II. THE GOVERNMENT

1. The Legislature

The Constitution of England is the whole body of unrepealed enactments of Parliament and unrevoked decisions of the courts. By such precedents the full authority of the government resided in the Crown (king or queen) and the Parliament acting in concert; usually, since 1688, the monarch accepted what Parliament legislated. No written document limited the power of Parliament to pass any law that pleased both its chambers. The upper chamber, the House of Lords, consisted of the temporal and spiritual lords, sitting by right of birth and tradition, requiring no election, empowered to reject any measure voted by the House of Commons, and serving as a supreme court in appeals from judicial decisions, in impeachments of governmental personnel, and in all actions brought against its secular members on charge of a major crime. It was a bastion of the aristocracy fighting rearguard actions against the advancing bourgeoisie.

The House of Commons numbered 558 members: two each from the Universities of Oxford and Cambridge, one from Trinity College, Dublin, forty-five from Scotland; the rest chosen by forty counties (“shires”) and twenty boroughs (townships) by electors holding limited franchises too varied to be specified here.5 Excluded from the electorate were women, paupers, Roman Catholics, Quakers, Jews, agnostics, and, in general, anyone who could not swear allegiance to the authority and doctrines of the Church of England. All in all, there were 245,000 eligible voters in England’s nine million souls. Since voting was public, few voters dared support any candidate but the principal landowner’s nominee; many eligible citizens did not bother to vote; and some elections were decided by arrangement among the leaders, without any voting at all. The number of Parliamentary representatives allowed to each borough had been fixed by tradition, and took little account of growth or decline in the borough’s population; some boroughs with a mere handful of voters returned one or more members, while London, with six thousand voters, was allowed only four. The new industrial centers were poorly represented in Parliament, if at all; Manchester, Birmingham, and Sheffield had no member there, while the old county of Cornwall had forty-two. We should add, however, that in local affairs many towns and villages retained considerable self-rule; so the city of London, through a property-limited suffrage, chose its own government, and maintained a proud independence of Parliament.

About half the seats in the Commons were filled by these semipopular elections; the other half were filled through uncontested nomination by local or distant proprietors; and these nominations were in many cases offered by the boroughs to the highest bidder. “Boroughs, in other words seats in the House of Commons, were bought and sold as openly as any article of commerce; and the King himself was at times the great purchaser of boroughs.”6

The chosen members were loosely divided between two parties—Tories and Whigs. These had largely forgotten the issues that had once divided them; their leaders were in both cases members of old aristocratic families; but the Whigs were more inclined than the Tories to listen to the upcoming and affluent lords of commerce and industry, while the Tories defended—the Whigs challenged—the traditional “prerogative” of royal power. The bone of contention was not principle but power: which party was to form the ruling ministry, divide the lucrative offices, and oversee the developing, fee-splitting bureaucracy.

Despite its aristocratic base, the British government was considerably more democratic in its lawmaking than most Continental states; whereas in these (including France after 1804) the supreme power was wielded by an emperor or a king, in Britain the actual ruler, since 1688, was not the king but the Parliament; and in the bicameral Parliament the authority lay chiefly with the Commons through its “power of the purse”: no disbursement of public funds could be made without its consent. Theoretically the king could veto any measure passed by Parliament; actually George III never stretched his prerogative to this testing point. The king, however, could dissolve the Parliament and “go to the country” for a new election; in that case the candidates he favored and financed had a good chance of winning seats, for the indigenous King (after two alien Georges) had become again the nation embodied, the central object of patriotic loyalty and pride.

2. The Judiciary

The English judiciary was as haphazard, chaotic, and competent as the legislature. First of all, it had to administer a body of laws that had grown almost daily through hundreds of years, that had long remained unsystematized, and that was so brutal in its traditional penology that judges had often to amend it or ignore it. The law was heavy with relics of its feudal origins and its Christian emendations: accused lords still demanded to be tried by lords, and “benefit of clergy” still (till 1827) exempted Anglican ministers from secular courts. Hundreds of laws (against public gambling, nocturnal amusements, unlicensed assemblies…) remained in the statutes, though rarely enforced. Some improvements were made in this period: the number of crimes (some two hundred) for which, in 1800, death was prescribed was repeatedly reduced; and a true account of assets and liabilities could avert imprisonment for debt. But the law of bankruptcy remained so cumbersome that businessmen avoided it as the road to double bankruptcy. The Habeas Corpus Act of 1679, which aimed to end undue imprisonment before trial, had been so often suspended that it lost its force in crises like the French Revolutionary Wars. The confusion, contradictions, and barbarities of British law continued until Bentham slashed at them with his persistent and detailed demands for reform.

The capture of criminals was made additionally difficult by the scarcity of police in the towns, and their almost total absence in the countryside; citizens were driven to form voluntary associations to protect their lives and property. Even if arrested, the criminal might delay or escape imprisonment by hiring lawyers to find or forge reasons for appeal, or loopholes in the law; “it was the boast of the lawyers that there was not a single statute through which they could not drive a coach and six.”7

At the lowest rung of the legal profession were the attorneys or solicitors, who acted as legal agents for a client, or researched and prepared briefs for the barristers, who were the only lawyers admitted to the bar. From them the king, usually on recommendations by the lord chancellor, chose the judges.

Once or twice a year the judges of the Common Law Courts toured the counties to try, locally, civil and criminal cases. As their stay in any one place was brief, the administration—in some measure the creation—of the law in each county or borough was left to local “justices of the peace.” These were chosen by the central government from among the richer landowners of the district; they were unpaid, but their wealth was expected to keep them from corruption. They were not above class prejudice, and some became famous for severe sentences against radicals; but, all in all, they provided fair and competent local administration, almost equal to that of the prefects in Napoleonic France.

The best feature of English law was the right of the accused to trial by jury. Apparently this institution of the Carolingian Franks had come to England in primitive form with the Norman Conquest. The size of the jury was not fixed at twelve members until 1367; and only about that time was a unanimous verdict required. The jurors were chosen—usually from the middle class—from a panel of forty-eight to seventy-two men, after extensive rights of challenge by the contending parties. Periodically the justices of the peace were assisted in each county by a grand jury, upon whose recommendations the court was expected to act. In trials the jurors heard the evidence, the speeches of contending counsel, and the judge’s summing up; after this they retired to an adjoining room, where, “in order to avoid intemperance and causeless delay,” they were kept without meat, drink, fire, or candle (unless by permission of the judge) “till they were unanimously agreed.”8

3. The Executive

Theoretically the executive power was vested in the monarch; actually it lay in his cabinet of ministers; and these had to be members of Parliament, responsible to it for their actions, and dependent upon it for their funds. Theoretically the king appointed these ministers; in practice he was expected to choose as their head the leader of the party victorious in the latest election; and this prime minister, with others prominent in his party, nominated, for the ruler’s formal appointment, the secretaries of the various ministries. In his first administration (1783–1801) William Pitt took a double role as chancellor of the exchequer and first lord of the treasury; that is, he controlled, subject to Parliamentary approval, both the collection and the disbursement of the national revenue. In the Cabinet, as well as in the government as a whole, the power of the purse was the chief instrument of discipline and rule.

George III did not admit his subordination to Parliament. From his accession in 1760, at the age of twenty-two, he had sought to enforce the royal prerogatives. But the costly collapse of his leadership in the War of American Independence, and his repeated intervals of insanity (1765, 1788, 1804, 1810–20), weakened his body, mind, and will, and after 1788 he allowed William Pitt to govern except for three provisos: slavery must not be finally condemned, the British Catholics must not be allowed to vote, and there should be no peace with France until Louis XVIII was securely placed on his rightful throne.

George III was a good man within the limits of his vision and his creed. Napoleon, in captive retrospect, described him as “the honestest man in his dominions.”9 He distinguished himself from his Hanoverian predecessors by obeying all the Commandments except the fifth, and by falling far short of the Levitican injunction to “love thy neighbor as thyself”; but he loved the English people. Despite his faults, and because of his misfortunes, they loved him in return—for loving his inherited religion, for loving his wife and daughters, and for giving the nation an inspiring picture of a simple and devoted life. Their hearts went out to him when, despite his example, most of his sons tarnished their princely titles with marital chaos, conscienceless gambling, reckless extravagance, and visible deterioration of body and character. Wellington was to describe them as “the damnedest millstones, about the neck of any government, that can be imagined.”10

The oldest of them—George, Prince of Wales—was the most impossible, troublesome, and charming. He was handsome and knew it. He had received a good education, could speak French, German, and Italian fluently, sang well, played the violoncello, wrote poetry, kept in touch with contemporary English literature, numbered Richard Sheridan and Thomas Moore among his intimate friends, and was an intelligent patron of art. He set up at Carlton House a princely establishment, furnished it elegantly at the nation’s cost, favored the politics and rivaled the thirst of Charles James Fox, and, to the horror of his father, became the idol of the Whigs. He liked, too, the young dandies who spent their wealth on fancy clothing, women, horses, and dogs;11 he accompanied such Britons to prizefights, and outpaced everyone in expenditure and debts. Parliament repeatedly voted a hundred thousand pounds to restore his solvency,12 for none could tell when this goodnatured wastrel would, as king, be the generous donor of lucrative sinecures.

At seventeen he had confessed to being “rather too fond of women and wine.” Among his early mistresses was Mary Robinson, who fascinated him by her playing of Perdita in A Winter’s Tale; for three years he maintained her in precarious luxury. Then he entered upon a more serious affair with Maria Anne Fitzherbert, twice widowed, Roman Catholic, six years his senior, and unmanageably decent; she refused to become his mistress, but consented to marry him. The Act of Settlement that had given the throne of England to the house of Hanover had excluded from the succession any husband or wife of a Roman Catholic; and a law of 1772 prohibited any member of the royal family under twenty-five years of age from marrying without the ruler’s consent. Nevertheless, the Prince married Mrs. Fitzherbert (1785), paying a young Anglican curate five hundred pounds to perform the illegal ceremony; the illegality preserved the Prince’s right of succession. He assumed this right in 1788, when his father lapsed into insanity; he waited impatiently for him to die; but father and son could seldom agree.

They agreed, however, that if the King (actually Parliament) would pay the Prince’s new debts (£110,000), the heir apparent would leave his morganatic wife and marry his father’s niece, Princess Caroline of Brunswick. He found her discouragingly ugly, she found him disgustingly fat; but they married, April 8, 1795. Caroline later averred that he had spent the wedding night in a drunken torpor;13 however, she gave him a daughter, Princess Charlotte, January 7, 1796. Soon thereafter he left her, and returned, for a time, to Mrs. Fitzherbert, who was apparently the only woman whom he ever deeply loved. (When he died, a miniature with a portrait of her was found pendant from his neck.14)

In November, 1810, George III—breaking under Parliamentary opposition, shame for his son, and grief for his dead daughter Amelia—went finally insane. For nine years thereafter the King of England was a raving, straitjacketed lunatic, pitied and beloved by his people; and the Regent, assuming all royal pomp and power, was a degenerate ruin, fat, fifty, kindly, cuckolded, and despised.

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