on the most effectual plan for defeating it; for which end it was suggested that his Majesty should authorize some one to make some of the Lords "acquainted with his wishes" that the bill should be rejected.[85]

George III. eagerly adopted the suggestion, and drew up a brief note, which he intrusted to Lord Temple himself, and which stated that "his Majesty allowed Earl Temple to say that whoever voted for the India Bill was not only not his friend, but would be considered by him as his enemy. And, if these words were not strong enough, Earl Temple might whatever words he might deem stronger and more to the purpose."[86]

Lord Temple lost no time in availing himself of the permission thus granted him; and, as it was by no means his object to keep the transaction secret, his conduct was made the subject of severe comment by the Prime-minister himself the next time that the bill was mentioned in the Upper House. The Duke of Portland, indeed, professed to have learned it only from common report, and to hope that the report was unfounded, since, were it true, "he should be wanting in the duty he owed to the public as a minister if he did not take the opportunity of proposing a measure upon it to their lordships that would prove that they felt the same jealousy, the same detestation, the same desire to mark and stigmatize every attempt to violate the constitution as he did." Lord Temple, in reply, abstained from introducing any mention of the King's opinions or wishes, but avowed plainly that he had used his privilege as a peer to solicit an interview with his Majesty, and that at that interview "he had given his advice. What that advice had been he would not then say; it was lodged in the breast of his Majesty, nor would he declare the purport of it without the royal consent, or till he saw a proper occasion. But, though he would not declare affirmatively what his advice to his sovereign was, he would tell their lordships negatively what it was not. It was not friendly to the principle and objects of the bill."[87] The debate lasted till near midnight. Of the speakers, a great majority declared against the bill; and, on the division, it was rejected by a majority of nineteen.[88] This took place on the 15th of December. On the 18th, as the ministers had not resigned-not regarding a single defeat in the Upper House as a necessary cause for such a step-the King sent messengers to them to demand their resignation, and the next day it was publicly announced in the House of Commons that Pitt had accepted the office of Prime-minister.

But Fox, who had anticipated the dismissal of himself and his colleagues, was by no means inclined to acquiesce in it, or to yield without a struggle; and on the 17th one of his partisans in the House of Commons, Mr. Baker, one of the members for Hertfordshire, brought forward some resolutions on the subject of the late division in the House of Lords. He professed to rest them solely on rumors, but he urged that "it was the duty of that House to express its abhorrence even of that rumor," since by such an action as was alleged "that responsibility of ministers which was the life of the constitution would be taken away, and with it the principal check that the public had upon the crown." And he urged "the members of that House, as the guardians of the constitution, to stand forward and preserve it from ruin, to maintain that equilibrium between the three branches of the Legislature, and that independence without which the constitution could no longer exist," and with this view to resolve "that to report any opinion, or pretended opinion, of his Majesty upon any bill or other proceeding depending in either House of Parliament, with a view to influence the votes of the members, is a high crime and misdemeanor, derogatory to the honor of the crown, a breach of the fundamental privileges of Parliament, and subversive of the constitution of the country." It was opposed by Pitt, chiefly on the ground that Mr. Baker only based the necessity for such a resolution on common report, which he, fairly enough, denied to be a sufficient justification of it; and partly on the undoubted and "inalienable right of peers, either individually or collectively, to advise his Majesty, whenever they thought the situation of public affairs made such a step an essential part of their duty." But it was supported by Lord North as "necessary on constitutional principles," since the acts so generally reported and believed "affected the freedom of debate;" and by Fox, who declared that the action which was reported, if true, "struck at the great bulwark of our liberties, and went to the absolute annihilation, not of our chartered rights only, but of those radical and fundamental ones which are paramount to all charters, which were consigned to our care by the sovereign disposition of Nature, which we cannot relinquish without violating the most sacred of all obligations, to which we are entitled, not as members of society, but as individuals and as men; the right of adhering steadily and uniformly to the great and supreme laws of conscience and duty; of preferring, at all hazards and without equivocation, those general and substantial interests which members have sworn to prefer; of acquitting themselves honorably to their constituents, to their friends, to their own minds, and to that public whose trustees they were, and for whom they acted." He avowed his conviction that rumor in this instance spoke truth, and, affirming that "the responsibility of ministers is the only pledge and security the people of England possesses against the infinite abuses so natural to the exercise of royal powers," argued that, if "this great bulwark of the constitution were once removed, the people would become in every respect the slaves and property of despotism. This must be the necessary consequence of secret influence." He argued that the sole distinction between an absolute and a limited monarchy was that the sovereign in one is a despot, and may do as he pleases, but that in the other he is himself subjected to the laws, and consequently is not at liberty to advise with any one in public affairs who is not responsible for that advice, and that the constitution has clearly directed his negative to operate under the same wise restrictions. Mr. Baker's resolution was carried by a large majority; but, as we have seen, did not deter the King from dismissing the ministry.

The conduct of George III. in this transaction has been discussed by writers of both parties with such candor that the Tory historian, Lord Stanhope, while evidently desirous to defend it by implication, passes a slight censure on it in the phrase that "the course pursued by the King was most unusual, and most extreme, and most undesirable to establish as a precedent;"[89] while, on the other hand, so rigid a Whig as Lord Campbell urges in his favor "that if it be ever excusable in a King of England to cabal against his ministers, George III. may well be defended for the course he now took, for they had been forced upon him by a factious intrigue, and public opinion was decidedly in his favor."[90] But to those who regard not the excuse which previous provocation may be conceived in some degree to furnish to human infirmity, but only the strict theory and principle of the constitution on which the doctrine of the responsibility of the ministers and the consequent irresponsibility of the sovereign rests, Lord Campbell's conditional justification for the communication made through Lord Temple will hardly appear admissible. We cannot be sure how far Mr. Grenville's "Diary" is to be trusted for transactions in which he was not personally concerned, or for conversations at which he was not present; but in giving an account[91] of some of the occurrences of the spring of 1766, while Lord Rockingham was Prime-minister, we find him relating a conversation between the King and Lord Mansfield on the ministerial measure for conciliating the American Colonies by the repeal of the Stamp Act, combined, however, with an assertion of the right to tax. "He (Lord Mansfield) took notice of the King's name having been bandied about in a very improper manner; to which the King assented, saying he had been very much displeased at it, as thinking it unconstitutional to have his name mentioned as a means to sway any man's opinion in any business which was before Parliament; and that all those who approached him knew that to be his sentiment. Lord Mansfield said he differed from his Majesty in that opinion, for that, though it would be unconstitutional to endeavor by his Majesty's name to carry questions in Parliament, yet where the lawful rights of the King and Parliament were to be asserted and maintained, he thought the making his Majesty's opinion in support of those rights to be known was very fit and becoming." The line here alleged to have been drawn by the great Chief-justice, between proclaiming the King's opinion in support of rights, but withholding it in the case of measures, is, perhaps, too fine to be perceptible by ordinary intellects. But however the King may have understood the judge, it is clear that the doctrine thus asserted does not justify, but condemns, such an act as the communication of the King's opinion and wishes in the case under consideration. If it "would be unconstitutional to endeavor by his Majesty's name to carry questions in Parliament," it must be at least equally so to use his name to defeat them. And the case is infinitely stronger, if the measure to be defeated be one which has been introduced by his ministers. For there can be no doubt whatever that, so long as they are his ministers, they are entitled to his full and complete support on every question; alike in their general policy and on each separate measure. When he can no longer give them that support, which the very act of conferring their offices on them promised them, his only legitimate and becoming course is to dismiss them from their offices, and to abide the judgment of Parliament and the nation on that act. Thus William IV. acted in the autumn of 1834; and thus George III. himself acted at the end of the month of which we are speaking. But to retain them in their offices, and to employ an unofficial declaration of his dissent from them to defeat their policy, is neither consistent with the straightforward conduct due from one gentleman to another, nor with the principle on which the system of administration, such as prevails in this country, is founded.

As has been already mentioned, the King at once dismissed the Coalition Ministry. Mr. Pitt accepted the conduct of affairs, and by so doing accepted the responsibility for all the acts of the King which had conduced to his appointment. Lord John Russell, who in his "Memorials and Correspondence of Fox" has related and examined the whole transaction at considerable though not superfluous length, while blaming the prudence, and in some points the propriety, of Fox's conduct, at the same time severely censures Pitt as "committing a great fault in accepting office as the price of an unworthy intrigue," and affirms that "he and his colleagues who accepted office upon the success of this intrigue placed themselves in an unconstitutional position."[92] This seems to be a charge which can hardly be borne out. In dismissing his former ministry, the King was clearly acting within his right; and, if so, Pitt was equally within his in undertaking the government. The truer doctrine would seem to be, that, in so undertaking it, he assumed the entire responsibility for the dismissal of his predecessors,[93] and left it to the people at large, by the votes of their representatives, to decide whether that dismissal were justified, and whether, as its inevitable consequence, his acceptance of office were also justified or not. The entire series of transactions, from the meeting of Parliament in November, 1783, to its dissolution in the following March, may be constitutionally regarded as an appeal by the King from the existing House of Commons to the entire nation, as represented by the constituencies; and their verdict, as is well known, ratified in the most emphatic manner all that had been done. And we may assert this without implying that, if the single act of empowering Lord Temple to influence the peers by the declaration of the King's private feeling had been submitted by itself to the electors, they would have justified that. The stirring excitement of the three months' contest between the great rivals led them to pronounce upon the transaction as a whole, and to leave unnoticed what seemed for the moment to be the minor issues-the moves, if we may borrow a metaphor from the chess-table, which opened the game; and it may be observed that, though, on the 17th of December, Pitt resisted Mr. Baker's resolution with his utmost energy, in the numerous debates which ensued he carefully avoided all allusion to Lord Temple's conduct, or to the measure which had led to the dismissal of his predecessors, farther than was necessary for the explanation of the principles of his own India Bill. It may even be surmised that, if he had been inclined to recognize Lord Temple's interference as warrantable, the breach between that peer and himself, which occurred before the end of the week, would not have taken place, since it seems nearly certain that the cause of that breach was a refusal on the part of Pitt to recommend his cousin for promotion in the peerage, a step which, at such a moment, would have had the appearance of an approval of his most recent deed,[94] but which he could hardly have refused, if it had been done with his privity. The battle, as need hardly be told, was first fought among the representatives of the people in the House of Commons; for there was only one occasion on which the opinion of the Lords was invited, when they declared in favor of Pitt by a decisive majority.[95] But in the Lower House the contest was carried on for more than two months with extraordinary activity and ability, by a series of resolutions and motions brought forward by the partisans of the coalition, and contested by the youthful minister. In one respect the war was waged on very unequal terms, Pitt, who had been but three years in Parliament, and whose official experience could as yet only be counted by months, having to contend almost single-handed against the combined experience and eloquence of Lord North, Fox, and Burke. Fortunately, however, for him, their own mismanagement soon turned the advantage to his side. They were too angry and too confident to be skilful, or even ordinarily cautious. The leaders on both sides made professions in one respect similar; they both alike denied that a desire of office influenced either their conduct or their language (a denial for which Pitt's refusal of the Treasury, a year before, gained him more credit than could be expected by Fox after his coalition with Lord North), and both alike professed to be struggling for the constitution alone, for some fundamental principle which each charged his antagonist with violating; Fox on one occasion even going so far as, in some degree, to involve the King himself in his censures, declaring not only that "the struggle was, in fact, one between Pitt himself and the constitution," but that it was also one "between liberty and the influence of the crown," and "between prerogative and the constitution;" and that "Pitt had been brought into power by means absolutely subversive of the constitution."[96] But no act of which he thus accused the minister or the King showed such a disregard of the fundamental principle of the constitution of Parliament as was exhibited by Fox himself when, in the very first debate after the Christmas recess, he called in question that most undoubted prerogative of the crown to dissolve the Parliament, and, drawing a distinction which had certainly never been heard of before, declared that, though the King had an incontestable right to dissolve the Parliament after the close of a session, "many great lawyers" doubted whether he had such a right in the middle of a session, a dissolution at such a period being "a penal" one. Professing to believe that an immediate dissolution was intended, he even threatened to propose to the House of Commons "measures to guard against a step so inimical to the true interests of the country," and made a more direct attack than ever on the King himself, by the assertion of a probability that, even if Pitt did not contemplate a dissolution, his royal master might employ "secret influence" to overrule him, and might dissolve in spite of him,[97] an imputation which Lord North, with a strange departure from his customary good-humor, condescended to endorse.[98] There could be no doubt that both the doubt and the menace were of themselves distinct attacks on the constitution; and they were, moreover, singularly impolitic and inconsistent with others of the speaker's arguments, since, if the nation at large approved of his views and conduct, a dissolution-which would have placed the decision in its hands-would have been the very thing he should most have desired. On another evening, though he admitted as a principle that the sovereign had the prerogative of choosing his ministers, he not only sought to narrow the effect of that admission by the assertion that "to exercise that prerogative in opposition to the House of Commons would be a measure as unsafe as unjustifiable,"[99] but to confine the right of deciding the title of the ministers to confidence to the existing House of Commons. He accused Pitt of "courting the affection of the people, and on this foundation wishing to support himself in opposition to the repeated resolutions of the House passed in the last three weeks." Had he confined himself to urging the necessity of the ministers and the House of Commons being in harmony, even though such a mention of the House of Commons by itself were to a certain extent an ignoring of the weight of the other branches of the Legislature, he would have only been advancing a doctrine which is practically established at the present day, since there has been certainly more than one instance in which a ministry has retired which enjoyed the confidence of both the sovereign and the House of Lords, because it was not supported by a majority in the House of Commons. But when he proceeded to make it a charge against the minister that he trusted to the good-will of the people to enable him to disregard the verdict of the House of Commons, he forgot that it was only as representing the people that the House had any right to pronounce a verdict; and that, if it were true that the judgment of the people was more favorable to the minister than that of the House of Commons, the difference which thus existed was a condemnation of the existing House, and an irresistible reason for calling on the constituencies to elect another.

Pitt, therefore, had no slight advantage in defending himself against so rash an assailant. "He did not shrink," he said, "from avowing himself the friend of the King's just prerogative," and in doing so he maintained that he had a title to be regarded as the champion of the people not less than of the crown. "Prerogative had been justly called a part of the rights of the people, and he was sure it was a part of their rights which they were never more inclined to defend, of which they were never more jealous, than at that hour."[100] And he contended that Fox's objections to a dissolution betrayed a consciousness that he had not the confidence of the nation. At last, when the contest had lasted nearly two months, Fox took the matter into his own hands, and, no longer putting his partisans in the front of the battle, on the 1st of March he himself moved for an address to the King, the most essential clause of which "submitted to his Majesty's royal consideration that the continuance of an administration which did not possess the confidence of the representatives of the people must be injurious to the public service." ... And, therefore, that "his Majesty's faithful Commons did find themselves obliged again to beseech his Majesty that he would be graciously pleased to lay the foundation of a strong and stable government by the previous removal of his present ministers." In the speech with which he introduced this address he put himself forward as especially the champion of the House of Commons. He charged the Prime-minister with an express design "to reduce the House to insignificance, to render it a mere appendage to the court, an appurtenance to the administration." He asserted the existence of a systematic "design to degrade the House, after which there was not another step necessary to complete the catastrophe of the constitution." And on this occasion he distinguished the feelings of the King from those which influenced the minister, affirming his confidence "that the King's heart had no share in the present business."[101]

Pitt, on the other hand, in reply, affirmed that he was called on by duty "to defend the rights of the other branches of the Legislature; the just and constitutional prerogative of the sovereign," upon which the Opposition was seeking to encroach, without even having shown a single reason to justify such invasion. He freely admitted that, if the House of Commons or either of the other branches of the Legislature "disapproved of an administration on proper grounds, it would not be well for that administration to retain office." But in the present instance he contended that "no ground for disapprobation had been shown." The existing administration "had, in fact, by an unaccountable obstinacy and untowardness of circumstances, been deprived of all opportunity" of showing its capacity or its intentions. "If any accusations should be made and proved against it, if any charges should be substantiated, it would, indeed be proper for the ministers to resign; and if, in such a case he were afterward to continue in office, he would suffer himself to be stigmatized as the champion of prerogative, and the unconstitutional supporter of the usurpation of the crown. But till this period arrived, he should reckon it his duty to adhere to the principles of the constitution, as delivered to us by our ancestors; to defend them against innovation and encroachment, and to maintain them with firmness." "The constitution of this country," he presently added, "is its glory; but in what a nice adjustment does its excellence consist! Equally free from the distractions of democracy and the tyranny of monarchy, its happiness is to be found in its mixture of parts. It was this mixed government which the prudence of our ancestors devised, and which it will be our wisdom to support. They experienced all the vicissitudes and distractions of a republic; they felt all the vassalage and despotism of a simple monarchy. They abandoned both; and, by blending each together, extracted a system which has been the envy and admiration of the world. This system it is the object of the present address to defeat and destroy. It is the intention of this address to arrogate a power which does not belong to the House of Commons; to place a negative on the exercise of the prerogative, and to destroy the balance of power in the government as it was settled at the Revolution."

Fox had urged that our history afforded no example of a ministry retaining office after the House of Commons had passed a resolution condemning it. Pitt, in reply, urged that our history equally failed to furnish any instance of a ministry having been called on to retire without any misconduct being alleged against them. And the result of the division showed that his arguments and his firmness were producing an impression on the House, for, though he was again defeated, the majority against him (only twelve) was far smaller than on any previous division.[102] A week later, this feeling in his favor was shown still more decidedly, when Fox, on moving for a fresh address, or, as he termed it, a representation to the King that the House had received his Majesty's reply to their address "with surprise and affliction," he could only carry it by a single vote.[103] And this division closed the struggle. Fox made no farther effort. Before the end of the month the Parliament was dissolved, and the general election which ensued sent to the House a majority to support the ministers which Pitt was fairly warranted in claiming as the full justification of the course which he had pursued.

On a review of the whole of this extraordinary transaction, or series of transactions, it is impossible to avoid regarding the issue of the struggle as an all-important element in the case, and a test almost decisive of the correctness of conduct of the rival leaders. We may leave out of the question the action of the King in his communication to Lord Temple, which, although sanctioned by the great legal authority of Lord Thurlow, we are, for reasons already given, compelled to regard as unconstitutional, but for which Mr. Pitt was only technically responsible; having, indeed, made himself so by his subsequent acceptance of office, but having had no previous suspicion of the royal intentions. Similarly, we may dismiss from our consideration the merits or demerits of Fox's India Bill, the designs which were imputed to its framers, or the consequences which, whether intended or not by them, were predicted as certain to flow from it. And we may confine ourselves to the question whether, in the great Parliamentary struggle which ensued, and which lasted for more than three months,[104] the doctrines advanced by Mr. Fox, and the conduct pursued by him, were more or less in accordance with the admitted rules and principles of the constitution.

These doctrines may be reduced to two: the first a declaration that no minister is justified in retaining office any longer than he is sustained in it by the favorable judgment of the representatives of the people. Taken by itself, this, but for one consideration, might be pronounced the superfluous assertion of a truism; superfluous, because it is obvious that a House of Commons hostile to a minister can compel his resignation by obstructing all his measures. And Pitt himself recognized this as fully as Fox, though we may hardly agree with him that the Opposition was bound to allow him time to develop his policy, and to bring forward his various measures, before it pronounced an opinion adverse to them. In 1835, when Sir R. Peel first met Parliament after his acceptance of office, consequent on the King's dismissal of Lord Melbourne's ministry, the Opposition encountered and defeated him twice in the first week of the session-on the choice of a Speaker, and on the address, though the latter had been framed with the most skilful care to avoid any necessity for objection; but no attempt was made by him to call in question the perfect right of Lord J. Russell and his followers in the House to choose their own time and field of battle. But there is one farther consideration, that the authority belonging to the judgment of the House of Commons depends on that judgment being not solely its own, but the judgment also of the constituencies which have returned it, and whose mouth-piece it is; and also that the House is not immortal, but is liable to be sent back to those constituencies, to see whether they will ratify the judgment which their representatives have expressed; whether, in other words, their judgment be the judgment of the nation also. This farther consideration was, in fact, Pitt's plea for resisting the majorities which, through January and February, so repeatedly pronounced against him. And in determining to appeal to the constituencies, as the court of ultimate resort, he was clearly within the lines of the constitution.

It follows that Fox, in protesting against a dissolution, in threatening even to take steps to prevent it, was acting in self-evident violation of all constitutional principle and precedent. He was denying one of the most universally acknowledged of the royal prerogatives. The distinction which he endeavored to draw between a dissolution at the close of a session and one in the middle of it, had manifestly no validity in law or in common-sense. The minister had a clear right to appeal from the House of Commons to the people, and one equally clear to choose his own time for making that appeal. The appeal was made, the judgment of the nation was pronounced, and its pronouncement may be, and indeed must be, accepted as a sufficient justification, in a constitutional point of view, of Pitt's conduct both in accepting and retaining office. If he retained it for three months, in opposition to the voice of the existing House of Commons, he could certainly allege that he was retaining it in accordance with the deliberate judgment of the nation.

And this is the verdict of a modern statesman, a very careful student of the theory of our Parliamentary constitution, and one whom party connection would notoriously have inclined to defend the line taken by Mr. Fox, had it been possible to do so. Indeed, he may be said to show his bias in that statesman's favor when he affirms that he would have been right in moving a resolution of censure on Pitt for "his acceptance of office," which he presently calls the result of "the success of a court intrigue,"[105] and, without a particle of evidence to justify the imputation, affirms to "have been prepared beforehand with much art and combination." But amicus Fox, sed magis arnica veritas; and though he thus passes censure on Pitt, where the facts on which he bases it are at least unproved, on those points as to which the facts are clear and certain he condemns Fox altogether, affirming that his "attempt to show that the crown had not the prerogative of dissolving Parliament in the middle of a session had neither law nor precedent in its support."[106] And he proceeds to lay down, with great clearness and accuracy, "the practice as well as the theory of our mixed government," which is, that "when two of the powers of the state cannot" agree, and the business of the state is stopped, the only appeal is to the people at large. Thus, when in the reign of Queen Anne the House of Lords and the House of Commons fulminated resolutions at each other, a dissolution cleared the air and restored serenity. If no case had occurred since the Revolution of a quarrel between the crown and the House of Commons, the cause is to be sought in the prudence with which every sovereign who had reigned since that event had wielded his constitutional authority. If George III. had been wanting in that prudence, it did not follow that he was debarred from the right of appealing to the people. Any other doctrine would invest the House of Commons, elected for the ordinary business of the state, with a supreme power over every branch of it. This supreme power must rest somewhere; according to our constitution it rests in the common assent of the realm, signified by the persons duly qualified to elect the members of the House of Commons; and Lord Russell, in thus expounding his ideas on this subject, was undoubtedly expressing the view that ever since the transactions of which we have been speaking has been taken of the point chiefly in dispute. Since that day there has been more than one instance of Parliament being dissolved in the middle of a session; but, though the prudence of the different ministers who advised such dissolutions may, perhaps, have been questioned-nay, though in one memorable instance it was undoubtedly a penal dissolution in the fullest sense of the word[107]-no one has ever accused the sovereign's advisers of seducing him into an unconstitutional exercise of his prerogative.

Pitt was now Prime-minister, with a degree of power in Parliament and of popularity out-of-doors that no former minister, not even his own father, had ever enjoyed. As such, by the confession of one who was certainly no friendly critic,[108] "he became the greatest master of Parliamentary government that has ever existed." His administration may be regarded as a fresh starting-point in the history of the country, as the inauguration of the principle of steady amendment, improvement, and progress, in place of the maxims which had guided all his predecessors since the Revolution, of regarding every thing as permanently settled by the arrangements made at that time, and their own duty, consequently, as binding them to keep everything in its existing condition. But, of all the ministers recorded in our annals, there is not one so greatly in advance of his time as Pitt; and from the very outset of his ministerial career he applied himself, not only to the removal or correction of admitted abuses or defects, but, in cases where the fault, being in our general system of policy, had been less conspicuous, to the establishment of new principles of action which have been the rules of all succeeding statesmen. He was not, indeed, the first raiser of the question of Parliamentary Reform, but he was the first to produce an elaborate scheme with that object, parts of which, such as the suppression of the smaller boroughs and the enfranchisement of places which had gradually become more important, have been leading features of every subsequent bill on the subject. He was the first to propose the removal of those political disabilities under which the Roman Catholics labored, which no one before him had regarded as consistent with the safety of the state, and to which he sacrificed office. He was the first to conceive the idea of developing our national industries and resources by commercial treaties with other nations, even choosing for his essay-piece a treaty with a country with which our relations for nearly five hundred years had been almost uninterruptedly hostile, and which Fox, in the heat of his opposition, objected even to consider in any other light than that of an enemy. He laid the foundation for all subsequent legislation connected with our colonies in his Bill for the Government of Canada; and he established a system for the government of our Indian dependencies on so statesman-like a principle, that all subsequent administrations concurred in upholding it, till subsequent events compelled the abolition of all the share in the government of the country previously possessed by the Company.

A great writer of the past generation,[109] who in some respects has done full justice to his genius and political virtue, has, however (partly, it can hardly be doubted, from regarding himself as a follower of his great rival, Fox), contrasted his capacity as a War-minister with that of his father, drawing a comparison on this point very disadvantageous to the son. We need not stop to examine how far the praises which he bestows on Lord Chatham's talents as a planner of military operations are deserved; but it may very fairly be contended that the disparaging views of Pitt's military policy which he has advanced are founded solely on what is in this as well as in many other instances a most delusive criterion, success. It is true, unquestionably, that in the campaigns of 1793-4-5 against the French revolutionists, while he took upon this country the entire burden of the naval war, on land he contented himself with playing a secondary part, and employing a comparatively small force (which, however, doubled that which his father had sent to Minden),[110] for the success of the military operations trusting chiefly to the far stronger Austrian and Prussian divisions, under the command of Prince Coburg and the Duke of Brunswick, to which the British regiments were but auxiliaries. It is true, also, that the result of their operations was unfortunate, and that the German generals proved wholly unable to contend with the fiery and more skilful impetuosity of Jourdan and Pichegru. But the question is not whether Pitt's confidence in the prowess of his allies was misplaced, but whether he had not abundant reason to justify him in entertaining it. And, to judge fairly on this point, we must recollect the reputation which for the last forty years the Austrian and Prussian armies had enjoyed. The result of the seven years' war had established the renown of the Prussians, and the Duke of Brunswick was understood to be a favorite pupil of the Great Frederic. The same war had shown that the Austrians were not very unequal to the Prussians; while the reputation of the French troops had fallen to the lowest ebb, the most memorable event in their annals during the same war being the rout of Rosbach, when 60,000 of them fled before Frederic and 22,000. At the breaking out of the Revolution, it might be said that De Bouille was the only French general of the slightest reputation, and since the sad journey to Varennes he had been an exile from his country. And, though again in 1803 Pitt once more trusted for success on land to Continental alliances, not only does he deserve admiration for the diplomatic talent with which he united Austria, Prussia, and Russia against France, but it can hardly be doubted that confederacy would have been triumphant, had not the incompetent vanity of Alexander ruined all its prospects by his rash disregard at Austerlitz of the experienced warnings of his own staff.[111]

The new form of government which he established for India, and to which allusion has been made, has lost the greater part of its importance in the eyes of the present generation, from the more-recent abolition of the political authority of the East India Company, though of some of the principles which he avowed he had taken for his guides it is worth while to preserve the record; with such clearness, as well as statesman-like wisdom, do they affirm the objects which every one should keep in view who applies himself to legislation for distant dependencies where the privileges and interests of foreign fellow-subjects are to be regarded with as jealous a solicitude as those of our own countrymen. These objects may be briefly described as being the reconciling the vested and chartered interests of the Company with the legitimate authority of the King's government; for, though Pitt admitted that "state necessity" might occasionally be allowed as a valid reason for the abrogation of a charter, he affirmed that nothing short of such absolute necessity could excuse such a measure, and he relied on the previous history of the Company to prove the fallacy of an observation that had sometimes been made, that commercial companies could not govern empires. There were three interests to be considered: that of the native Indians, that of the Company, and that of this country; and the problem to be solved was, "how to do the most good to India and to the East India Company with the least injury to our constitution." Some of his remarks contained unavoidable allusions to Fox's bill of the previous year, since some of the provisions of his bill were entirely opposite to those which Fox had framed, the most material point of difference being the character of the Board of Control which he proposed to establish. Fox, as has been seen, had proposed to make the commissioners to be appointed under his bill irremovable for several years, whatever changes might take place in the home government; an arrangement which the opposers of the bill suspected of being designed to prevent any change in the home government from taking place. Pitt, on the other hand, laid down as one of his leading principles that "the board could not be permanent, that it must be subordinate to the administration of the day, and that permanency would be in itself a deviation from the principles of the constitution, and would involve the board in contradictions to the executive government that could not fail to be attended with great public inconvenience. An institution to control the government of India must be either totally independent of the government of this country or subordinate to it." "The board was to consist of none but privy councillors," and instead of the vast amount of patronage which was to have been created by the bill of 1783, this board was "to create no increase of officers nor to impose any new burdens." ... "The first and leading ideas would be, to limit the subsisting patronage;" ... and so little was Pitt covetous to engross that which did and must continue to subsist, that he left even "the officers of the government of Bengal to the nomination of the Court of Directors, subject only to the negative of the crown; and the Court of Directors was also to have the nomination of the officers of all the subordinate governments, except only of the commander-in-chief, who, for various reasons, must remain to be appointed by the crown." Another very important part of the arrangement was, that "gradation and succession were to be the general rule of promotion," a regulation which of itself would be "a forcible check upon patronage, and tend greatly to its reduction." The governor of Bengal was to be the governor-general of the whole country, the governors of Madras and Bombay being subordinate to him; and each governor was to be assisted by a council of three members, of whom the commander of the forces was to be one.

The spirit in which a law or a government is administered is commonly of greater practical importance than the words in which the regulation or the system is framed or defined; and Pitt, therefore, concluded his speech by laying down a few "clear and simple principles as those from which alone a good government could arise. The first and principal object would be to take care to prevent the government from being ambitious and bent on conquest. Commerce was our object, and, with a view to its extension, a pacific system should prevail, and a system of defence and conciliation. The government there ought, therefore, in an especial manner, to avoid wars, or entering into alliances likely to create wars." It was not to forget "to pay a due regard to self-defence, or to guard against sudden hostilities from neighboring powers, and, whenever there was reason to apprehend attack, to be in a state of preparation. This was indispensably necessary; but whenever such circumstances occurred, the executive government in India was not to content itself with acting there as the circumstances of the case might require; it was also to send immediate advice home of what had happened, of what measures had been taken in consequence, and what farther measures were intended to be pursued; and a tribunal was to be established to take cognizance of such matters." The system of taking presents from the natives was to be absolutely prohibited, a regulation which he hoped would "tend effectually to check private corruption;" and, lastly, it was proposed to establish a court of criminal judicature for the trial in England of certain classes of delinquents after their return from India. The Judges of the court were to be men of the highest character; they were to be chosen by ballot, some being taken from the bench of judges, some from each House of Parliament. And they were "not to be tied down to strict rules of evidence, but to be upon their oaths to give their judgments conscientiously, and to pronounce such judgment as the common law would warrant." Such a tribunal he admitted to be an innovation; but, "unless some new process were instituted, offences shocking to humanity, opposite to justice, and contrary to every principle of religion and morality, must continue to prevail, unchecked, uncontrolled, and unrestrained, and the necessity of the case outweighed the risk and the hazard of the innovation."

These were the general outlines of the constitution which in 1784 the Parliament established for India, and the skill with which it was adapted to the very peculiar character of the settlements to be governed is sufficiently proved by the fact that it was maintained with very little alteration equally by Whig and Tory administrations for three-quarters of a century, till the great convulsion of the Mutiny compelled an entire alteration in the system, and the abolition of the governing powers of the Company, as we shall have occasion to relate in a subsequent chapter. The principles which Pitt had laid down as the guiding maxims for the governors; the avoidance of ambitious views of conquest, the preservation of peace, and the limitation of the aims of the government to the encouragement and extension of commerce, were not equally adhered to. Undoubtedly, in some instances, the wars in which, even during Pitt's too short lifetime, the Indian government was engaged, came under his description of wars which were justifiable on the ground of self-defence-wars undertaken for the preservation of what had been previously won or purchased, rather than for the acquisition of new territories at the expense of chiefs who had given us no provocation. But for others, though professedly undertaken with a view only of anticipating hostile intentions, the development of which might possibly be reserved for a distant future, it is not easy to find a similar justification; and it may be feared that in more than one case governors-general, conscious of great abilities, have been too much inclined to adopt the pernicious maxim of Louis XIV., that the aggrandizement and extension of his dominions is the noblest object which a ruler of nations can have in view. Yet, though unable on strictly moral grounds to justify all the warlike enterprises which make up so large a part of our subsequent Indian history, it is impossible, probably, for even the most rigid moralist to avoid some feelings of national pride in the genius of our countrymen, who in the short space of a single century have built up an empire of a magnitude unequalled even by the Caesars, and have governed and still are governing it in so wise and beneficent a spirit, and with such a display of administrative capacity, that our rule is recognized as a blessing by the great majority of the nations themselves, as a protection from ceaseless intestine war, from rapine, and that worst of tyrannies, anarchy, which was their normal condition before Clive established our supremacy at Plassy, and into which they would surely and speedily fall back, if our controlling authority were to be withdrawn.

India was not the only British settlement for which the growth of our empire compelled Pitt to devise a constitution. The year which saw his birth had also seen the conquest of Canada from the French; and in 1774 a system of government for the new province had been established which it is sufficient here to describe as one, which differed but little from a pure despotism, the administration being vested in a governor and Legislative Council, every member of which was to be nominated by the crown. But the working of this act had from the first proved very unsatisfactory, and had become more so as the population increased by the influx of fresh settlers from Great Britain, and also from the United States, here many of those who in the recent civil war had adhered the connection with the mother country had been exposed to constant malice and ill-treatment, and had preferred crossing the border and obtaining lands in Canada to returning to England. Pitt recognized the evil, and undertook to remedy it and in 1791 he introduced a bill to establish a constitution for Canada, which a recent historian describes as "remarkable, as recognizing for the first time the wise and generous principle of independent colonial institutions, which has since been fully developed in every dependency of the British crown capable of local self-government."[112] One peculiar difficulty in framing such a constitution arose from the circumstance of the old French colonists, who greatly outnumbered the settlers of British blood, being attached to the Roman Catholic religion; while the British settlers were nearly, or perhaps all, Protestant, though of different denominations. The difficulty was, indeed, lessened by the circumstance that the French dwelt in Quebec and the district between that city and the mouth of the St. Lawrence, and that the English had for the most part betaken themselves to the more inland region. And this local separation of the two races the minister now took for his guide in the arrangement which he devised. The most important feature in it was the division of the province into two parts, as Upper and Lower Canada, and the establishment of a distinct local Legislature for each division, a House of Assembly being created in each, and a Council, so as, in Pitt's words, "to give both divisions the full advantages of the British constitution." The Assemblies were to have the power of taxation (so that there was no room left for such perverse legislation by a British Parliament as had lately cost its sovereign the United States). The act of habeas corpus was extended to the province (a privilege which no one of French blood had ever enjoyed before); the tenure of land was to be the socage[113] tenure so long and happily established in England. Complete religious toleration was established, and a certain proportion of land was allotted in Upper Canada, as a provision for a Protestant clergy, and the foundation of an ecclesiastical establishment. So great was Pitt's desire to complete the resemblance between the colony and Great Britain, that he even contemplated the creation of an aristocracy, by the introduction of a provision enabling the King to grant hereditary colonial titles, the possession of which should include hereditary seats in the provincial Council. The two latter clauses were opposed by Fox, and the latter of them, though sanctioned by Parliament, was never carried out in practice. But Fox, bitter as he was at this time in his general opposition to the government, agreed cordially in the general principles of the bill, avowing his conviction that "the only method of retaining distant colonies with advantage is to enable them to govern themselves," so that each party in the British Parliament is entitled to a share of the credit for this pattern of all subsequent colonial constitutions-Pitt for the original genius for organization which his contrivance of all the complicated details of the measure displayed, and Fox for his frank adoption of the general principle inculcated by his rival, even while differing as to some of the minor details of the measure. During these years the country was increasing in prosperity, and the minister was daily rising in credit; more powerful and more popular than the most successful or the most brilliant of his predecessors. But during these same years two great constitutional difficulties had arisen, one of which, indeed, the deep sense which both parties felt of the danger of investigating it shelved almost as soon as it was seen; but the other of which, besides the importance which it derived from the degree in which it involved the principle of the supreme authority of Parliament, and brought under discussion even that which regulates the succession to the crown, imperilled the existence of the ministry, and threatened a total change in both the domestic and foreign policy of the nation.

The Prince of Wales, who had come of age in the summer of 1783, had at once begun to make himself notorious for the violence of his opposition to his father's ministers, carrying the openness of his hostility so far as, during the Westminster election to drive about the streets with a carriage and all his servants profusely decorated with Fox's colors; and, still more discreditably, by most unmeasured profligacy of all kinds. The consequence was that he soon became deeply involved in debt, so deeply that, in 1787, a member of Fox's party gave notice of his intention to move that the Parliament should pay his debts and increase his income. Pitt, without specifying his reasons, avowed that he should feel it his duty to oppose any grant of such a character; but another member of Parliament, Mr. Rolle, one of the members for Devonshire, being trammelled by no such feeling of responsibility, expressed a similar resolution in language which contained an allusion perfectly understood on both sides of the House. He said that "the question thus proposed to be brought forward went immediately to affect our constitution in Church and State." And every one knew that he was referring to a report which had recently become general, that the Prince was married to a Roman Catholic lady of the name of Fitzherbert. No direct notice was taken of this allusion at the moment, Fox himself, who had the chief share of the Prince's confidence, being accidentally absent; but a day or two afterward he referred to Rolle's speech with great indignation, declaring that it referred to a "low, malicious calumny" which had no foundation whatever, and "was only fit to impose on the lowest order of persons." Being pressed as to the precise force of his assertion, and being asked whether it meant more than that under the existing laws, such as the Royal Marriage Act, there had been no marriage, because there could have been no legal marriage, he declared that he meant no such evasion, but that no marriage ceremony, legal or illegal, had ever taken place; and farther, that in saying this he was speaking on the direct authority of the Prince himself. No more degrading act stains the annals of British royalty. For the fact was true-the very next evening Fox learned the deceit which the Prince had practised on him from a gentleman who had been one of the witnesses to the marriage, which had been solemnized by a Protestant clergyman fifteen months before.[114] And his indignation was such that for some time afterward he abstained from all interference in the Prince's affairs; while the language held by the Prince's other confidant, Mr. Sheridan, was so evasive as to betray a consciousness that whatever had occurred would not bear the light of day; so that there were very few to whom the truth or falsehood of the report was a subject of interest who felt any uncertainty on the subject.

It may, probably, be regarded as fortunate for the peace of the kingdom that the Prince, who eventually became King George IV., left behind him no issue from his marriage with the Princess, the failure of heirs of his body thus removing any temptation to raise the question whether he had not himself forfeited all right to succeed to the throne by his previous marriage to a Roman Catholic. A clause of the Bill of Rights provides that any member of the royal family who should marry a Roman Catholic (with the exception of the issue of princesses who may be the wives of foreign princes) shall by that marriage be rendered incapable of inheriting the crown of England. And though the Royal Marriage Act (which, as we have seen, had been recently passed) had enacted that no marriage of any member of the royal family contracted without the consent of the reigning sovereign should be valid, it by no means follows that an invalidity so created would exempt the contractor of a marriage with a Roman Catholic, which as an honorable man he must be supposed to have intended to make valid, from the penalties enacted by the Bill of Rights. It is a point on which the most eminent lawyers of the present day are by no means agreed. The spirit of the clause in that bill undoubtedly was, that no apparent or presumptive heirs to the crown should form a matrimonial connection with any one who should own allegiance to a foreign power, and that spirit was manifestly disregarded if a prince married a Roman Catholic lady, even though a subsequent law had enacted a conditional invalidity of such a marriage. We may find an analogy to such a case in instances where a man has abducted a minor, and induced her to contract a marriage with himself. The lady may not have been reluctant; but the marriage has been annulled, and the husband has been criminally prosecuted, the nullity of the marriage not availing to save him from conviction and punishment. A bigamous marriage is invalid, but the bigamist is punished. And, apart from any purely legal consideration, it may be thought that public policy forbids such a construction of law as would make the illegality or invalidity of an act (and all illegal acts must be more or less invalid) such a protection to the wrong-doer as would screen him from punishment.

Whatever may be the judgment formed on the legal aspect and merits of the case, the conduct of the Prince could not fail to give the great body of the people, justly jealous at all times of their national adherence to truthfulness and honesty, a most unfavorable impression of his character. As has been already mentioned, Fox was so indignant at having been made the instrument to assure the Parliament and the nation of a falsehood, that he for a time broke off all communication with him.[115] Yet a singular caprice of fortune, or, it would be more proper to say, a melancholy visitation of Providence, before the end of the following year led Fox to carry his championship of the same Prince who had so abused his confidence to the length of pronouncing the most extravagant eulogies on his principles, and on his right to the confidence and respect of the nation at large. In the autumn of 1788 the King fell into a state of bad health, which in no long time affected his mind, and, by the middle of November, had so deranged his faculties as to render him incapable of attending to his royal duties, or, in fact, transacting any business whatever. Parliament was not sitting, but its re-assembling had been fixed for the 4th of December, and before that day arrived the King's illness had assumed so alarming a character, and it appeared so unsafe to calculate on his immediate recovery, that the minister summoned a Privy Council, the summons being addressed to the members of the Opposition as well as to his own followers, to receive the opinions of the physicians in attendance on his Majesty, as a necessary foundation for the measures which he conceived it to be his duty to propose to Parliament. Those opinions were, that it was almost certain that the disease would not be permanent, though no one could undertake to fix its duration with the least appearance of probability. And, as the royal authority could not be left in abeyance, as it were, for an uncertain period, it was indispensable to appoint a Regent to conduct the affairs of the kingdom till the King should, happily, be once more in a condition to resume his functions.

In considering the line of conduct adopted in this emergency by Pitt and his great rival Fox, Pitt has one manifest advantage on his side, that it is impossible to attribute the course which he took to any personal motive, or any desire for the retention of official power; while it is equally impossible to doubt that Fox was in no slight degree,[116] and that Lord Loughborough, the prince's chief adviser on points of law, was wholly influenced by the hope of supplanting the ministry. Pitt had never the least doubt that on the establishment of the Regency he should be dismissed, and was prepared to return to the Bar. But his knowledge of the preference which the Prince entertained for his rival did not lead him to hesitate for a single moment as to the propriety of placing him in a situation to exercise that preference. On the reassembling of Parliament, he at once took what he conceived to be the proper parliamentary course of proceeding; at his suggestion committees in both Houses were appointed to take a formal examination of the royal physicians; and, when those committees had reported that the King was for the present incapable of discharging his royal functions, though likely at some future period to be able to resume them, he moved the House of Commons to appoint another committee, to search for "precedents of such proceedings as might have been taken in the case of the personal exercise of the royal authority being prevented or interrupted by infancy, sickness, or infirmity, with a view to provide for the same." Such a search for precedents was no novelty, and may be thought to have been especially proper in such a case as this, since history recorded the appointment of several regencies, one under circumstances strikingly resembling those now existing, when, in 1454, Henry VI. had fallen into a state of imbecility, and the Parliament appointed the Duke of York Protector[117] of the kingdom.

But Fox instantly opposed it with extreme vehemence, declaring that the appointment of such a committee would be a pure waste of time. It was notorious, he affirmed, that no precedent existed which could have any bearing on the present case, since there was in existence a person such as had never been found on any previous occasion, an heir-apparent of full age and capacity to exercise the royal authority; and he declared it to be his deliberate opinion that the Prince of Wales had "as clear and express a right to assume the reins of government, and to exercise all the powers of sovereignty, during the illness and incapacity of the sovereign, as if that sovereign were actually deceased." Such an assertion of indefeasible right was so totally at variance with the Whig doctrines which Pitt, equally with Fox, regarded as the true principles of the constitution, that Pitt at once perceived the advantage which it gave him, by enabling him to stand forward as the supporter of the supreme authority of Parliament, which Fox had by implication denied. He instantly replied that to assert an inherent indefeasible right in the Prince of Wales, or any one else, independently of the decision of the two Houses, fell little short of treason to the constitution; but, at the same time, to prevent any one pretending to misconceive his intentions, he allowed it to be seen with sufficient plainness that, when once the right of Parliament to appoint the Regent had been established, he should agree in the propriety of conferring that office on the Prince of Wales. The committee was appointed; but, even before it could report the result of its investigations, the doctrine advanced by Fox had been the subject of discussion in the House of Lords, where Lord Camden, who had presided over the meeting of the Privy Council a few days before, on moving for the appointment of a similar committee of peers, had taken occasion to declare that, if Fox had made such an assertion as rumor imputed to him, it was one which had no foundation in "the common law of the kingdom." He had never read nor heard of such a doctrine. Its assertors might raise expectations not easily laid, and might involve the country in confusion. And he contended, as Pitt had done in the Commons, that its assertion was a strong argument in favor of the appointment of a committee, that it might be at once seen whether it were warranted by any precedent whatever. The reports of the two committees bore out Fox's statement, that no precedent entirely applicable to the case before them had ever occurred. But by this time Fox had learned that the argument which he had founded on it was in the highest degree unpalatable both to Parliament and to the nation; and for a moment he sought to modify it by an explanation that, though he had claimed for the Prince "the naked right, he had not by that expression intended to maintain that that right could be reduced into possession without the consent of Parliament;" an explanation not very reconcilable to common sense, since, if a right were inherent and indefeasible, Parliament could not, without absolute tyranny, refuse to sanction its exercise; and, in fact, his coadjutor, Sheridan, on the very same evening, re-asserted his original doctrine in, if possible, still more explicit terms, warning the minister "of the danger of provoking the Prince to assert his right," while a still greater man (Burke) declared that "the minister had taken up an attitude on the question tantamount to that of setting himself up as a competitor to the Prince." Such inconsiderate violence gave a great advantage to Pitt, one of whose most useful characteristics as a debater was a readiness and presence of mind that nothing could discompose. He repelled such menaces and imputations with an equally lofty scorn, and, after a few necessary preliminaries, brought forward a series of resolutions, one of which declared the fact of the sovereign's illness, and consequent incapacity; a second affirmed it to be the right and duty of the two Houses of Parliament to provide the means for supplying the defect in the royal authority; and a third imposed on the Houses the task of deciding on the mode in which the royal assent necessary to give their resolutions the authority of law should be signified. It was impossible to object to the first; but the second was stubbornly contested by the Opposition, the chiefs of the Coalition Ministry once more fighting side by side; though Lord North contented himself with arguing that the affirmation of the right and duty of Parliament was a needless raising of a disputable point, and moving, therefore, that the committee should report progress, as the recognized mode of shelving it. Fox, however, carried away by the heat of debate, returned to the assertion of the doctrine of absolute right, overlooking his subsequent modification of it, and again gave Pitt the advantage, by condescending to impugn his motives for proposing the resolution, as being inspired, not by a zeal for the constitution, but by a consciousness that he did not deserve the confidence of the Prince, and, therefore, anticipated his instant dismissal by the Regent. The re-affirmation of the Prince's inherent right was, indeed, necessary to Fox as the foundation for the objections which he took to other parts of Pitt's scheme. For the minister, while admitting to its full extent the irresistible claim which the Prince of Wales possessed to the preference of Parliament for the Regency, proposed at the same time to impose certain limitations on his exercise of the authority, so long as there was a reasonable hope of his royal father's recovery. He was not to have the power to create peerages, nor to alienate the property of the crown, nor to grant offices in reversion; and, as the Queen was to have the care of his Majesty's person, she also was to have the appointment of all the offices in the royal household. Fox, on the other hand, objected with extreme earnestness to the impropriety of imposing any limitations whatever on the power of the Regent; and then the question whether the Prince was to derive his right to the Regency from the authority of Parliament, or from his natural position and inalienable preceding right as his father's heir, became one of practical importance. If the Parliament had the right to confer authority, it had clearly the right to limit the authority it conferred. If the Prince had an indefeasible right to the Regency, independently of the will of Parliament, then Parliament could have no pretence to limit or restrain the exercise of an authority which in no degree flowed from itself. Fox, indeed, took another objection to the imposing of limitations to the authority to be intrusted to the Regent, contending that this would be to create a power unknown to the constitution-a person in the situation of King without regal power. But, not to mention precedents drawn from the reigns of Edward III., Richard II., and Henry VI., in the twenty-fourth year of the very last reign, George II., on the death of his son, the father of the present King, had enjoined the Parliament to provide for the government, in the case of his own death, while the heir was still a minor, recommending to them the appointment of the Princess Dowager of Wales as Regent, "with such powers and limitations as might appear expedient." And, in conformity with his desire, the Parliament had appointed the Princess Regent, with a Council of Regency to assist her; and had enacted that "several portions of the regal power" should be withheld from the Regent, if she could not obtain the consent of the Council thus appointed.[118]

This part of the case was so plain, that when, after the different resolutions proposed by Pitt had been adopted in both Houses, Fox insisted that, instead of proceeding by a bill to create a Regency, and to appoint the Prince of Wales Regent, the only course which could be adopted with propriety would be to present an address to the Prince, to entreat him to assume the government, he failed to induce the House to agree with him; and finally, as if he were determined to find a battle-field in every clause, he made a vigorous resistance to the expedient by which Pitt proposed that the formal royal assent which was necessary to make the bill law should be given. Fox, on one occasion, had gone the length of denying that the two Houses had any right to be regarded as a Parliament while the King, an essential part of Parliament, was incapacitated. But such an objection could have had no force, even in the mind of him who raised it, since the proceedings of the two Convention Parliaments of 1660 and 1689 labored under a similar defect; and yet their acts had been recognized as valid, and ratified by subsequent Parliaments. And now, in reference to the expedient proposed by the minister, that the two Houses should empower and authorize the Lord Chancellor to affix the Great Seal to the bill, Burke, with great, but for him not unusual, violence, denounced both the proposal and the Chancellor, declaring that such a step would be the setting up of a phantom of sovereignty, a puppet, an idol, an idiot, to which he disclaimed all allegiance. A more perilous amendment was one proposed to another clause by Mr. Rolle, enacting that if the Regent should marry a Roman Catholic his authority should cease. Since the Bill of Rights, as we have seen, forbade a sovereign to marry a Roman Catholic without incurring the forfeiture of his crown, it was evidently reasonable that the same restriction should be imposed on every Regent; but it was hard at the moment altogether to dissociate such a clause from the discussions of the preceding year; and Mr. Rolle endeavored to give the clause a more pointed meaning by an amendment to enact that the forfeiture should be incurred by the mere celebration of any marriage ceremony, whether the marriage thus performed were legal and valid or not. His amendment, however, was unanimously rejected. The bill was passed without alteration by the House of Commons; the Prince, while protesting in an elaborate and most able letter, drawn up for him by Burke, against the restrictions imposed by the bill, nevertheless consented to sacrifice his own judgment to the general good of the kingdom, and to accept the authority, limited as it was. And by the middle of February the bill was sent up to the House of Lords. There Lord Camden had charge of it, and his position as a former Chancellor gave irresistible weight to his opinion that the mode proposed to give the final sanction to the bill was strictly in accordance with the spirit and practice of the constitution. The point with which he dealt was the previous one, how Parliament, which was to pass the bill, was to be opened, for, "circumstanced as it was, Parliament could not at present take a single step." The law, as he put it, declared that the King must be present, either in person or by a representative. When he could not attend personally, the legal and constitutional process was to issue letters-patent under the Great Seal. In the present dilemma, therefore, he recommended that the two Houses should direct letters-patent to be issued under the Great Seal, authorizing commissioners to open Parliament in the name of his Majesty. He "must use the liberty to say that those who treated this proposal with ridicule were ignorant of the laws of their country. A fiction it might be termed, but it was a fiction admirably calculated to preserve the constitution, and, by adopting its forms, to preserve its substance." The authority of the Great Seal he explained to be such that, "even if the Lord Chancellor, by caprice, put it to any commission, it could not afterward be questioned;" and he adduced a precedent of a very similar character to the course now proposed, which occurred "at the commencement of the reign of Henry VI., when, the sovereign being an infant of nine months old, the Great Seal was placed in his hand, and it was supposed to be given to him by the Master of the Rolls, whereupon many commissions were sealed by it, and the government was carried on under its authority." That precedent, he reminded the peers, had been followed as recently as the year 1754, when, during an illness of George II., Lord Chancellor Hardwicke affixed the Great Seal to a commission for opening a session of Parliament. And, finally, he concluded by moving, "That it is expedient and necessary that letters-patent for opening the Parliament should pass under the Great Seal."[119] The motion was carried, and Parliament was opened in accordance with it; and, if it had been necessary, the same expedient would have sufficed to give the requisite assent to the Regency Bill, a necessity which was escaped by the fortunate recovery of the royal patient, which was announced by his medical advisers a day or two before that fixed for the third reading of the bill in the House of Lords.

Though the question was thus left undetermined for the moment, it was revived twenty-two years afterward, when the same sovereign was attacked by a recurrence of the same disease, and the existing ministry, then presided over by Mr. Perceval, brought forward a Regency Bill almost identical with that which on this occasion had been framed by Mr. Pitt; and the Opposition, led by Lord Grey and Sir Samuel Romilly, raised as nearly as possible the same objections to it which were now urged by Fox and his adherents. The ministerial measure was, however, again supported by considerable majorities; so that the course proposed by Mr. Pitt on this occasion may be said to have received the sanction of two Parliaments assembled and sitting under widely different circumstances; and may, therefore, be taken as having established the rule which will be adopted if such an emergency should, unfortunately, arise hereafter. And indeed, though the propriety of Pitt's proposals has, as was natural, been discussed by every historical and political writer who has dealt with the history of that time, there has been a general concurrence of opinion in favor of that statesman's measure. Lord John Russell, while giving a document, entitled "Materials for a Pamphlet," in which he recognizes the handwriting of Lord Loughborough, and which "contains the grounds of the opinion advanced by him, and adopted by Mr. Fox, that, from the moment the two Houses of Parliament declared the King unable to exercise his royal authority, a right to exercise that authority attached to the Prince of Wales," does not suppress his own opinion of the "erroneousness of this or any other doctrine that attributes to any individual or any constituted authority existing in the state a strict or legal right to claim or to dispose of the royal authority while the King is alive, but incapable of exercising it."[120]

The only writer, as far as I am aware, who advocates the opposite view is Lord Campbell, who, after quoting the speech of Lord Camden, from which extracts have been made, comments on it, and on the whole transaction, in the following terms: "From the course then adopted and carried through, I presume it is now to be considered part of our constitution that if ever, during the natural life of the sovereign, he is unable by mental disease personally to exercise the royal functions, the deficiency is to be supplied by the two Houses of Parliament, who, in their discretion, will probably elect the heir-apparent Regent, under such restrictions as they may please to propose, but who may prefer the head of the ruling faction, and at once vest in him all the prerogatives of the crown. On the two occasions referred to in the reign of George III., the next heir being at enmity with the King and his ministers, this was considered the loyal and courtly doctrine; and, from its apparent advancement of the rights of Parliament, there was no difficulty in casting odium on those who opposed it. But I must avow that my deliberate opinion coincides with that of Burke, Fox, and Erskine, who pronounced it to be unsupported by any precedent, and to be in accordance with the principles of the Polish, not the English, monarchy. The two Houses of Parliament would be the proper tribunal to pronounce that the sovereign is unable to act; but then, as if he were naturally as well as civilly dead, the next heir ought of right to assume the government as Regent, ever ready to lay it down on the sovereign's restoration to reason, in the same way as our Lady Victoria would have returned to a private station if, after her accession, there had appeared posthumous issue of William IV. by his queen. It is easy to point out possible abuses by the next heir as Regent, to the prejudice of the living sovereign; but there may be greater abuses of the power of election imputed to the two Houses, whereby a change of dynasty might be effected. I conceive, therefore, that the Irish Parliament[121] in 1789 acted more constitutionally in acknowledging the right of the next heir, in scouting the fiction of a commission or royal assent from the insane sovereign, and in addressing the Prince of Wales to take on himself the government as Regent."

Though the sneers at the possibility of Parliament preferring "the head of the ruling faction" to the heir-apparent be hardly consistent with the impartial candor which is one of the most imperative duties of an historical critic, and though the allusion to the principles of the Polish monarchy be not very intelligible, yet no one will refuse to attach due weight to the deliberate opinion of one who won for himself so high a professional reputation as Lord Campbell. But, with all respect to his legal rank, we may venture to doubt whether he has not laid down as law, speaking as a literary man and an historian, a doctrine which he would not have entertained as a judge. For, if we consider the common law of the kingdom, it is certain that, in the case of subjects, if a man becomes deranged, his next heir does not at once enter on his property "as if he were naturally as well as civilly dead." And if, as in such cases is notoriously the practice, the Court of Chancery appoints a guardian of the lunatic's property, analogy would seem to require that the Houses of Parliament, as the only body which can possibly claim authority in such a matter, should exercise a similar power in providing for the proper management of the government to that which the law court would exercise in providing for the proper management of an estate; and that, therefore, the principles of constitutional[122] statesmanship, which is deeply interested in upholding the predominant authority of Parliament, must justify the assertion of the ministers that the two Houses had the entire and sole right to make regulations for the government of the kingdom during the incapacity of the sovereign; and that the next heir, even when a son of full age, can have no more right to succeed to his father's royal authority in his lifetime than, if that father were a subject, he would have to succeed to his estate.

The opposite doctrine would seem to impugn the legality of the whole series of transactions which placed William and Mary on the throne. The admission of an indefeasible right of the heir-apparent would have borne a perilous resemblance to a recognition of that divine right, every pretension to which the Revolution of 1688 had extinguished. If, again, as Fox and his followers at one time endeavored to argue, the Houses in 1789 had no right to the name or power of a Parliament, because the King had no part in their meetings, the convention that sat a century before (as, indeed, was admitted) was certainly far less entitled to that name or power, for it had not only never been called into existence by a King, but was assembled in direct defiance of the King. Similarly, it is admitted that the body which invited Charles II. to return and resume his authority was equally destitute of the validity which could only be given by a royal summons. Yet both these bodies had performed actions of greater importance than that which was looked for from this Parliament. The one had abolished the existing and usurping government, and restored to his kingdom a King who had been long an exile. The other had, as it were, passed sentence on the existing sovereign, on grounds which confessedly will not bear a strict examination, and had conferred the crown on a prince who had no hereditary claim to the title. The justification of both acts was necessity. Salus regni suprema Lex. And the necessity was clearly more urgent in the present case than in either of the preceding instances. For, unless the Parliament interfered to create an authority, there was absolutely none in existence which was capable of acting. It should also be remembered that this Parliament of 1789, though not opened for the session by the King, had been originally elected in obedience to his order, and had been prorogued by his proclamation to the day of meeting;[123] and, though the opening of a session by a speech from the throne is the usual form for the commencement of its proceedings, it may be doubted whether it be so indispensable a part of them that none of their acts are valid without it.

The breaking out of the French Revolution, and the degree in which, in spite of all its atrocities and horrors, the revolutionary spirit for a time infected a large party in England, prevented Pitt from reviving the plan of Reform which he had framed with such care and genius for organization, and in which, though defeated in Parliament, both before and after he became minister, he had hitherto continued to cherish the hope of eventually succeeding. But when clubs and societies, where the most revolutionary and seditious doctrines were openly broached, were springing up in London and other large towns, and unscrupulous demagogues by speeches and pamphlets were busily disseminating theories which tended to the subversion of all legitimate authority, he not unnaturally thought it no longer seasonable to invite a discussion of schemes which would be supported in many quarters only, to quote his own words, "as a stepping-stone to ulterior objects, which they dared not avow till their power of carrying them into effect should be by this first acquisition secured." But the alarm which the spread of revolutionary ideas excited in his mind was displayed, not only passively in this abstention from the advocacy of measures the expediency of which must at all times in some degree depend on the tone of their introduction, but also in active measures of repression, some of which were not, indeed, unwarranted by precedent, but others of which can hardly be denied to have been serious inroads on the constitution, infringements of the freedom of opinion and discussion to which all Englishmen are entitled, and one of which was, to say the least, a very perilous extension of a law already sufficiently severe, the statute of treason. If the French had been content with the overthrow of their own government and institutions, much as we should have lamented the indiscriminate rashness and abhorred the atrocities with which their design was carried out, we should still have adhered to the unquestionable maxim, that no nation is justified in interfering in the internal affairs of another. But the Jacobin and Girondin demagogues, who had now the undisputed sway in Paris, did not limit their views to their own country, but openly declared themselves the enemies of all established governments in every country; and the Convention passed a formal resolution in which they proffered "fraternity and assistance" to every people which might be inclined to rise against their governments. Their resolutions were officially communicated to the sympathizing societies in England, and emissaries were secretly encouraged to cross the Channel in the hope of gaining converts. Nor were their exertions barren. Two men were convicted in Scotland of a plot to seize Edinburgh Castle, to massacre the garrison, to imprison the judges, and to rise in arms to compel the government to a change of policy. In London the King was fired at on his way to open Parliament, and on his return his carriage was attacked by a furious mob, and was only protected from serious injury by a troop of the Life Guards. Such outrages proved the existence of a new danger, against which no previous government had ever been called on to provide, and such as, in the opinion of the cabinet, could only be met by novel measures of precaution.

The first was directed against the foreign propagators of revolution. The resolutions of the Convention had been promulgated in November, 1792; and at the meeting of Parliament in December, Lord Grenville, as Foreign Secretary of State, introduced in the House of Lords an alien bill, to enable the government to deal in a summary manner with any foreign visitors whose conduct or character might seem to call for its interference. It provided that all foreigners who had arrived in the kingdom since the preceding January should give in a statement of their names and residences; that any one who should arrive in future should furnish an account of his name, his station in life, and his object in visiting England; that the King, by proclamation, order in Council, or sign-manual, might direct all foreigners to reside in such districts as might be thought suitable; that no one might quit the residence in which he first settled without a passport; and that the Secretary of State might order any suspected foreigner to quit the kingdom instantly.

The act was to be in operation for twelve months, and Lord Grenville, in introducing it, though he admitted it to be a measure of "rather a novel nature," explained at the same time that it was so far from being new in the powers which it gave, that Magna Charta distinctly recognized "the power and right of the crown to prevent foreigners from entering or residing within the realm." All that was really new was the defining of the manner in which that power should be exercised, since it had been so rarely needed that doubts might exist as to the proper mode of putting it in action. The bill, which was adopted in both Houses by large majorities, is remarkable, among other circumstances, from the fact that its discussion furnished the first instance of a public display of the difference between the two sections of the Opposition, subsequently described by Burke in one of his most celebrated pamphlets as the Old and New Whigs; those whom he called the Old Whigs (the Duke of Portland, Sir Gilbert Elliott, Mr. Windham, not to mention Burke himself) earnestly supporting it, while Lord Lansdowne, Mr. Fox, Mr. Sheridan, and Mr. Grey resisted it with equal zeal. Lord Lansdowne took the ground that it was a suspension of the Habeas Corpus Act; while Fox and Grey denounced it, in more general terms, as a measure "utterly irreconcilable with the principles of the constitution," Mr. Grey apparently referring chiefly to the power given by the bill to the Secretary of State to send any foreigners from the country, which he described as "making the bill a measure of oppression, giving power for the exercise of which no man was responsible." Sir Gilbert Elliott's answer was singularly ingenious. He did not deny that the bill conferred additional power on the crown, though not more than was justified by existing circumstances; but he maintained that the right of giving extraordinary powers to the crown on occasions was so far from being inconsistent with the principles of the constitution, that to grant extraordinary powers in extraordinary emergencies was a part of it essential to the character of a free government. If such powers were at all times possessed by the crown, its authority would be too great for a free government to co-exist with it; but if such could not be at times conferred on the crown, its authority would be too small for its own safety or that of the people.

The arguments of the ministers were, no doubt, greatly recommended, both to the Parliament and the people in general, by the notoriety of the fact that foreign agents were in many of our large towns busily, and not unsuccessfully, engaged in propagating what were known as Jacobin doctrines. But, even without that aid, it was clear that every government must, for the common good of all, be at times of extraordinary emergency invested with the power of suspending laws made for ordinary circumstances. And what would be an intolerable evil, if the supreme magistrate took upon himself to exercise it, ceases to be one when the right to exercise it is conferred by the nation itself in Parliament. If the bill did, as was argued, suspend the Habeas Corpus Act, that statute had been enacted by Parliament, and therefore for Parliament, in a case of necessity, to suspend its operation was clearly within the spirit of the constitution.

The bills affecting our own fellow-subjects were still more warmly contested. One was known as the Traitorous Correspondence Bill, which, according to Lord Campbell, was suggested by Lord Loughborough, who had lately become Lord Chancellor. The old law of high-treason, enacted in the reign of Edward III., had been in effect greatly mitigated by later statutes, which had made acts to which that character was imputed more difficult of proof, by a stricter definition of what was admissible evidence, and other safeguards; and the practice of the courts had by degrees practically reduced the list of treasons enumerated in the old law, indictments for many of the offences contained in it forbearing to assert that the persons accused had incurred the penalty of high-treason. But this new bill greatly enlarged the catalogue. It made it high-treason to hold any correspondence with the French, or to enter into any agreement to supply them with commodities of any kind, even such as were not munitions of war, but articles of ordinary merchandise, or to invest any money in the French Funds; and it enacted farther that any person who, by "any writing, preaching, or malicious and advised speaking," should encourage such designs as the old statute of Edward made treasonable, should be liable to the penalties of high-treason.

Another bill was designed to check the growing custom of holding public meetings, by providing that no meeting, the object of which was to consider any petition to the King or Parliament, or to deliberate on any alleged grievance, should be held without those who convened it, and who must be householders, giving previous notice of it by public advertisement; and empowering any two justices of the peace, at their own discretion, to declare any such meeting an unlawful assembly, and to disperse it by force, if, from the subjects discussed, the language held, or any special circumstances, they should regard it as dangerous.

Fox, and those who still adhered to him, resisted almost every clause of these different bills. They maintained that one of the most fundamental maxims of law "in every country calling itself free was, that property was in the highest degree entitled to the protection of the law; and, if so, that the right of disposing of it or investing it in any manner must be considered under the same protection;" that any interference "with ordinary commercial transactions was equally repugnant to the spirit of the constitution;" and, taking a practical view of the question, they warned the minister that such rigorous enactments imposing such extreme penalties would defeat their own end; for "it was a general and true maxim, that excess of punishment for a crime brings impunity along with it; and that no jury would ever find a verdict which would doom a fellow-creature to death for selling a yard of cloth and sending it to France." They protested, too, against inflicting on words, whether written or spoken, penalties which had hitherto been confined to overt acts. And the clauses conferring power on magistrates to prevent or disperse public meetings encountered still more vehement opposition; Fox insisting, with great eloquence, that "public meetings for the discussion of public subjects were not only lawful, but agreeable to the very essence of the constitution; that, indeed, to them, under that constitution, most of the liberties which Englishmen now enjoyed were particularly owing." The people, he maintained, had a right to discuss their grievances. "They had an inalienable right to complain by petition, and to remonstrate to either House of Parliament, or to the King; and to make two magistrates, who might be strong partisans, irresponsible judges whether anything said or done at a meeting had a tendency to encourage sedition, was to say that a free constitution was no longer suitable to us." Pitt justified these measures, partly on the ground of the special and unprecedented danger of the times, as proved by the late attempt on the King's life, and partly by the open avowal of republican doctrines made at the meetings of different societies; partly, also, on the temporary character of the measures, since in each bill a period was fixed after which its operation should expire. And he argued, farther, that, as many of the actions specified in these bills as seditious or treasonable were by many lawyers considered capable of being reached by statutes already existing, though not universally understood, it was "humane, not cruel, to remove doubts, and to prevent men from being ensnared by the ambiguity of old laws."

And in May, 1794, he brought in another bill, founded on the report of a secret committee which, in compliance with a royal message, the House of Commons had appointed to investigate the proceedings and objects of certain societies which were known to exist in different parts of the kingdom. In obedience to a Secretary of State's warrant, founded on sworn informations, their books and papers had been seized, and, having been sealed up, were now laid before the House, with the report of the committee that they proved that several of the societies which they named had, ever since the end of the year 1791, been uniformly pursuing a settled design for the subversion of the constitution; one society, in particular, having approved a plan for assembling a Convention, in imitation of the French Assembly sitting under that title, in order to overturn the established government, and to wrest from the Parliament the power which the constitution placed in its hands.

To prevent the dissemination of such principles, and to defeat such schemes, Pitt now asked leave to bring in a bill to empower his Majesty-acting, of course, through the Secretary of State-to secure and detain such persons as he should suspect of conspiring against the King's person and government. He admitted that the power which he thus proposed to confer amounted to a suspension of the Habeas Corpus Act in every part of the United Kingdom; nor did he deny that it was an unusually strong measure, but he contended that it was one justified by absolute necessity, by the manifest danger of such a conspiracy as the committee had affirmed to exist to the tranquillity of the nation and the safety of the government.

Fox, it may almost be said as a matter of course, opposed the introduction of any such measure; but his opposition was hardly marked by his usual force of argument. He was hampered by the impossibility of denying either the existence of the societies which the committee and the minister had mentioned, or the dangerous character of some of their designs; but he objected to the measures of repression which were proposed, partly on the absence of all attempts at concealment on the part of the promoters of these societies, partly on the contemptible character of the Convention which it was designed to summon, and the impossibility that such an assembly should have the slightest influence. He even made their avowed hostility to the constitution a plea for a panegyric on that constitution, and on the loyal attachment to it evinced by the vast majority of the people; and from that he proceeded to found a fresh argument against the proposed measure, contending that it made a fatal inroad on that very constitution which was so highly valued by the whole nation. He described it as a measure "of infinitely greater mischief than that which it proposed to remedy, since it would give the executive authority absolute power over the personal liberty of every individual in the kingdom." He did not deny that a similar measure had been enacted under William III., again in 1715, and again in 1745; but he contended that "the present peril bore no resemblance to the dangers of those times. This measure went to overturn the very corner-stone of the constitution, and if it passed, there was an end of the constitution of England." The bill was passed in both Houses by very large majorities.[124] It was originally enacted for six months only, but was from time to time renewed till the end of the century.

If we take a general survey of all these measures together, as parts of one great defensive scheme for the preservation of the public tranquillity and the general safety of the empire, it may, probably, be thought that, though undoubtedly suspensions of the constitution, they are not open to the charge of being unconstitutional, since they were enacted, not only for the welfare of the people, but with their consent and concurrence, legitimately signified by their representatives in Parliament. It is scarcely consistent with sound reason to contend that the habeas corpus, which had been enacted by Parliament, could not be suspended by the authority which had enacted it; that the constitution, which exists for the benefit of the people, could not be suspended by the people; or to deny, if it was in appearance transgressed by these enactments, that it was yet transgressed by strictly constitutional acts, by the decision of the Parliament, to whose power the constitution prescribes no limits.

But it is not sufficient that in this point of view these measures may have been defensible. In judging of their statesmanship, it is almost equally to be considered whether they were expedient and politic, whether the emergency or necessity were such as to justify such rigorous methods of repression. It was fairly open to doubt whether some of them, and especially the Traitorous Correspondence and the Seditious Meetings Bills, did not treat as treasonable acts which did not go beyond sedition, and whether so to treat them were not to invest them with an importance which did not belong to them. And on this part of the question the general judgment has, we think, been unfavorable to the government; and it has been commonly allowed that the Chancellor, whose advice on legal subjects the Prime-minister naturally took for his guide, gave him impolitic counsel. In fact, it is well known that these two acts, to a great extent, failed in their object through their excessive severity, several juries having refused to convict persons who were prosecuted for treason, who would certainly not have escaped had they only been indicted for sedition; and it is deserving of remark that these two bills were not regarded with favor by the King himself, if the anecdote-which seems to rest on undeniable authority-be true, that he expressed satisfaction at the acquittal of some prisoners, on the ground that almost any evil would be more tolerable than that of putting men to death "for constructive treason." It must therefore, probably, be affirmed that these two acts, the Treason Act and the Seditious Meetings Act, went beyond the necessity of the case; that they were not only violations of the constitution-which, when the measures are temporary, as these were, are not always indefensible-but that they were superfluous, unjust, and impolitic; superfluous, when they proposed to deal with acts already visitable with punishment by the ancient laws of the kingdom; unjust, when they created new classes of offences; and impolitic, as exciting that kind of disapproval of the acts of government which in many minds has a tendency to excite a spirit of discontent with and resistance to legitimate authority. And, indeed, it must be inferred that such was the light in which these measures were regarded by a statesman who in his general policy was proud to acknowledge himself Mr. Pitt's pupil, as he was also the most skilful and successful of his more immediate successors. Twenty-five years afterward the distress caused by the reaction inevitably consequent on the termination of twenty years of war produced a political excitement scarcely inferior to that with which Pitt had now to deal, and seditious societies and meetings scarcely less formidable; but, as we shall see, Lord Liverpool, taking warning, perhaps, from the mistake into which Mr. Pitt was led on this occasion, though compelled to bring forward new and stern measures of repression, and even to suspend the Habeas Corpus Act for a time, kept strictly within the lines of constitutional precedent, and was careful to avoid confounding sedition with treason.

Notes:

[Footnote 73: He had been Lord-chamberlain in Lord Rockingham's administration of 1765. He was now Lord-lieutenant of Ireland.]

[Footnote 74: In Lord Chatham's or the Duke of Grafton's ministry of 1766, and in the later administration of Lord Rockingham.]

[Footnote 75: It may be convenient to take this opportunity of pointing out that, in this administration, Lord Shelburne altered the old, most unreasonable, and inconvenient arrangement by which the departments of the two Secretaries of State were distinguished by the latitude, and called Northern and Southern. By a new division, one took charge of the home affairs, the other of the foreign affairs. And in 1794 a third Secretary was added for War, who, by a very singular arrangement, which continued till very recently, had charge also of the colonies. But, in the year 1855, the Colonial-office was intrusted to a separate minister; and in 1858 a fifth Secretary of State, that for India, was added, on the transfer of the government of that country from the East India Company to the Crown. When there were only two Secretaries of State, the rule was that one should sit in each House. At present it is not necessary that more than one should be a peer, though it is more usual for two to be members of the Upper House. And it is usual also for the Under-secretaries to be members of the House to which the Chief-secretaries do not belong, though this rule is not invariably observed.]

[Footnote 76: "Parliamentary History," xxiii., 163.]

[Footnote 77: The divisions were: 224 to 208, and 207 to 190.]

[Footnote 78: Lord Stanhope, quoting from an unpublished "Life of Lord Barrington," compiled by the Bishop of Durham (meaning, I suppose, Bishop Shute Barrington).-History of England, v., 174.]

[Footnote 79: Even with the first flush of triumph, the night after the second defeat of Lord Shelburne in the House of Commons, Fox's great friend, Mr. Fitzpatrick, writes to his brother, Lord Ossory: "To the administration it is cila mors, but not victoria loeta to us. The apparent juncture with Lord North is universally cried out against."-Lord J. Russell's Memorials and Correspondence of C.J. Fox, ii., 18.]

[Footnote 80: Lord J. Russell's "Memorials and Correspondence of C.J. Fox," ii., 90.]

[Footnote 81: Ibid., p. 118.]

[Footnote 82: In one division (161 to 137) they had only a majority of twenty-four.]

[Footnote 83: In a letter to Lord Northington (Lord-lieutenant of Ireland), dated July 17, Fox himself mentions that not one of his colleagues, except the Duke of Portland and Lord Keppel (First Lord of the Admiralty), approved of it.-Memoirs of Fox, ii., 116.]

[Footnote 84: November 22 he writes to the Duke of Rutland: "The bill ... is, I really think, the boldest and most unconstitutional measure ever attempted, transferring at one stroke, in spite of all charters and compacts, the immense patronage and influence of the East to Charles Fox, in or out of office."-Stanhope's Life of Pitt, i., 140.]

[Footnote 85: The whole paper is given by the Duke of Buckingham, "Courts and Cabinets of George III," i., 288, and quoted by Lord Russell in his "Memorials and Correspondence of C. J. Fox," ii., 251. It is endorsed, "Delivered by Lord Thurlow, December 1, 1783. Nugent Temple."]

[Footnote 86: "Life of Pitt," i., 148. Lord Stanhope does not pledge himself to these being "the exact words of this commission, but as to its purport and meaning there is no doubt." They are, however, the exact words quoted by Fox in his speech in support of Mr. Baker's resolutions on the 17th.-Parliamentary History, xxiv., 207.]

[Footnote 87: "Parliamentary History," xxiv., 151-154.]

[Footnote 88: 95 to 76. "Strange to say, one of the cabinet ministers, Lord Stormont, president of the council, formed part of the final majority against the bill."-Life of Pitt, ii., 154.]

[Footnote 89: "Life of Pitt," i., 155.]

[Footnote 90: "Lives of the Chancellors," c. clix. Lord Thurlow.]

[Footnote 91: "The Grenville Papers," iii., 374. It may, however, be remarked, as tending to throw some doubt on Mr. Grenville's statement, that Lord Campbell asserts that "Lord Mansfield, without entering into systematic opposition, had been much alienated from the court during Lord Rockingham's first administration."-Lives of the Chief-justices, ii., 468.]

[Footnote 92: Vol. ii., pp. 229-232.]

[Footnote 93: It will be seen hereafter that this doctrine was admitted in the fullest degree by Sir Robert Peel in the winter of 1884, when he admitted that his acceptance of office made him alone responsible for the dismissal of Lord Melbourne, though, in fact, he was taken entirely by surprise by the King's act, being in Italy at the time.]

[Footnote 94: Lord John Russell, in his "Memorials of Fox" (ii., 253), affirms that "Lord Temple's act was probably known to Pitt;" but Lord Macaulay, in his "Essay on Pitt" (p. 326), fully acquits Pitt of such knowledge, saying that "he could declare, with perfect truth, that, if unconstitutional machinations had been employed, he was no party to them."]

[Footnote 95: On Lord Effingham's motion, in condemnation of some of the proceedings of the Commons, which was carried February 4, 1784, by 100 to 53.]

[Footnote 96: "Parliamentary History," xxiv., 383-385-debate of January 20, 1784.]

[Footnote 97: Ibid, p. 283-January 12.]

[Footnote 98: Ibid., pp. 251-257.]

[Footnote 99: "Parliamentary History," xxiv., 478-February 2.]

[Footnote 100: Ibid., p. 663.]

[Footnote 101: "Parliamentary History," xxiv., 687, 695, 699.]

[Footnote 102: The numbers were 201 to 189. The week before, on Mr. Powys's motion for a united and efficient administration, the majority had been 20-197 to 177. On a motion made by Mr. Coke, February 3, the majority had been 24-211 to 187. At the beginning of the struggle the majorities had been far larger-232 to 143 on Fox's motion for a committee on the state of the nation, January 12.]

[Footnote 103: 191 to 190.]

[Footnote 104: From December 19, when Pitt accepted office, to March 24, when the Parliament was dissolved.]

[Footnote 105: "Memorials and Correspondence of C.J. Fox," by Earl Russell, ii., 229, 248.]

[Footnote 106: Ibid., p. 280.]

[Footnote 107: That of April, 1831, after the defeat of the Government on General Gascoyne's amendment]

[Footnote 108: Lord Macaulay, "Miscellaneous Essays," ii., 330.]

[Footnote 109: Lord Macaulay, essay on William Pitt.]

[Footnote 110: Alison ("History of Europe," xiii., 971) states the English force in the Netherlands in 1794 at 85,000 men. Lord Stanhope calls the English at Minden 10,000 or 12,000.]

[Footnote 111: An eminent living writer (Mr. Leeky, "History of England," ii., 474) quotes with apparent approval another comparison between the father and son, made by Grattan, in the following words: "The father was not, perhaps, so good a debater as his son, but was a much better orator, a greater scholar, and a far greater man." The first two phrases in this eulogy may, perhaps, balance one another; though, when Mr. Lecky admits that "Lord Chatham's taste was far from pure, and that there was much in his speeches that was florid and meretricious, and not a little that would have appeared absurd bombast but for the amazing power of his delivery," he makes a serious deduction from his claim to the best style of eloquence which no one ever made from the speeches of his son. But Grattan's assertion that the man who, as his sister said of him, knew but two books, the "AEneid" and the "Faerie Queene," was superior in scholarship to one who, with the exception of his rival, Fox, had probably no equal for knowledge of the great authors of antiquity in either House of Parliament, is little short of a palpable absurdity. We may, however, suspect that Grattan's estimate of the two men was in some degree colored by his personal feelings. With Lord Chatham he had never been in antagonism. On one great subject, the dispute with America, he had been his follower and ally, advocating in the Irish House of Commons the same course which Chatham upheld in the English House of Peers. But to Pitt he had been almost constantly opposed. By Pitt he and his party, whether in the English, or, so long as it lasted, in the Irish Parliament, had been repeatedly defeated. The Union, of which he had been the indefatigable opponent, and to which he was never entirely reconciled, had been carried in his despite; and it was hardly unnatural that the recollection of his long and unsuccessful warfare should in some degree bias his judgment, and prompt him to an undeserved disparagement of the minister by whose wisdom and firmness he had been so often overborne.]

[Footnote 112: Massey's "History of England," iii., 447; confer also Green's "History of the English People," vol. iv.]

[Footnote 113: Hallam ("Middle Ages," ii., 386, 481), extolling the condition of "the free socage tenants, or English yeomanry, as the class whose independence has stamped with peculiar features both our constitution and our national character," gives two derivations for the name; one "the Saxon soe, which signifies a franchise, especially one of jurisdiction;" and the other, that adopted by Bracton, and which he himself prefers, "the French word soc, a ploughshare."]

[Footnote 114: Lord Colchester's "Diary," i., 68, mentions that the officiating clergyman was Mr. Burt, of Twickenham, who received L500 for his services. Lord John Russell ("Memorials and Correspondence of Fox," ii., 284-389) agrees in stating that the marriage was performed in the manner prescribed by the Common Prayer-book. Mr. Jesse, in his "Life of George III.," ii., 506, gathering, as the present writer can say from personal knowledge, his information from some papers left behind him by the late J.W. Croker, says: "The ceremony was performed by a Protestant clergyman, though in part, apparently, according to the rites of the Roman Catholic Church." Lord John Russell avoids discussing the question whether the marriage involved the forfeiture of the inheritance of the crown, an avoidance which many will interpret as a proof that in his opinion it did. Mr. Massey's language ("History of England," iii., 327) clearly intimates that he holds the same opinion.]

[Footnote 115: Russell's "Life of Fox," ii., 187.]

[Footnote 116: Fox's private correspondence is full of anticipations that the Regent's first act will be to dismiss Pitt, and to make him minister. In a letter of December 15 he even fixes a fortnight as the time by which he expects to be installed; while Lord Loughborough, who was eager to possess himself of the Great Seal-an expectation in which, though well-founded, he would, as it proved, have found himself disappointed-was led by his hopes to give the Prince counsel of so extraordinary a nature that it is said that the ministers, to whose knowledge it had come, were prepared, if any attempt had been made to act upon it, or even openly to avow it, to send the learned lord to the Tower. ("Diary of Lord Colchester," i., 28.) In an elaborate paper which he drew up and read to the Prince at Windsor, he assured his Royal Highness, speaking as a lawyer, that "the administration of government devolved to him of right. He was bound by every duty to assume it, and his character would be lessened in the public estimation, if he took it on any other ground but right, or on any sort of compromise. The authority of Parliament, as the great council of the nation, would be interposed, not to confer but to declare the right. The mode of proceeding should be that in a short time his Royal Highness should signify his intention to act by directing a meeting of the Privy Council, when he should declare his intention to take upon himself the care of the state, and should at the same time signify his desire to have the advice of Parliament, and order it by proclamation to meet early for the despatch of business.... It is of vast importance in the outset that he should appear to act entirely of himself, and, in the conferences he must necessarily have, not to consult, but to listen and direct." The entire paper is given by Lord Campbell ("Lives of the Chancellors," c. clxx.).]

[Footnote 117: Hume's account of this transaction is, that the Duke "desired that it might be recorded in Parliament that this authority was conferred on him from their own free motion, without any application on his part; ... and he required that all the powers of his office should be specified and defined by Parliament."]

[Footnote 118: "Parliamentary History," xxvii., 803-speech of Mr. Hardinge, one of the Welsh judges, and M.P. for Old Sarum.]

[Footnote 119: I take this report, or abstract, of Lord Camden's speech from the "Lives of the Chancellors," c. cxlvii.]

[Footnote 120: "Memorials of Fox," ii., 292.]

[Footnote 121: The proceedings of the Irish Parliament on this occasion will be mentioned in the next chapter.]

[Footnote 122: Mr. Hallam (iii., 144, ed. 1832) gives a definition of the term "unconstitutional" which seems rather singular: "By unconstitutional, as distinguished from 'illegal,' I mean a novelty of much importance, tending to endanger the established laws." May not the term rather be regarded as referring to a distinct class of acts-to those at variance with the recognized spirit of the constitution or principles of government, with the preservation of the liberties of the people, as expressed or implied in the various charters, etc., but not forbidden by the express terms of any statute?]

[Footnote 123: The entry in the "Parliamentary History," November 20, 1788, is: "Both Houses met pursuant to the last prorogation. Later meetings were in consequence of successive adjournments."]

[Footnote 124: In the Commons by 183 to 33; in the Lords by 119 to 11.]