The Regency Bill.--The Ministry of 1766 lay an Embargo on Corn.--An Act
of Indemnity is Passed.--The _Nullum Tempus_ Act concerning Crown
Property; it is sought to Extend it to Church Property, but the Attempt
fails.--The Royal Marriage Act.--The Lords amend a Bill imposing Export
Duties, etc., on Corn.
The prosecution of Wilkes was not the only act of Mr. Grenville's
administration which excited both the Parliament and the people. In 1764
the King was attacked by a serious illness, and, as the Prince of Wales
was an infant scarcely two years old, it was manifestly necessary to
make arrangements for a Regency, in the event of the throne becoming
vacant while the heir was still a minor. A similar necessity had arisen
in the preceding reign on the death of the present King's father, and a
bill had accordingly been introduced by Mr. Pelham, the minister of the
day, which, in the event of the reigning sovereign dying during the
minority of the boy who had now become the immediate heir to the throne,
vested both the guardianship of his person and the Regency of the
kingdom in his mother, the Princess Dowager of Wales, who, however, in
the latter capacity, was only to act with the advice of a council,
composed of her brother-in-law, the Duke of Cumberland, and nine
principal officers of state. It was not concealed by either the King or
the Duke that they would have preferred a different arrangement, one
which would have conferred an uncontrolled Regency on the Duke himself;
but the bill was passed by great majorities in both Houses, and served
in some respects as a model for that which was now to be brought
forward, the difference being that the Regent was not to be expressly
named in it. To quote the words of the royal speech, the King "proposed
to the consideration of the two Houses whether, under the present
circumstances, it would not be expedient to vest in him the power of
appointing from time to time, by instrument in writing under his
sign-manual, either the Queen or any other member of the royal family
usually residing in Great Britain, to be the guardian of the person of
his successor, and the Regent of these kingdoms, until such successor
should attain the age of eighteen years, subject to such restrictions
and regulations as were specified and contained in an act passed on a
similar occasion in the fourteenth year of the late King; the Regent so
appointed to be assisted by a council, composed of the several persons
who, by reason of their dignities and offices, were constituted members
of the council established by that act, together with those whom the
Parliament might think proper to leave to his nomination."
It may be doubted whether such a power as his Majesty desired was quite
consistent with the principles of the constitution. Parliament had,
indeed, granted Henry VIII. the still greater power of nominating a
series of successors; but the appointment which he consequently made by
will was eventually superseded, when, on the failure of his immediate
descendants, the representative of his elder sister, whom he had passed
over, was seated on the throne, to the exclusion of the descendants of
his younger sister, to whom he had given the preference. In France, the
last two kings, Louis XIII. and XIV., had both, when on their
death-beds, assumed the right of making the arrangements for the Regency
which would become necessary, the heir to the throne being in each case
a minor; but in each instance the arrangements which they had made were
disregarded.
However, on the present occasion the minister (who must be taken to have
framed the King's speech) and the Parliament agreed in the propriety of
conferring the nomination of the Regent on the King himself;[16] and the
bill might have passed almost without notice, had it not been for a
strange display of the Prime-minister's ill-temper and mismanagement.
Mr. Grenville was at all times uncourtly and dictatorial in his manner,
even to the King himself; he was also of a suspicious disposition; and
though he was universally believed to have owed his promotion to his
present office to the recommendation of Lord Bute,[17] he was extremely
jealous of his predecessor. He professed to believe, and probably did
believe, that the King was still greatly under Lord Bute's influence
(though, in fact, they had never met since that minister had quitted the
Treasury), that Lord Bute was still as closely connected with the
Princess of Wales as scandal had formerly reported him to be, and that
George III., under the pressure of their combined influence, would be
induced to name his mother rather than his wife as the future Regent.
And he was so entirely swayed by this ridiculous and wholly groundless
fear, that, when the bill to give effect to the royal recommendation was
introduced into the House of Lords, he instigated one of his friends to
raise the question who were included in the general term "the royal
family," which Lord Halifax, as Secretary of State, answered by saying
that he regarded it as meaning "those only who were in order of
succession to the throne." Such a definition would have excluded the
Queen as effectually as the Princess Dowager; and when Mr. Grenville
found the peers reluctant to accept this view (which, indeed, his own
Lord Chancellor pronounced untenable), he then sent another of his
colleagues to represent to the King that his mother was so unpopular
that, even if the Lords should pass the bill in such a form as rendered
her eligible for nomination, the Commons would introduce a clause to
exclude her by name. With great unwillingness, and, it is said, not
without tears, George III. consented to the bill being so drawn as to
exclude her, and it passed the Lords in such a form. But when it reached
the Commons it was found that if the leaders of the Opposition hated
Bute much, they hated Grenville more. They moved the insertion of the
name of the Princess Dowager as one of the members of the royal family
whom the King might nominate Regent, if it should please him. Even
Grenville had not the boldness publicly to disparage his royal master's
royal mother; the Princess's name was inserted by a unanimous vote in
the list of those from whom the King was empowered to select the Regent,
and the amendment was gladly accepted by the House of Lords.[18]
In spite, however, of the unanimity of the two Houses on the question,
it will probably be thought that the authors of the amendment, by which
it was proposed to address the King with an entreaty to name in the bill
the person to whom he desired to intrust the Regency, acted more in the
spirit of the constitution than those who were contented that the name
should be omitted; indeed, that statesmen of the present century agree
in holding that an arrangement of such importance should be made by the
Houses of Parliament, in concurrence with the sovereign, and not by the
sovereign alone, is shown by the steps taken to provide for a Regency in
the event of the demise of the reigning sovereign while the heir was a
minor, in the last and in the present reign, the second bill (that of
1840) being in this respect of the greater authority, since Lord
Melbourne, the Prime-minister, did not propose it without previously
securing the approval of the Duke of Wellington, in his character of
leader of the Opposition.
We pass over for a moment the administration of Lord Rockingham, as we
have already passed over the taxation of our North American Colonies by
Mr. Grenville, because it will be more convenient to take all the
transactions relating to that subject together when we arrive at the
time when the troubles arising out of the policy of the different
administrations toward those Colonies were brought to a head by the
breaking out of civil war. Lord Rockingham's ministry, which succeeded
Mr. Grenville's, had, as is well known, but a brief existence, and was
replaced by the cabinet so whimsically composed by Mr. Pitt, who
reserved to himself the office of Privy Seal, with the Earldom of
Chatham; the Duke of Grafton being the nominal head of the Treasury, but
the direction of affairs being wholly in the hands of the new Earl, till
the failure of his health compelled his temporary retirement from public
life. Lord Chatham was brother-in-law to Mr. Grenville, to whom in the
occasional arrogance and arbitrariness of his disposition he bore some
resemblance; and one of the earliest acts of his administration, when
coupled with the language which he held on the subject in the House of
Lords, displayed that side of his character in a very conspicuous light.
The summer of 1766 had been unusually wet and cold, both at home and
abroad, and the harvest had, in consequence, been so deficient as to
cause a very general apprehension of scarcity, while rumors were spread
that the high prices which the shortness of the crops could not fail to
produce were artificially raised by the selfish covetousness of some of
the principal corn-dealers, who were buying up all the grain which came
into the market, and storing it, with the object of making an exorbitant
profit out of the necessities of the consumer, not only at home but
abroad. The poorer classes, seeing themselves, as they believed,
threatened with famine, rose in riotous crowds, in some places attacking
the barns in which the corn was stored, and threatening destruction to
both the storehouses and the owners. The ministry first tried to repress
the discontent by the issue of a proclamation against "forestallers and
regraters," framed in the language and spirit of the Middle Ages; and,
when that proved ineffectual to restore confidence, they issued an Order
in Council absolutely prohibiting the exportation of any kind of grain,
and authorizing the detention of any vessels lying in any British harbor
which might be loaded with such a cargo. Our annals furnished no
instance of such an embargo having been laid on any article of commerce
in time of peace; but the crisis was difficult, the danger to the
tranquillity of the kingdom was great and undeniable, the necessity for
instant action seemed urgent, and probably few would have been inclined
to cavil at Lord Chatham's assertion, that the embargo "was an act of
power which, during the recess of Parliament, was justifiable on the
ground of necessity," had the ministry at once called Parliament
together to sanction the measure by an act of indemnity. But Lord
Chatham was at all times inclined to carry matters with a high hand, and
willingly adopted the opinion advanced by the Chancellor (Lord
Northington), that "the measure was strictly legal, and that no
indemnity was necessary." Lord Northington's language on the subject
Lord Campbell describes as "exhibiting his characteristic rashness and
recklessness, which seemed to be aggravated by age and experience,"[19]
and the censure does not seem too severe, since he presently "went so
far as to maintain that the crown had a right to interfere, even against
a positive act of parliament, and that proof of the necessity amounted
to a legal justification." But, however ill-considered his language may
have been, Lord Chatham adopted it, and acted on it so far as to decline
calling the Parliament together before the appointed time, though, when
the Houses did meet, he allowed General Conway, as Secretary of State,
to introduce a bill of indemnity in the House of Commons. It was warmly
opposed in that House, partly on the ground that, if such a measure as
the embargo had been necessary, it would have been easy to have
assembled Parliament before the Order in Council was issued (for, in
fact, the proclamation against forestallers and regraters had been
issued on the 10th of September, when Parliament, if not farther
prorogued, would have met within a week). But on that same day
Parliament was farther prorogued from the 16th of September till the
11th of November,[20] and it was not till after that prorogation, on the
24th of September, that the Order in Council was issued.
In the House of Lords it seems to have been admitted that the embargo
was, under all the circumstances, not only desirable, but "indispensably
necessary."[21] But the Opposition in that House, being led by a great
lawyer (Chief-justice Lord Mansfield), took a wider view of the whole
case; and, after denouncing the long prorogation of Parliament as having
been so culpably advised that there was no way left of meeting the
emergency but by an interposition of the royal power, directed the
principal weight of their argument against the doctrine of the existence
of any dispensing power. It was urged that the late Order in Council
could only be justified by "the general proposition that of any, and, if
of any, of every, act of parliament the King, with the advice of the
Privy Council, may suspend the execution and effect whenever his
Majesty, so advised, judges it necessary for the immediate safety of the
people." And this proposition was denounced as utterly inconsistent with
the principles of the Revolution, which had been "nothing but a most
lawless and wicked invasion of the rights of the crown," if such a
dispensing power were really one of the lawful prerogatives of the
sovereign. Reference was made to the powers in more than one instance,
and especially in the case of ship-money claimed and exercised by
Charles I.; and it was affirmed that "the dispensing and suspending
power, and that of raising money without the consent of Parliament, were
precisely alike, and stood on the very same ground. They were born
twins; they lived together, and together were buried in the same grave
at the Revolution, past all power of resurrection." It was even argued
that the dispensing or suspending power was yet more dangerous than that
of raising money without a Parliamentary vote, since it was a power
which might do the most mischief, and with the greatest speed, so many
were the subjects which it included. It would be a return to the maxims
of the idolators of prerogative as understood in those earlier days,
that is, of absolute and arbitrary power, _a Deo Rex, a Rege Lex_. It
was farther argued that, unless it could be said that the moment
Parliament breaks up the King stands in its place, and that the
continuance of acts is consigned into his hands, he cannot of right
suspend any more than he can make laws, both acts requiring the same
power. The law is above the King, and the crown as well as the subject
is bound by it as much during the recess as in the session of
Parliament; and therefore the wisdom of the constitution has excluded
every discretion in the crown over a positive statute, and has
emancipated Parliament from the royal prerogative, leaving the power of
suspension, which is but another name for a temporary repeal, to reside
where the legislative power is lodged--that is, in King, Lords, and
Commons, who together constitute the only supreme authority of this
government. Precedents were cited to prove that in former times
different ministries had avoided thus taking the law into their own
hands, as when, in 1709 and again in 1756, there was a similar
apprehension of scarcity, even though both those years were years of
war. And the Bill of Rights was quoted as the statute in which every
sort of dispensing power was condemned, though, as exercised by James
II., it had only been exerted in dispensing with penal laws and
remitting penalties.
"Finally," said one speaker, who perhaps was Lord Mansfield himself, "he
is not a moderate minister who would rashly decide in favor of
prerogative in a question where the rights of Parliament are involved,
nor a prudent minister who, even in a doubtful case, commits the
prerogative, by a wanton experiment, to what degree the people will bear
the extent of it. The opposite course was that by which a minister would
consult the best interests of the crown, as well as of the people. The
safety of the crown, as well as the security of the subject, requires
the closing up of every avenue that can lead to tyranny."[22]
These arguments prevailed, and the indemnity bill was passed, to quote
the words of the "Annual Register"--at that time written by Burke--"very
much to the satisfaction of the public." And that it should have been so
accepted is creditable to the good-sense of both parties. The precedent
which was thus established does, indeed, seem to rest on a principle
indispensable to the proper working of a constitutional government. In
so extensive an empire as ours, it is scarcely possible that sudden
emergencies, requiring the instant application of some remedy, should
not at times arise; and, unless Parliament be sitting at the time, such
can only be adequately dealt with if the ministers of the crown have the
courage to take such steps as are necessary, whether by the suspension
of a law or by any other expedient, on their own responsibility,
trusting in their ability to satisfy the Parliament, instantly convoked
to receive their explanation, of the necessity or wisdom of their
proceedings; and in the candor of the Parliament to recognize, if not
the judiciousness of their action, at all events the good faith in which
it has been taken, and the honest, patriotic intention which has
dictated it. The establishment of the obligation instantly to submit the
question to the judgment of Parliament will hardly be denied to be a
sufficient safeguard against the ministerial abuse of such a power; and
the instances in which such a power has since been exercised, coupled
with the sanction of such exercise by Parliament, are a practical
approval and ratification by subsequent Parliaments of the course that
was now adopted.[23]
The next year a not very creditable job of the ministry led to the
enactment of a statute of great importance to all holders of property
which had ever belonged to the crown. In the twenty-first year of James
I. a bill had been passed giving a secure tenure of their estates to all
grantees of crown lands whose possession of them had lasted sixty years.
The Houses had desired to make the enactment extend to all future as
well as to all previous grants. But to this James had refused to
consent; and, telling the Houses that "beggars must not be choosers," he
had compelled them to content themselves with a retrospective statute.
Since his time, and especially in the reigns of Charles II. and William
III., the crown had been more lavish and unscrupulous than at any former
period in granting away its lands and estates to favorites. And no one
had been so largely enriched by its prodigality as the most grasping of
William's Dutch followers, Bentinck, the founder of the English house of
Portland. Among the estates which he had obtained from his royal
master's favor was one which went by the name of the Honor of Penrith.
Subsequent administrations had augmented the dignities and importance of
his family. Their Earldom had been exchanged for a Dukedom; but the
existing Duke was an opponent of the present ministry, who, to punish
him, suggested to Sir James Lowther, a baronet of ancient family, and of
large property in the North of England, the idea of applying to the
crown for a grant of the forest of Inglewood, and of the manor of
Carlisle, which hitherto had been held by Portland as belonging to the
Honor of Penrith, but which, not having been expressly mentioned in the
original grant by William III., it was now said had been regarded as
included in the honor only by mistake. It was not denied that Portland
had enjoyed the ownership of these lands for upward of seventy years
without dispute; and, had the statute of James been one of continual
operation, it would have been impossible to deprive him of them. But, as
matters stood, the Lords of the Treasury willingly listened to the
application of Sir James Lowther; they even refused permission to the
Duke to examine the original deed and the other documents in the office
of the surveyor, on which he professed to rely for the establishment of
his right; and they granted to Sir James the lands he prayed for at a
rent which could only be regarded as nominal. The injustice of the
proceeding was so flagrant, that in the beginning of 1768 Sir George
Savile brought in a bill to prevent any repetition of such an act by
making the statute of James I. perpetual, so that for the future a
possession for sixty years should confer an indisputable and
indefeasible title. The ministers opposed it with great vehemence, even
taking some credit to themselves for their moderation in not requiring
from the Duke a repayment of the proceeds of the lands in question for
the seventy years during which he had held them. But the case was so bad
that they could only defeat Sir George Savile by a side-wind and a
scanty majority, carrying an amendment to defer any decision of the
matter till the next session. Sir George, however, was not discouraged;
he renewed his motion in 1769, when it was carried by a large majority,
with an additional clause extending its operation to the Colonies in
North America; and thus, in respect of its territorial rights, the crown
was placed on the same footing as any private individual, and the same
length of tenure which enabled a possessor to hold a property against
another subject henceforth equally enabled him to hold it against the
crown. The policy not less than the justice of such an enactment might
have been thought to commend it to every thinking man as soon as the
heat engendered by a party debate had passed away. It had merely placed
the sovereign and the subject on the same footing in respect of the
security which prescription gave to possession. And it might, therefore,
have been thought that the vote of 1769 had settled the point in every
case; since what was the law between one private individual and another,
and between the sovereign and a subject, might well have been taken to
be of universal application. But the ministry were strangely unwilling
to recognize such a universal character in the late act, and found in
the peculiar character of ecclesiastical bodies and ecclesiastical
property a pretext for weakening the force of the late enactment, by
denying the applicability of the principle to the claims of
ecclesiastical chapters. In 1772 Mr. Henry Seymour, one of the members
for Huntingdon, moved for leave to bring in a bill, which he described
as one "for quieting the subjects of the realm against the dormant
claims of the Church;" or, in other words, for putting the Church on the
same footing with respect to property which had passed out of its
possession as the crown had been placed in by the act of 1769. He
contended that such a bill ought to be passed, not only on the general
principle that possessors who derived their property from one source
ought not to be less secure than they who derived it from another, but
also on the grounds that, as ecclesiastical bodies occasionally used
their power, "length of possession, which fortified and strengthened
legal right and just title in every other case, did in this alone render
them more weak and uncertain," from the difficulty which often occurred
in finding documentary proof of very ancient titles; and that this was
not an imaginary danger, since a member of the House then present had
recently lost £120,000 by a bishop reviving a claim to an estate after
the gentleman's family had been in undisturbed possession of it above a
hundred years. The defence of the Church, however, was taken up by Mr.
Skinner, Attorney-general for the Duchy of Lancaster, who argued that
though, in the case of the crown, the _nullum tempus_ which it had
formerly claimed, and which had been put an end to in 1769, was "an
engine in the hands of the strong to oppress the weak, the _nullum
tempus_ of the Church was a defence to the weak against the strong," as
its best if not its sole security "against the encroachment of the
laity." The "Parliamentary History" records that in the course of a long
debate Lord North opposed the bringing in of the bill, as did "the
Lord-advocate of Scotland, who gave as a reason in favor of the bill,
though he voted against it, that a law of similar nature had passed in
Scotland, and that the whole kingdom, clergy as well as laity, found the
very best effects from it."[24] Burke argued in favor of the bill with
great force, declaring that in so doing "he did not mean anything
against the Church, her dignities, her honor, her privileges, or her
possessions; he should wish even to enlarge them all; but this bill was
to take nothing from her but the power of making herself odious." But
the ministerial majority was too well disciplined to be broken, and Mr.
Seymour could not even obtain leave to bring in the bill.
The year 1772 was marked by the discussion of a measure which the King
seems to have regarded as one of private interest only, affecting his
personal rights over his own family. But it is impossible to regard
transactions which may affect the right of succession to the throne as
matters of only private interest. And indeed the bill was treated as one
involving a constitutional question by both sides of both Houses, and as
such was discussed with remarkable earnestness, and with vehemence
equalling that of any other debate which had as yet taken place since
the commencement of the reign. The bill had its origin in the personal
feelings of the King himself, who had been greatly annoyed at the
conduct of his brother, the Duke of Cumberland, in marrying a widow of
the name of Horton, daughter of Lord Irnham, and sister of the Colonel
Luttrell whom the vote of the House of Commons had seated as member for
Middlesex; and perhaps still more at the discovery that his other
brother, the Duke of Gloucester, to whom he was greatly attached, had
married another subject, the widowed Lady Waldegrave. His Majesty's
dissatisfaction was, perhaps, heightened by the recollection that he
himself, in early manhood, had also been strongly attracted by the
charms of another subject, and had sacrificed his own inclinations to
the combined considerations of pride of birth and the interests of his
kingdom. And, though there was a manifest difference between the
importance of the marriage of the sovereign himself and that of princes
who were never likely to become sovereigns, he thought it not
unreasonable that he should be empowered to exercise such a general
guardianship over the entire family, of which he was the head, as might
enable him to control its members in such arrangements, by making his
formal sanction indispensable to the validity of any matrimonial
alliances which they might desire to contract. A somewhat similar
question had been raised in 1717, when George I., having quarrelled with
the Prince of Wales (afterward George II.), asserted a claim to control
and direct the education of all the Prince's children, and, when they
should be of marriageable age, to arrange their marriages. The Prince,
on the other hand, insisted on his natural and inalienable right, as
their father, to have the entire government of his own offspring, a
right which, as he contended, no royal prerogative could be enabled or
permitted to override. That question was not, however, brought before
Parliament, to which, at that time, the King could, probably, not have
trusted for any leanings in his favor; but he referred it, in an
informal way, to the Lord Chancellor (Lord Cowper) and the Common-law
Judges. They investigated it with great minuteness. A number of
precedents were adduced for the marriage and education of the members of
the royal family being regulated by the sovereign, beginning with Henry
III., who gave his daughter Joan, without her own consent, in marriage
to the King of Scotland, and coming down to the preceding century, at
the commencement of which the Council of James I. committed the Lady
Arabella Stuart and Mr. Seymour to the Tower for contracting a secret
marriage without the King's permission, and at the end of which King
William exercised the right of selecting a tutor for the Duke of
Gloucester, the son of the Princess Anne, without any consultation with
the Princess herself; and finally the judges, with only two dissenting
voices, expressed their conviction that the King was entitled to the
prerogative which he claimed. The case does not, however, seem to have
been regularly argued before them; there is no trace of their having
been assisted in their deliberations by counsel on either side, and
their extra-judicial opinion was clearly destitute of any formal
authority;[25] so that it came before Parliament in some degree as a new
question.
But George III. was not of a disposition to allow such matters to remain
in doubt, and, in compliance with his desire, a bill was, in 1772,
introduced by Lord Rochfort, as Secretary of State, which proposed to
enact that no descendants of the late King, being children or
grandchildren, and presumptive heirs of the sovereign, male or female,
other than the issue of princesses who might be married into foreign
families, should be capable of contracting a valid marriage without the
previous consent of the reigning sovereign, signified under his
sign-manual, and that any marriage contracted without such consent
should be null and void. The King or the ministers apparently doubted
whether Parliament could be prevailed on to make such a prohibition
life-long, and therefore a clause was added which provided that if any
prince or princess above the age of twenty-five years should determine
to contract a marriage without such consent of the sovereign, he or she
might do so on giving twelve months' notice to the Privy Council; and
such marriage should be good and valid, unless, before the expiration of
the twelve months, both Houses of Parliament should declare their
disapproval of the marriage. The concluding clause of the bill made it
felony "to presume to solemnize, or to assist, or to be present, at the
celebration of any such marriage without such consent being first
obtained."
The bill was stoutly resisted in both Houses at every stage, both on the
ground of usage and of general principle. It was positively denied that
the "sovereign's right of approving of all marriages in the royal
family," which was asserted in the preamble of the bill, was either
founded in law, or established by precedent, or warranted by the opinion
of the judges. And it was contended that there never had been a time
when the possession of royal rank had been considered necessary to
qualify any one to become consort of an English prince or princess. It
had not even been regarded as a necessary qualification for a queen.
Three of the wives of Henry VIII. had been English subjects wholly
unconnected with the royal family; nor had the Parliament nor the people
in general complained of any one of those marriages; moreover, two of
his children, who had in their turn succeeded to the crown, had been the
offspring of two of those wives; and in the last century James II.,
while Duke of York, had married the daughter of an English gentleman;
and, though it had not been without notorious reluctance that his royal
brother had sanctioned that connection, it was well known that Charles
II. himself had proposed to marry the niece of Cardinal Mazarin. In the
House of Peers, Lord Camden especially objected to the clause annulling
a marriage between persons of full age; and in the Commons, Mr.
Dowdeswell, who had been Chancellor of the Exchequer in Lord
Rockingham's administration, dwelt with especial vigor on the
unreasonableness of the clause which fixed twenty-five as the age before
which no prince or princess could marry without the King's consent.
"Law, positive law," he argued, "and not the arbitrary will of an
individual, should be the only restraint. Men who are by law allowed at
twenty-one[26] to be fit for governing the realm may well be supposed
capable of choosing and governing a wife."[27] Lord Folkestone condemned
with great earnestness the expression in the preamble that the bill was
dictated "by the royal concern for the honor and dignity of the crown,"
as implying a doctrine that an alliance of a subject with a branch of
the royal family is dishonorable to the crown--a doctrine which he
denounced as "an oblique insult" to the whole people, and which, as
such, "the representatives of the people were bound to oppose." And he
also objected to the "vindicatory part," as he termed the clause which
declared those who might assist, or even be present, at a marriage
contracted without the royal permission guilty of felony.[28]
The ministry, however, had a decided majority in both Houses, and the
bill became and remains the law of the land, though fourteen peers,
including one bishop, entered a protest against it on nine different
grounds, one of which condemned it as "an extension of the royal
prerogative for which the great majority of the judges found no
authority;" while another, with something of prophetic sagacity, urged
that the bill "was pregnant with civil discord and confusion, and had a
natural tendency to produce a disputed title to the crown."
It may be doubted whether the circumstances which had induced George
III. to demand such a power as that with which the bill invested him
justified its enactment. He was already the father of a family so
numerous as to render it highly improbable that either of his brothers
or any of their children would ever come to the throne; while, as a
previously existing law barred any prince or princess who might marry a
Roman Catholic from the succession, the additional restraint imposed by
the new statute practically limited their choice to an inconveniently
small number of foreign royal houses, many of which, to say the least,
are not superior in importance or purity of blood to many of our own
nobles.
Nor can it be said to have been successful in accomplishing his
Majesty's object. It is notorious that two of his sons, and very
generally believed that one of his daughters, married subjects; the
Prince of Wales having chosen a wife who was not only inferior in rank
and social position to Lady Waldegrave or Mrs. Horton, but was moreover
a Roman Catholic; and that another of his sons petitioned more than once
for permission to marry an English heiress of ancient family. And our
present sovereign may be thought to have pronounced her opinion that the
act goes too far, when she gave one of her younger daughters in marriage
to a nobleman who, however high in rank, has no royal blood in his
veins. The political inconvenience which might arise from the
circumstance of the reigning sovereign being connected by near and
intimate relationship with a family of his British subjects will,
probably, always be thought to render it desirable that some restriction
should be placed on the marriage of the heir-apparent; but where the
sovereign is blessed with a numerous offspring, there seems no
sufficient reason for sending the younger branches of the royal house to
seek wives or husbands in foreign countries. And as the precedent set in
the case of the Princess Louise has been generally approved, it is
probable that in similar circumstances it may be followed, and that such
occasional relaxation of the act of 1772 will be regarded as justified
by and consistent with the requirements of public policy as well as by
the laws of nature.[29] Generally speaking, the two Houses agreed in
their support of the ministerial policy both at home and abroad; but, in
spite of this political harmony, a certain degree of bad feeling existed
between them, which on one occasion led to a somewhat singular scene in
the House of Commons. The Commons imputed its origin to the discourtesy
of the Lords, who, when members of the Commons were ordered by their
House to carry its bills up to the peers, sometimes kept them "waiting
three hours in the lobby among their lordships' footmen before they
admitted them." Burke affirmed that this had happened to himself, and
that he "spoke of it, not out of any personal pride, nor as an indignity
to himself, but as a flagrant disgrace to the House of Commons, which,
he apprehended, was not inferior in rank to any other branch of the
Legislature, but co-ordinate with them." And the irritation which such
treatment excited led the Commons, perhaps not very unnaturally, to seek
some opportunity to vindicate their dignity. They found it in an
amendment which the Lords made on a corn bill. In the middle of April,
1772, resolutions had been passed by the Commons, in a committee of the
whole House, imposing certain duties on the importation of wheat[30] and
other grain when they were at a certain price, which was fixed at 48s.,
and granting bounties on exportation when the price fell below 44s. The
Lords made several amendments on the bill, and, among others, one to
strike out the clause which granted bounties. But when the bill thus
amended came back to the Commons, even those who disliked the principle
of bounties resented this act of the Lords in meddling with that
question, which they regarded as a violation of their peculiar and most
cherished privilege, the exclusive right of dealing with questions of
taxation. Governor Pownall, who had charge of the bill, declared that
the Lords had forgotten their duty when they interfered in raising money
by the insertion of a clause that "no bounty should be paid upon
exported corn." And on this ground he moved the rejection of the
bill.[31] In the last chapter of this volume, a more fitting occasion
for examining the rights and usages of the House of Lords with respect
to money-bills will be furnished by a series of resolutions on the
subject, moved by the Prime-minister of the day. It is sufficient here
to say that the power of rejection is manifestly so different from that
of originating grants--which is admitted to belong exclusively to the
Commons--and that there were so many precedents for the Lords having
exerted this power of rejection in the course of the preceding century,
that they probably never conceived that in so doing now they were
committing any encroachment on the constitutional rights and privileges
of the Lower House. But on this occasion the ill-feeling previously
existing between the two Houses may be thought to have predisposed the
Commons to seek opportunity for a quarrel. And there never was a case in
which both parties in the House were more unanimous. Governor Pownall
called the rejection of the clause by the Lords "a flagrant encroachment
upon the privileges of the House," and affirmed that the Lords had
"forgotten their duty." Burke termed it "a proof that the Lords did not
understand the principles of the constitution, an invasion of a known
and avowed right inherent in the House as the representatives of the
people," and expressed a hope that "they were not yet so infamous and
abandoned as to relinquish this essential right," or to submit to "the
annihilation of all their authority." Others called it "an affront which
the House was bound to resent, and the more imperatively in consequence
of the absence of a good understanding between the two Houses." And the
Speaker, Sir John Cust, went beyond all his brother members in violence,
declaring that "he would do his part in the business, and toss the bill
over the table." The bill was rejected _nem. con._, and the Speaker
tossed it over the table, several of the members on both sides of the
question kicking it as they went out;[32] and to such a pitch of
exasperation had they worked themselves up, that "the Game Bill, in
which the Lords had made alterations, was served in a similar manner,"
though those alterations only referred to the penalties to be imposed
for violations of the Game-law, and could by no stretch of ingenuity be
connected with any question of taxation.
Notes:
[Footnote 16: A motion was, indeed, made (but the "Parliamentary
History," xvi., 55, omits to state by whom) that the House should
"humbly entreat his Majesty, out of his tender and paternal regard for
his people, that he would be graciously pleased to name the person or
persons whom, in his royal wisdom, he shall think fit to propose to the
consideration of Parliament for the execution of those high trusts, this
House apprehending it not warranted by precedent nor agreeable to the
principles of this free constitution to vest in any person or persons
not particularly named and approved of in Parliament the important
offices of Regent of these kingdoms and guardian of the royal offspring
heirs to the crown." But "it passed in the negative," probably, if we
may judge by other divisions on motions made by the same party, by an
overwhelming majority.]
[Footnote 17: No one doubted that this choice had been made under the
influence of Lord Bute, and was designed for the preservation of that
influence.--Lord Stanhope, _History of England_, v., 41.]
[Footnote 18: In his speech in the House of Lords on the Regency Bill of
1840, the Duke of Sussex stated that George III. had nominated the Queen
as Regent in the first instance, and, in the event of her death, the
Princess Dowager.]
[Footnote 19: "Lives of the Chancellors," c. cxli.]
[Footnote 20: It appears from these dates that it was not yet understood
that Parliament could not be prorogued for a longer period than forty
days.]
[Footnote 21: These words occur in a speech attributed to Lord
Mansfield. There is no detailed account of the debates on this subject
in either House. All that exists in the "Parliamentary History" is a
very brief abstract of the discussion in the Commons, and a document
occupying above sixty pages of the same work (pp. 251-314), entitled "A
Speech on behalf of the Constitution against the Suspending and
Dispensing Prerogative," etc., with a foot-note explaining that "this
speech was supposed to be penned by Lord Mansfield, but was, in fact,
written by Mr. Macintosh, assisted by Lord Temple and Lord Lyttleton."
It certainly seems to contain internal evidence that it was not written
by any lawyer, from the sneers at and denunciations of lawyers which it
contains, as a class of men who "have often appeared to be the worst
guardians of the constitution, and too frequently the wickedest enemies
to, and most treacherous betrayers of, the liberties of their country."
But, by whomsoever it was "penned" and published, the arguments which it
contains against the dispensing power were, probably, those which had
been urged by the great Chief-justice, and as such I have ventured to
cite them here.]
[Footnote 22: In his "Lives of the Chief-justices" (c. xxxvi., life of
Lord Mansfield), Lord Campbell says, with reference to this case: "The
Chief-justice's only considerable public exhibition during this period
was his attack on the unconstitutional assertion of Lord Chatham and
Lord Camden, that, in a case of great public emergency, the crown could
by law dispense with an act of parliament. The question arising from the
embargo on the exportation of corn, in consequence of apprehended
famine, he proved triumphantly that, although the measure was expedient
and proper, it was a violation of law, and required to be sanctioned by
an act of indemnity." And Lord Campbell adds, in a note: "This doctrine,
acted upon in 1827, during the administration of Mr. Canning, and on
several subsequent occasions, is now universally taken for
constitutional law" (ii., 468).]
[Footnote 23: To adduce a single instance, worthy of remark as affecting
the personal liberty of the subject, in 1818 a bill of indemnity was
passed to sanction the action of the ministry in arresting and detaining
in prison, without bringing them to trial, several persons accused of
being implicated in seditious proceedings (_vide infra_).]
[Footnote 24: Vol. xvii., 304.]
[Footnote 25: The case is mentioned by Lord Campbell in his "Lives of
the Chancellors," c. cxxi. (life of Lord Macclesfield) and c. cxxiv.
(life of Lord Chancellor King).]
[Footnote 26: In fact, however, the age at which a young prince was
considered competent to exercise the royal authority in person had been
fixed at eighteen; and it is so stated in the speech in which the King,
in 1765, recommended the appointment of a Regent to Parliament.--
_Parliamentary History_, xvi., 52.]
[Footnote 27: This idea was expanded into an epigram, which appeared in
most of the daily papers, and has been thought worthy of being preserved
in the "Parliamentary History," xvii., 401 (note):
"Quoth Dick to Tom, 'This act appears
Absurd, as I'm alive,
To take the crown at eighteen years,
A wife at twenty-five.
The mystery how shall we explain?
For sure, as Dowdeswell said,
Thus early if they're fit to _reign_,
They must be fit to _wed_.'
Quoth Tom to Dick, 'Thou art a fool,
And nothing know'st of life;
Alas! it's easier far to rule
A kingdom than a wife.'"]
[Footnote 28: It is remarkable that this clause on one occasion proved
an obstacle to the punishment of the abettors of such a marriage. In
1793 the Duke of Sussex married Lady Augusta Murray, first at Rome, and
afterward, by banns, at St. George's, Hanover Square. And when the
affair came to be investigated by the Privy Council, Lord Thurlow
denounced the conduct of the pair in violent terms, and angrily asked
the Attorney-general, Sir John Scott, why he had not prosecuted all the
parties concerned in this abominable marriage. Sir John's reply, as he
reported it himself, was sufficiently conclusive: "I answered that it
was a very difficult business to prosecute; that the act, it was
understood, had been drawn by Lord Mansfield, the Attorney-general
Thurlow, and the Solicitor-general Wedderburn, who, unluckily, had made
all persons present at the marriage guilty of felony. And as nobody
could prove the marriage except a person who had been present at it,
there could be no prosecution, because nobody present could be compelled
to be a witness."--THORP'S _Life of Eldon_, i., 235.]
[Footnote 29: A protest against the bill, entered by fourteen peers,
including one bishop (of Bangor), denounced it, among other objections,
as "contrary to the original inherent rights of human nature ...
exceeding the power permitted by Divine Providence to human legislation
... and shaking many of the foundations of law, religion, and public
security."--_Parliamentary History_, xvii., 391.]
[Footnote 30: The import duty on wheat was fixed at 6_d_. a quarter on
grain, and 2_d_. per cwt. on flour, when the price of wheat in the
kingdom should be at or above 48s.; when it was at or above 44s., the
exportation was to be altogether prohibited.--_Parliamentary History_,
xvii., 476.]
[Footnote 31: See Hallam, "Constitutional History," iii., 38-46, ed.
1833, where, as far as the imperfection of our early Parliamentary
records allows, he traces the origin of the assertion of this peculiar
privilege by the Commons, especially referring to a discussion of the
proper limits of this privilege in several conferences between the two
Houses; where, as on some other occasions, he sees, in the assertion of
their alleged rights by the Commons, "more disposition to make
encroachments than to guard against those of others." A few years before
(in 1763), the House of Lords showed that they had no doubt of their
right to reject a money-bill, since they divided on the Cider Bill,
which came under that description. As, however, the bill was passed,
that division was not brought under the notice of the House. But in
1783, in the time of the Coalition Ministry, the peers having made
amendments on the American Intercourse Bill, "the Speaker observed that,
as the bill empowered the crown to impose duties, it was, strictly
speaking, a money-bill, and therefore the House could not, consistently
with its own orders, suffer the Lords to make any amendments on it, and
he recommended that the consideration of their amendments should be
postponed for three months, and in the mean time a new bill framed
according to the Lords' amendments should be passed." The recommendation
was approved by Mr. Pitt, as leader of the Opposition, and approved and
acted on by Mr. Fox, as leader of the ministry in that House. But, at
the same time, Mr. Fox fully admitted the right of the Lords to discuss
such questions, "for it would be very absurd indeed to send a loan bill
to the Lords for their concurrence, and at the same time deprive them of
the right of deliberation. To lay down plans and schemes for loans
belonged solely to the Commons; and he was willing, therefore, that the
amended bill should be rejected, though he was of opinion that the order
of the House respecting money-bills was often too strictly construed."
And he immediately moved for leave to bring in a new bill, which was
verbatim the same with the amended bill sent down by the
Lords.--_Parliamentary History_, xxiii., 895. The question was revived
in the present reign, on the refusal of the Lords to concur in the
abolition of the duty on paper, when the whole subject was discussed
with such elaborate minuteness, and with so much more command of temper
than was shown on the present occasion, that it will be better to defer
the examination of the principle involved till we come to the history of
that transaction.]
[Footnote 32: "Parliamentary History," xvii., 515.]