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A Short History of English Liberalism/V

THE DECLINE OF TORYISM
The conclusion of the war closed the outlet through which the national energies had been so long strained, and left the people free to contemplate their own situation. Popular discontent again made itself felt, and it was more formidable than ever. Trade was dislocated by the peace, industries were reduced which had fattened upon the war, and the numbers of the idle workmen were swollen by disbanded soldiers and sailors. At the same time bad harvests diminished the supply of corn, and a new Corn Law which prohibited imports till the home price was eighty shillings a quarter aggravated the effects of natural deficiency. Wages in some trades were bad, and grew worse. In 1819 ribbon and silk weavers of Coventry petitioned Parliament to provide them with the means of emigrating to another country. They worked sixteen hours a day, in some cases for eighteenpence or half a crown a week. None of them earned more than ten shillings a week. A hand-loom cotton weaver could make only five or six shillings a week. A pound a week was a good wage for a workman in any industry. The price of corn rose higher and higher. In January, 1816, a quarter of wheat cost fifty-two shillings and sixpence. In June, 1817, it cost a hundred and seventeen shillings. As each member of the working class consumed on the average about one quarter a year, it follows that a family of five spent on bread at the rate of £13 a year at the first rate, and eighteen months later at the rate of £29. The whole income of a weaver might be swallowed up in buying bread alone, and his family be still left in want.

To this dreadful picture a comic touch was not wanting. The Lord Advocate once referred to it in language which shows how remotely separated were the people and their rulers. "In many instances," he said, "the manufacturers, who in former times were in the habit of attending church, now employed the forenoon of the Sabbath in political discussions; and it was a common practice for weavers to work at their looms on the same day, and till a late hour of the night—and this too with their windows open, to the horror and disgust of the passengers." The economic necessity which deprived the wretched artisans even of the day appointed for their rest was thus twisted into a stain upon their character. It is not surprising that they discussed politics. Pending their emancipation, they had only three possible aids, starvation, parish relief, and charity; and many unhappy workmen and their families experienced all three. Political agitation revived on the conclusion of peace, and it was more extensive and more determined than before. It was met by the same dull and brutal repression and refusal of redress.

We have before us all the evidence upon which the Government proceeded, and there can be even less doubt than in connection with the events of twenty years before that its action was wrong and foolish. Almost every disturbance which took place could be traced to industrial or agrarian causes, and the ordinary law was in all cases sufficient. The Government preferred to treat the riots as proof of a general conspiracy against the State, and they took extraordinary steps in order to suppress them. In 1817 they suspended the Habeas Corpus Act. The suspensions of the earlier period might have been justified by the universal war, by the rapid dispersion of Jacobin principles, by the dangerous state of Ireland. The suspension of 1817 had no such excuse. The paroxysm of the French Revolution had come to an end. Ireland was disaffected but subdued. There was no war. The Government had nothing to do but to attend to the condition of the people. But this was the last thing which it occurred to the Government to do. Even when the original impulse had ceased to operate, they continued to move in the line of reaction, and repeated mechanically the watchwords of their predecessors, who had at least the excuse that they were surprised and horrified. Sidmouth gravely described the Radicals as "the enemy." It never seems to have occurred to any one in authority that Radicalism and riots were not cause and effect, and instead of grappling with the economic conditions which were equally the cause of both, Ministers discussed nothing but the means whereby the law was to be more easily enforced. Undoubtedly there were occasional disturbances of a serious character. Between 1801 and 1811 the population increased by 21 per cent. The bulk of increase was among the North Country artisans, whose growing numbers at once made their economic distress and their political impotence more conspicuous than ever. There was a dangerous riot in Spa Fields, London, in November, 1816. Another occurred at Huddersfield in the following May, a third at Derby, and a fourth at Nottingham. Secret societies were formed in different parts of the country, and the tongue of Hunt and the pen of William Cobbett, rivalling the earlier popularity of the Rights of Man, led the Government to suppose that the whole fabric of society was in danger. The Habeas Corpus Act was suspended, the Seditious Meetings Act was revived, and Secret Committees of both Houses were appointed to collect information.

It is clear from the reports of these Committees that there was nothing in the state of the country to justify these unusual measures. The great mass of the people showed no sympathy with the rioters. Education was spreading rapidly in Lancashire, Yorkshire, and Scotland, and the artisans were thinking for themselves. Violence was rare, but agitation was general. Large bodies of people marched to public meetings at Manchester, Leeds, Birmingham, and other provincial towns. Not a shadow of proof was produced by the Committees that these had any criminal intention, and one fact is sufficient to prove the contrary. At almost every meeting women and children were present. The discipline and order of these crowds were indeed, in the obscure reasonings of men like Liverpool, Sidmouth, and Castlereagh, an additional proof of their seditious character. A turbulent common people never puzzled a Tory. It was the nature of the beast to be disorderly. But a common people which thought, and spoke, and organized, and met and dispersed in companies at the advice of its leaders, was a thing which he could not understand. What he could not understand, he feared. Not the least significant fact in this record of dull and unimaginative mismanagement is the connection between Castlereagh and Continental statesmen of the type of Metternich. These people had formed a Holy Alliance for the express purpose of suppressing attempts to establish Liberal Constitutions in Europe. Castlereagh, representing Great Britain, had refused to join the Alliance. But in his own country he was pursuing its very policy, as the European despots well knew. The letters in which the Courts of Vienna and Berlin congratulated him on his suspension of the Habeas Corpus Act and the right of public meeting are among the most degrading which have ever passed through the British Foreign Office.

The worst incident of this struggle between people and Government was the affair of Peterloo. This showed, as vividly as could have been desired, how completely the working class was at the mercy of a governing class, which controlled Parliament, the Army, and the Bench. A large but peaceful meeting, containing many women and children, was held in St. Peter's Square, Manchester, to hear speeches by Hunt and other popular leaders. The crowd had gathered from all the towns in the neighbourhood, and had marched, unarmed but in military order, to the place of assembly. The magistrates thought they were faced with rebellion. They sent police and yeomen to arrest Hunt, who stood on a waggon in the middle of the crowd. The yeomen got entangled among the people, and with the assistance of some hussars proceeded to convert the meeting into a riot. Men, women, and children were cut down or trampled by the horses; a few were killed and many injured. The action of the soldiers was endorsed by the magistrates and by the Government. Whigs in both houses protested and demanded an inquiry, and Radical meetings everywhere denounced the affair as a massacre. The Government listened neither to expostulation nor to abuse. They refused to hold an inquiry. Persons injured had a legal remedy, and it was not the business of the executive to investigate matters which might come before the judiciary. It was true that a man or woman who was cut down in the midst of a panic-stricken mob might be unable to identify the cavalryman concerned. But it was not the business of the Government to step in where the law failed. Besides, the magistracy were honourable and patriotic men, and it would cast a slur upon them and weaken their authority if their superiors examined their conduct. The language of Ministers was in keeping with their whole policy. The people were to be kept down, and it was not necessary, seeing that they were politically powerless, to be squeamish about ways and means. All the usual arguments were thus employed to protect the official wrongdoers against the public. One official will always defend the wickedness of another against private persons who happen to be unpopular, and a Secretary of State, who can rely on the support of a resentful party, will always ignore the wrongs of political opponents upon whose votes he is not forced to depend. It is in agitations for the franchise that we learn best to appreciate it. In no other circumstances is the tendency to abuse power greater in the governor, nor the incapacity to obtain redress more conspicuous in the governed.

The direct consequence of this wanton abuse of power was to increase the disaffection of the common people and to stimulate the Whigs in Parliament. Much as they hated Radicals, the Whigs were too honestly indignant to tolerate executive outrage of this kind, and too anxious to retain their own leadership of constitutional opposition, to leave all the work of protest to the Radicals themselves. The citizens of London, York, Bristol, Nottingham, and other large towns sent addresses to the Prince Regent, and a great meeting of Yorkshire voters was summoned by no less a person than Lord Fitzwilliam, the Lord-Lieutenant of the county. The Government was more frightened than ever, and contrived new methods of repression. Fitzwilliam was dismissed from his office, and Sir Francis Burdett was fined £2,000 and imprisoned for three months for publishing a violent criticism in a newspaper. Castlereagh then introduced the notorious Six Acts. The drilling which had preceded popular meetings was made illegal. The trial of offenders was to be more expeditious. The magistrates were authorized to issue warrants to search for arms. Transportation was made the punishment for a second conviction for seditious libel. Public meetings were restricted. Pamphlets were subjected to the same stamp duties as newspapers. A touch of comedy was lent to these proceedings by a grant of £1,000,000 for the purposes of building new churches. This had two objects. The first was to check the spread of Dissent. "It was their duty," said Lord Liverpool, "to take care that those who received the benefits of education should not be obliged to resort to Dissenting places of worship by finding the doors of the church shut against them." But the second object was to prevent political agitation. "The recent increase of population," said the same statesman, "had taken place chiefly in the manufacturing towns; and it was impossible that great masses of human beings should be brought together in the manner in which they were situated in these towns without being exposed to vicious habits, and to corrupting influences dangerous to the public security as well as to private morality." The gravity with which such remedial measures as this were proposed shows how utterly the Tories had failed to understand their business. It is always the habit of a Tory to suppose that popular discontent is a matter of preaching. It is always preached up, and it can always be preached down. The people ask for bread, and the Tories offer them a dogma. The Government of 1819 was no wiser than its predecessors, and it applied itself with great diligence to convert the people by words from a disposition which arose directly out of a combination of low wages and high prices. They were saved by the forces of nature. The Regent ascended the throne as George IV in 1820, and his scandalous prosecution of his wife for a short time gave the people a new cry against the Government. But with the defeat of the Bill of Pains and Penalties the popular feeling subsided. Ministers had imagined themselves to be faced with a conspiracy between the Queen and the populace like that which had placed Catherine II on the throne of Russia. But the death of the Queen removed the leader, and good harvests, by bringing down the cost of living, reduced the sufferings of the people. The Tories remained in office for another ten years.

An attempt at economic reform was made at this time of crisis which deserves some notice. On the 16th December, 1819, Sir William de Crespigny moved that a Select Committee of the Commons be appointed to inquire into Robert Owen's scheme of co-operative production in New Lanark. Owen's experiment eventually failed. But as an experiment it was immensely valuable, and afforded abundant proof of the value of education, of the reduction of child labour, of a short working day, and of good conditions of housing and factory administration. Parliament could not have failed to profit by the study of such an excellent model. During the debate on Crespigny's motion, many professions of sympathy with distressed workmen were made, and not a few compliments were paid to the owner of the New Lanark mills. But Owen had made two dangerous blunders. As a Socialist he had spoken against private property, and his religious opinions were unorthodox. His scheme was therefore "subversive of the religion and government of the country," and Tories like Castlereagh, Pietists like Wilberforce, and individualist economists like Ricardo joined in denouncing it. The argument of Wilberforce shows with what conscientious frivolity these governors studied the condition of their subjects. If Owen's plan, he said, "proceeded upon a system of morals founded upon no religion whatever, but rather upon considerations of moral rectitude of conduct only, he was of opinion that it behoved the House to be cautious how it gave its sanction to an institution which did not acknowledge as one of its essential features that doctrine on whose truth and piety it was not for him now to enlarge." Upon such barriers the motion was shipwrecked. It was lost by 141 votes to 16, and the working classes were left to the tender mercies of competition.

Everything at home seemed hopeless for the cause of Liberalism. But while the demand for reform seemed to have grown weaker and its concession more remote, the aspect of foreign affairs was much more favourable. During this last period of Tory domination, which extended from the accession of George IV in 1820 to his death in 1830, the principle of nationality was steadily and courageously maintained. In capacity the members of these Tory Governments, with the exceptions of George Canning and Sir Robert Peel, were inferior to all who had held office before them since 1791. Castlereagh, the strongest of the older men, killed himself in 1822. Liverpool, who was Prime Minister from 1812 to 1827, was a respectable mediocrity. Sidmouth was rather less. Eldon, as Lord Chancellor, reigned supreme in the Lords, and nearly every measure of reform which was pushed through the Commons was overwhelmed in the Lords by his single argument. "The change now proposed was in direct contradiction to what their ancestors had supposed to be the constitution; whether they were right or not in that supposition was a matter which he would not take it upon him to decide." But foreign affairs were happily outside the control of the House of Lords, and Canning, who joined the Government after Castlereagh's death, managed them in the temper of pure Liberalism. Except on the Catholic question, Canning was in domestic politics a Tory. But his zeal for the rights of nationalities was as warm as that of Fox himself, and he never failed to encourage the growth of that spirit which had finally overcome Napoleon. He became the acknowledged leader of European Liberalism. Even Castlereagh, after the great partition of Europe had been completed, had declined to interfere in foreign civil wars, or to assist in the coercion of rebellious nationalities. Canning turned the cold negations of his predecessor into warm encouragement and remonstrance.

The first difficulties arose in Spain. The expulsion of the French had been followed by the restoration of the Spanish dynasty, and the promises of free institutions which had been used to stir up popular feeling were soon forgotten. Once secure upon his throne, King Ferdinand proceeded with great vigour to suppress what elements of liberty he could discover in his dominions, and by 1822 the whole of Northern Spain was in a state of civil war and the South American Colonies were in revolt. The Holy Alliance had been contrived for just such circumstances as these. The French King sent an army into Spain to help King Ferdinand. That this was an outrage not even Castlereagh and Liverpool could deny, though it merely imitated the policy of the English Tories of 1793. They declined to join the Holy Alliance, and they addressed a strong protest to the guilty Powers. They declined, on the other hand, to go to war on behalf of one half of the Spanish people against the other. The system of Spanish government was for the Spanish people to decide. But the revolt of the Colonies gave Canning an opportunity of which he was glad to avail himself. At the earliest opportunity he formally recognized the revolutionary Governments. The establishment of a reactionary monarchy in Spain, where the issue of the civil war was in doubt, was one thing, the extension of the reaction to colonies which had set themselves completely free from their former rulers was another. There was no question here of appearing as a partisan in a domestic dispute. The Colonies were in fact independent. Was England to remain passive while they were reduced once more into subjection? Canning was resolved that if despotism were to be the rule on the Continent of Europe it should not be extended beyond those limits. He "called the New World into existence to redress the balance of the Old," and no one who compares the present condition of South America with that of Spain will question the wisdom any more than the expediency of his act.

The affairs of Portugal produced a similar problem, and in 1826 Canning went so far as to send troops to Lisbon to protect the Portuguese Liberal Regency from Spanish invasion. In 1828 Don Miguel usurped the Portuguese throne and violated the constitution which as Regent he had sworn to protect. The Tory Government, which had lost Canning in 1827, and was now in the hands of Wellington, adopted the strict Liberal attitude of not dictating to the Portuguese people how they should be governed. If they prevented France from supporting despotism, they could not, with any consistency, themselves support democracy. "Don Miguel," said Peel, "was the person administering de facto the government of Portugal, and he could not think it prudent on the part of England to undertake to displace him and to dictate to the Portuguese who should be their ruler." But the Government went farther than inaction. An expedition was fitted out in England by Portuguese refugees, and made a descent upon the Azores. A British ship fired on them and turned them back. It was the manner of the act rather than the act itself which was at fault. If the Government were bound not to assist the Constitutionalists in Portugal, they were bound to prevent their own territory from being made a base for their operations. The expedition should never have been allowed to sail. The use of armed force on the high seas was very unpopular, and Wellington was severely criticized by the Whigs. Their instinct was right, if their conduct was wrong. Wellington was in fact not so much refraining from interference in the domestic affairs of Portugal as suppressing a democratic movement. "We are determined," he wrote, "that there shall be no revolutionary movement from England on any part of the world." He was equally determined, as subsequent events showed, that there should be no revolutionary movement in England itself. He would have drilled the English people as he allowed Miguel to drill the Portuguese, and if his policy was Liberal, his temper was Tory.

The debates on these Portuguese incidents are significant, not only because they reveal an almost universal acceptance of the principle of non-interference, but because they contain the ominous expressions of dissent from that principle which fell from the lips of Palmerston. Palmerston had succeeded Canning at the Foreign Office, and he always claimed to be Canning's disciple as well as his successor. He formally joined the Whig party in 1830, and with the brief interval occupied by Peel's administration of 1841, dominated the foreign policy of England until his death in 1865. He had all Canning's hatred of foreign tyranny, but, in his case, generosity was mixed with an arrogance and vanity which increased his difficulties and often defeated his objects. "If by interference," he said in the Miguel debates, "is meant interference by force of arms, such interference, the Government are right in saying, general principles and our own practice forbade us to exert. But if by interference is meant intermeddling, and intermeddling in every way, and to every extent, short of military force, then I must affirm that there is nothing in such interference which the laws of nations may not in certain cases permit.... In like manner as in a particular community any bystander is at liberty to interfere to prevent a breach of the law of that community; so also, and upon the same principle, may any nation interpose to prevent a flagrant violation of the laws of the community of nations." The bystander in a street row is an exact description of Palmerston in his foreign politics. It is in these passages that we find the explanation of a foreign policy which for a whole generation afterwards disturbed, irritated, and demoralized the whole civilized world. For the time being he continued Canning's policy with success. In spite of Wellington, he assisted to liberate the Greeks from the Turks in 1829, and it was largely owing to his bold opposition to France that Belgium burst the fetters imposed upon her by the Treaty of Vienna, and wrested her independence from Holland in 1830. In foreign affairs Liberalism had thus made a great advance since 1820. The interference in French domestic policy which was involved in the war of 1793 had never been repeated, and England, while herself respecting the rights of other nations, had actively assisted at the emancipation of Portugal, South America, Greece, and Belgium.

Even in domestic affairs the Tory barriers were being slowly borne down by the rising tide. A humanitarian treatment of the lower classes had already become apparent in legislation. The punishment of the pillory was abolished in 1816. The whipping of women was stopped in 1820. In 1823 Peel succeeded Sidmouth at the Home Office, and the temper of that department changed as conspicuously as that of the Foreign Office changed when Canning took the place of Castlereagh. Romilly had fought in vain for mitigations of the criminal law from 1808 to 1818. Sir James Mackintosh, after him, had met with slight success. Peel introduced Government Bills, and overcame even Eldon and the Bishops in the House of Lords. One hundred capital offences were abolished by a single one of these Bills. In 1827 it was made illegal for any one to use man-traps or spring-guns for the capture of housebreakers or poachers. In 1802 Peel had passed a Bill for the protection and education of parish apprentices who were employed in manufactures. In 1819, 1825, and 1829 he applied similar regulations to the case of all children, whether paupers or not, who were employed in factories. The sum total of these restrictions was little enough, and they still permitted a child of ten to be worked for sixty-nine hours a week. But they laid the foundation of our system of Factory Law. In 1824 the Combination Acts were repealed, and an instrument which had been frequently used for the disablement of workmen agitating for better terms of employment was thus taken from the employers. Even before the great Whig victory of 1831 there was thus strong evidence of a change in the temper of government. Political power was retained as jealously as ever. But the ruling class was obviously losing its blind and obstinate reverence for antiquity and establishments. This change was due partly to the influence of Evangelical Christianity, which at this time guided a large section of the English middle class, including Tories as solid as Wilberforce and Hannah More. This philanthropic Christianity had played a great part in the abolition of the Slave Trade, and it now operated to humanize in some measure the state of England. But the most powerful influence of the time was a philosophy which was identified with revolution and free thought rather than with Toryism and religion. This was the philosophy of Bentham, or Utilitarianism.

Unlike the philosophies of men like Cartwright and Paine, Utilitarianism extended far beyond the boundaries of politics. It was a system of ethics from which political principles were deduced, and it was directed not only to political institutions, but to social institutions of every kind, including property and marriage. Burke's French Revolution, though primarily political, had in fact expressed a whole intellectual system, and its almost mystical Conservatism, believing in the irrational working of human instincts through illogical and hardly comprehended instruments, had been developed and extended by Samuel Taylor Coleridge. Benthamism was a rationalistic and criticizing system, which referred everything to reason and experience, and would accept nothing merely because it had become by age the centre of human confidence. The intellectual Conservative tended to identify truth with antiquity. That an institution had existed, that an idea had been generally accepted for a long period, was sufficient proof of its rightness; it should be criticized with reverence and modified, if at all, without substantial change. The Benthamite respected nothing and criticized everything. Armed with his own practical philosophy, he summoned every institution and every idea to stand and give an account of itself, and if it failed to satisfy him, no degree of antiquity could save it from condemnation. Benthamism was thus a profoundly modifying force in other fields than that of politics. But for the purposes of this book it is not necessary to undertake a general examination of it.

Bentham began to preach his philosophy before the end of the eighteenth century. But its influence was not great until the French War had exhausted practical Toryism. Largely under the direction of James Mill the new thinking then began to make headway, and it had produced considerable political results even before the enfranchisement of the middle class in 1832. In the turmoil of warring theories Bentham laid about him with great impartiality. He had no sympathy with antiquity and prescription. These were but "the infantile foolishness of the cradle of the race." But his contempt for historical Conservatism was equalled by his contempt for the conception of natural rights. "Rights, properly so called, are the creatures of law, properly so called; real laws give birth to real rights." He had no patience either with appeals to history or with abstract reasoning. He was as ready as Paine to cut off society and begin it afresh, and as little ready as Burke to construct a theory in the air and apply it without regard to its practical effects. He had one guiding principle—that of utility, by which he meant a tendency to promote human happiness. Burke and Coleridge asked, "How has it grown?" Cartwright and Paine asked, "How does it conform to reason?" Bentham asked, "How does it work?" Every institution—the monarchy, the Established Church, the law, property, marriage—was to be examined. If it promoted the general happiness, it might remain, however little it realized an abstract ideal. If it did not, it must go, whatever its antiquity and splendour. Cumbrous legal forms and savage punishments which did not prevent crime must be abolished, even if they dated from the reign of Richard I. The House of Commons must be reformed, root and branch, because it was corrupt and selfish. Property was essential to the stability of society, and it must be preserved, whatever advantages it gave to one class over another. Marriage must be made dissoluble, because, while divorce was impossible, indissoluble unions meant misery for many men and women.

It is easy to find fallacies in the philosophy of Benthamism. It is untrue to say that morality consists in the pursuit of pleasure. There are logical fallacies in the expression "the greatest happiness of the greatest number." Men do not habitually pursue their own interests, and if they are left free to pursue them it is not true that each of them will secure the greatest happiness for himself. But whatever difficulties reasoners may find in the philosophy, there is no question that the practice of the Utilitarians was of immense value to society. The abstraction at which they aimed was not a mere abstraction. Cartwright wanted liberty as an end in itself. Bentham wanted happiness, which involved an indefinite number of tangible benefits. A Benthamite might reason absurdly about "self-interest" and "happiness," but in effect he was seeking to improve conditions of life and to redress grievances. An assertion that it is the duty of Government to produce the greatest happiness of the greatest number might confuse a logician. To the ordinary Englishman, incapable of deep reasoning, it meant that it was his business, whenever he saw an abuse which could be remedied by legislation, to promote legislation to remove it. Utilitarianism provided a working formula for practical philanthropy.

Its direct influence upon politics was distinctly of a Liberal kind. Every man was to count for one, and no man for more than one. No man could know the interest of another better than the other himself, and each must be left free to pursue his own. A restricted franchise and government by a class could not stand. Where each man's conduct was directed solely to the pursuit of his own interest this could only mean the abuse of the majority for the benefit of the minority. "Whatsoever evil it is possible for man to do for the advancement of his own private and personal interest that evil sooner or later he will do, unless by some means or other, intentional or otherwise, he be prevented from doing it.... If it be true, according to the homely proverb, that the eye of the master makes the ox fat, it is no less so that the eye of the public makes the statesman virtuous." The argument is, of course, only partly true, and if it were entirely true it would be a poor argument for a wide franchise. If every man will, sooner or later, subject the public interest to his own, are we likely to be any more happy under a democracy than under an oligarchy? If all are corrupt, does it matter very much whether all or only a few have power? Democratic government has its peculiar dangers, and it may be corrupted by absolute power no less than despotism or aristocracy. But it at least diffuses power among an infinitely greater variety of people, who are less likely to be animated by a single interest than a closely knit and homogeneous class. For the practical purposes of the time, where the privileges were all in the hands of the minority and the deprivations were all suffered by the impotent majority, the argument was good enough. It led to universal suffrage no less directly than reasoning from the abstract rights of man. In practice some of the Benthamites stopped short at a middle-class franchise. This class was so large and so varied in character that it might be trusted to legislate for the nation as a whole. But the Benthamite reasoning went beyond this. It involved, as Bentham himself admitted, the enfranchisement of women. James Mill and many of his friends would not go so far, and drew from William Thompson, in 1825, his Appeal of One-Half of the Human Race, which is the second of the great marks in the progress of English women.

Disputes about subjects of this sort, which were not yet practically important, did not weaken the general influence of the Utilitarians. Even where their philosophy was rejected, their sustained and general attack upon abuses produced its effect. They were allied with Tories like Wilberforce in abolishing the Slave Trade. Romilly, Mackintosh, and Peel reformed the criminal law in the very spirit of Bentham. Sydney Smith, Jeffrey, Macaulay, Brougham, and the other Whigs, who since 1802 had written in the Edinburgh Review, habitually spoke with contempt of Utilitarians. But their practical politics were hardly different from those of James Mill and George Grote. Restrictions on trade, excessive punishments for crime, costly and incomprehensible legal procedure, religious inequalities, anomalies of the franchise, sinecures, jobs, all the fetters which hampered the individual in the pursuit of his own interest, were attacked by Whigs and Utilitarians together, and with the irregular assistance of Tories like Peel, the two contrived, between 1820 and 1850, to transform English politics.

The work of the Utilitarians was Liberal, so far as it went. Their insistence upon the equal value of all individuals led to the removal of restrictions upon liberty. No man could know the interest of another. Therefore every man must be left, as far as possible, to himself. Each must control his own government. Each must be permitted to hold and to publish his own opinions. Trade and manufacture must be left to the unfettered discretion of traders and manufacturers. The Government must stand away from the individual, except when, as for national defence, some central control was inevitable. This course of reasoning led the Benthamites into the neglect of economic problems which was the great blemish of their practical politics. The economists had arrived at the theory of laissez faire by a different route. Both schools now gave a scientific expression to the old English dislike of Government interference, which the Whigs cherished as part of their inheritance from the past, and the new middle class as the result of their methods of industry. All four groups agreed in this claim for individual freedom, and the humanitarian tendencies of Benthamism were sacrificed to its pedantry. Enterprise was allowed full play. Protective duties were reduced and finally abolished. Competition stimulated and encouraged the production of wealth. But while the masters profited, the workpeople suffered.

There is a very precise indication of the way in which the political economy of the day and the Utilitarian theorizing combined to neglect the peculiar miseries of the common people, in a speech of Joseph Hume. He was speaking against the Framework Knitters' Bill of 1812, which proposed to fix maximum and minimum rates of wages, and to prohibit the payment of workmen otherwise than in cash. Hume declared that the function of the State in economic matters was "to protect both masters and workmen, and allow every individual to exert himself in employing his capital and labour in such an honourable manner as he may think best; every one in general being the best judge of his own abilities how to employ his stock in trade.... Viewing capitalists and artisans equally as traders, I consider an uncontrolled competition as beneficial to both, and the strongest spur to ingenuity and industry.... If it should be more convenient or profitable for a workman to receive payment for his labour partly or wholly in goods, why should he be prevented from doing so? For if such a practice is inconvenient or injurious to any man, he will not work a second time for the master who pays him in that manner." In the same speech Hume declared that he would put masters and men on an equal footing by the repeal of the Combination Acts, and the Acts were repealed, on Hume's motion, in 1824. This speech and the repeal of the Acts were Benthamite in essence. But equal treatment by the State was not equality, and to leave masters and men free to fight out their disputes was not to make each count for one and no one for more than one. Of what use was it to tell a workman that his uncontrolled competition with his fellows was a spur to his ingenuity and industry, when it meant that a crowd of men, under pressure of starvation, undersold each other for a bare subsistence? Of what use was it to put capitalists and workmen into a comparison as traders, when for the one holding out of the market meant merely a temporary loss of income, and for the other it meant destitution? Of what use was it to say that a workman who was deprived of part of his earnings by the truck system could refuse to work a second time for the master who paid him in that manner, when he had perhaps no means of travelling to find another, and when in any case there were so many men willing to fill his place on any terms that the master had no reason to fear his refusal? For all its philanthropy, Benthamism did not settle the problem of the conditions of life among the working classes. Wages, hours of labour, ventilation, sanitary appliances, housing and the planning of towns, were all left by the Utilitarians to this desperate system of individual bargaining. On this side their philosophy was as conspicuously deficient as that of Cartwright himself. But its results were positive, and it gave to the scattered impulses of Liberalism a coherence and a philosophic unity which they had hitherto lacked.

Apart from the new humanitarianism, there were other signs that the old Tory structure was breaking to pieces. Two of its main supports were destroyed before the Tory party left office in 1830. The Church of England was at last deprived of its political monopoly. Papists, Dissenters, and Jacobins had long enjoyed a common abhorrence, and all the progress which the two depreciated religious classes had won before the French Revolution had been lost. In 1819 the Tory Government had actually spent £1,000,000, raised indiscriminately by taxing them as well as Churchmen, on building new churches to prevent the spread of their opinions. Ten years later each had won a signal victory over its hereditary enemy.

The state of Ireland since the Union had been such as to make all lovers of order and good government despair. A population of 7,000,000 was crowded on to land which was not extensive enough to support it. One-seventh of the people, it was said, lived by begging or robbery. The rest farmed little patches of land for which many of them paid rent at the amazing rate of ten guineas an acre a year. The average rate of wages was fourpence a day. Squalor and disease were the lot of the majority of the inhabitants of a rich and fertile land. Their economic distress, which was due, at least in part, to the vicious, unsympathetic system of absentee landlordism, was aggravated by religious disabilities. Under the Tithe Law a Protestant clergyman was entitled to one-tenth of the produce which a Catholic farmer could scrape out of his potato-patch. Poverty and ignorance combined with religious bitterness to make the government of Ireland impossible. In every year since the Union the ordinary law had been suspended, and the English ruled Ireland only in the way of foreign conquerors. In 1822 they governed under the Insurrection Act, which empowered the Lord-Lieutenant to proclaim a whole county to be in a disturbed state, to compel all residents to keep in their houses between sunset and sunrise, to instruct magistrates to enter houses at night to see if the inmates were at home. Constitutional government was at an end.

In 1821 Plunket, who was a Tory Irishman, introduced a Bill to relieve the Catholics from their disabilities. It was carried through the Commons by a majority which included such rigid Tories as Castlereagh, Wilberforce, and Croker, as well as Canning and Palmerston and the Whigs. The Lords, led by Liverpool, Eldon, Wellington, and Sidmouth, threw out the Bill. Canning introduced another Bill in 1822, which met the same fate. But a measure of a different kind was passed into law in the same year, and did much to allay the bitterness, if it did little to improve the economic conditions of the Irish. This was an Act which extended the Tithe Law to grazing land as well as to agricultural land, and at the same time enabled the tithe-owners to accept a money payment instead of a part of the actual produce. This relieved the peasantry of the obnoxious liability to hand over the actual produce of their labour to the representative of an alien Church.

The main grievance remained, and the struggle for complete emancipation now entered upon its final stage. In 1823 Daniel O'Connell founded the Catholic Association, a gigantic league, which included Catholics of every rank, and levied a rent or annual contribution on all its members. In 1825 this had become such a formidable engine that an Act was passed to suppress it. The law was evaded. It was directed against societies formed for political objects. The Association was dissolved, and a new Association was formed ostensibly for educational and charitable purposes. The Act suppressed societies which renewed their meetings for more than fourteen days. The new Association sat for fourteen days at a time, and described the meetings as "convened pursuant to Act of Parliament." The rent was paid as before, but was stated to be paid "for the relief of the forty-shilling freeholders," or "for all purposes allowable by law." The Act, in short, achieved nothing except to irritate the Catholics, and to show them that they could defy the English Government.

Under these circumstances, there was nothing for wise Protestants to do but to give way. A Bill was introduced relieving the Catholics of their political disabilities. It was accompanied by two other Bills, which were intended to mitigate the dangers of the first. One of these additional Bills, or "wings," was intended to take political power from the poorest, most ignorant, and least independent of the peasantry, by disfranchising the forty-shilling freeholders. The other was intended to conciliate and improve the character of the leaders of opinion, by endowing the Catholic clergy. The Emancipation Bill passed the Commons by a majority of 21. The bigotry and stupidity of the Lords had not diminished since 1812, and they threw it out by 178 votes to 130. For four years more the Catholic Association remained the dominant force in Irish politics, and every bitter and violent man in the country had a just ground for denouncing the English Government. The House of Lords made one more attempt to reduce Ireland to anarchy. Liverpool died in 1827, and was succeeded by Canning as Prime Minister. This substitution of a friend of the Catholics for an enemy meant the beginning of the end. Eldon, Wellington, Peel, and four other Ministers resigned, some of the Whigs joined the Cabinet, and the English Ministry was at last united in a policy of justice and wisdom. But the death of Canning a few months after he became Premier again shattered the hopes of Liberalism. The old party came back, with Wellington at their head, pledged to resist the Catholic claims. Within twelve months they had cut their own throats, and a trifling controversy in the Cabinet led not only to Catholic Emancipation, but to the entire destruction of the Tory system.

Two boroughs, Penryn and East Retford, had been disfranchised for bribery and corruption. The question arose whether their members should be transferred to the counties in which they were situated or given to some of the large towns like Manchester, Leeds, and Birmingham, which had no members at all. Huskisson, the President of the Board of Trade, took the Liberal view, and in an important division voted against the Government. The letter in which he explained his action was accepted by Wellington as a resignation. His post was given to Vesey Fitzgerald, the member for Clare, who submitted himself for re-election in the ordinary way. To the consternation of the Tories, O'Connell himself came forward as a Catholic candidate. The Catholic Association and the priests led or drove the voters to the poll, Fitzgerald was beaten out of the field, and O'Connell, disqualified by his religion, but with three-fourths of the Irish people at his back, claimed a seat in the House of Commons. The Government had the choice of two courses, neither of which promised them any credit. They might give way to organized illegality and emancipate the Catholics. They might exclude O'Connell and undertake a new civil war in Ireland. Wellington was as good as a soldier as he was bad as a statesman, and he knew when a position had become untenable. He was now ready to retreat in good order. Peel supported him, and the two together controlled the Cabinet. The Relief Bill and the Bill disfranchising the freeholders were both law by the end of April, 1829. The endowment of the clergy was abandoned. Two facts of vital importance were involved in this defeat of the Government. The first was that, for the first time in English history, a political association had compelled Parliament against its will to pass a measure into law. The people were beginning to control their Government. The second fact was that the Irish had been forced into the belief that patience and endurance were less likely to succeed in obtaining redress than violence and intimidation. The stupid resistance of the House of Lords had planted this idea ineradicably in the Irish mind, and the events of the next fifty years watered it and made it flourish to excess. The reaction of these events upon English politics resembled that of the success of the American Rebellion. The people were no longer at the disposition of the governing class. What Ireland had done, England could do. All over the country Political Unions for Reform came into existence, and imitated the success of the Catholic Association. In two years the old system came to an end.

Before the final breakdown of the Tory party the Dissenters had won for themselves the abolition of their disabilities. On February 26, 1828, Lord John Russell moved for the repeal of the Test and Corporation Acts. There was nothing new to be said on either side of this controversy. Was or was not a Dissenter to count for as much in the State as a Churchman? Two quotations from the debate will set the two schools of thought in their places. Sir Robert Inglis, a Tory Churchman, said: "The question whether any man ought to be eligible to power is a question of pure expediency, not of justice; and such power may be regulated by sex, by age, by property, or by opinions, without any wrong to any one's natural claims." In other words, a disposing class is to decide the social value of another class in the interests of any institution with which it is itself associated. Brougham replied in the language of pure Liberalism: "Assuming that no practical grievance exists, is the stigma nothing? Is it nothing that a Dissenter, wherever he goes, is looked on and treated as an inferior person to a Churchman?... Is it nothing even that the honourable baronet should say, as he has said this night, 'We will allow you to do so and so'? What is it that gives the honourable baronet the title to use this language ... but that the law encourages him to use it?" On this occasion Liberalism won an unexpected victory. The motion for repeal was carried by 237 votes to 193, and Peel, accepting the decision of the Commons, was able, after much labour, to overcome the resistance of the Lords.

Two great breaches had thus been made in the edifice of Toryism, and the Liberal tide was now very high above the point at which it had been left by the French War. But events were moving more rapidly outside Parliament than within it. The large provincial towns were still growing larger and their demand for representation louder. A financial crisis in 1825 had injured industry. Bad harvests in 1829 and 1830 combined with the import duties on corn to increase the sufferings of the artisans and labourers. The latter were already much demoralized by the administration of the Poor Law, and the riots and disturbances in agricultural districts and factory towns alike were more serious than they had ever been. The demand for Reform was renewed with great vigour, and this time with success. The details of the final struggle are not important for this work. Several circumstances combined with the economic condition of the people to make agitation effective. Continental Liberalism won two great victories in 1830. Belgium shook off the yoke of Holland, and Charles X of France, expelled by a new revolution, took refuge in England. Both these events gave encouragement to English reformers. At the same time the Parliamentary Whigs, who had never before recovered the cohesion which they lost in 1793, were united under the leadership of Lord Althorp in the Commons and Lord Grey in the Lords. The Tories, on the other hand, were broken up by the surrender to the Dissenters and the Catholics. The Whigs, with a few exceptions like Lord Durham and Lord John Russell, had no liking for drastic changes. But the pressure in the country was too strong. A motion on some trivial matter connected with the Civil List overthrew the Ministry. The Whigs came in under Lord Grey, and introduced a Reform Bill which made a clean sweep of the rotten boroughs, gave seats to all the large provincial towns, and enfranchised every townsman who occupied a house worth £10 a year. A defeat in Committee produced a dissolution and a great Whig victory at the polls. The Lords, indifferent alike to the trend of history and to the state of contemporary opinion, threw out a second Bill. A great clamour broke out all over the country, and at Bristol, Nottingham, and other places the scum of the populace destroyed an enormous amount of public and private property in riots. A third Bill was introduced in 1832, Wellington again led his forces in retreat, and the Bill received Royal Assent on the 7th June, 1832. The people were at last the masters in their own house.

title: A Short History of English Liberalism/V


text:
Constitution of the Republic of South Africa, 1993/1995-09-20/Chapter 6

Powers and functions of President

82. (1) The President shall be competent to exercise and perform the following powers and functions, namely—

to assent to, sign and promulgate Bills duly passed by Parliament; in the event of a procedural shortcoming in the legislative process, to refer a Bill passed by Parliament back for further consideration by Parliament; to convene meetings of the Cabinet; to refer disputes of a constitutional nature between parties represented in Parliament or between organs of state at any level of government to the Constitutional Court or other appropriate institution, commission or body for resolution; to confer honours; to appoint, accredit, receive and recognise ambassadors, plenipotentiaries, diplomatic representatives and other diplomatic officers, consuls and consular officers; to appoint commissions of enquiry; to make such appointments as may be necessary under powers conferred upon him or her by this Constitution or any other law; to negotiate and sign international agreements; to proclaim referenda and plebiscites in terms of this Constitution or an Act of Parliament; and to pardon or reprieve offenders, either unconditionally or subject to such conditions as he or she may deem fit, and to remit any fines, penalties or forfeitures.

(2) The President shall consult the Executive Deputy Presidents—

in the development and execution of the policies of the national government; in all matters relating to the management of the Cabinet and the performance of Cabinet business; in the assignment and allocation of functions contemplated in section 84(5) to an Executive Deputy President; regarding appointments under subsection (1)(f); and before exercising any of the competences referred to in subsection (1)(g) to (k).

(3) The President shall exercise and perform all powers and functions assigned to him or her by this Constitution or any other law, except those specified in subsections (1) and (2) or where otherwise expressly or by implication provided in this Constitution, in consultation with the Cabinet: Provided that the Cabinet may delegate its consultation function in terms of this subsection, with reference to any particular power or function of the President, to any Minister or Ministers.

(4) (a) The President shall be the Commander-in-Chief of the South African National Defence Force.

(b) The President may—

with the approval of Parliament, declare a state of national defence; employ the South African National Defence Force in accordance with and subject to sections 227 and 228; and confer upon members of the South African National Defence Force permanent commissions and cancel such commissions.

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Constitution of the Republic of South Africa, 1993/1995-09-20/Chapter 7

Composition of Constitutional Court and appointment of judges of Constitutional Court

99. (1) Unless the new constitutional text provides otherwise, the judges of the Constitutional Court shall be appointed by the President for a non-renewable period of seven years.

(2) No person shall be qualified to be appointed President or a judge of the Constitutional Court unless he or she—

is a South African citizen; and is a fit and proper person to be a judge of the Constitutional Court; and

is a judge of the Supreme Court or is qualified to be admitted as an advocate or attorney and has, for a cumulative period of at least 10 years after having so qualified, practised as an advocate or an attorney or lectured in law at a university; or is a person who, by reason of his or her training and experience, has expertise in the field of constitutional law relevant to the application of this Constitution and the law of the Republic.

(3) Four judges of the Constitutional Court shall be appointed from among the judges of the Supreme Court by the President in consultation with the Cabinet and with the Chief Justice.

(4) Subject to subsection (5), six judges of the Constitutional Court shall be appointed by the President in consultation with the Cabinet and after consultation with the President of the Constitutional Court: Provided that not more than two persons may be appointed from the category of persons referred to in subsection (2)(c)(ii).

(5) (a) Subject to subsection (6), an appointment or appointments under section 97(2) or subsection (4) or (7) of this section shall only be made from the recommendations of the Judicial Service Commission, and with due regard to its reasons for such recommendations, of not more than three nominees in excess of the number of persons required to be appointed: Provided that in respect of the first appointment after the commencement of this Constitution of the six judges referred to in subsection (4), the Judicial Service Commission shall submit a list of ten nominees.

(b) If the appointing authorities decide not to accept any or some of such recommendations, the Judicial Service Commission shall be informed thereof and be furnished with the reasons therefor.

(c) After having been informed in terms of paragraph (b), the Judicial Service Commission shall, in accordance with paragraph (a), submit further recommendations, whereafter the appointing authorities shall make the appointment or appointments from the recommendations as supplemented in terms of this paragraph.

(d) In submitting its recommendations to the appointing authorities in terms of paragraphs (a) and (c) the Judicial Service Commission shall have regard to the need to constitute a court which is independent and competent and representative in respect of race and gender.

(6) Subsection (5) shall not apply to the first appointment after the commencement of this Constitution of the President of the Constitutional Court under section 97(2).

(7) Vacancies in the Constitutional Court shall be filled—

in the case of a vacancy in the office of a judge appointed under subsection (3), in accordance with that subsection; and in the case of a vacancy in the office of a judge appointed under subsection (4), in accordance with that subsection.

(8) Whenever the President of the Constitutional Court is absent or unable to perform his or her functions, or if the office of President of the Constitutional Court becomes vacant, the President may in consultation with the Cabinet and after consultation with the Chief Justice and, if he or she is available, the President of the Constitutional Court, appoint a judge of the Constitutional Court as Acting President of the Constitutional Court for the period of absence or inability of the President of the Constitutional Court or until the vacancy is filled.

(9) Whenever a judge of the Constitutional Court is absent or unable to perform his or her functions, or if a vacancy among the judges of the Constitutional Court arises, the President may, on the recommendation of the Minister responsible for the administration of justice made in consultation with the President of the Constitutional Court and the Chief Justice, appoint any person qualified in terms of subsection (2), as an acting judge of the Constitutional Court for the period of absence or inability of the judge concerned or until the vacancy is filled: Provided that at all times at least four judges of the Constitutional Court, including acting judges, shall be judges who have been appointed from among the judges of the Supreme Court.

(10) A person may be appointed as Acting President or acting judge of the Constitutional Court irrespective of whether he or she was appointed on a previous occasion as Acting President or acting judge of the Constitutional Court: Provided that no person shall act as an acting judge for a period exceeding six months.

(11) Any appointment made under this section shall be deemed to have been made also in respect of any period during which the person appointed is necessarily engaged in connection with the disposal of any proceedings in which he or she has participated as a judge of the Constitutional Court and which have not yet been disposed of at the expiry of the period for which he or she was appointed.

(12) (a) The President shall, at the request of the President of the Constitutional Court, appoint a Deputy President of the Constitutional Court from among the judges of that Court.

(b) A Deputy President of the Constitutional Court may be appointed for the duration of his or her term of office as a judge of the Constitutional Court or for such shorter period as the President may determine.

(c) A Deputy President of the Constitutional Court shall—

in the absence of the President of the Constitutional Court, and if an Acting President of the Constitutional Court has not been appointed in terms of subsection (8), perform the functions of the President of the Constitutional Court; and perform such other functions of the President of the Constitutional Court as he or she may assign to him or her.

Engaging the Constitutional Court

100. (1) The conditions upon which the Constitutional Court may be seized of any matter within its jurisdiction, and all matters relating to the proceedings of and before the Court, shall be regulated by rules prescribed by the President of the Constitutional Court in consultation with the Chief Justice, which rules shall be published in the Gazette.

(2) The rules of the Constitutional Court may make provision for direct access to the Court where it is in the interest of justice to do so in respect of any matter over which it has jurisdiction.

(3) (a) Subject to the provisions of the Constitutional Court Complementary Act, 1995 (Act No. 13 of 1995), and the rules of the Constitutional Court, matters which come before the Court shall be heard and determined by the President of the Constitutional Court and all the judges of the Court.

(b) Whenever a member of the Constitutional Court is absent or unable to perform his or her functions, or if a vacancy among the members of the Court arises, the remaining members of the Court may hear and determine any matter: Provided that no matter shall be heard and determined by less than eight members of the Court.

(c) If, at any stage of a hearing, a member of the Constitutional Court is absent or unable to perform his or her functions, or if a vacancy among the members of the Court arises—

and the remaining members of the Court are not less than eight in number—

such hearing shall continue before the remaining members of the Court; and the decision of the majority of the remaining members of the Court shall, if that majority is also a majority of the members of the Court before whom the hearing commenced, be the decision of the Court; or

and the remaining members of the Court are less than eight, or if the majority of the remaining members of the Court is not also a majority of the members of the Court before whom the hearing commenced, the proceedings shall be stopped and commenced de novo.

Supreme Court

101. (1) There shall, subject to sections 241 and 242, be a Supreme Court of South Africa, which shall consist of an Appellate Division and such provincial and local divisions, and with such areas of jurisdiction, as may be prescribed by law.

(2) Subject to this Constitution, the Supreme Court shall have the jurisdiction, including the inherent jurisdiction, vested in the Supreme Court immediately before the commencement of this Constitution, and any further jurisdiction conferred upon it by this Constitution or by any law.

(3) Subject to this Constitution, a provincial or local division of the Supreme Court shall, within its area of jurisdiction, have jurisdiction in respect of the following additional matters, namely—

any alleged violation or threatened violation of any fundamental right entrenched in Chapter 3; any dispute over the constitutionality of any executive or administrative act or conduct or threatened executive or administrative act or conduct of any organ of state; any inquiry into the constitutionality of any law applicable within its area of jurisdiction, other than an Act of Parliament, irrespective of whether such law was passed or made before or after the commencement of this Constitution; any dispute of a constitutional nature between local governments or between a local and a provincial government; any dispute over the constitutionality of a Bill before a provincial legislature, subject to section 98(9); the determination of questions whether any matter falls within its jurisdiction; and the determination of any other matters as may be entrusted to it by an Act of Parliament.

(4) For the purposes of exercising its jurisdiction under subsection (3), a provincial or local division of the Supreme Court shall have the powers of the Constitutional Court in terms of section 98(5), (6), (7), (8) and (9) relating to the interpretation, protection and enforcement of this Constitution.

(5) The Appellate Division shall have no jurisdiction to adjudicate any matter within the jurisdiction of the Constitutional Court.

(6) If the parties to a matter falling outside the additional jurisdiction of a provincial or local division of the Supreme Court in terms of subsection (3), agree thereto, a provincial or local division shall, notwithstanding any provision to the contrary, have jurisdiction to determine such matter: Provided that a provincial or local division shall not acquire jurisdiction in terms of this subsection with regard to any matter referred to in section 102(12).

(7) Any division of the Supreme Court shall have jurisdiction to grant an interim interdict or similar relief, pending the determination by the Constitutional Court of any matter referred to in section 98(2), notwithstanding that such interdict or relief might have the effect of suspending or otherwise interfering with the application of the provisions of an Act of Parliament.