The Constitutional History of England From 1760 to 1860
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"But to revert to the law of responsibility. This ought not to be in effect a safeguard for law itself. As such, it is superfluous in this country, where law reigns, and where it would never occur to any one that this could be otherwise. But upon the Continent it is of the highest importance; as, where the government is an outgrowth of a relation of supremacy and subordination between sovereign and subject, and the servant, trained in ideas natural to this relation, does not know which to obey, the law of the sovereign, the existence of such a law would deprive him of the excuse which, should he offend the law, and so be guilty of a crime, is ready to his hand in the phrase, 'The sovereign ordered it so, I have merely obeyed,' while it would be a protection to the sovereign that his servants, if guilty of a crime, should not be able to saddle him with the blame of it."-Life of the Prince Consort, v., 262.]
[Footnote 7: "Lives of the Lord Chancellors," c. cxliii.]
[Footnote 8: Indeed, the opinion which Lord Campbell thus expresses is manifestly at variance with that which he had previously pronounced in his life of Lord Northington, where he praised the House of Lords for "very properly rejecting the bill passed by the Commons declaring general warrants to be illegal, leaving this question to be decided (as it was, satisfactorily) by the Courts of Common Law."]
[Footnote 9: From a speech of Mr. Grenville delivered at a later period (February 3, 1769, "Parliamentary History," xvi., 548), it appears that the Secretaries of State who signed this general warrant did so against their own judgment. "They repeatedly proposed to have Wilkes's name inserted in the warrant of apprehension, but were overruled by the lawyers and clerks of the office, who insisted that they could not depart from the long-established precedents and course of proceeding." And in one of these debates, Mr. Pitt, while denouncing with great severity Grenville's conduct in procuring the issue of this particular warrant, was driven to a strange confession of his own inconsistency, since he was forced to admit that, while Secretary of State, he had issued more than one general warrant in exactly similar form.]
[Footnote 10: Strange to say, it does not seem absolutely certain that Wilkes was the author of the "Essay on Woman." Horace Walpole eventually learned, or believed that he had learned, that the author was a Mr. Thomas Potter. (See Walpole's "George III.," i., 310; and Cunningham's "Note on his Correspondence," iv., 126.)]
[Footnote 11: These are the words of the resolution.-Parliamentary History, xvi., 537. But it does not appear what the three libels were. The "Essay on Woman" was one, the paraphrase of "Veni Creator" was a second; no third of that character is mentioned.]
[Footnote 12: The last resolution is approved by Mr. Hallam. "If a few precedents were to determine all controversies of constitutional law, it is plain enough from the journals that the House has assumed the power of incapacitation. But as such authority is highly dangerous and unnecessary for any good purpose, and as, according to all legal rules, so extraordinary a power could not be supported except by a sort of prescription that cannot be shown, the final resolution of the House of Commons, which condemned the votes passed in times of great excitement, appears far more consonant to first principles."-Constitutional History, iii., 357.]
[Footnote 13: Adolphus, "History of England," i., 484.]
[Footnote 14: An idea of the license which the newspapers complained of had permitted themselves at this time may be derived from the manner in which one of them had introduced a speech of Mr. Jeremiah Dyson, M.P. for Weymouth, and a Commissioner of the Treasury: "Jeremiah Weymouth, the d--n of the kingdom, spoke as follows." And it may seem that the Opposition (for the affair was made a party question) can hardly be acquitted of a discreditable indifference to the dignity of the House in supporting a resolution of Colonel Barre, that "Jeremiah Weymouth, the d--n of this kingdom, is not a member of this House." On which the previous question was moved by the ministers, and carried by 120 to 38.-Parliamentary History, xvii., 78. And an instance of rather the opposite kind, of the guarded way in which the most respectable publications were as yet accustomed to relate the transactions of Parliament, may be gathered from the account of the proceedings in the case of Wilkes, given in the "Annual Register" for 1770-drawn up, probably, by Burke himself-in which Lord Camden is only mentioned as "a great law lord;" Lord Chatham as "Lord C--m;" Lord Rockingham as "a noble Marquis who lately presided at the head of public affairs;" the King as "the K--;" Parliament as "P.;" and the House of Commons as the "H. of C."-Annual Register, 1770, pp. 59-67.]
[Footnote 15: On more than one occasion there had been disturbances in the City, and in the streets adjacent to the Houses of Parliament, which were little short of riot. One day the mob paraded effigies of the principal ministers, which, after hanging and beheading them, they committed to the flames with great uproar. On another day Mr. Charles Fox (as yet a vehement Tory) complained to the House that the mob in Palace Yard had insulted him, breaking the glasses of his chariot, and pelting him with oranges, stones, etc.-Parliamentary History, xvii., 163.]
CHAPTER II. 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 lawy
er (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.