The Pre-Reform British Constitution
Diana Spearman explains the deep complexities of the pre-Victorian political landscape and electoral system in Britain. Ben Wilson offered his own historiographical perspective in this 2010 article.
“Some decent, regulated, pre-eminence, some preference given to birth is neither unnatural nor unjust, nor impolitic.”
A profound belief in the British constitution and in the virtues of British liberty pervaded every class and opinion in the eighteenth century. The chorus of praise is unanimous from Rule Britannia to Cowper’s Letters, from Horace Walpole, the son of the great Whig Minister, to the Tory Sir Walter Scott, who contrasted “our noble system of masculine freedom” with the unfortunately different arrangements that existed in France.
Today the pre-reform constitution is generally regarded either as a sham or a joke, as an engine of class domination, or as the slightly comic result of our ancestors’ lack of political sophistication. How is it possible to reconcile these two views? Do we really understand the eighteenth-century constitution so much better than those who lived under it? Is our view of liberty so much more penetrating than that of Gibbon and Burke, of Sir Walter Scott and Fielding? We tend to see the old constitution through the eyes of the nineteenth-century reformers, rather than as it appeared to contemporaries before the French Revolution but there is an even more fundamental divergence; we criticise it in the light of a theory of representative government that nearly every Englishman in the eighteenth century rejected.
The modern theory, from which present electoral arrangements are derived, was characterised by Dicey’ as resting upon two principles: “The first, that on the whole each man is the best judge of his own affairs; the second, citizens should be looked upon primarily as persons, secondly, only as members of classes.” Both these principles today would receive a very doubtful assent. The older theory was based on the existence of classes it was held in the eighteenth century that every class and interest was entitled to be represented in the House of Commons and that, while no class could be allowed to be supreme, property, especially landed property, deserved special consideration. Before refusing to take such a view seriously let the reader consider for a moment why property was granted such a position. It was because the object of the constitution was to ensure the liberty of the subject, and one of the chief bulwarks against arbitrary government is the large property owner.
Why, it was said, did England have the only free government in the world? Because her aristocracy was independent of the court and prepared to defend the rights of every citizen by maintaining its own. Land was the most important kind of property, because it was supposed to give its owners a particular interest in the stability of the country; but those fortunes acquired by “industry” and “virtue” also had their place. The one kind of property disliked by “patriots” was the fortunes made by “nabobs” in India, because these were supposed to have no tendency, as had land and commercial fortunes, to make their owners the foremost champions of the liberty of the subject. The property of the poor man was as sacred as the property of the rich. “The poorest man in his cottage may bid defiance to all the forces of the Crown. It may be frail—its roof may shake—the winds may blow through it—the storm may enter—but the King of England cannot enter. All his force dare not cross the threshold of the ruined tenant.” (Lord Chatham, 1777.)
Although property and birth were to be given their due weight, other interests were not to be neglected. Blackstone said: “The political writers of antiquity will not allow more than three regular forms of government.” Nor will the political writers of today. But the constitutional theorists of the eighteenth century genuinely believed that they had discovered a form ‘of government that combined the advantages of aristocracy, democracy and monarchy without the corresponding disadvantages. Blackstone was not a great thinker; nor, it is said, a good lawyer; but he represents what educated, or even uneducated, people in the eighteenth century believed better than more original writers:
In a democracy, where the right of making laws resides in the people at large, public virtue, or goodness of intentions, is more likely to be found, than either of the other qualities of government. Popular assemblies are frequently foolish in their contrivance and weak in their execution; but they generally mean to do the thing that is right and just, and have always a degree of patriotism or public spirit. In aristocracies there is more wisdom to be found, than in any other frames of government; being composed, or being intended to be composed, of the most experienced citizens; but there is less honesty than in a republic, and less strength than in a monarchy. A monarchy is indeed the most powerful of any, all the sinews of government being knit together; and united in the hands of the prince; but then there is imminent danger of his empioying that strength to improvident or oppressive purposes.
For, as with us, the executive power of the laws is lodged in a single person, they have all the advantages of strength and dispatch, that are to be found in the most absolute monarchy; and as the legislature of the kingdom is entrusted to three distinct powers, entirely independent of each other: first, the king; secondly, the lords spiritual and temporal, which is an aristocratical assembly of persons selected for their piety, their birth, their wisdom, their valour, or their property; and, thirdly, the house of commons, freely chosen by the people from among themselves, which makes it a kind of democracy.
In accordance with this theory of the separate and independent powers, the Crown and the House of Lords possessed then a position that they have since lost. The government was supposed to be, in more than a conventional sense, the King’s Government, and organised opposition was considered factious and therefore not really respectable. Not that this prevented opposition; it merely prevented it from taking an organised form and contributed to the incoherent nature of parties in the House of Commons. The King’s choice of Ministers was, in theory, quite unrestricted; there was, for instance, no obligation on him to choose Ministers from one political party. In practice he had to choose men who would work together or, at least, men whose views were not diametrically opposed, although the unanimity of an eighteenth-century Cabinet was by no means complete.
In addition to this, it was impossible for the King’s influence alone to keep Ministers in power if they were not acceptable to the House of Commons, and during moments of political excitement he was forced to take public, opinion into account as well. Besides his strictly constitutional prerogatives, the King had an influence on the House of Commons because, like other great landowners, he had his own pocket boroughs, and the patronage at the disposal of the Crown enabled him to “oblige” Members of Parliament, whether they wanted a sinecure for themselves, a commission in the Army or Navy for a son, or some humbler position for an old servant. It was this unconstitutional “influence” against which the Whigs were always inveighing.
The House of Lords, of course, still possessed all its original powers, and its hold on the Government was increased by the influence of peers who were also great landowners in the boroughs. A proportion of Members of Parliament were always the nominees of peers. This did not mean, as it would today, that their every vote was decided beforehand; the conditions of eighteenth-century politics gave a great deal of latitude to the individual Member, even when his “patron” did not expressly say that the acceptance of his offer of a seat in Parliament involved no obligations. In most cases, it was accepted in a general way that these Members would support the Minister, or Ministers, that their patron supported; and the system was used to build up connections that had the same kind of influence in the House of Commons as “groups” have had within parties at other times. Sometimes these “groups” were based simply on the furtherance of each other’s interests, sometimes on a common attitude to policy. The somewhat peculiar relationship between Peers and Commons made a clash between the two Houses most unlikely.
The concept of the mixed government was not only seen in the theory of the three powers equal and independent, but also in the franchise arrangements which seem so extraordinary today. Everyone knows that, in 1793, 154 individuals returned 307 Members; that Cornwall had 21 boroughs with two Members each and two County Members—only two less than the whole of Scotland—and that the Members for these boroughs were chosen by 453 electors. It is not so often remembered that 13 constituencies had what amounted to manhood suffrage, and that in Liverpool and the City of London the ancient peculiarity of their franchise arrangements might exclude the rich, not the poor. In Liverpool, the franchise was primarily confined to journeymen-shipwrights, their sons and those who had been apprenticed to them, and excluded, as Oldfield indignantly complained, “all those who paid the taxes and served the public offices.” In the City of London, the franchise was confined to members of Livery Companies; a small retailer might, therefore, have a vote, while a great merchant was without one. In other towns, Leicester for example, anyone could vote who was not receiving public assistance and was not employed by the government. In Preston, all the inhabitants could vote; indeed, not only the inhabitants, but, until 1782, anyone who had spent the night before the poll in the town. The more solid citizens made several attempts, by petition to the House of Commons, to get the franchise restricted, maintaining that “inhabitants” did not legally mean all the inhabitants. The House of Commons, however, decided that it did. In other towns, the franchise was as eccentrically narrow. In Bath, it was vested in the Mayor and the common councillors, who numbered 30.
The County franchise was also wide, because the qualification dated from Henry VI and, being a property qualification, had become more and more democratic as the value of money fell. The elector in the Counties was the 40S. freeholder; and the definition of a freeholder was not, as might have been supposed, the owner of a freehold but included leaseholds for life and mortgages; apparently even the right to a pew in church might be sufficient. In some Counties the electorate was large. In Yorkshire, in 1751, it was over 15,000; and Yorkshire was famous for its independence and for the elevated character of the representatives it sent to Parliament, culminating in the sainted Wilberforce.
The kind of borough best remembered today, the rotten borough, in which the voters were so few as to be either dominated completely by the landowner or in the market to sell their votes to the highest bidder, was an accidental result of the shift in population, which had created new towns and denuded the original constituencies of their inhabitants, leaving three, two or even one elector. Many of those most attached to the old constitution did not wish to keep these boroughs. In the Bill that Pitt introduced into the House of Commons in 1784, he suggested a plan for buying them up and creating new constituencies to replace them. But some people defended them, as some people defend them even today. Although everyone admitted that some owners of rotten boroughs simply sold them to the highest bidder, and where there was no “patron” the electors put themselves up for auction—Sudbury, at least, going so far on one occasion as to advertise—others looked about for talented young men to introduce into politics. Bagehot mentions the taunt levelled at Canning that he had become a Tory only because, while he was still at Oxford, the Tories had offered him a seat. He adds: “The Oxford Liberals of our generation are quite exempt from similar temptations.” The sentence has an even more poignant ring today. The rotten boroughs were supposed not only to give special opportunity to talent but also to provide a way for the colonies to be represented, the theory being that men went to India or the colonies, made a large fortune, came back and bought rotten boroughs. Shocking as it may be to modern ideas, the Members who entered the House by buying rotten boroughs were often among the most independent and public spirited in Parliament. The theory of the franchise as held by the ordinary person was summarised many times in the debate on the Reform Bill in 1832. Lord William Lennox, for example, said: “By the present system the aristocracy is represented through the Counties, the colonies and commercial interests through the close boroughs, the artisan through the votes of the freemen and the labourer through the votes of thç pot- walloper.” The idea of the House of Commons as representative of all interests or classes lasted long after 1832. Sir Hugh Cairns said in 1866:
It is the principle of the English constitution, that Parliament should be a mirror—a representation of every class; not according to heads, not according to numbers, but according to everything which gives weight and importance in the world without; so that the various classes of this country may be heard, and their views expressed clearly in the House of Commons, without the possibility of any one class outnumbering or reducing to silence all the other classes in the kingdom.
These doctrines seem not unreasonable even to modern ears; but theory and practice are not always the same. How far did the constitution really ensure the liberty of the subject? If liberty means freedom from coercion by the state, the constitution certainly did protect it to an extraordinary degree, to a degree probably never known to a society ruled by law, either before or since. It was not so much the famous separation of powers, which were hardly as separate as Montesquieu supposed; though indeed when compared with the concentration of power in the hands of the absolute monarchies of the continent, the English constitution, with its executive only slightly linked to the legislature and its independent judiciary, did exhibit a far more marked distribution of power between different parts of the government than one might gather from modern criticism. The mixed constitution would not, however, have been effective in ensuring liberty without the “rights” of the citizen, the determination of every citizen to maintain them and the general respect for property. The rights were the right to appeal to Parliament for redress against injury; the right of any individual to petition the Crown; and the right, if pushed too far, to resist the government by force— not, of course, a legal, but a moral right. The eighteenth-century idea of freedom was not democratic. There was no question of everyone having equal rights, any more than of their having equal incomes. A peer of the realm had the right to his seat in the House of Lords, and his right to use his influence to get the Members he chose elected in any neighbouring borough, while his tenant might not even have the right to vote. But they were both equally secure from arbitrary arrest, and no representative of the central government—still less of some local authority or nationalised industry—could enter their houses without express permission. The one exception to this was the power of an exiseman to enter a house where he had reason to believe smuggled goods were concealed. Blackstone himself objected strongly to these powers.
William III had tried to organise a reserve of sailors, which had been resisted by Parliament because it was regarded as dangerous to liberty, in the same way as a standing army. When there was an urgent need for sailors and recruitment was insufficient, there was, therefore, no reserve to fall back on. In spite of this glaring exception, the liberty of the subject, safeguarded by Habeas Corpus, trial by jury and the liberty of discussion was secure. It is sometimes said that the press was not free; and here again we meet a contradiction, because the writings of the day are full of assertions that the liberty of the press is the first bulwark of civil liberty. Wilkes began the first number of the North Briton by saying: “The liberty of the press is the birthright of a Briton, and is justly esteemed the firmest bulwark of the liberties of the country.”
What was then meant by the liberty of the press was the liberty to publish without submitting the work to official censorship. England was the only European country in which there was no censorship; but the author and publisher could be prosecuted if the law was infringed. The law of libel interfered more with the expression of political opinion than the present law; but it allowed an astonishing amount of personal comment and a very wide freedom of criticism, especially as intervention by the government was capricious and liable to be unsuccessful. The chief feeling of the modern reader after glancing at Wilkes’s North Briton is surprise, not that the government took proceedings against Wilkes on the publication of No. 45, but that they had not taken proceedings long before. He had frequently insinuated in no guarded language that the Princess Dowager, the mother of George III, was Lord Bute’s mistress, and in one number compared her with Isabel, Edward II’s wife, and Lord Bute to Mortimer. The Morning Post, in its radical days, chose to inform its readers that it was not true that several ladies had sworn to the Prime Minister’s (the Younger Pitt’s) parentage of their children.
This sort of thing may be regarded as mere vulgar abuse; but a serious pamphlet advocating armed resistance to the government could be published. In 1784, Sir William Jones, the distinguished orientalist, published a dialogue between a gentleman and a farmer on the subject of government, in which the gentleman urged the farmer to sign a petition in favour of universal suffrage. Having dealt with the farmer’s objections that he knew nothing about politics, and that it would be more sensible for him to leave it to the King and Parliament, the gentleman goes on to urge the farmer to prepare for armed resistance.
Gentleman: “But what if a few great lords or wealthy men were to keep the King himself in subjection, yet exert his force, lavish his treasure, and misuse his name so as to domineer over the people and manage the Parliament?”
Farmer: “We must fight for the King and for ourselves.”
The gentleman then points out that it is no good trying to fight against bayonets with quarterstaves, and that the farmer must provide himself with a musket and practise so as to be ready to use it when necessary.
This pamphlet was a subject of a law suit, but not on the initiative of the Government. It had been shown to the Treasury who had refused to prosecute; but, when the Dean of St. Asaph’s republished the pamphlet, a private prosecution was instituted, which was finally won by the Dean. What makes the Dean’s victory so remarkable is that these arguments were not addressed to a law-abiding, passive population, but to a people only too ready to take the law into their own hands if they felt that their rights were infringed. Eighteenth- century England was a country in which every man had rights. The fact that there was no attempt to make these rights equal made them more definite, and more a man’s own property than the rights of a more egalitarian society. A frequent cause of the misunderstanding of the eighteenth-century atmosphere is a confusion between the open and avowed preference given to birth and wealth with the disguised and sinister influence which capitalists are alleged to exercise over liberal governments in Marxist theory. When a politician can openly say: “Some decent, regulated, pre-eminence, some preference (not exclusive appropriation) given to birth is neither unnatural, nor unjust, nor impolitic,” it means that a majority of those not distinguished by birth would agree.
It is very easy to make a list of quotations from eighteenth-century writers to the effect that the only function of the people or the lower orders was to obey. What is not so often noticed is that these sentiments were not put forward as a description of the actual state of affairs but as an ideal, and that these remarks are not recorded to have been made by any practical politician—unless Burke is regarded as one. They come rather from writers more detached from the bustle of the world, particularly from clergymen, whether bishops or curates. Contemporary opinion seems to have thought that the people had too great, rather than too small, an influence on politics. Johnson’s remark that the “King gave Walpole as a Minister to the people, and the people gave Pitt as a Minister to the King” is famous. Fielding said, in a tone of irony indeed, but at the same time with a considerable amount of sincerity, that “it may seem strange that not one of our political writers in their learned treatises on the English Constitution should have taken notice of any more than three Estates—Kings, Lords and Commons; all entirely passing by in silence that very large and powerful body, which form the Fourth Estate in this community and have been long dignified and distinguished by the name of ‘Mob’.” By the same “mob,” as is clear from the context, he was not referring only to the London mob but to the working class in general.
Eighteenth-century government did look at the result of elections in the open boroughs and the independent counties with interest, if not with anxiety. It was not so much through their votes, however, that the working class made their opinions felt, as by actual physical violence. There were serious riots in 1753 over the proposal to allow Jews to become naturalised citizens, in 1768 over Wilkes, and in 1780 under the influence of Lord George Gordon’s agitation apart from minor turmoils, and fighting over strikes (of which there were plenty in the eighteenth century). Minor riots were always liable to break out. For example, in May 1765 the silk weavers, incensed by the rejection of a bill to increase the duty on imports of silk, repaired to the House of Commons with red and black flags, and finally attacked the Duke of Bedford’s house, from which they had to be ejected by troops.
The country towns had riots similar to those of London. An extraordinary series of events took place in Tiverton in 1765. The leading wool merchant of the town having just died, the labourers became worried about the prospects of employment. It was known to them that Mr. Baring of Exeter wished to represent the town in Parliament and, if he were elected, was prepared to live in the town and move his wool business there. The right of election lay with the Corporation, and the first step apparently was to elect Baring as an alderman. At first, the Corporation thought the scheme a good idea; but later they decided that Baring’s ambition was too wide-ranging and that his object was to dominate the whole town. A violent conflict then broke out between the Society of Combers and Weavers and the Corporation. The Combers and Weavers combined the eighteenth-century technique of sacking the Mayor’s house, puffing his nose and seizing his wig with the more modern methods of a boycott of all those tradesmen who did not vote for Baring. The whole episode culminated when the Mayor’s country house near Tiverton was wrecked by an angry mob. There were riots in Nottingham in 1779 after a bill to fix wages for framework-knitting had been thrown out of the House of Commons, and thousands of pounds worth of damage was done.
As there were no police and few soldiers, it is not surprising that governments, whether Parliament itself or local corporations, were chary of provoking this sort of thing. But it seems probable that their resolution was not only weakened by their lack of effective power, but by the general respect for the right of resistance. Charles James Fox, even in the middle of the revolutionary war, could say:
If men should be so resolute on their spirit of destruction . . . as to pass bills in violent opposition to the declared sense of the people . . . if my opinion were asked by the people as to their obedience . . . it would be a case of extremity which would justify resistance and the only question would be whether resistance was prudent.”
This sentiment seems to explain the mild sentences imposed both at Tiverton and at Nottingham. At Tiverton, the ringleaders were fined 13s. 4d. and sent to prison for six months. At Nottingham, the man who had incited the mob to burn the house of a particularly unpopular employer was fined 6s. 8d. and sent to prison for three weeks. This is a striking contrast to the severity of eighteenth-century justice in general, and to the sentences passed for the same sort of crimes during the revolutionary war.
Quite apart from yielding to force on particular occasion, the British Government was admitted to be susceptible to public opinion. Lord Hardwicke said on the occasion of the Government’s capitulation on the anti-Jewish question: “However much the people may be misled, yet in a free country I do not think an unpopular measure should be proceeded with. We should try to treat the people as a skilled and humane physician would treat his patient. If they nauseate the salutary draught we have prescribed, we should think of some other remedy, or we should delay administering the prescription until time or change of circumstances removes the nausea.”
Of course, it could be said that public opinion in those days did not include working- class opinion. The opposition to the Excise Bill was general, but it was generally shared by the London working class. Sir Robert Walpole was seized by the collar as he left the House of Commons and was with difficulty rescued. On another occasion the Duke of Bedford lost his spectacles, and Lord Sandwich his wig.
In the country, public opinion was less independent. Although the county franchise was wide, voting was open and the smaller freeholders were liable to be influenced by their landlords, their larger customers, and by local magnates of all kinds. A good deal is usually said about intimidation by landlords; but a greater obstacle to independence was probably the general sentiment shared by the tenants themselves that it was their duty to vote for the candidate their landlord favoured. The usual technique of obliging those who gave their votes, which we now call corruption, also worked here; it is probable that “vote for Mr. X and you won’t lose by it” was more common than threats. It may also be remembered that, until the accession, or indeed until the middle age of George III, the Crown was not popular, and the kind of emotion now aroused by the King or Queen was in the remoter country districts given to local magnates like Lord Derby or Sir Watkin Williams Wynn. The tenant-landlord relationship was never purely economic; as the view taken by contemporaries shows. Akenside, in his ode to Lord Huntingdon, published in 1747, compares him with his ancestors:
“From rich domains and subject farms, They lead the rustic youth to arms; And kings their stern achievements feared; While private strife their banners reared. But loftier scenes to thee are shown Where empire’s wide established throne No private master fills. Where, long foretold, the People reigns; Where each a vassal’s humble heart disdains, And judgeth what he sees; and as he judgeth wills. Here it be thine to calm and guide The swelling democratic tide; To watch the State’s uncertain frame, And baffle Faction’s partial aim.”
There seems no doubt that the people had considerable ability to stop the Government doing anything to which they strongly objected. It seems unlikely that an eighteenth-century government would have proceeded with the Poor Law Act of 1834 in face of the intense popular opposition. The elder Pitt, who was perhaps the first English statesman with some of the qualities of a democratic politician, certainly thought it was worth while to appeal to the people. In the King’s Speech of December 2nd, 1756, composed by Pitt, it was said: “I cannot be here unmindful of the sufferings of the poorer sort, from the present high price of grain and the disturbances which have arisen herefrom, and I recommend to you to consider all proper provisions for preventing the like mischiefs hereafter.”
It is not so much that eighteenth-century governments were more convinced of the rights of the people than governments after the Reform Bill, as that during the Napoleonic wars and the ensuing troubles English government had had to learn the technique of repression in order to survive. Of this technique, the eighteenth century knew nothing at all. It was not only this innocence that made it possible for democratic elements to obstruct really unpopular measures, but also the party system. Eighteenth-century government was not democratic government: it was party government; and, when the Opposition became aware of the unpopularity of any measure, they did all they could to encourage hostility and to use it against the Government. The agitation against the Excise Bill of provides a good example of a spontaneous popular revulsion being fanned into a political campaign.
Modern writers find it hard to believe that the people had any rights, because even the open boroughs were occupied by Whig and Tory gentlemen, indistinguishable from those who sat for the close and rotten boroughs. It was not until the war and the industrial revolution that there was any theory to explain that poverty and unemployment were caused by political institutions and could be remedied by political action. Where popular opinion was aroused, the open boroughs allowed it to be expressed. In Nottingham, in 1776, the Framework Knitters, who formed the majority of the electorate, chose and elected a candidate to introduce a bill for fixing wages. In 1832, Orator Hunt beat the Whig Home Secretary on the unreformed franchise; and Westminster several times returned a Radical candidate against the orthodox parties. But, whereas the people or the working class in the towns could occasionally, at least, prevent things being done, they could not, on the other hand, get them done. The Nottingham Framework Knitters could get a bill presented to Parliament; they could not get it passed. Popular agitation could defeat a fiscal measure; it could not introduce taxation to redistribute income. Everyone in the eighteenth century would have said that this was the most marked advantage their constitution had over ours.