  The Toleration Act.—Impropriety of making Catholic Emancipation (or any other Important Matter) an Open Question.—Joint Responsibility of all the Ministers.—Detention of Napoleon at St. Helena.—Question whether the Regent could Give Evidence in a Court of Law in a Civil Action.—Agitation for Reform.—Public Meetings.—The Manchester Meeting.—The Seditious Meetings Prevention Bill.—Lord Sidmouth's Six Acts. The war was daily becoming of more exciting interest, and, so far as our armies were concerned, was rapidly assuming greater proportions. While the Duke of Portland was still at the head of affairs, Napoleon, by his unprovoked attacks on both the Peninsular kingdoms, had at last opened a field of action to our armies, in which even the most sanguine of those who placed a loyal confidence in the old invincibility of English prowess could not have anticipated the unbroken series of glories which were to reward their efforts. For four years Lord Wellington had contended against all the most renowned marshals of the Empire,[172] driving them back from impregnable lines of defence, defeating them in pitched battles, storming their strongest fortresses, without ever giving them room to boast of even the most momentary advantage obtained over himself; and he was now on the eve of achieving still more brilliant and decisive triumphs, which were never to cease till he had carried his victorious march far into the heart of France itself. At such a time it may well be supposed that the attention of the new ministry was too fully occupied with measures necessary for the conduct of the war to leave it much time for domestic legislation. Yet even its first session was not entirely barren. In the first excitement of the Restoration, when the nation was still exasperated at the recollection of what it had suffered under the triumphant domination of the Puritans, two laws had been framed to chastise them, conceived in a spirit as intolerant and persecuting as had dictated the very worst of their own. One, which was called the Conventicle Act, inflicted on all persons above the age of sixteen, who should be present at any religious service performed in any manner differently from the service of the Church of England, in any meeting-house, where more than five persons besides the occupiers of the house should be present, severe penalties, rising gradually to transportation; and gave a single magistrate authority to convict and to pass sentence on the offenders. The other, commonly known as the Five Mile Act, forbade all ministers, of any sect, who did not subscribe to the Act of Uniformity, and who refused to swear to their belief in the doctrine of passive obedience, from teaching in any school, and from coming within five miles of any city, corporate town, or borough sending members to Parliament, or any town or village in which they themselves had resided as ministers. The latter statute had fallen into complete disuse, and many of the provisions of the former had been relaxed, though magistrates in general construed the relaxing enactments as leaving the relaxations wholly at their discretion to grant or to withhold, and were very much in the habit of withholding or abridging them. Other statutes, such as the Test Act, had subsequently been passed against every sect of Dissenters, though they had only imposed civil disabilities, and had not inflicted penalties. But the new Prime-minister was a man to whose disposition anything resembling persecution was foreign and repugnant. Before his predecessor's unhappy death he had already discussed with him the propriety of abolishing laws conceived in such a spirit; and he no sooner found himself at the head of the government than he prepared a bill to carry out his views. He drew a distinction between the acts inflicting penalties and those which only imposed disabilities. With these latter he did not propose to interfere; but, in July, his colleague, Lord Castlereagh, introduced into the House of Commons a bill to repeal the Conventicle Act and the Five Mile Act altogether, and, when it had passed the Commons, he himself moved its adoption by the Lords, enforcing his recommendation by the argument, that "an enlarged and liberal toleration was the best security to the Established Church, a Church not founded on the exclusion of religious discussion, but, in its homilies, its canons, and all the principles on which it rested, courting the investigation of the Scriptures, upon which it founded its doctrines." At the same time, while urging the repeal of acts which he truly branded as a disgrace to the statute-book, he was not blind to the duty imposed on him, as responsible for the public tranquillity, of taking care that meetings held ostensibly for purposes of devotion should not be perverted to the designs of political agitators; and therefore he provided in the bill for the registration of all places appropriated to religious worship, and for the exaction from "the preachers and teachers in those meetings of some test or security in the oaths to be taken by them." He had already secured the acquiescence of the bishops, and he was equally successful now in winning the assent of the House. The conditions, such as they were, did not prevent the bill from being entirely acceptable to the Non-conformists; and though their spokesman in the House of Commons, Mr. W. Smith, member for Norwich, confessed a wish "that it had gone a little farther, and had granted complete religious liberty," he at the same time expressed sincere gratitude on the part of the Non-conformists for what was thus done for them; and declared that, "as an act of toleration, it certainly was the most complete which had hitherto been passed in this country." It was, in fact, the beginning of the abandonment of that system of discouragement of and hostility to all sects except the Established Church, which had hitherto been regarded by a large party as one of the most essential principles of the constitution. And as such it makes the year 1812 in some respects a landmark in our constitutional history. Mr. Smith had referred to an omission which prevented him from speaking of the bill as complete. He was alluding to the Test and Corporation Acts, which had been passed ten years later than the Conventicle Act, in the same reign of Charles II., and which many of the Non-conformists, and especially the Unitarians, had urged Lord Liverpool to include in this measure of repeal, but which he decided on retaining. As has been said above, he drew a distinction between acts inflicting penalties and those which went no farther than imposing political disabilities, feeling that any relief of Protestant Dissenters from such disabilities must inevitably lead to the concession of a similar indulgence to Roman Catholics, and not being as yet prepared to admit to Parliament the members of a Church which recognized the duty of obedience in any matter to a foreign sovereign; for, as the disabilities had been originally imposed on the Roman Catholics, so they were now maintained on political, not religious, grounds; and even those most opposed to a relaxation of them were careful to explain their resistance to be one which time and a change of circumstances might mitigate.[173] As a fitter opportunity for discussing the question will be afforded by the Duke of Wellington's bill, in 1829, we should not have mentioned it at all in this place, had not Lord Liverpool, in arranging his administration, adopted a mode of dealing with it which, though rather a parliamentary or departmental than a constitutional innovation, was, nevertheless, one of so strange a character as to seem to call for examination. Ever since the formation of Walpole's ministry it had been the invariable rule and practice for all the members of the cabinet to act in concert on all measures of importance, or, indeed it may be said, on all measures on which a Parliamentary vote was taken. But, in arranging his administration after Mr. Perceval's death, Lord Liverpool found it absolutely impossible to form one satisfactory either to the nation or to himself if it were to be confined to members in perfect agreement with himself on the subject of the retention of the disabilities affecting the Roman Catholics; and therefore, in order to be able to form a ministry generally strong and respected, he adopted the strange expedient of allowing every member of it to act independently on this one question. He made it what was called an open question. The arrangement, as explained to the House of Commons by Lord Castlereagh, the ministerial leader of that assembly, was that, "in submission to the growing change of public opinion in favor of those claims (the Roman Catholic claims), and the real sentiments of certain members of the government, it had been resolved upon, as a principle, that the discussion of this question should be left free from all interference on the part of the government, and that every member of that government should in it be left to the free and unbiassed suggestions of his own conscientious discretion." It was an arrangement which secured the Prime-minister the co-operation of Lord Castlereagh himself, and eventually of Mr. Canning; but it failed to propitiate the Opposition, the leader of which in the House of Commons, Mr. Ponsonby, turned it into open ridicule, affirming that "nothing could be more absurd than a cabinet professing to have no opinion on such an important subject." And it must be confessed that Mr. Ponsonby's language on the subject seems the language of common-sense. So far from the importance of a question justifying such an arrangement, that importance appears rather to increase, if possible, the necessity for absolute unanimity in the administration than to diminish it; and on a grave and momentous subject to leave each member of a ministry free to pronounce a separate and different judgment, so that one may resist what his colleague advocates, is to abdicate the functions of government altogether. To permit such liberty was either a proof that the ministry was weak altogether—which it was not—or that its conduct on this question was weak. In either case, it was a mischievous precedent that was thus set;[174] and the fact that it has since been followed in more than one instance, is so far from being any justification of it, that it rather supplies an additional reason for condemning it, as being the cause of wider mischief than if it had been confined to one single question, or had influenced the conduct of one cabinet only. It has often been said that the name "cabinet" is unknown to the law, and that what we call the cabinet is, in fact, only a committee of the Privy Council. As a statement of law the assertion may be correct, but it is certain that for more than a century and a half the constitution has adopted the principle that the cabinet consists of the holders of a certain, to some extent a fluctuating, number of the principal state officers; and, recognizing the responsibility of all for the actions of each member of it, does by that recognition sanction an expectation that on all questions, or at all events on all but those of the most trivial character, they will speak and act with that unanimity which is indispensable, not only to the strength of the government itself, but to its being held in respect by the people; such respect being, indeed, among the most essential elements of its strength. The incidents of the war itself do not belong to a work such as this; but, tantalizing as it must be to an historian of any class to pass over the brilliant series of achievements which gave Britain the glory of being twice[175] the principal agent in the deliverance of Continental Europe, the glories of Salamanca, Victoria, Orthes, and Waterloo must be left to other writers, who, it is not unpatriotic to hope, may never again have similar cause for exulting descriptions. But out of the crowning triumph of Waterloo a difficulty arose which, though it may be difficult to characterize the principle on which it was settled, since it was not strictly a question of constitutional, international, or military law; and though the circumstances were so peculiar that the conclusion adopted is never likely to be referred to as a precedent, seems still deserving of a brief mention, especially as an act of Parliament was passed to sanction the decision of the cabinet. Baffled by the vigilance of our cruisers in every attempt to escape from one of the western ports of France to America, Napoleon was at last compelled to surrender himself to a British squadron. But, though he was our prisoner, the Prime-minister considered us, in all our dealings with him, as so bound by engagements to our allies, that he was to be regarded as "the common prisoner of all, so far that we should not give him up or release him without the joint consent of all." The question was full of difficulty. There were, probably, very few persons in this or any other country who did not coincide in the impropriety of releasing him, and so putting it in his power once more to rekindle a war in Europe. But it was a political view of the case, founded on a consideration of what was required by the tranquillity of Europe; and it was not easy to lay down any legal ground to justify the determination. Some regarded him as a French subject, and, if that view were correct, he could hardly be detained by us as a prisoner of war after we had concluded a treaty of peace with France. But, again, it seemed to some, the Lord Chancellor being among them, a questionable point whether in the last campaign we had been at war with France; whether, on the contrary, we had not assumed the character of an ally of France against him. And, on the supposition that we had been at war with France, a second question was raised by Lord Ellenborough, the Chief-justice, "what rights result on principle from a state of war, as against all the individuals of the belligerent nations—rights, whatever they may be, seldom, if ever, enforced against individuals, because individuals hardly ever make war but as part of an aggregate nation." The question—as, after consultation with Lord Ellenborough and his own brother, Sir William Scott, it finally appeared to Lord Eldon, on whom the Prime-minister naturally depended, as his chief legal counsellor, though in its political aspect he judged for himself—was, firstly, "whether it could possibly be inconsistent with justice or the law of nations that, till some peace were made by treaty with some person considered as Napoleon's sovereign, or till some peace were made with himself, we should keep him imprisoned in some part of our King's dominions." And, secondly, "whether there were any person who could possibly be considered his sovereign, after the treaty of 1814 had clothed him with the character of Emperor of Elba, with imperial dignity and imperial revenue." Lord Liverpool himself, however, raised another question: whether, by his invasion of France, he had not forfeited his right to be regarded as an independent sovereign; resting this doubt on a suggestion which, among others, he proposed to the Lord Chancellor, that "at Elba he enjoyed only a limited and conditional sovereignty, which ceased when the condition on which he held it was violated." This last suggestion, it must be confessed, appears untenable, as totally inconsistent with the language of the Treaty of Fontainebleau, under the provisions of which Napoleon became sovereign of Elba, and which does not contain a single article which bears out the opinion that his sovereignty was limited or conditional. On the contrary, the words of the treaty expressly agree that "Elba should form during his life a separate principality, which should be possessed by him in full sovereignty and property." There is no need to discuss the views of Blucher. On the news of Napoleon's landing at Frejus reaching the plenipotentiaries assembled at the Congress of Vienna, they at once issued a declaration that, "in breaking the convention which had established him at Elba, Buonaparte" (for they refused him his imperial appellation of Napoleon) "had destroyed the only legal title on which his existence depended.... He had placed himself out of the pale of civil and social relations, and, as the enemy and disturber of the peace of the world, he was delivered over to public justice." And the old Prussian, burning with a desire to avenge the indignities and injuries which he had inflicted on Prussia, avowed his determination to execute him as an outlaw, if he should fall into his hands. And it is still less worthwhile to inquire—though Lord Holland in his place in Parliament did desire the House to consult the judges on the point—whether, if Napoleon were a prisoner of war, he "were not entitled to his habeas corpus, if detained after the signature of a treaty of peace with all the powers, or any of which he could be considered as the subject." On the whole, the simplest view of the position and of our detention of him, the view most reconcilable with the principles which regulate the waging and the relinquishing a state of war, seems to be to consider that Napoleon was a sovereign with whom we were at war; that that war could only be terminated by a treaty of peace between ourselves and him; that it rested with us to conclude, or to abstain from concluding, any such treaty; and that, till we should conclude it, we had clearly a right to detain him as a prisoner of war. It must, at the same time, be admitted that modern history afforded no precedent for the detention of a prisoner for his whole life (unless, indeed, Elizabeth's imprisonment of the Queen of Scots may be considered as one), and that the most solid justification for it was necessity. To quote the language of Lord Eldon, "I believe it will turn out that, if you can't make this a casus exceptionis or omissus in the law of nations, founded upon necessity, you will not really know what to say upon it. Salus Reipublicae suprema lex, as to one state; Salus omnium Rerumpublicarum must be the suprema lex as to this case."[176] In the course of the year 1818 a somewhat singular question as to the position of the Regent was raised by a claim advanced by Colonel Berkeley to produce his Royal Highness as a witness in a court of law. The Prince consulted the Prime-minister, and the Prime-minister referred it to the Attorney and Solicitor General, not concealing his own impression that it could not be consistent with his constitutional position and prerogative for the King to appear as a witness to be subjected to examination and cross-examination.[177] They, in their statement of opinion, assumed it to be an undeniable principle of the constitution that the sovereign, "by reason of his royal character, could not give testimony." And therefore they had no doubt that the Regent, exercising his authority, was equally prevented from so doing. Colonel Berkeley's counsel had urged that, even if he could not appear in open court and be sworn, he had the privilege of communicating his evidence in a peculiar mode, by certificate under the Sign Manual or Great Seal. But the Attorney and Solicitor General professed that they could not discover whence this last privilege was derived; they urged, as an insurmountable objection to such a contrivance, that "all instruments under the Sign Manual or Great Seal must, in point of form, be in the name of and on behalf of the King, which would manifestly be incongruous when the evidence certified was not that of the King, but of the Regent himself." And they quoted a case in which Lord Chief-justice Willes had said "that the certificate of the King, under his Sign Manual, of a fact (except in an old case in Chancery) had always been refused." As it had been urged also, on Colonel Berkeley's behalf, that the Prince had formerly "joined in proving the will of the Duke of Brunswick," his brother-in-law, they farther expressed an opinion that "he ought not to have done so, but should have left it to the other executors." On the point whether "the King himself could give evidence orally or in any other manner," their opinion expressed very plainly the principle on which they maintained that he could not. "That he was not compellable to do so; that he could not be sworn (there being no power capable of administering an oath to him in a court of justice). That, whether his testimony be given viv voce or otherwise, no question in chief or on cross-examination could be proposed to him, was admitted by Colonel Berkeley's counsel. And that his testimony must be conclusive as to the facts stated by him, appeared necessarily to follow from the perfection ascribed by law to his royal character. For such remarkable exceptions, therefore, to the case of all other witnesses they could not but think that strong and decisive authority ought to be produced; while the silence of text-writers on the subject, so far from being favorable to the notion that the King can give evidence, appeared to afford a directly contrary inference." And they summed up their opinion in a few words: "that his Royal Highness the Prince Regent, while in the personal exercise of the royal authority, was in the situation of the King in this respect, and that the King could not by any mode give evidence as a witness in a civil suit." It is very improbable that Colonel Berkeley should have made the application without previously ascertaining the willingness of the Prince to give evidence, could such a course be permitted. And as his Royal Highness, on receiving this opinion of the law-officers of the crown, did not come forward as a witness, that opinion may be held to have settled the question. And, apart from the constitutional objections relied on by those able lawyers, it is evident that there would be serious practical objections to the sovereign being made a witness. It would be derogatory to his royal character to put himself in a position where comments could be made, either by the opposing barrister or by the public outside, on his evidence. And, on the other hand, it would be perilously unfair to one litigant for his adversary to be able to produce a witness who was not subject to cross-examination, nor to remarks upon his testimony. The reign of George III. was now drawing to its close, and, if it produced no legislation affecting the principles of the constitution (it will presently be seen that it did produce one measure which its opponents branded as a violation of these principles), yet in its last years it witnessed the revival of an agitation which was kept up with varying animation till it was temporarily quieted by the concession of its demands. We have seen that one of Pitt's earliest efforts at legislation had been directed to a reform in Parliament, an object which to the end of his life he considered of great importance, though the revolutionary spirit aroused by the troubles in France, and the open sympathy with the French Jacobins and Republicans avowed by a party among ourselves—which, if numerically weak, was sufficiently loud and active to be dangerous—prevented him from ever re-opening the subject. But, though the French Revolution in this way proved for the time an insurmountable obstacle to the success of the reformers, in another way it insured the revival of the question, by the general spirit of inquiry which it awakened among the population at large, and which soon went beyond the investigation of any single abuse or anomaly. For even less far-sighted statesmen than Pitt confessed the existence of much that was not only theoretically indefensible, but practically mischievous. The period, little short of a century, which elapsed between the death of William III. and Pitt's accession to office had been one of almost complete stagnation and apathy. The Scotch Union, the Septennial Bill, the establishment of a militia, and the Place Bill of 1743 were the only instances of any legislation deserving the name of constitutional which made the reigns of Anne and the first two Georges memorable. And in the very nature of things it was impossible that, after so long a slumber, there should not be much to do, and many, whether capable or incapable, eager to bear a share in the work. The sudden cessation of the excitement of war had begotten a restless craving for some other excitement to take its place, and none seemed so creditable as energy and acuteness in the discovery and removal of abuses. Complaints were made, and not without reason, of the working of the poor-law; of the terrible severity of our criminal code; of the hardships and sufferings of the younger members of the working classes, especially in the factories; of the ignorance of a large portion of the people, in itself as prolific a cause of mischief and crime as any other. But, though committees and commissions were appointed by Parliament to investigate the condition of the kingdom in respect of these matters, a feeling was growing up that no effectual remedy would be applied till the constitution of the House of Commons itself were reformed, so as to make it a more real representation of the people than it could as yet be considered. And a farther stimulus to this wish for such a Parliamentary reform was supplied by the distress which a combination of circumstances spread among almost all classes in the years immediately following the conclusion of the second treaty of peace.[178] The harvests of the years 1816 and 1817 were unusually deficient, and this pressed heavily on the farmers and landed proprietors. The merchants and manufacturers, who, while every part of the Continent was disturbed or threatened by the operations of contending armies, had practically enjoyed almost a monopoly of the trade of the world, found their profits reduced, by the new competition to which the re-establishment of peace exposed them, to a point which compelled them to a severe reduction of expenditure. The uncertainty felt as to the results to be brought about by the inevitable repeal of the Bank Act of 1797, and the return to cash payments—results which it was impossible to estimate correctly beforehand—had a tendency to augment the distress, by the general feeling of uneasiness and distrust which it created. And the employers of labor could not suffer without those who depended on them for employment suffering still more severely. The consequence was, that there was a general stagnation of trade; numbers of artisans and laborers of every kind were thrown out of work, and their enforced idleness and poverty, which was its result, made them ready to become the tools of demagogues such as are never wanting in the hour of distress and perplexity. Meetings were convened, ostensibly to petition for reform, but in reality to afford opportunities for mob-orators, eager for notoriety, to denounce the government and those whom they styled the "ruling classes," as the causes of the present and past evils. From these meetings multitudes issued forth ripe for mischief. In some places they rose against the manufacturers, and destroyed their machines, to the recent introduction of which they attributed their want of employment. In others, still more senselessly, they even set fire to the stores of grain in the corn-dealers' warehouses, aggravating by their destruction the most painful of their own sufferings. On one occasion, a mob which had assembled in one of the eastern districts of London, on pretence of framing a petition to be presented to the Prince Regent, at the close of the meeting paraded the streets with a tricolor flag, the emblem of the French Revolutionists, and pillaged a number of shops, especially those of the gun-makers, spreading terror through all that side of the metropolis. In at least one instance the violence of the rioters rose to the height of treason. Assassins fired at the Regent in the Park as he was returning from the House of Lords, whither he had been to open Parliament; and when it was found that they had missed their aim, the mob attacked the royal carriage, pelting it with large stones, and breaking the windows; nor was it without some difficulty that the escort of troops cleared a path for him through the mob, and enabled him to reach Carlton House in safety. The first effect of these outrages was to damage the cause of Reform itself, even such uncompromising reformers as Lord Grey denouncing "meetings at which extensive schemes of Reform were submitted to individuals incapable of judging of their propriety." The second consequence was to compel the ministers to take steps to prevent a recurrence of such tumults and crimes. At first they were contented with a temporary suspension of the Habeas Corpus Act; but, even while that suspension was in force, it did not entirely prevent meetings, at some of which the language of the speakers certainly bordered on sedition; and when the suspension was taken off, fresh meetings on a larger scale, and of a more tumultuous character than ever, were held in more than one rural district; finally, in July of 1819, the whole kingdom was thrown into a violent state of excitement by a meeting held at Birmingham, at which the leaders, assuming the newly-invented party name of Radicals, not only demanded the remodelling of the whole system of government, but, because Birmingham as yet sent no members to the House of Commons, took it upon themselves to elect Sir Charles Wolseley, a baronet of respectable family, as their representative to the Parliament, and charged him to claim a place in the House of Commons in the next session, by the side of those elected in obedience to the royal writs. Sir Charles was at once arrested on the charge of having at this meeting used seditious language calculated to lead to a breach of the peace; but the Radical leaders, far from being intimidated by this demonstration of vigor on the part of the government, immediately summoned a similar meeting in Manchester, announcing their intention to elect a representative of that great town likewise, which, though the largest of all the manufacturing towns, was also unrepresented in the Imperial Parliament. The magistrates prohibited the meeting. It was only postponed for a week, when the people assembled in such formidable numbers (no estimate reckoned them at fewer than 60,000), that the ordinary civil authorities deemed themselves unequal to dealing with it, and called in the aid first of the Yeomanry and then of a hussar regiment. The soldiers behaved with great forbearance, as soldiers always do behave on such occasions; but they were bound to execute the orders which were given them to arrest some of the leaders, and, in the tumult which was the inevitable consequence of their attempt to force a way through so dense a crowd, three or four lives were, unfortunately, lost. So unusual a catastrophe called out the energies of both parties. The Radical leaders published manifestoes declaring the people had been "massacred" by the soldiers by the orders of the government. Meetings were held to denounce the conduct of the ministers, one being even promoted by Lord Fitzwilliam, as Lord-lieutenant of Yorkshire, a dignity of which he was instantly deprived; while, on the other hand, the grand-juries of Cheshire and Lancashire made reports of the condition of those counties to the Secretary of State, which showed that a most alarming spirit prevailed over the greater part of the district. "The most inflammatory publications had been issued in the principal towns, at a price which put them within the reach of the poorest classes of society. The training and military drilling of large bodies of men under regular leaders had been carried on to a great extent for some time, chiefly by night; and there was no doubt that an extensive manufacture of arms was going on." What was a hardly inferior symptom of danger was a system of intimidation which prevailed to a most serious degree. Many magistrates had received notices threatening their lives, and combinations had been formed to withhold custom from publicans and shopkeepers who had come forward to support the civil power. In many parts of the two counties the grand-juries declared "that no warrant of arrest or other legal process could be executed; the payment of taxes had ceased, and the landlords were threatened with the discontinuance of their rents." It was admitted that the spirit of disaffection was local, confined to three or four counties; but those counties were, next to Middlesex itself, the most populous and among the most important in the kingdom, and there was danger lest the feeling, if not checked, might spread. The crisis seemed so momentous, that some even of the Opposition leaders volunteered their counsels and aid to the ministers in dealing with it. And the ministers, after long deliberation, decided on calling Parliament together in November, and introducing some bills which they conceived necessary to enable them to restore and preserve tranquillity. They were six in number; and—perhaps, with some sarcastic reference to Gardiner's Six Acts in the sixteenth century—they were very commonly spoken of as Lord Sidmouth's Six Acts, that noble lord being the Home-secretary, to whose department they belonged. It is not necessary here to do more than mention the general purport of five of them. One prohibited military training without the sanction of the government; another empowered magistrates to search for arms which they had reason to believe were collected for illegal purposes; the third authorized the seizure of seditious and blasphemous libels; the fourth subjected publications below a certain size to the same stamp as that required for a newspaper; the fifth regulated the mode of proceeding in trials for misdemeanor of a political character. But these enactments were regarded as little more than arrangements of detail or procedure involving no principles, and some of them were admitted even by the most steadfast opponents of the ministers to be necessary. But the sixth, designed to restrain the practice of holding large open-air meetings—not, indeed, forever, but for a certain period, fixed at five years—was strongly resisted by the greater portion of the Whig party in both Houses, as a denial to the people of one of their most ancient and constitutional rights.[179] Its principal clauses enacted that "no meeting exceeding the number of fifty persons (except a meeting of any county or division of any county, called by the Lord-lieutenant or sheriff of such county, etc., or by five or more acting justices of the peace for such county, or by the major part of the grand-jury; or any meeting of any city, borough, etc., called by the mayor or other head officer of such city, etc.) should be holden for the purpose or on the pretext of deliberating upon any public grievance, or upon any matter relating to any trade, manufacture, etc., or upon any matter of Church or State, or of considering, proposing, or agreeing to any petition, address, etc., etc., unless in the parish or township within which the persons calling any such meeting usually dwell;" and it required six days' notice of the intention to hold such meetings, with their time, place, and object, to be given to a magistrate. It empowered the magistrate to whom such notice was given to alter the time and place. It forbade adjournments intended to evade these prohibitions. It forbade any one to attend such meetings except freeholders of the county, or parishioners of the parish, or members of the corporation of the city or borough in which they were held, or members of the House of Commons for such places. It empowered magistrates to proceed to the places where such meetings were being held, and, if they thought it necessary, to require the aid of constables. It enacted that any meeting, the tendency of which should be "to incite or stir up the people to hatred and contempt of the person of his Majesty, his heirs and successors, or of the government or constitution of this country as by law established, should be deemed an unlawful assembly." It empowered one or more justices of the peace, in the event of any meeting being held contrary to the provisions of this act, to warn every one present, in the King's name, to depart; and made those who did not depart in obedience to such warning liable to prosecution for felony, and, if convicted, to seven years' transportation. It forbade the display of flags, banners, or ensigns at any meeting, and the employment of any drum, or military or other music; but it excepted from its operation "any meeting or assembly which should be wholly holden in any room." There was one peculiarity in the line taken by the opponents of the bill, that they did not deny that the meetings which had induced the ministers to propose it were an evil, dangerous to the general tranquillity; but it was strongly urged by Lord Erskine and others that the existing laws were quite strong enough to deal with them, so that a new enactment was superfluous; and by others, in both Houses, that such meetings were "an ancient and constitutional mode of discussing abuses or petitioning Parliament," any interference with which was a greater evil than the meetings themselves, as being a violation of the constitution. Mr. Brougham in particular admitted, to the full extent of the assertions of the ministers themselves, "the wickedness and folly of many of the speeches" made at the recent meetings. He expressed with great force his entire disapproval of the system on which these meetings had been conducted, and admitted that the martial array which had been exhibited, and the vastness of the numbers of those who had attended, were of themselves calculated to excite alarm; but he declared that "he could not on that account acquiesce in a total subversion of a popular right." On the other hand, the ministers themselves did not deny "the general right of the people to petition the Legislature, or to carry their addresses to the foot of the throne. And therefore (as Lord Harrowby, the President of the Council, admitted) there could be no doubt of their right to assemble, so far as was necessary to agree to their petitions or addresses. It was a right that did not depend on the Bill of Rights, on which it was usually grounded, but had existed long before. But this bill," he contended, "imposed no restrictions on the legitimate enjoyment of that privilege; it only regulated the meetings at which it was to be exercised." And Lord Liverpool affirmed that the bill was not only "consistent with the existing laws and principles of the constitution, but was even proposed in furtherance of those principles, and for the purpose of protecting the people of this country against a series of evils which, if not checked, must subvert their laws and liberties." In attempting to form a correct judgment on the question whether this bill were constitutional or unconstitutional, it must, I think, be admitted that, as has been remarked before, the terms "constitutional" and "unconstitutional" are somewhat vague and elastic. There is no one document—not Magna Charta, nor the Petition of Eight, nor the Bill of Rights—which can be said to contain the whole of the British constitution. Its spirit and principles are, indeed, to be found in all the laws, to which they give animation and life, but not in any one law. And among its leading principles are those which embrace the right of every individual to freedom of action and freedom of speech, so long as he does not commit any crime himself, nor tempt others to do so. Yet it does not follow that a new enactment which for a while abridges or suspends that freedom of action or speech is inconsistent with those constitutional principles. Ministers, to whom the government of a country is intrusted, do wrong if they limit their operations to the punishment of offences which have been committed. It is at least equally their duty, as far as possible, to prevent their commission; to take precautionary measures, especially at times when there is notorious danger of offences being committed. At the same time they are bound not to legislate under the influence of panic; not to yield to fears having no substantial ground. And in their measures of precaution they are farther bound to depart from or overstep the ordinary law as little as is compatible with the attainment of their object. In all such cases each action of theirs must stand or fall by its own merits; by the greatness of the emergency which has caused it, and by its sufficiency for its end. For as no law, except such as forbids moral crimes, is invariable, so even the dearest privileges of each subject, being his for the common good, are liable to temporary suspension for that common good. But the burden of justification lies on those who propose that suspension. Now, that this bill was such a suspension of the long-established rights of the subject, and so far an overstepping of the principles of the constitution, is admitted by the very fact of its framers only proposing for it a temporary authority. Had it not invaded a valuable and real right, it might have been made of perpetual obligation. But it is not easy to see how it can be denied that the dangers against which it was intended to guard were also real. It was certain that itinerant demagogues were visiting districts with which they had no connection, for the sole purpose of stirring up political agitation. It was clear that such meetings as they convened, where those assembled could only be counted by tens of thousands, were too large for deliberation, and were only meant for intimidation; and equally clear that, though the existing laws may have armed the magistrate with authority to disperse such meetings, they did not furnish him with the means of doing so without at least the risk of bloodshed (for such a risk must be involved in the act of putting soldiers in motion), and still less did they invest him with the desirable power of preventing such meetings. It was necessary, therefore, to go back to the original principles and objects of every constitution, the tranquillity, safety, and welfare of the nation at large. And it does not appear that this bill went beyond what was necessary for that object. Indeed, though party divisions are not always trustworthy tests of the wisdom or propriety of a measure, the unusual magnitude of the majorities by which on this occasion the minister was supported in both Houses may fairly be regarded as a testimony to the necessity of the bill,[180] while its sufficiency was proved by the abandonment of all such meetings, and the general freedom from agitation in every part Of the country which prevailed in the following year, though its most remarkable incident was one of which demagogues might well have taken advantage, if they had not had so convincing a proof of the power of government, and of the resolution of the ministers to exert it.[181] Notes: |
|
