Charles Duke Yonge.

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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



Online LibraryCharles Duke YongeThe Constitutional History of England from 1760 to 1860 → online text (page 5 of 43)