following:" [The form that followed was the customary one of all commissions issued under the Great Seal of a parliamentary nature.] Lord Porchester began by stating, that in his mind it would be a sufficient answer to all the learned lord had said, to ask, if it were indispensably necessary to put the Great Seal to such a commission as was now proposed, why the proposition had not been made two months ago? But he would not content himself with that short reply; the proposition was so objectionable, that he would just state a few observations that occurred to his mind upon it. The two Houses had been obviously mispending their time, and drawing down ridicule on their own authority, by the manner in which they had proceeded. They had been induced to resolve, that it was their right and their duty to supply the defect in the exercise of the royal authority, and now they were told, by those who had persuaded them to vote such a resolution, that it was necessary to open the Parliament, and that a regent could not be made but by an act of Parliament. Another resolution they had voted, stated, that it was with a view to keep the royal authority whole and entire. And how had that object been fulfilled? by taking a portion of the royal authority into their own hands, by parcelling out another portion of it to the Queen, and by delivering over the remaining portion to the Regent; thereby enfeebling and maiming the necessary powers of government, and rendering it absolutely impossible that the country should be well governed, or governed with any degree of energy and vigour. His lordship warmly reprobated the folly of this system, and observed, that the perfection of the political capacity of the Crown was what the lawyers affected to adore, and to hold up as incapable of diminution; and yet, in the teeth of that doctrine, the two Houses had crippled and maimed that political perfection of the Crown, and were about, by their mode of proceeding, to send it down to Westminster-Hall, not such a deity as the lawyers professed to worship and adore, but an idol mangled and defaced, stript of its proportions, and deformed by the hand of illegal innovation and unconstitutional violence. Such an act as they meant to pass, would be disputed in the courts of law, and could therefore answer no wise purpose, because it must necessarily carry a forgery on the face of it. His lordship, in proof of this doctrine, referred to the 33d Hen. 8, whereby it was declared, that to pass a Bill legally, the King must either be present on the throne, and signify his assent to the same in person, or signify it by commissioners, authorized to declare it under letters patent, sealed with the King's sign manual, and subscribed with his name written by his own hand. This, his lordship contended, was clear and indisputable law, and as a proof that it was so, he produced and read an extract from an Act of the 1st of Philip and Mary, passed for the purpose of taking off the attainder of the duke of Norfolk. He explained, that during the last illness of Henry 8, while the King was incapable of any act of royal authority, an act was passed by the two Houses attainting the duke of Norfolk, which act, for the reason stated, received the royal assent by a commission that was issued under letters patent, wanting the King's sign manual. The Act of Philip and Mary, was a public act, being declaratory of the law of the land, and therefore it was to be relied on as indisputable authority. He condemned the proposed second commission for giving the royal assent to a bill, by the two Houses in the King's name, as an attempt to assume the exercise of the royal authority, and as something worse than nugatory, and insisted upon it, that whoever put the Great Seal to a commission, without the King's special authority, would be guilty of an illegal act. The learned lord had himself confessed, that the lord Chancellor did not dare to put the Great Seal to such a commission of his own accord. His lordship recurred to the precedent of the early part of Henry 6th's reign, and said, the learned lord had forgotten its nature. It stated, that the duke of Gloucester applied to parliament to know what powers he had in parliament? when the answer was, "you have no right to interfere, the king being in parliament, and of years of meet discretion." His lordship contended that the ground upon which the answer rested, was, the circumstance of Henry 6, having been brought down to his parliament at six years of age, and seated on his throne. His lordship said, that unless they meant to become a republic, the doctrine laid down that day, was the most dangerous that could be broached. There was, he observed, an other mode of proceeding, which although he did not wholly approve of it, was far Earl Fitzwilliam rose and remarked, that if the mode resorted to for leaving out his Royal Highness's name were suffered to go upon the Journals, it would convey a marked disrespect to his Royal Highness. preferable to that proposed; and that was, Highness the Prince of Wales, and deto order a commission to issue under theclared, "that the not-contents had it." Great Seal appointing a regent, and thus without delay restoring the royal authority. This mode would at least be free from all the other objections to which the mode proposed would be liable; it would save the royal prerogative from being invaded, and keep the legislative rights of the Crown sacred. There was an Act on the Statute book, passed in a reign many years antecedent to that of Henry 8, which stated that there should be no alteration of the prerogative: this was the 16th, Edw. 2. A declaration was also entered on the Journals of the House of Commons, which expressly maintained the same doctrine. His lordship concluded with declaring, that notwithstanding all the learned lord's arguments about the absolute necessity of the measure, he was convinced the end would be more constitutionally attained without it, and therefore he should vote against the motion. The Earl of Derby said, that the present difficulty arose from the reprehensible conduct of ministers, who had proceeded in all stages of the business without plan or system of any kind whatsoever. The duke of York had desired that neither his name, nor that of the Prince of Wales might stand in the commission. It was astonishing to him that the learned lord should not have been aware so lately as the preceding day, that it was intended to move for such a commission. He conceived it to have been impossible for the learned lord to have come forward and stated it to that House without having first consulted the Prince of Wales upon the subject. The learned lord had had, on the in-preceding day, an opportunity of communicating with his Royal Highness. Why did he not communicate the next step which was to be taken? If the learned lord had done this, the House would not have been involved in their present embarrassing situation. The measure, to which their lordships were so strangely called upon to give their consent, was one amongst numerous glaring instances of disrespect to the Prince of Wales. The Duke of York now rising, observed, that not having received any previous timation of a design to insert his name in the commission, he was of course prevented from embracing an earlier opportunity to declare that he could not give a sanction to the proceedings with his name, not wishing it to stand upon record, and be handed to posterity, as approving of such a measure. His opinion of the whole system adopted was already known; he deemed the measure proposed, as well as every other which had been taken, respecting the same subject, to be unconstitutional and illegal. He therefore, not only requested that his name might be left out of the commission, but was authorized to desire that the name of his brother, the Prince of Wales, might also not be inserted. The Lord President said, that he should not for a moment resist the royal duke's desire, but readily agree to omit his Royal Highness's name, and that of his Royal Highness the Prince of Wales. The Duke of Cumberland also desired that his name, and that of the duke of Gloucester might be omitted. Lord Walsingham suggested, that the regular parliamentary mode of proceeding was to read the passage of the commission desired to be omitted, and putting the question "That these words stand part of the motion." This being admitted to be proper, he put the question in form on the passage that described his Royal The Lord President said, that it was far from his idea, to show, by the insertion of their names in the commission, the least disrespect to the royal Princes. It was the uniform practice to insert the names of all the royal family who had seats in that House, in every commission that had any relation to parliamentary transactions. To have omitted their names would therefore have been a marked disrespect to their royal highnesses, and would, with great justice, have been urged as a matter of complaint and of censure, against his Majesty's ministers. Viscount Stormont suggested that the archbishop of Canterbury should stand as the first named commissioner, omitting the whole sentence that preceded his grace. The learned lord had said that in all commissions the names of the royal personages should be inserted. Here, therefore, lay the' mistake. The difference had not been observed between the pedient and necessary, that Letters Patent should pass under the Great Seal of Great Britain, of the tenor and in the form following," &c., was communicated to the Commons at a conference. After which the House resolved itself into a Com mittee on the State of the Nation. commission then proposed, and the commission which ordinarily issued. This difference was surely enough to have started a doubt in the minds of his Majesty's ministers, and to have induced them to have asked previously, whether their royal highnesses would or would not have chosen to have had their names inserted in such a commission. The Earl of Radnor thought it would be more regular and more satisfactory to the royal personages, who desired to have their names omitted in the commission, that the motion should stand as it was originally moved, and that they should annex a note, that the duke of York being present when the said motion was made, and expressing a desire that his name and that of the Prince of Wales be omitted, and the duke of Cumberland being also present, and having expressed a desire that his name and that of his royal brother the duke of Gloucester be omitted, leave was given to omit the same accordingly. The Duke of York expressed his concurrence with the proposed amendment, and declared, that although he had no direct authority from the Prince of Wales, to signify his desire, that his name might be omitted in the intended commission, yet, as his Royal Highness and he had entertained one and the same opinion respecting all the proceedings in this business, and considered the whole of the system adopted as unconstitutional and illegal, he would take upon himself to answer for the Prince of Wales. At length it was settled that the motion should stand as it did, and that, when reported to the House, lord Radnor should move his amendment, that it might appear on the Journals that it was at the desire of their Royal Highnesses that their names were omitted in the commission.-After some further conversation, the resolution was agreed to. It was next moved, "That the resolution be immediately reported to the House," which was done as soon as the House was resumed, and the House agreed to the resolution. The Earl of Radnor then moved his amendment, which was also voted. The blank in the commission was filled with the words, "Tuesday the 3d of February." Debate in the Commons on the Resolution respecting Letters Patent for Opening the Parliament.] Feb. 2. The Resolution of the Lords, "That it is ex Mr. Pitt then rose. He observed, that he considered it needless to take up much of the valuable time of the Committee, whilst he stated the reasons which induced him to come forward, and propose the motion, which had already been voted by the other House of parliament. In consequence of what had been agreed to in this and in the other House of parlia ment, it was incumbent upon them to pursue the necessary means for supplying the temporary deficiency of the executive power; and they had agreed, that no right to exercise the royal authority existed in any person during the present calamitous suspension of the exercise of the royal authority, and that no person could exercise such authority, but by the appointment of the two Houses. By the law and by the constitution it was evident that no such right existed; it was then to be asked, whether in providing for the deficiency of the third branch of the legislature, they were to act in their own name, or in the name of the King? To him it appeared immaterial, being substantially the same whichever mode should be adopted. The first question, then, that arose was, whether they should proceed with the royal assent or no? The second question was, in what manner was that assent to be procured? He was of opinion, that they should proceed with the assent of the King, for many reasons, the principal of which was, that the King was still upon the throne. Many had attempted to ridicule the power of obtaining the King's assent, and the political capacity of his Majesty; they would, however, find, that neither were inconsistent with the fundamental principle of the law, or contrary to common sense: for, if it had ever been agreed to, that natural incapacity in a sovereign took from him his political capacity, there would long since have been an end to hereditary succession, which must have been frequently inter rupted. The political capacity of the King was in his opinion clear; the Great Seal was the organ of the will of the King; by that instrument the will of the King was proclaimed. Even were the Lord Chancellor to use it with so much impropriety as to merit punishment, not- | powered to direct the use of the Great withstanding such an abuse of his power, Seal. In such use of the Great Seal, the instrument to which he affixed it there would not be, as was asserted, a would be, and must be, considered as law, fraud, or a fiction; they would be but acting which nothing could shake but an act of up to the principles of the constitution, parliament. If the power of the Great and to the emergency, of the case: and in Seal was, when improperly used, of such acting upon any great emergency, it was force, would any man say that when used necessary and prudent, as far as possible on the emergency of the moment for the to abide by the forms of law and the public safety, and under sanction of the constitution. The two Houses had prounited wisdom of the two Houses, it vided for the return of his Majesty to his would either be disputed in the courts of government; they had provided for the justice, or that the officer so using it dignity of their King during his indisposiwould be in the least censurable? It was tion; they had agreed to appoint one to evident, therefore, that there was a mode exercise for him and in his name, the which might be adopted, which might royal authority; but, they were to rerun in the name of the King, Lords, and member, that they were not about to Commons. The only question then which appoint a King, but a person to act in could arise would be, whether the two behalf, and in the name of a KingHouses should take upon themselves, in The other side of the House had gone their own name, the legislative act of upon the ground that there would be no appointing a regent, an officer unknown grossness in the Prince continually putto the law and constitution, or whether ting the Great Seal in the King's name to they should proceed in the measure pro- different instruments, but there would be posed, of ratifying their act by the name grossness and great impropriety in the of the King? The two Houses were parliament doing so, and that they ought bound to act up to the necessity of the to proceed without the King's name. No case, and to do no more. They would do man, he hoped, would argue, in such a no more by complying with the requisi- manner; no such argument, he was contion of their lordships; they would adopt vinced, could be supported: it was plainly a form in their proceedings that could necessary, that the Great Seal ought to be not be disputed by the judges. It was applied to give law to the resolutions and fortunate for this country, that it had a opinions of the two Houses of parliament. constitution so formed, that it was nearly He could perceive but three possible ways impossible that any circumstance could for the executive power to be restored: the occur, which would destroy the govern- first was, on an opinion generally conment of the country: in case of the throne demned, that there existed some person in being vacant, the two Houses of parlia- the country, who could assume that power ment had power to act by themselves, without the authority of parliament; the and in their own name; the throne when second was, that a person could take upon vacant, caused the whole power to return himself such power by a resolution or to the people, by them again to be dele- address of the House; and the third was, gated by the two remaining branches of by the mode proposed of passing an act the legislature, who were the legal organs for the purpose; and of those different through which the sentiments of the modes he conceived his arguments would people could be collected. At the revo- enable every man to judge which ought to lution, the parliament acted up to the be taken. If the Great Seal was admitted true principles of the constitution, they as a royal act, where then could be the acted on their own authority, in their doubt of the propriety of appointing the own name, when the throne was vacant: person holding it, to use it for the purpose the right which at present devolved to the of giving the King's sanction to the meatwo Houses of parliament was a different sure of the two Houses? Those who ar right; they were to provide for a suspen- gued against that procedure, must either sion of the executive power while the argue in support of a right existing in King was upon the throne; acting then some person to assume the royaltyupon the same principles which governed right deprecated and condemned by the cur ancestors at the Revolution, they country or they must agree to the ought to act without the personal at- country remaining in its present state; tendance of his Majesty, but not without for no one could assume the royal autho his name, and were, in his opinion, em-rity; and the appointment rested with the $ two Houses, who were alone to direct the use of the Great Seal. Many acts had been quoted against the two Houses exercising the power proposed; but those acts were quoted from times, when kings were on the throne in full health, and were totally inapplicable to the present situation of the throne, when occupied by a monarch, labouring under a temporary incapacity. The same principles, he conceived, which guided our ancestors at the Revolution, must be the guide of their conduct at present. He should now move, "That the Committee do agree with the Lords in the said Resolution." Mr. Dempster observed, that the commission which was the subject of the resolution passed by the Lords, went only to empower the persons named in it to open the parliament; but he understood there was afterwards to be another commission, authorizing the same, or other persons, to give the royal assent to the Bill for appointing the Regent, and restraining the powers that were to be given him; now, to the first commission he might not, perhaps, object; but to the second he saw very great and weighty objections. The right hon. gentleman had not opened, in his speech, the subject of the second commission, which he wished very much to hear explained, before he should state his objections to it. by the special words in the beginning. This rule might raise a doubt, whether the commissioners could be authorized under the general words, to do all royal acts in parliament, and consequently to give the royal assent. Doubts of this kind had been entertained by Lord Hardwicke in 1754, who put the Great Seal to a commission, which the Lords in the Resolution sent down by them this day, had copied it appeared that the parliament was opened in that year, under the authority of that commission; it was not opened, indeed, for the dispatch of business; for only one bill passed at the session; it was a naturalization bill, to which it did not seem that lord Hardwicke thought the commissioners could give the royal assent, notwithstanding the general powers given them in the commission, to do all royal acts; for a second commission passed the Great Seal, authorizing them to give the royal assent to that single bill, by name. It was the inten tion of the present ministers to follow that precedent, and to propose that the two Houses should direct the Great Seal to be put to another commission, after the parliament should have been opened, giving powers to the persons to be named in it, to give the royal assent to the bills which should be passed for appointing the Regent, &c. Mr. Pitt thanked the hon. gentleman Mr. Dempster expressed his surprise, for having reminded him of that second that ministers should now depart from commission, which he intended to have those precedents in the reign of Henry 6, mentioned to the Committee, but which on which they had laid so much stress in an he had forgot to do. His arguments, how-earlier stage of the business. The comever, had been all applied to it rather than mission given to the duke of Gloucester, to the first. The words of the Letters in the first year of that king's reign, was Patent, authorizing persons to act for the only for opening the parliament; it never King, gave them first the power of open- entered into the heads of the Lords and ing the parliament: this seemed to be a Commons to give him a commission, auspecial power for that one specific pur-thorizing him to give the royal assent, pose; but there followed afterwards some words in the commission, which seemed to extend that power, and these were" and to do for us, and in our name, all such other acts, as we ourselves could do, if we were present." These words, at first view, appeared to enlarge the power given for opening the parliament, and to extend it, even to that of giving the royal assent to bills: but he understood it was a rule received in the courts of law, that when a particular power was given in the beginning of any instrument and was afterwards followed by a clause containing general powers, the meaning of such clause was restrained to the precise power given [VOL. XXVII. ] and to make him their creature, by giving him the power of saying Ay, and withholding from him that of saying No. He was at once appointed the King's representative, and, as such, was armed with full powers not only for the passing of acts of parliament, but also for the protection of the prerogatives of the Crown. There was a constitutional jealousy entertained by the two Houses and the King, of each other; they were continually watching each other's proceedings, and taking every possible precaution, that whilst both were maintaining their rights, neither should invade those of the other. But according to the present mode of [ 4 D] |