The Constitutional History of England From 1760 to 1860

by Charles Duke Yonge

  It may, probably, be regarded as fortunate for the peace of the kingdom that the Prince, who eventually became King George IV., left behind him no issue from his marriage with the Princess, the failure of heirs of his body thus removing any temptation to raise the question whether he had not himself forfeited all right to succeed to the throne by his previous marriage to a Roman Catholic. A clause of the Bill of Rights provides that any member of the royal family who should marry a Roman Catholic (with the exception of the issue of princesses who may be the wives of foreign princes) shall by that marriage be rendered incapable of inheriting the crown of England. And though the Royal Marriage Act (which, as we have seen, had been recently passed) had enacted that no marriage of any member of the royal family contracted without the consent of the reigning sovereign should be valid, it by no means follows that an invalidity so created would exempt the contractor of a marriage with a Roman Catholic, which as an honorable man he must be supposed to have intended to make valid, from the penalties enacted by the Bill of Rights. It is a point on which the most eminent lawyers of the present day are by no means agreed. The spirit of the clause in that bill undoubtedly was, that no apparent or presumptive heirs to the crown should form a matrimonial connection with any one who should own allegiance to a foreign power, and that spirit was manifestly disregarded if a prince married a Roman Catholic lady, even though a subsequent law had enacted a conditional invalidity of such a marriage. We may find an analogy to such a case in instances where a man has abducted a minor, and induced her to contract a marriage with himself. The lady may not have been reluctant; but the marriage has been annulled, and the husband has been criminally prosecuted, the nullity of the marriage not availing to save him from conviction and punishment. A bigamous marriage is invalid, but the bigamist is punished. And, apart from any purely legal consideration, it may be thought that public policy forbids such a construction of law as would make the illegality or invalidity of an act (and all illegal acts must be more or less invalid) such a protection to the wrong-doer as would screen him from punishment.

  Whatever may be the judgment formed on the legal aspect and merits of the case, the conduct of the Prince could not fail to give the great body of the people, justly jealous at all times of their national adherence to truthfulness and honesty, a most unfavorable impression of his character. As has been already mentioned, Fox was so indignant at having been made the instrument to assure the Parliament and the nation of a falsehood, that he for a time broke off all communication with him.[115] Yet a singular caprice of fortune, or, it would be more proper to say, a melancholy visitation of Providence, before the end of the following year led Fox to carry his championship of the same Prince who had so abused his confidence to the length of pronouncing the most extravagant eulogies on his principles, and on his right to the confidence and respect of the nation at large. In the autumn of 1788 the King fell into a state of bad health, which in no long time affected his mind, and, by the middle of November, had so deranged his faculties as to render him incapable of attending to his royal duties, or, in fact, transacting any business whatever. Parliament was not sitting, but its re-assembling had been fixed for the 4th of December, and before that day arrived the King's illness had assumed so alarming a character, and it appeared so unsafe to calculate on his immediate recovery, that the minister summoned a Privy Council, the summons being addressed to the members of the Opposition as well as to his own followers, to receive the opinions of the physicians in attendance on his Majesty, as a necessary foundation for the measures which he conceived it to be his duty to propose to Parliament. Those opinions were, that it was almost certain that the disease would not be permanent, though no one could undertake to fix its duration with the least appearance of probability. And, as the royal authority could not be left in abeyance, as it were, for an uncertain period, it was indispensable to appoint a Regent to conduct the affairs of the kingdom till the King should, happily, be once more in a condition to resume his functions.

  In considering the line of conduct adopted in this emergency by Pitt and his great rival Fox, Pitt has one manifest advantage on his side, that it is impossible to attribute the course which he took to any personal motive, or any desire for the retention of official power; while it is equally impossible to doubt that Fox was in no slight degree,[116] and that Lord Loughborough, the prince's chief adviser on points of law, was wholly influenced by the hope of supplanting the ministry. Pitt had never the least doubt that on the establishment of the Regency he should be dismissed, and was prepared to return to the Bar. But his knowledge of the preference which the Prince entertained for his rival did not lead him to hesitate for a single moment as to the propriety of placing him in a situation to exercise that preference. On the reassembling of Parliament, he at once took what he conceived to be the proper parliamentary course of proceeding; at his suggestion committees in both Houses were appointed to take a formal examination of the royal physicians; and, when those committees had reported that the King was for the present incapable of discharging his royal functions, though likely at some future period to be able to resume them, he moved the House of Commons to appoint another committee, to search for "precedents of such proceedings as might have been taken in the case of the personal exercise of the royal authority being prevented or interrupted by infancy, sickness, or infirmity, with a view to provide for the same." Such a search for precedents was no novelty, and may be thought to have been especially proper in such a case as this, since history recorded the appointment of several regencies, one under circumstances strikingly resembling those now existing, when, in 1454, Henry VI. had fallen into a state of imbecility, and the Parliament appointed the Duke of York Protector[117] of the kingdom.

  But Fox instantly opposed it with extreme vehemence, declaring that the appointment of such a committee would be a pure waste of time. It was notorious, he affirmed, that no precedent existed which could have any bearing on the present case, since there was in existence a person such as had never been found on any previous occasion, an heir-apparent of full age and capacity to exercise the royal authority; and he declared it to be his deliberate opinion that the Prince of Wales had "as clear and express a right to assume the reins of government, and to exercise all the powers of sovereignty, during the illness and incapacity of the sovereign, as if that sovereign were actually deceased." Such an assertion of indefeasible right was so totally at variance with the Whig doctrines which Pitt, equally with Fox, regarded as the true principles of the constitution, that Pitt at once perceived the advantage which it gave him, by enabling him to stand forward as the supporter of the supreme authority of Parliament, which Fox had by implication denied. He instantly replied that to assert an inherent indefeasible right in the Prince of Wales, or any one else, independently of the decision of the two Houses, fell little short of treason to the constitution; but, at the same time, to prevent any one pretending to misconceive his intentions, he allowed it to be seen with sufficient plainness that, when once the right of Parliament to appoint the Regent had been established, he should agree in the propriety of conferring that office on the Prince of Wales. The committee was appointed; but, even before it could report the result of its investigations, the doctrine advanced by Fox had been the subject of discussion in the House of Lords, where Lord Camden, who had presided over the meeting of the Privy Council a few days before, on moving for the appointment of a similar committee of peers, had taken occasion to declare that, if Fox had made such an assertion as rumor imputed to him, it was one which had no foundation in "the common law of the kingdom." He had never read nor heard of such a doctrine. Its assertors might raise expectations not easily laid, and might involve the country in confusion. And he contended, as Pitt had done in the Commons, that its assertion was a strong argument in favor of the appointment of a committee, that it might be at once seen whether it were warranted by any precedent whatever. The reports of the two committees bore out Fox's statement, that no precedent entirely appl
icable to the case before them had ever occurred. But by this time Fox had learned that the argument which he had founded on it was in the highest degree unpalatable both to Parliament and to the nation; and for a moment he sought to modify it by an explanation that, though he had claimed for the Prince "the naked right, he had not by that expression intended to maintain that that right could be reduced into possession without the consent of Parliament;" an explanation not very reconcilable to common sense, since, if a right were inherent and indefeasible, Parliament could not, without absolute tyranny, refuse to sanction its exercise; and, in fact, his coadjutor, Sheridan, on the very same evening, re-asserted his original doctrine in, if possible, still more explicit terms, warning the minister "of the danger of provoking the Prince to assert his right," while a still greater man (Burke) declared that "the minister had taken up an attitude on the question tantamount to that of setting himself up as a competitor to the Prince." Such inconsiderate violence gave a great advantage to Pitt, one of whose most useful characteristics as a debater was a readiness and presence of mind that nothing could discompose. He repelled such menaces and imputations with an equally lofty scorn, and, after a few necessary preliminaries, brought forward a series of resolutions, one of which declared the fact of the sovereign's illness, and consequent incapacity; a second affirmed it to be the right and duty of the two Houses of Parliament to provide the means for supplying the defect in the royal authority; and a third imposed on the Houses the task of deciding on the mode in which the royal assent necessary to give their resolutions the authority of law should be signified. It was impossible to object to the first; but the second was stubbornly contested by the Opposition, the chiefs of the Coalition Ministry once more fighting side by side; though Lord North contented himself with arguing that the affirmation of the right and duty of Parliament was a needless raising of a disputable point, and moving, therefore, that the committee should report progress, as the recognized mode of shelving it. Fox, however, carried away by the heat of debate, returned to the assertion of the doctrine of absolute right, overlooking his subsequent modification of it, and again gave Pitt the advantage, by condescending to impugn his motives for proposing the resolution, as being inspired, not by a zeal for the constitution, but by a consciousness that he did not deserve the confidence of the Prince, and, therefore, anticipated his instant dismissal by the Regent. The re-affirmation of the Prince's inherent right was, indeed, necessary to Fox as the foundation for the objections which he took to other parts of Pitt's scheme. For the minister, while admitting to its full extent the irresistible claim which the Prince of Wales possessed to the preference of Parliament for the Regency, proposed at the same time to impose certain limitations on his exercise of the authority, so long as there was a reasonable hope of his royal father's recovery. He was not to have the power to create peerages, nor to alienate the property of the crown, nor to grant offices in reversion; and, as the Queen was to have the care of his Majesty's person, she also was to have the appointment of all the offices in the royal household. Fox, on the other hand, objected with extreme earnestness to the impropriety of imposing any limitations whatever on the power of the Regent; and then the question whether the Prince was to derive his right to the Regency from the authority of Parliament, or from his natural position and inalienable preceding right as his father's heir, became one of practical importance. If the Parliament had the right to confer authority, it had clearly the right to limit the authority it conferred. If the Prince had an indefeasible right to the Regency, independently of the will of Parliament, then Parliament could have no pretence to limit or restrain the exercise of an authority which in no degree flowed from itself. Fox, indeed, took another objection to the imposing of limitations to the authority to be intrusted to the Regent, contending that this would be to create a power unknown to the constitution-a person in the situation of King without regal power. But, not to mention precedents drawn from the reigns of Edward III., Richard II., and Henry VI., in the twenty-fourth year of the very last reign, George II., on the death of his son, the father of the present King, had enjoined the Parliament to provide for the government, in the case of his own death, while the heir was still a minor, recommending to them the appointment of the Princess Dowager of Wales as Regent, "with such powers and limitations as might appear expedient." And, in conformity with his desire, the Parliament had appointed the Princess Regent, with a Council of Regency to assist her; and had enacted that "several portions of the regal power" should be withheld from the Regent, if she could not obtain the consent of the Council thus appointed.[118]

  This part of the case was so plain, that when, after the different resolutions proposed by Pitt had been adopted in both Houses, Fox insisted that, instead of proceeding by a bill to create a Regency, and to appoint the Prince of Wales Regent, the only course which could be adopted with propriety would be to present an address to the Prince, to entreat him to assume the government, he failed to induce the House to agree with him; and finally, as if he were determined to find a battle-field in every clause, he made a vigorous resistance to the expedient by which Pitt proposed that the formal royal assent which was necessary to make the bill law should be given. Fox, on one occasion, had gone the length of denying that the two Houses had any right to be regarded as a Parliament while the King, an essential part of Parliament, was incapacitated. But such an objection could have had no force, even in the mind of him who raised it, since the proceedings of the two Convention Parliaments of 1660 and 1689 labored under a similar defect; and yet their acts had been recognized as valid, and ratified by subsequent Parliaments. And now, in reference to the expedient proposed by the minister, that the two Houses should empower and authorize the Lord Chancellor to affix the Great Seal to the bill, Burke, with great, but for him not unusual, violence, denounced both the proposal and the Chancellor, declaring that such a step would be the setting up of a phantom of sovereignty, a puppet, an idol, an idiot, to which he disclaimed all allegiance. A more perilous amendment was one proposed to another clause by Mr. Rolle, enacting that if the Regent should marry a Roman Catholic his authority should cease. Since the Bill of Rights, as we have seen, forbade a sovereign to marry a Roman Catholic without incurring the forfeiture of his crown, it was evidently reasonable that the same restriction should be imposed on every Regent; but it was hard at the moment altogether to dissociate such a clause from the discussions of the preceding year; and Mr. Rolle endeavored to give the clause a more pointed meaning by an amendment to enact that the forfeiture should be incurred by the mere celebration of any marriage ceremony, whether the marriage thus performed were legal and valid or not. His amendment, however, was unanimously rejected. The bill was passed without alteration by the House of Commons; the Prince, while protesting in an elaborate and most able letter, drawn up for him by Burke, against the restrictions imposed by the bill, nevertheless consented to sacrifice his own judgment to the general good of the kingdom, and to accept the authority, limited as it was. And by the middle of February the bill was sent up to the House of Lords. There Lord Camden had charge of it, and his position as a former Chancellor gave irresistible weight to his opinion that the mode proposed to give the final sanction to the bill was strictly in accordance with the spirit and practice of the constitution. The point with which he dealt was the previous one, how Parliament, which was to pass the bill, was to be opened, for, "circumstanced as it was, Parliament could not at present take a single step." The law, as he put it, declared that the King must be present, either in person or by a representative. When he could not attend personally, the legal and constitutional process was to issue letters-patent under the Great Seal. In the present dilemma, therefore, he recommended that the two Houses should direct letters-patent to be issued under the Great Seal, authorizing commissioners to open Parliament in the name of his Majesty. He "must use the liberty to say that those who treated this proposal with ridicule were ignorant of the laws of their country. A fiction it might be termed, but
it was a fiction admirably calculated to preserve the constitution, and, by adopting its forms, to preserve its substance." The authority of the Great Seal he explained to be such that, "even if the Lord Chancellor, by caprice, put it to any commission, it could not afterward be questioned;" and he adduced a precedent of a very similar character to the course now proposed, which occurred "at the commencement of the reign of Henry VI., when, the sovereign being an infant of nine months old, the Great Seal was placed in his hand, and it was supposed to be given to him by the Master of the Rolls, whereupon many commissions were sealed by it, and the government was carried on under its authority." That precedent, he reminded the peers, had been followed as recently as the year 1754, when, during an illness of George II., Lord Chancellor Hardwicke affixed the Great Seal to a commission for opening a session of Parliament. And, finally, he concluded by moving, "That it is expedient and necessary that letters-patent for opening the Parliament should pass under the Great Seal."[119] The motion was carried, and Parliament was opened in accordance with it; and, if it had been necessary, the same expedient would have sufficed to give the requisite assent to the Regency Bill, a necessity which was escaped by the fortunate recovery of the royal patient, which was announced by his medical advisers a day or two before that fixed for the third reading of the bill in the House of Lords.