The Constitutional History of England from 1760 to 1860 Part 8

The next article related to a question of paramount practical importance, and of special interest, since, as has been seen before, there was no subject on which the past legislation of the English Parliament had been so discreditable. But the jealousy of English manufacturers, though it had prevailed over the indifference of William III., who reserved all his solicitude for matters of foreign diplomacy, could find no echo in the large mind and sound commercial and financial knowledge of the modern statesman. He laid it down as the principle of his legislation on this subject--a principle which "he was sure that every gentleman in the House was ready to admit--that the consequence of the Union ought to be a perfect freedom of trade, whether of produce or manufacture, without exception, if possible; that a deviation from that principle ought to be made only when adhering to it might possibly shake some large capital, or materially diminish the effect of the labor of the inhabitants, or suddenly and violently shock the received opinion or popular prejudices of a large portion of the people; but that, on the whole, the communication between the two kingdoms should in spirit be free; that no jealousy should be attempted to be created between the manufacturers of one place or the other upon the subject of 'raw materials' or any other article; for it would surely be considered very narrow policy, and as such would be treated with derision, were an attempt made to create a jealousy between Devons.h.i.+re and Cornwall, between Lancas.h.i.+re and Durham.... He said, then, that the principle of the Union on this head should be liberal and free, and that no departure from it should ever take place but upon some point of present unavoidable necessity." He was even able to add (and he must have felt peculiar satisfaction in making the statement, since the change in the feelings of the English manufacturers on the subject must have been mainly the fruit of his own teaching, and was a practical recognition of the benefits which they had derived from his commercial policy taken as a whole), that "the English manufacturers did not wish for any protective duties; all they desired was free intercourse with all the world; and, though the want of protective duties might occasion them partial loss, they thought it amply compensated by the general advantage." He even thought the arrangements now to be made "would encourage the growth of wool in Ireland, and that England would be able to draw supplies of it from thence; and he did not fear that there would be trade enough for both countries in the markets of the world, and in the market which each country would afford to the other." The English manufacturers did not, however, acquiesce very cheerfully in every part of his commercial arrangements. On the contrary, against the clause which repealed all prohibitions of or bounties on exportation of different articles grown or manufactured in either country, they pet.i.tioned, and even set up a claim, which was granted, to be heard by counsel and to produce witnesses. But Pitt steadily refused the least modification of this part of his measure, not merely on account of its intrinsic reasonableness and justice, but because there was scarcely any condition to which the Irish themselves attached greater importance.

An equally important and more difficult matter to adjust to the satisfaction of both Parliaments was the apportionment of the financial burdens between the two nations. It would be tiresome as well as superfluous to enter into minute details; the more so as the arrangement proposed was of a temporary character. After a long and minute discussion, Pitt's apprais.e.m.e.nt was admitted to come as near to strict fairness and equity as any that could be made; the separate discharge of its public debt already incurred was left to each kingdom; and it was farther settled that for twenty years fifteen parts of the expense of the nation out of seventeen should be borne by Great Britain and two by Ireland.

Other articles provided that the laws and courts of both kingdoms, civil and ecclesiastical, should remain in their existing condition, subject, of course, to such alterations as the united Legislature might hereafter deem desirable.

The resolutions, when adopted--as they speedily were--were embodied in a bill, which pa.s.sed through the last stage by receiving the royal a.s.sent at the beginning of July. The state of public feeling in Ireland was not yet sufficiently calmed down after the Rebellion for it to be prudent to venture on a general election, and it was, consequently, ordained that the members for the Irish counties and for those Irish boroughs which had been selected for the retention of representation should take their seats in the united Parliament on its next meeting. On the 22d of January, 1801, the united, or, to give it its more proper designation, the Imperial Parliament held its first meeting, being, although in its sixth session, so far regarded as a new Parliament, that the King directed a fresh election of a Speaker.

The Union, as thus effected, was so far a vital change in the const.i.tution of both Great Britain and Ireland, that it greatly altered the situation in which each kingdom had previously stood to the other.

Till 1782 the position of Ireland toward England had been one of entire political subordination; and, though that had in appearance been modified by the repeal of Poynings' Act, yet no one doubted or could doubt that, whenever the resolutions of the two Parliaments came into conflict, the Irish Parliament would find submission unavoidable. But by the Union that subordination was terminated forever. The character of the Union--of the conditions, that is, on which the two countries were united--was one of perfect and complete equality on all important points, indeed, in all matters whatever, except one or two of minor consequence, where some irremovable difference between them compelled some trifling variations. It was not a connection of domination on the one side and subordination on the other, where every concomitant circ.u.mstance might tempt the one to overbearing arrogance, while the other could not escape a feeling of humiliation. It was rather--to quote the eloquent peroration of Pitt, when, in the preceding year, he first introduced the subject to the consideration of the House of Commons--"a free and voluntary a.s.sociation of two great countries, joining for their common benefit in one empire, where each retained its proportionate weight and importance, under the security of equal laws, reciprocal affection, and inseparable interests; and which wanted nothing but that indissoluble connection to render both invincible."

On that occasion Pitt had argued, from the great subsequent increase in the population and wealth of Edinburgh and Glasgow, and in the prosperity of the whole country of Scotland, that a similar result might be looked for in Ireland. And the general trade of Ireland, and especially the linen manufacture, within a very few years began to realize his prediction. So that it is strange to find Fox, on the great minister's death, five years afterward, reiterating his disapproval of the Union as a plea for refusing him the appellation of a great statesman.[146] In one point alone the intrigues of a colleague prevented Pitt from carrying out to the full his liberal and enlightened views, and compelled him to leave the Union incomplete in a matter of such pre-eminent importance, that it may be said that all the subsequent disquietudes which have prevented Ireland from reaping the full benefit he desired from the Union are traceable to his disappointment on that subject.[147] We have seen that he contemplated, as a natural and necessary consequence or even part of the Union, an extensive reform of the laws affecting the Roman Catholics. Indeed, the understanding that he was prepared to introduce a measure with that object had no small weight in conciliating in some quarters support to the Act of Union.

Accordingly, when describing the arrangements which he had in view for the Church of Ireland, he indicated his intention with sufficient plainness by the statement, that "it might be proper to leave to Parliament an opportunity of considering what might be fit to be done for his Majesty's Catholic subjects;" words which were generally understood to express his feeling, that both justice and policy required the removal of the restrictions which debarred the Roman Catholics from the complete enjoyment of political privileges. But the history and different bearings of that question it will be more convenient to discuss in a subsequent chapter, when we shall have arrived at the time when it was partially dealt with by the ministry of the Duke of Wellington.

Notes:

[Footnote 125: Mr. Froude says four great families--the Fitzgeralds of Kildare, the Boyles, the Ponsonbys, and the Beresfords--returned a majority of the House of Commons ("English in Ireland," ii., 5); and besides those peers, the arrangement for the Union proved that the influence of the Loftuses and the Hills fell little short of them.]

[Footnote 126: Such a system actually had existed in France, where articles of ordinary trade could not be transported from one province to another without payment of a heavy duty; but Colbert had abolished that system in France above one hundred years before the time of which we are speaking.]

[Footnote 127: "History of England," vol. v., c. xxiii., p. 57.]

[Footnote 128: "The English in Ireland," ii., 39.]

[Footnote 129: Fronde's "English in Ireland," ii., 345. He does not name the author whom he quotes.]

[Footnote 130: _Ibid_., ii, 42.]

[Footnote 131: See p. 164.]

[Footnote 132: Mr. Froude imputes to Grattan a singularly base object.

"Far from Grattan was a desire to heal the real sores of the country for which he was so zealous. These wild, disordered elements suited better for the campaign in which he engaged of renovating an Irish nationality."--_English in Ireland_, ii., 448. But, however on many points we may see reason to agree with Mr. Froude's estimate of the superior wisdom of Fitzgibbon, we conceive that this opinion is quite consistent with our acquittal of the other of the meanness of deliberately aiming at a continuance of evils, in order to find in them food for a continuance of agitation.]

[Footnote 133: Froude, "English in Ireland," i., 304.]

[Footnote 134: See especially a letter of Mr. Windham's. quoted by Lord Stanhope ("Life of Pitt," ii., 288).]

[Footnote 135: Mr. Archdall, in his place in Parliament, denounced the term as utterly inapplicable. "Emanc.i.p.ation meant that a slave was set free. The Catholics were not slaves. Nothing more absurd had ever been said since language was first abused for the delusion of mankind."]

[Footnote 136: The first beginning of the insurrection was at Prosperous, County Kildare, May 24. General Lake dealt it the final blow on Vinegar Hill, June 21.]

[Footnote 137: Mr. Sheridan, Mr. Tierney, and Lord William Russell led the denunciations of the government in the English House of Commons. A protest against Pitt's refusal to dismiss the Lord-lieutenant, Lord Camden, the Chancellor Fitzgibbon, and the Commander-in-chief, Lord Carhampton, was signed by the Dukes of Norfolk, Devons.h.i.+re, and Leinster; Lords Fitzwilliam, Moira, and Ponsonby, "two of them Irish absentees, who were discharging thus their duties to the poor country which supported their idle magnificence."--_The English in Ireland_, iii., 454.]

[Footnote 138: "Const.i.tutional History," iii., 451 seq.]

[Footnote 139: Ma.s.sey's "History of England," iv., 397 (quoting the Cornwallis correspondence).]

[Footnote 140: Lord Stanhope's "Reign of Queen Anne," p. 89.]

[Footnote 141: In the House of Commons by 158 to 115; in the House of Lords, February 10, by 75 to 26.]

[Footnote 142: An amendment pledging the House to maintain "an independent Legislature, as established in 1782," was only defeated by 106 to 105.]

[Footnote 143: In the House of Commons the majority was 158 to 115; in the House of Lords, 75 to 26.]

[Footnote 144: This estimate, which was but a guess, proved very inaccurate. The first census for the United Kingdom, which was taken the next year (1801), showed that Ireland was considerably more populous than its own representatives had imagined. The numbers returned (as given by Alison, "History of Europe," ii., 335, c. ix., sec. 8) were:

England..................................... 8,382,484 Wales....................................... 547,346 Scotland.................................... 1,599,068 Army, Navy, etc............................. 470,586 ---------- Total...................................10,999,434 Ireland..................................... 5,396,436

So that the proportion of population in Great Britain, as compared with that of Ireland, only exceeded two to one by an insignificant fraction.]

[Footnote 145: See his letter to the King, dated January 31, 1801, quoted by Lord Stanhope in the appendix to vol. iii. of his "Life of Pitt," p. 25.]

[Footnote 146: Mr. Fox, called on by Mr. Alexander to explain his expressions (in the debate relative to Mr. Pitt's funeral), by which he had declared his disapprobation of the Union, and his concurrence in opinion with Mr. O'Hara that it ought to be rescinded. Mr. Fox repeated his disapprobation, but disclaimed ever having expressed an opinion or entertained a thought of proposing its repeal, that being now impracticable, though he regretted its ever having been effected.--_Diary of Lord Colchester_, February 17, 1806, ii., 39.]

[Footnote 147: It may be remarked that in another respect also political critics have p.r.o.nounced the Union defective. Archbishop Whately, whose long tenure of office in Ireland, as well as the acuteness and candor which he brought to bear on every subject he discussed, ent.i.tle his opinions to most respectful consideration, held this view very strongly.

In several conversations which he held with Mr. W.N. Senior, in 1858 and 1862, he condemned the retention of the Lord-lieutenancy as "a half measure," which, however unavoidable at the time when "no s.h.i.+p could be certain of getting from Holyhead to Dublin in less than three weeks," he p.r.o.nounced "inconsistent with the fusion of the two peoples, which was the object of the Union," and wholly indefeasible "in an age of steam-vessels and telegraphs." And, besides its theoretical inconsistency, he insisted that it produced many great and practical mischiefs, among which he placed in the front "the keeping up in people's minds the notion of a separate kingdom; the affording a hotbed of faction and intrigue; the presenting an image of Majesty so faint and so feeble as to be laughed at and scorned. Disaffection to the English Lieutenancy is cheaply shown, and it paves the way toward disaffection to the English crown." And he imputed its continued retention to "the ignorance which prevails in England of the state of feeling in Ireland."--_Journals and Conversations Relating to Ireland_, by W.N.

Senior, ii., 130, 251, and _pa.s.sim_. And it is worthy of observation that a similar view is expressed by a Scotch writer of great ability, who, contrasting the mode in which Scotland is governed with that which prevails In Ireland, farther denounces the Viceroyalty "as a distinct mark that Ireland is not directly under the sovereignty of Great Britain, but rather a dependency, like India or the Isle of Man."--_Ireland_, by J.B. Kinnear, quoted in the _Fortnightly Review_, April 1, 1881. It is remarkable that in 1850 a bill for the abolition of the office was pa.s.sed in the House of Commons by a large majority (295 to 70), but was dropped in the House of Lords, chiefly on account of the opposition of the Duke of Wellington. But it is, at all events, plain that the reasons, arising from the difficulty and uncertainty of communication, which made its abolition impossible at the beginning of the century, have pa.s.sed away with the introduction of steam-vessels and telegraphs. Communication of London with Dublin is now as rapid as communication with Edinburgh, and, that being the case, it is not easy to see how an establishment which has never been thought of for Scotland can be desirable for Ireland.]

CHAPTER VI.

A Census is Ordered.--Dissolution of Pitt's Administration.--Impeachment of Lord Melville.--Introduction of Lord Ellenborough into the Cabinet.--Abolition of the Slave-trade.--Mr. Windham's Compulsory Training Bill.--Illness of the King, and Regency.--Recurrence to the Precedent of 1788-'89.--Death of Mr. Perceval.--Lord Liverpool becomes Prime-minister.--Question of Appointments in the Household.--Appointment of a Prime-minister.

The Union with Ireland was the last great work of Pitt's first administration, and a n.o.ble close to the legislation of the eighteenth century. But the last months of the year were also signalized by another enactment, which, though it cannot be said to have anything of a character strictly ent.i.tled to the name of const.i.tutional, nevertheless established a practice so valuable as the foundation of a great part of our domestic legislation, that it will, perhaps, hardly be considered foreign to the scope and purpose of this volume to record its commencement. In November, 1800, Mr. Abbott, the member for Helstone, brought in a bill to take a census of the people of the United Kingdom, pointing out not only the general importance of a knowledge of the population of a country in its entire amount and its different cla.s.ses to every government, but also its special bearing on agriculture and on the means requisite to provide subsistence for the people, on trade and manufactures, and on our resources for war. Such a census as he proposed had been more than once taken in Holland, Sweden, Spain, and even in the United States, young as was their separate national existence; it had been taken once--nearly fifty years previous--in Scotland; and something like one had been furnished in England in the reign of Edward III. by a subsidy roll, and in that of Elizabeth by diocesan returns furnished by the Bishops to the Privy Council.[148] He farther argued for the necessity of such a proceeding from the different notions entertained by men of sanguine or desponding tempers as to the increase or diminution of the population. "Some desponding men had a.s.serted that the population had decreased by a million and a half between the Revolution and Peace of Paris, in 1763; others (of whom the speaker himself was one) believed that, on the contrary, it had increased in that interval by two millions." His motion was unanimously adopted by both Houses; and when the census was taken, its real result furnished as strong a proof of its usefulness as any of the mover's arguments, by the extent of the prevailing miscalculations which it detected. For Mr. Abbott, who had spared no pains to arrive at a correct estimate, while he mentioned that some persons reckoned the population of England and Wales at 8,000,000, p.r.o.nounced that, according to other statements, formed on a more extensive investigation, and, as it seemed to him, on a more correct train of reasoning, the total number could not be less than 11,000,000.

In point of fact, excluding those employed in the army and navy, who were nearly half a million, the number for England and Wales fell short of nine millions.[149] It would be quite superfluous to dilate on the value of the information thus supplied, without which, indeed, much of our subsequent legislation on poor-laws, corn-laws, and all matters relating to rating and taxation, would have been impracticable or the merest guesswork.

As was mentioned in the preceding chapter, Pitt found himself unable to fulfil the hopes which, in his negotiations with different parties in Ireland, he had led the Roman Catholics to entertain of the removal of their civil and political disabilities. So rigorous were those restrictions, both in England and Ireland, that a Roman Catholic could not serve even as a private in the militia; and a motion made in 1797 by Mr. Wilberforce--a man who could certainly not be suspected of any leaning to Roman Catholic doctrine--to render them admissible to that service, though it was adopted in the House of Commons, was rejected by the House of Lords. But Pitt, who on that occasion had supported Wilberforce, did not confine his views to the removal of a single petty disability, but proposed to put the whole body of Roman Catholics on a footing of perfect equality with Protestants in respect of their eligibility to every kind of office, with one or two exceptions. And during the autumn of 1800 he was busily engaged in framing the details of his measure, in order to submit it to his royal master in its entirety, and so to avoid disquieting him with a repet.i.tion of discussions on the subject, which he knew to be distasteful to him. For, five years before, George III. had consulted the Chief-justice, Lord Kenyon, and the Attorney-general, Sir John Scott (afterward Lord Eldon), on the question whether some proposed concessions to Dissenters, Protestant as well as Roman Catholic, did not "militate against the coronation oath and many existing statutes;" and had received their legal opinion that the tests enacted in the reign of Charles II., "though wise laws, and in policy not to be departed from, might be repealed or altered without any breach of the coronation oath or Act of Union" (with Scotland).[150] Their opinions on the point were the more valuable, since they were notoriously opposed to their political convictions, and might be supposed to have carried sufficient conviction to the royal mind. But his Majesty's scruples were now, unfortunately, revived by the Lord Chancellor, who, strange to say, was himself a Presbyterian; and who treacherously availed himself of his knowledge of what was in contemplation to antic.i.p.ate the Prime-minister's intended explanations to the King. He fully succeeded in his object of fixing the King's resolution to refuse his a.s.sent to the contemplated concessions (which, by a curious confusion of ideas, his Majesty even characterized as "Jacobinical"[151]), though not in the object which he had still more at heart, of inducing the King to regard him as the statesman in the whole kingdom the most deserving of his confidence. The merits of the question will be more appropriately examined hereafter. It is sufficient to say here that Pitt, conceiving himself bound by personal honor as well as by statesman-like duty to persevere in his intended measure, or to retire from an office which no man is justified in holding unless he can discharge its functions in accordance with his own judgment of what is required by the best interests of the state, resigned his post, and was succeeded by Mr. Addington.

Addington's ministry was made memorable by the formation of the Northern Confederacy against us, and its immediate and total overthrow by Nelson's cannon; and for the Peace of Amiens, severely criticised in Parliament, as that of Utrecht and every subsequent treaty with a similar object had been, but defensible both on grounds of domestic policy, as well as on that of affording us a much-needed respite from the strain of war; though it proved to be only a respite, and a feverish one, since at the end of two years the war was renewed, to be waged with greater fury than ever. But it was too short-lived for any const.i.tutional questions to arise in it. And when, in 1804, Pitt resumed the government, his attention was too completely engrossed by the diplomatic arrangements by which he hoped to unite all the nations east of the Rhine in resistance to a power whose ever aggressive ambition was a standing menace to every Continental kingdom, for him to be able to spare time for the consideration of measures of domestic policy, except such as were of a financial character. But, though his premature death rendered his second administration shorter than even Addington's, it was not wholly unproductive of questions of const.i.tutional interest. It witnessed a recurrence to that which cannot but be regarded as among the most important privileges of the House of Commons, the right of impeaching a minister for maladministration. A report of a commission appointed for the investigation of the naval affairs of the kingdom had revealed to Parliament a gross misapplication of the public money committed by the Paymaster of the Navy. And, as that officer could not have offended as he had done without either gross carelessness or culpable connivance on the part of the Treasurer of the Navy, Lord Melville, who had since been promoted to the post of First Lord of the Admiralty, the House of Commons ordered his impeachment at the Bar of the House of Lords; the vote being pa.s.sed in 1805, during Pitt's administration, though the trial did not take place till the year following. In reality, the charge did not impugn Lord Melville's personal honor, on which at first sight it appeared to press hardly, Mr.

Whitbread himself, the member for Bedford, who was the chief promoter and manager of the impeachment, admitting that he never imputed to Lord Melville "any partic.i.p.ation in the plunder of the public;" and, as Lord Melville was acquitted on every one of the charges brought against him, the case might have been pa.s.sed over here with the barest mention of it, were it not that Lord Campbell has pointed out the mode of procedure as differing from that adopted in the great trial of Warren Hastings, twenty years before; and, by reason of that difference, forming a model for future proceedings of the same kind, if, unhappily, there should ever be occasion given for a similar prosecution. The credit of the difference Lord Campbell gives to the Chancellor, Lord Erskine, who, "instead of allowing the House of Lords to sit to hear the case a few days in a year, and, when sitting, being converted from a court of justice into a theatre for rhetorical display, insisted that it should sit, like every other criminal tribunal, _de die in diem_, till the verdict was delivered. And he enforced both upon the managers of the House of Commons and on the counsel for the defendant the wholesome rules of procedure established for the detection of crime and the protection of innocence."[152] It is well known that on the trial of Hastings the managers of that impeachment, and most especially Burke, claimed a right of giving evidence such as no court of law would have admitted, and set up what they ent.i.tled "a usage of Parliament independent of and contradistinguished from the common law."[153] But on that occasion Lord Thurlow, then Chancellor, utterly denied the existence of any such usage--a usage which, "in times of barbarism, when to impeach a man was to ruin him by the strong hand of power, was quoted in order to justify the most arbitrary proceedings." He instanced the trial of Lord Stafford, as one which "was from beginning to end marked by violence and injustice," and expressed a "hope that in these enlightened days no man would be tried but by the law of the land." We may fairly agree with Lord Campbell, that it is to be hoped that the course adopted by Lord Erskine in this case has settled the principle and mode of procedure for all future time; since certainly the importance of an impeachment, both as to the state interests involved in it, and the high position and authority of the defendant, ought to be considered as reasons for adhering with the greatest closeness to the strict rules of law, rather than for relaxing them in any particular.

But, as was natural, the public could spare little attention for anything except the war, and the arrangements made by the minister for engaging in it with effect; the interest which such a state of things always kindles being in this instance greatly inflamed by Napoleon's avowal of a design to invade the kingdom, though it is now known that the preparations of which he made such a parade were merely a feint to throw Austria off her guard.[154] During Addington's administration Pitt had spoken warmly in favor of giving every possible encouragement to the Volunteer movement, and also in support of a proposal made by an independent member, Colonel Crawford, to fortify London; and one of his first measures after his resumption of office was a measure, known as the Additional Force Bill, to transfer a large portion of the militia to the regular army. It was so purely a measure of detail, that it would hardly have been necessary to mention it, had it not been for an objection made to it by the Prime-minister's former colleague, Lord Grenville, and for the reply with which that objection was encountered by the Chief-justice, Lord Ellenborough; the former denouncing it as unconst.i.tutional, since, he declared, it tended to establish a large standing army in time of peace; and Lord Ellenborough, on the other hand, declaring the right of the crown to call out the whole population in arms for the defence of the realm to be so "radical, essential, and hitherto never questioned part of the royal prerogative, that, even in such an age of adventurous propositions, he had not expected that any lord would have ventured to question it."[155]

Pitt died in the beginning of 1806, and was succeeded by an administration of which his great rival, Fox, was the guiding spirit while he lived, though Lord Grenville was First Lord of the Treasury, and, after Fox's death, which took place in September, the undisputed Prime-minister. But the formation of the administration was not completed without a step which was at once strongly denounced, not only by the regular Opposition, but by several members of political moderation, as a violation, if not of the letter, at least of the spirit, of the const.i.tution, the introduction of the Lord Chief-justice, Lord Ellenborough, into the cabinet. It was notorious that he was invited to a seat among that body as the representative of a small party, the personal friends of Lord Sidmouth. For the ministry was formed in some degree on the principle of a coalition; Lord Grenville himself having been a colleague of Pitt throughout the greater part of that statesman's first ministry, and as such having been always opposed to Fox; while Lord Ellenborough had been Attorney-general in Addington's administration, which avowedly only differed from Pitt on the single subject of the Catholic question.

The appointment was at once made the subject of motions in both Houses of Parliament. In the House of Lords, Lord Bristol, who brought the question forward, denounced "this identification of a judge with the executive government as injurious to the judicial character, subversive of the liberty of the people, and having a direct and alarming tendency to blend and amalgamate those great elementary principles of political power which it is the very object of a free const.i.tution to keep separate and distinct." In the House of Commons, Mr. Canning took a similar objection; and, though he admitted that a precedent for the act might be found in the case of Lord Mansfield who, while Chief-justice, had also been a cabinet minister in the administration of 1757, he argued forcibly that that precedent turned against the ministry and the present appointment, because Lord Mansfield himself had subsequently admitted that "he had infringed the principles of the const.i.tution by acting as a cabinet minister and Chief-justice at the same time." Fox, in reply, relied princ.i.p.ally on two arguments. The first was, that "he had never heard of such a thing as the cabinet council becoming the subject of a debate in that House. He had never known of the exercise of the King's prerogative in the appointment of his ministers being brought into question on such grounds as had now been alleged." The second, that "in point of fact there is nothing in the const.i.tution that recognizes any such inst.i.tution as a cabinet council; that it is a body unknown to the law, and one which has in no instance whatever been recognized by Parliament." He farther urged that as Lord Ellenborough was a privy councillor, and as the cabinet is only a select committee of the Privy Council, he was, "in fact, as liable to be summoned to attend the cabinet, as a privy councillor, as he was in his present situation."

The last argument was beneath the speaker to use, since not one of his hearers was ignorant that no member of the Privy Council unconnected with the government ever is summoned to the deliberations of the cabinet; and though, as he correctly stated, "there is no legal record of the members comprising any cabinet," it may safely be affirmed that since July, 1714, when the Duke of Argyll and the Duke of Somerset claimed admission to the deliberations of the ministers, on account of the danger in which the Queen lay, though they admitted that they had received no summons to attend,[156] there has been no instance of any privy councillor attending without a summons; nor, except at the accession of a new sovereign, of summonses being sent to any members of the council except the actual ministers. The second argument was even worse, as being still more sophistical. It might be true that no law nor statute recognized the cabinet as a body distinct from the Privy Council, but it was at least equally true that there was no one who was ignorant of the distinction; that it was, in truth, one without which it would be difficult to understand the organization or working of any ministry. The indispensable function and privilege of a ministry is, to deliberate in concert and in private on the measures to be taken for the welfare of the state; but there could be little chance of concert, and certainly none of privacy, if every one who has ever been sworn a member of the Privy Council had a right to attend all its deliberations. Again, to say that the King's prerogative, as exercised in the choice of his advisers, is a thing so sacred that no abuse of it, or want of judgment shown in its exercise, can warrant a complaint, is inconsistent with every principle of const.i.tutional government, and with every conceivable idea of the privileges of Parliament. In fact, Parliament has claimed a right to interfere in matters apparently touching more nearly the royal prerogative, and it is only in the reign preceding the present reign that hostile comments have been made in Parliament on the appointment of a particular person as amba.s.sador to a foreign power. Yet the post of amba.s.sador is one which might have been supposed to have been farther removed from the supervision of Parliament than that of a minister, an amba.s.sador being in a special degree the personal representative of the sovereign, and the sovereign therefore, having, it might be supposed, a right to a most unfettered choice in such a matter.

Stripped of all technicalities, and even of all reference to the manifest possibility of such a circ.u.mstance arising as that the Chief-justice, if a member of a cabinet, may have a share in ordering the inst.i.tution of a prosecution which, as a judge, it may be his lot to try, one consideration which is undeniable is, that a member of a cabinet is of necessity, and by the very nature of his position in it, a party man, and that it is of preeminent importance to the impartiality of the judicial bench, and to the confidence of the people in the purity, integrity, and freedom from political bias of their decisions, that the judges should be exempt from all suspicion of party connection.

Lord Campbell even goes the length of saying, what was not urged on either side of either House in these debates, that it was alleged by at least one contemporary writer that Lord Mansfield's position in the cabinet did perceptibly influence some of his views and measures respecting the Press;[157] and, though in both Houses the ministry had a majority on the question of the propriety of the appointment, he records his own opinion[158] that "the argument was all on the losing side;" and that Mr. Fox showed his consciousness that it was so by his "concession that the Chief-justice should absent himself from the cabinet when the expediency of commencing prosecutions for treason or sedition was to be discussed." He adds, also, that "it is said that Lord Ellenborough himself ere long changed his opinion, and, to his intimate friends, expressed deep regret that he had ever been prevailed upon to enter the cabinet."

But, if the composition of the cabinet of 1806 has in this respect been generally condemned, on the other hand the annals of that ministry, short-lived as it was, are marked by the enactment of one great measure which has been stamped with universal approbation. It may, perhaps, be said that the existence, promotion, discouragement, or suppression of a branch of trade has no t.i.tle to be regarded as a const.i.tutional question. But the course which the British Parliament, after a long period of hesitation, has adopted respecting, not only the slave-trade, but the employment of slave-labor in any part of the British dominions, is so intimately connected with the great const.i.tutional principle, that every man, whatever be his race or nation or previous condition, whose foot is once planted on British soil, is free from that moment, that it cannot be accounted a digression to mention the subject here. To our statesmen of Queen Anne's time traffic in slaves was so far from being considered discreditable, that the ministry of that reign prided themselves greatly on what was called the a.s.siento Treaty with Spain, by which they secured for the British merchants and s.h.i.+p-owners the privilege of supplying the West India Islands with several thousand slaves a year. In 1748 the ministers of George II were equally jealous of the credit of renewing it. It had even on one occasion been decided in the Court of Common Pleas that an action of trover could be maintained for a negro, "because negroes are heathens;" though Chief-justice Holt scouted the idea of being bound by a precedent which would put "a human being on the same footing as an ox or an a.s.s," and declared that "in England there was no such thing as a slave."

Subsequent decisions, however, of two Lord Chancellors--Lord Talbot and Lord Hardwicke--were not wholly consistent with the doctrine thus laid down by Holt; and the question could not be regarded as finally settled till 1772, when a slave named Somersett was brought over to England from Jamaica by his master, and on his arrival in the Thames claimed his freedom, and under a writ of _habeas corpus_ had his claim allowed by Lord Mansfield. The master's counsel contended that slavery was not a condition unsanctioned by English law, for villeinage was slavery, and no statute had ever abolished villeinage. But the Chief-justice, in the first place, denied that villeinage had ever been slavery such as existed in the West Indies; and, in the second place, he p.r.o.nounced that, whether it had been or not, it had, at all events, long ceased in England, and could not be revived. "The air of England has long been too pure for a slave, and every man is free who breathes it. Every man who comes into England is ent.i.tled to the protection of English law."[159]