Introduction
The Constitutional Texts
There are many good reasons for studying
the British constitution in the period 1776 to 1849, but such a study presents
considerable difficulties that are unique to Britain. In the later eighteenth
century the British people prided themselves
on living under the most stable constitution that they had ever enjoyed
and under the freest constitution in Europe. Many enlightened men across Europe agreed with them. Admirers of the British
constitution could list many admirable
features that the constitution possessed: the monarch was subject to
constitutional restraints; the executive could govern effectively only with the
support of the two houses of parliament;
sovereign power was shared by the combined legislature of King, House of
Lords and House of Commons; parliament represented men of wealth, status and
power; while even ordinary British subjects enjoyed many civil liberties under
the rule of law (including the right to a trial when accused, the right to
trial by jury, liberty of conscience and a free press). While it is quite easy
to point to the virtues of the British constitution, it is also possible to
list some of its weaknesses: the monarch could exploit crown patronage to
influence the composition of both houses of parliament; some political rights
at national and local level were officially open only to members of the
established Church of England; and the parliamentary franchise was exercised by
only about twenty per cent or less of adult males.
What cannot be done in Britain in this
period – unlike a growing number of advanced countries elsewhere in the world
at this time – is to produce the full and agreed text of the British
constitution. The Americans in the newly independent United States of America
began drafting written constitutions from 1776. The French Revolution led to
similar developments in France in the 1790s and many other European states
began to follow suit. Britain, however, never abandoned its unwritten,
prescriptive constitution – at this time or at any period since. The British
constitution of the later eighteenth century was already an ‘ancient constitution’
that was the product of traditions and customs developed over centuries. It was
also the result of many hundreds of political actions and legislative acts that
had become accepted by the ruling elite and by the people at large. Some limits
to royal power had been achieved long ago by the Magna Carta of 1215, and these
restrictions had been made more effective by civil war and the Glorious Revolution
in the seventeenth century. A parliament had existed since the thirteenth
century and it had steadily increased its powers and privileges since the
sixteenth century. Parliament was summoned to meet every single year (right to
the present day) after 1689 in order to provide the executive with much needed
revenue. The executive had become steadily more accountable to the legislature
and parliament passed an increasing number of statutes to benefit powerful
interests in the nation as the eighteenth century progressed. The right to vote
for the members of the House of Commons had
been established over centuries by act of parliament and by the terms of
hundreds of borough charters granted by the crown. Trial by jury was an ancient custom, while the right to a trial
after arrest was enshrined by the act of habeas corpus of 1679. Some major aspects
of the constitution, however, could not be traced to any particular political
event, act of parliament or constitutional doctrine. The monarch’s right to
veto bills passed by both houses of parliament was never used again after 1708,
but there was no law to enforce what had simply become a constitutional practice. In the same way, there was no law to
state that parliament must meet every year; it was simply summoned because the king’s government
needed the substantial revenue granted by parliament. There was no
constitutional law creating a cabinet of ministers or the position of Prime
Minister, though both institutions were clearly in being by 1776. By the later
eighteenth century the British also regularly boasted of possessing a free
press, but no constitutional law enshrined such a privilege; rather the law
establishing a system of censorship had lapsed in 1695 and was never renewed.
Indeed, it might be argued that most British civil liberties existed not
because a constitutional law had created them, but because no laws existed to
say such liberties could not be exercised.
The British constitution is unwritten and is prescriptive, and it has
evolved organically over many centuries. It is therefore not possible to
produce a text of it below in the way that it is possible to produce the texts
of many American and European constitutions that were produced in the period
from 1776 to 1849. What has been substituted here is a selection of the most
important constitutional measures that can be safely regarded as legitimate constitutional documents because
they were formally passed by act of the sovereign legislature of King, Lords
and Commons and were enshrined in law.
The first two texts below (Crewe’s Act and
Clerke’s Act of 1782) reflect the constitutional beliefs of those politicians
who had opposed the government’s disastrous policies towards the rebellious
American colonies. These critics believed that the authoritarian stance of the government was only possible because
crown influence had brought too many conservative men into parliament. Both acts sought to reduce crown influence over
the composition of the House of Commons by preventing government contractors being
elected as MPs and taking the right to vote
away from revenue officers
who were very likely to support government
candidates in elections. Both acts are indicative of the strength of
support for economical reform, as a means of making parliament more independent
of the crown, but neither had much practical effect. It was the efforts of
Prime Minister William Pitt the Younger and of later Prime Ministers – over
many decades – to make financial savings by cutting down on government waste
and on money spent on government pensions and sinecures that steadily weakened
the number of reliable ‘king’s men’ in parliament.
Texts 4 to 7 are examples of government
repression during the 1790s, when William Pitt and a clear majority of the
propertied classes sought to curb the political activities of radical reformers
who were sympathetic to French revolutionary principles. These acts certainly
restricted the civil liberties of radical
political activists, but it is also true that they were passed in a
constitutional manner by substantial majorities in both houses of parliament.
It is also possible to claim that they had significant support in the country
at large. These acts established due legal processes
in order to curb radical activities, and historians have shown that few
men were prosecuted under the terms of these acts and these acts soon lapsed as
the fear of revolution at home receded. Text 3 (Fox’s Libel Act of 1792) shows
that, on occasion, more liberal voices could still be heard in parliament. This
act made it harder to convict those
prosecuted for libel, because it allowed the jury, not the judge as
formerly, to decide what was libellous. Several
leading radicals accused of treason in 1794 undoubtedly benefited from
the fact that juries in England were still not readily controlled by judges or
the agents of government.
The eighth text (the Act of Union between Great Britain and Ireland) is
of crucial importance because it created the
constitutional entity of the United Kingdom by establishing for the
first time a single imperial legislature for the whole of the British Isles.
The principality of Wales had never had a separate legislature and it was fully
incorporated under the English parliament at Westminster by acts passed in 1534
and 1536. Scotland’s separate parliament in Edinburgh ceased to exist in 1707
when the act of union united it with the Westminster parliament as the sole
legislature for Great Britain. Ireland retained its separate parliament in
Dublin throughout the eighteenth-century, but it failed to produce stable
government because it excluded all representatives of the large Catholic
majority in the country (even after propertied Catholics had received the vote
in 1793). The terrible Irish rebellion in 1798 convinced William Pitt that a
union of the legislatures of Ireland and Great Britain might end sectarian bitterness
in Ireland. To make it effective, he planned to allow Catholics to sit in the
enlarged Westminster parliament and to hold high office in the state. He
believed it was possible to make this concession to the Catholic majority in
Ireland because they would form only a minority of the voters in the whole
British Isles. Unfortunately, the king, George III, believed it was against his
coronation oath under a Protestant constitution to make this concession to
Catholics. Many in the cabinet and a
majority in parliament and the nation undoubtedly agreed with him. The
failure to grant Catholic emancipation severely undermined the benefits of the
Act of Union from the outset – and it also provoked Pitt’s resignation.
The Regency Act of 1811 (Text 9) was passed because George III, after
earlier short-term bouts of mental illness, was finally entirely unable to exercise his royal duties. An act of
parliament was required to invest his eldest
son, George Prince of Wales, with regal powers. The act enshrined the
notion that the British monarch was a parliamentary monarchy and it reinforced
the fact that parliament was jealous of its power in relation to the crown. The
Prince of Wales served as regent until 1820, when the death of his father
allowed him to ascend the throne as George IV.
The succeeding texts printed below show how the British constitution
that had largely been created or refashioned by the Glorious Revolution of
1688-89 was finally subjected to significant
reform. These reforms came largely as a result of those political, social and economic changes that
made Britain a very different society by the 1830s. Protestant nonconformists
in England had long resented the special privileges conferred on the majority
who conformed to the established Church of England. They had campaigned for
many decades for the repeal of the Test and Corporation Acts, passed in the
1660s and 1670s, that sought to restrict office at national and local level to
those who conformed to the Church of England. These acts were finally repealed
in 1828 (Text 10). The next year, after a prolonged campaign by Catholics in
Ireland led by Daniel O’Connell, Catholics throughout the British Isles were
finally admitted to parliament and to high
office in the state by the Catholic Emancipation Act (Text 11).
Political radicals
had been campaigning for
parliamentary reform ever since the later 1760s. Some wanted a fully democratic
House of Commons, with equal sized constituencies, the franchise for all adult
males, the secret ballot and annual general elections. Others, a majority of
reformers at least until after 1815, would have been satisfied with more
moderate reform that would have given the urban middle classes in particular a
greater representation in the House of Commons. They wanted the abolition of
small constituencies, the transfer of these seats in parliament to the populous
counties and large unrepresented towns such as Birmingham, Manchester, Leeds
and Sheffield. Severe divisions within the conservative Tory party and the coming to power of a reform-minded Whig
government in 1830, finally led to the achievement of the great reform bills of
1832. It is often forgotten that these extended to the whole British Isles
(Texts 12 to 14). These acts did not create a fully democratic electoral
system, and they certainly disappointed the more advanced reformers who had
wanted much more. None the less, they undoubtedly opened a door to reform that
could never again be closed and they proved that parliament could reform itself
when a liberal-minded government in power had the backing of substantial support
in the country at large. The parliamentary reform acts of 1832 were to show the
way to a whole series of later reforms of the system of representation in Britain from the later nineteenth century to recent
times. Long before that they served as
a prelude to the Municipal Reform Act of 1835 (Text 15) which sought to reform
local legislatures along similar lines to that achieved for the imperial
parliament at Westminster. Town corporations were spread to urban areas that
had not previously possessed them and these ceased to be narrow oligarchies but
were opened to greater representation of the propertied middle classes.
The Source of the Texts
The parliamentary
statutes printed below have
been taken from the relevant official volumes which over the period 1782 to
1835 published these selected statutes. As will be seen, the titles of these
works changed over time. The texts below are reproduced as printed, retaining
the original spelling and capitalization. The texts are headed with the brief
title by which each act is usually known, the correct title given to the act by
its framers, the exact date when it was passed (if this is known), and its
official reference (This reference gives the number of the annual parliamentary
session of the reign, the name of the
monarch, and then the number of the
act of that year (given as a capitulum or chapter number).
The sovereign authority of parliament (that is, of
the whole legislature of crown, Lords and Commons) was such that any
constitutional act could be amended, extended, superseded or repealed by a subsequent
act of parliament. These acts had no special status and there was therefore no need
for a special process of the kind needed to amend the United States constitution. The subsequent repeal or development
of the acts printed below can be found in
any modern issue of the Chronological Table of Statutes,
published regularly by Her Majesty’s
Stationery Office in London. Brief details of these changes are noted below for each act that is printed here.
Select Bibliography
Blackstone, William, Commentaries
on the Laws of England, 4 vols., Oxford: Clarendon Press, 1765-69.
Clark,
J. C. D., English Society 1660-1832: Religion,
Ideology and Politics during the Ancien Regime, 2nd edn., Cambridge:
Cambridge University Press, 2000.
Costin,
W. C. and Watson, J. Steven (eds.), The Law and
Working of the Constitution 1660-1914, 2 vols., London: Adam and Charles
Black, 1952.
De Lolme, Jean Louis, The
Constitution of England, London: T. Spilsbury, 1775.
Dickinson, H. T., Liberty and Property: Political
Ideology in Eighteenth-Century Britain,
London: Weidenfeld and Nicolson, 1977.
Dickinson, H. T.,
“The Eighteenth-Century Debate on the Sovereignty of Parliament”, Transactions of the Royal Historical Society, 5th
series, 26 (1976), 189-210.
Dickinson, H. T., “The British Constitution”, in: A Companion to Eighteenth-Century Britain, ed. H.T. Dickinson, Oxford: Blackwell,
2002.
Dickinson, H. T.,
“The Ideological Debate on the British constitution in the late eighteenth and early nineteenth centuries”,
in: Il Modello Costituzionale Inglese e la sua
recezione nell’area Mediterranea tra la fine del 700 e la prime metà dell
‘800, ed. Andrea Romano,
Milan: Giuffrè, 1998, 145-192.
Dippel, Horst,
“The Theory and Practice of the British Constitution in the Late Eighteenth
Century”, in: ibid., 193-208.
Emden, C. S., The
People and the Constitution, 2nd edn., Oxford: Clarendon
Press, 1956.
Goldsworthy,
Jeffrey, The Sovereignty of Parliament: History and
Philosophy, Oxford: Clarendon Press, 1999.
Gunn, J. A. W., Beyond Liberty and Property:
The Process of Self-Recognition in Eighteenth-Century Political Thought, Kingston and Montreal: McGill-Queen’s
University Press, 1983.
Hanham, H. J.
(ed.), The Nineteenth-Century Constitution
1815-1914: Documents and Commentary, Cambridge: Cambridge University
Press, 1969.
Harling, Philip, The Waning of ‘Old Corruption’: The Politics of Economical
Reform in Britain, 1779-1846, Oxford: Clarendon Press, 1996.
Jennings, W. I., The British Constitution, 5th edn., Cambridge: Cambridge University
Press, 1966.
Keir, David Lindsay, The Constitutional History of
Modern Britain 1485-1951,
5th edn., London: Adam and Charles Black, 1953.
May, Thomas
Erskine, The Constitutional History of England 1760-1860, 2 vols., London: Longman, Green,
1861.
O’Gorman, Frank, Voters, Patrons and Politics: The Unreformed Electorate of
Hanoverian England, 1734-1832, Oxford: Clarendon Press, 1989.
Phillips, John
A., The Great Reform Bill
in the
Boroughs: English
Electoral
Behaviour
1818-1841, Oxford: Clarendon Press, 1992.
Porritt, Edward, The Unreformed House of Commons:
Parliamentary Representation before 1832, 2 vols., Cambridge: Cambridge University Press.
1903.
Sack, James J., From Jacobite to Conservative: Reaction and Orthodoxy in Britain 1760-1832, Cambridge: Cambridge University Press, 1993.
Thomas, P. D. G.,
The House of Commons in the Eighteenth Century,
Oxford: Clarendon Press, 1971.
Williams, E.
Neville (ed.), The Eighteenth-Century Constitution
1688-1815: Documents and Commentary, Cambridge: Cambridge University Press, 1960.
