DA 510 R258 raia 1 Reflections on the Case of a Regency THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES REFLECTIONS ON THE CASE OF BY A GENTLEMAN OF LINCOLN'S INN. LONDON: THlNTED FOR J. RIDCWAY, NO. I, YORK-STREET, ST. JAMESVSQJTARE. WDCCI.XXXXX. 570 R5LS-* REFLECTIONS, &c. PRICE ONE SHILLING AND SIX-PENCE, 1415189 REFLECTIONS, &c. THE melancholy event which has occa- fioncd the prefent difcuffion, is fo new in the annals of this country, that it is no wonder fome confufion of ideas fliould arife, in deter- mining by what means the confequences of it may beft be averted. When the public was firft informed of the na- ture of his Majefly's diforder, there was but one opinion entertained by all conditions of men ; that the Heir Apparent, of full age, was called upon to fupply the temporary intermiffion of the royal authority, as, if Providence had dif- pofed otherwife of his parent, he alone would have had a title to fupply his place. This idea perhaps was more the refult of feeling, than of reflection ; that the eldeft fon Ihould {land in B the ( 2 ) the place of his father, and fupply his incapacity to act, is a natural fentiment in a country ha- bituated to regard the courfe of hereditary fuc- ceffion, as a fundamental law. On the very day that the condition of his Ma- jefty was afcertained, by legal evidence, to two great bodies in the {late, a difference of opinion difcovered itfelf. On the one fide it was maintain- ed, that " thePrince of Wales had no more right f< to the exercife of royal authority, during the " King's incapacity, than any other individual " fubjcct." On the other, it was contended, that " the Prince had, by his birth, a title to be " declared. in Parliament, but not conferred by " any authority now exifting." Whatever be the refult of the deliberations of either, or of both thefe afTemblies on this fubjcct, the pub- lic opinion muft finally decide the controverfy ; for in an imperfect (late of government, (as that unqueftionably is into which the country has fallen,) that which in public eftimation is unjuft, can never gain a firm eftablilhment. It is the right, therefore, of every man, and it may be the duty peculiarly of fome, fairly ' and impartially to difcufs a fubject, the mofl im- portant of any which has occurred for a century in this kingdom, upon which the error of a mo- ment ( 3 ) mcnt may entail an endlefs train of evils upon our lateft pofterity. The firft queftion, which every man will na- turally ftate to himfelf, before he yields up his judgment to the guidance of any authority, is, " Whether this point has received ib deliberate " a confideration as rs importance demands?" On the loth of December, the point was firft ftarted in an irregular converfation in the one af- fembly; on the nth, it was Hill more irregu- larly broached in the other. A fearch for prece- dents was then directed by each of thefe aflem - blies. On the i2th, a report of the precedents was made to the Lower Houfe, when they were ordered to be printed. On the ifth, this report, containing eighty-four folio pages, many of them filled only with the titles of public records and ads, was delivered for the ufe of the members- On the next day, when it was fcarcely pofilble- that the moft diligent man fhould have perufed a fourth part of this information, (all which muft be fuppofed to have been material,) the fubjedt was taken into confderation, and re- ceived a decifion. Jn the Upper Houfe the re- port has not yet been printed, and more time has been employed in the mere fearch for prece^ dents, than was allowed in the other for the whole proceeding. B 2 But ( 4 ) But perhaps this expeditious decifion was not obtained without a full and patient hearing of all that could be alledged in favour of a claim, which furely is not felf-evidently groundlefs. Due notice had been given to his Royal High- ' nefs, that the extent of his right, as Heir Appa- rent, was brought into difcuffion ; that it was to be debated, whether he ftood upon the common level of any other individual fubjedt ; a claim had been diftinctly ftated on his behalf, and his attorney and follicitor were called to the bar, and heard in fupport of it. No fuch courfe was purfued, fo far as the public is .^formed. It may be thought perhaps :.iat the preflure of the occalion required uncommon expedition. The neceffity of Teviving the exercife of royal authority, and thereby giving a legal form and an active energy to the proceedings of the two Houfes, might well have juflified an immediate nomination of the Prince of Wales without any difcuffion, or explanation of the grounds on which that nomination proceeded, if it be true indeed' (what all at prefent profefs) that there is no intention to fet him afide. Any difference of opinion would then have remained a mere fub- jedt of fpeculation, that would not much have diflurbed the public repofe. When from dif- ferent reafons, and from various motives, men concur ( 5 ) concur in the fame end, the diverfity of their opinions is no longer a fubject of contention, the end being attained. The preflure of an oc- cafion can afford no fufficient reafon for a preci- pitate determination upon a matter, where the decifion is more likely to inflame, than to re. concile, the difference of opinion ; and which may again break out, after it has feemed to fub- fide, and while it fublifts, mnft leffen the con- fidence in government, and diflract the minds of the people. The queftion thus unfortunately, and (if what is profefled be fairly meant) unneceflarily brought into difcuflion, refolves itfelf fimply into this whether, in the cafe of an incapacity of the King upon the throne, by the fudden vifitation of God, the conftitution hath made any provifion for the exercife of the royal authority, during the con- tinuance of fuch incapacity ? It may at the firft view feem almoft impoflible that any perfon fliould maintain the negative of this proposition ;, and probably in unequivocal terms no one would aiTert that doctrine. That a conftitution of which we fo juftly boaft, allowed by the general con- fent of all enlightened men, to be fuperior to- any fcheme of policy that the wifdom of man has planned, ihould reft upon fo fandy a foun- dation, that it muft fall to pieces upon any ma- lady ( 6 ) lady to which the human frame is fubjedt, is an inconceivable fnppofition. It may therefore be affumed, that it will not be denied in direct terms, that in every cafe, except that of an ex- tinction .of the Royal Family, on which the crown is entailed, or of a forfeiture by the breach of that original contract by which it is held, there is a remedy provided for preventing the diflblution of the Government, in confequence of the incapacity of the Sovereign to exercife, in his own perfon, the regal power. To find this remedy, we muft fuppofe, either that there is fome certain perfon, to whom, in that cafe, the temporary exercife of regal power will appertain ; or that there muft be an election of fome perfon or perfons, to whom the exercife of that power lhall be entrufted. The opinion afcribed to Mr. Pitt, adopts the latter fuppofition, as the former is the foundation of the opinion held by Mr. Fox. The truth, or fajfehood, of each of them, muft be tried by their conformity to the known laws, and to the general principles of the Go- vernment, and by the confequences that would attend either of them. Mr. Pitt, by afferting, that the Prince of Wales has no more right than any individual fubjeft in the kingdom, neceffarily implies, that every ( 7 ) every fubject has an equal right. He confiders, then, the Regency as an elective office, to which -all men are equally of right eligible; and he maintains, that the right of election refides in the Peers, and the Reprefentatives of the Com- mons. This doctrine leads, by necefTary and imme- diate confequence, to an aflertion, that the inca- pacity of the King works a diflblution of the Government ; becaufe, what he deems the re- medy provided for preventing it, in feme obvious cafes, is totally impracticable ; in others, imprac- ticable without a direct breach of pofitive laws, which amounts, in fact, to a difiblution of the Go- vernment ; for when it cannot be carried on, but by breaches of law, it is in f a ftate of diflblution. The Peers then, and the Members of Par- liament, are to take upon them the character of electors, for the fafety of the ftate, and of ne- cefiity : if that neceflity, which defends whatever it compels to be done, be the fource from which this extraordinary right is derived, it would be rather more confident that it Ihould but belong to one of thefe bodies, for it muft certainly be ad- mitted that they may differ. The Peers may prefer a Regent ; the Members of Parliament a Council of Regency ; the one may infift, that the Regent, or Regents, Ihould be chofen from the Peerage ; ( 8 ) Peerage : the other, that a Commoner is more worthy ; both may agree whom to exclude, and differ whom to chufe. The poffible concur- rence of two bodies, co-ordinate, independent, and having oppofite pretenfions and interefts, is then the remedy held forth for refloring the go- vernment. A power derived from neceflity for attaining an end, which power is fo placed that .there is an equal chance of its defeating that end, feems a folecifm in politics, not to be eafily re- conciled with that wifdom we are taught to ad- mire in the Britiih conftitution. Two ways might be taken, by which the inconvenience of this double right of election might be avoided. As the Lords afliimed to themfelvcs the right of eleftiug :i Protestor in the reign of Henry the Sixth, the Commons might now take it as their turn ; for an alternate, is preferable to a concur- rent nomination. Or they might (and not without a precedent) vote the Houfe of Lords to be ufe- ,, ;.- they have already, by a refolution, in- ftruded them what is their right, and prefcribed to them what is their duty. Neither of thefe expedients, however, could pre- vent another inconvenience to which this remedy of an eleclive Regent is expofed ; the unfortu- nate caufe of our prefent affliction might have happened after the diffolution of a Parliament , who (9 ) who -are then to act as the reprefentatives of -the Commons ? the Members of the laft Parliament ? by what right will they refume their feats ? Their fervice is expired; they have no frefh powers ; they ufurp upon the rights of the peo- ple, if they take upon therhfelves to aft as their reprefentatives. It may be faid, that there are precedents for this at the Reftoration, arid at the Revolution. There are fuch precedent's un- doubtedly, and the Government was at both times diffblVed. The perfonal confideration of thofe who were theA aflembled, enga^exl the gratitude of the better part of the 1 nation^ and the force they were armed with, procured the fubmiflion of the ilUaffecTied. If fuch inftances are faid to be applicable to the prefent cafe, it muft be. allowed alfo, that the incapacity of the King works a diflblution of the Government; We may fuppofe likewife a cafe in which a Parliament has been diflblved, and another eledted, but which has hot met at the period when a fimilar misfortune might have befallen the country* The old Members could not (I prefume) in that cafe be deemed the reprefenta- tives of the Commons ; by what means couM the new, be aflembled, qualified, and formed into a regular Houfe, without a direft breach of every law enadted for the convocation of C a Par. ( 10 ) a Parliament, and every conftitutional form ? ;This again would amount to a difTolution of the Government. It feems not immaterial to the purpofe of (he prefeut inquiry, to confider what powers can be cxercifed by the Lords and Commons, without the .intervention of the royal authority ; and it is fit to be recollected, not only that it is exprefsly pro- vided.*, that the Kings or Queens of this realm, with and by the authority of Parliament, arc able -to make laws of -fufficient.forCe and vali- dity, to limit and bind the crown, and the de- fcent,, limitation, inheritance, and government thereof; but that it r has alfo been found necef- fary -f- to declare, that it is criminal, advifedly to affert, that both Houfes of Parliament, or either, have or hath a 1'egiflative power without the King ; and that this law is neither repealed, nor its authority weakened, by the proceedings at the Revolution. Thefe proceedings were juft and neceflary, becaufe the King had, by his own acts, dhTolved that Government, which the nation was called upon to re-eftablifti, and which with great temper and wifdom was re-eftablifh- ed. upon the firm balls of its ancient laws. The hiftory of England affords many instances of the * . 6 Ann. c. 7 f 12 C. II. a i.. cfangerous 4angerous"cQnfequences of legifhtive acts done by the two Houfes of Parliament, and the lateft experience, in the feign of Charles the Firft, Ihews that one of the two will foon be found unneceffary, and the other cannot long maintain its individual authority, when the whole frami of the government has been thus disjointed. There is but one cafe in which the two Houfes of Parliament can aflemble, without the King's authority calling them together ; and that cafe arifes, by the fpecial direction of the act of fet- tlement, upon the demife of the crown. By what means could the two Houfes be afiembled, during a long prorogation, to make the elec- tion of a Regent ? by what form is that election to be declared?. Where the Constitution has gi- ven a power to any aflembly to elect, it hath given alfo powers to make that election effec- tual ; there are writs for this purpofe, proper perfons to attend, and a proper authority to de- clare the election. It will be a poor cavil to fay, that the e/leHon of a Regent is not an acl of a legiflative nature, or that the conftitudng that authority, from which all legiflatjve acts are to receive their efficacy, is not of fomewhat a higher nature than a turnpike law ; b.ut all arguments have as yet admitted that the two C i Houfes Hoiifes arc not competent to enact even fuch a law. A device is faid to have been practifed in the tragical reign of Henry the Sixth, to give a co- lour of law to the election of his competitor for the crown, to be the Protector of the King and Kingdom, by an ordinance of the two Houfes, for affixing the great feal to a commiflion. If it could be forgot that that act was followed by nine pitched battles in the courfe of the moft bloody and deflructive civil war that we readof in any hiftory, yet fliU the meafur-e is fufficient- ly bold to alarm all confiderate men. That a bill fo palled, is in truth merely an ordinance of the two Houfes, cannot be denied ; the external form adds nothing to its validity. If one ad: of this nature may pafs, why may not every act of the executive power pafs in the like manner ; the appointment of all offices, the command of the navy and army, the difpofkion of the public money, the execution of foreign treaties ? This is no wild fuppofjtion, for fuch was at one pe- riod the ftate of this country. The juft balance of the Conftitution can only be. preferved by the regal power in full exercife, fubject 'to the controul, but not to the difpofal of the two other branches of the Legrflature. If they can annihilate, create, or direct the third, ( '3 ) the ncw-caft Government muft fall into an oli- garchy ; for, in the hiftory of the world, it has ever been found, that afiemblies limited in num- bers and unlimited in their duration, muft be under the guidance of a few. With a Regent thus elected, and neceiTarily dependant on his electors, what reafonable fecurity could the peo- ple poflefs for their right of electing future re- prefentatives ? The long Parliameat continued itfelf apparently againft the King, compelled to afient to the act for its continuance, but in reality againft the interefts of the unthinking and de- luded people. We have known, in our own times, inftances where a great part of the nation has petitioned the Grown for a d involution of Parliament ; where a Parliament has been diflblved, and it feemed to be a popular meafure ; the people, at both times, felt that it was fit they Ihould receive back the powers they had delegated. Has no wifh been exprelTed to make their prefent re- prefentatives permanently fecure in their feats ? What intereft could an elective Regent feel, to return his electors to their conftituents, efpe- cially when the argument of ftate neceflity creat- ing right, may fo eafily be applied for making the office of an elected Regent, and -the powers of his electors co-exteniive in their duration ? A Re- . A Regent,; it has been maintained, ought to j?pflcf$ only a certain portion of the regal power ;. and this perhaps may be a principal reafon ibr, aifcringj th^tt the Regency is elective. What- ever that portion of power be, which is to be withheld from him, it mud either ceafe, or be. into other hands. In both cafes, the power will become dependant on the two other branches of the Legiflature ; but it is to their mutual oontroul on each other, that the people of England truft for preferving the Con- iUtutkm entire ; and, in that view, every intelli- gent writer on the law and government of Eng- land, has conftdered the legal prerogative of the down, as a truft for the people, and not a mat- ter of perfonal advantage to the Sovereign. If, by feme improvident neglect, any dangerous or unneceiTary powers are lodged with the Crown, in a full and perfect Parliament, thefe powers may very fitly tie reftrained ; but a Regent, who would atfcjnt to the reduction of them, beyond the period of his own authority, would be guilty of a breach 'of his truft for the protection of the King, and every perfon-who, by a previous fur- render of any portion of the royal authority, ihouid barter for his own appointment, would, by fo doing, -declare hirnfelf unworthy of 1 it. It It is fair argument, in confidering th -Cafe d an elective Regency, to. firppofe theat'ele&ion tt> .fall, on fome perfon not of the blood royal, and it is a probable 'fuppoficion, that the fenie of their dignity and duty to the Crown, would not permit the Princes to accept a nomination under .any unworthy limitations ; in that- cafe, it will -be material to fee what would be tKe Situation of the Royal Family, and particularly of -the -'Heir .' Apparent. The law of the. -la-frd'has jhewn a peculiar -at- ' tention to the character he- fnflains.in the "ftal&-; he is born a Peer, with? an ample fevcri-uc, artd the lofty poflcflion of the Duchy of Cdr-nWall-: the principality . of Wales is -alfo his.- In boch : he hokis rights and jurifdiftion above the -de- r gree of -a fubjocl. The law; has alfo guarded tfce iafety of his, perfon with :.the fame jealoofy as ' the perfon of the King; to eocnpafs, -or-itta- : gine his'd-earh, is high treafon. ... The Safeguard of the hrvv, 'however,, ha^pmved : but a feeble fafeguard to Princes, when ^1 'the power of Government hasi been transferred into - oppofite and jealous, hands. Muft he attefldiln the train of Courtiers, of -the elected Rogont or Regents ? will not every action, wo*d, or look, be \vacched with all the fufpicion chat rnuft ever 'accompany the poffeffor of,pvecarious aUth'Ority? . A com- C '6 ) A (Competitor, and, at the -fame time, a declared fucceflbr, was a fituation known in the unhappy reign to which it has become the fafhion to re- fort for precedents. The Duke of York flood thus with refpedt to Henry VI. and the event was fatal to both. If the prefence of the Prince of Wales would be unpleafant to the Regent, his abfence would create equal uneafinefs. The hiftory of our own country may inftrucT: us in the alarming confequences that filiations fo in- compatible produce, and that, with no great ex- ertion of imagination, every man may eafily conceive. Should the unhappy obftinacy of his .Majefty's diforder give a long continuance to the Regency,, the condition of the excluded Prince muft become more humiliating than that of any common fubject ; and who will infure to him the pofleffion of the Crown, when Providence ihall.open the fucceffion to him, againfl the force a Regent may acquire, and the arts with which he may ufe it? Without dating violent fuppo* litions which, it may be thought, the temper of the .age would not admit, (though that is but a . frail fecurity) no perfon, of the coldeft imagina- tion, can poffibly doubt, that fuch a Regency would be a (late of perpetual contefl and diflen- lion, between the. party of the Regent, and the party of the Princes, and that a firm, united, and efficien ( I? .) efficient Government would, under thefe cir- cumftances, be impoffible. The idea of an elective appointment of a per- fon to fupply the exercifeof the executive power, has hitherto been treated as fubjed: to no other objections, than fuch only as arife from the pe- culiar frame, the forms, and the modes of the Englifh government ; but were the kingdom now in the condition of a new-fettled country, where that queftion was open for difcuffion, which the fancy of an ancient hiftorian has fup- pofed to have been propofed by Romulus to the firft inhabitants of infant Rome ; which form of Government they would prefer of the feveral de- fcriptions then known ? would there be found amongft the fubjedrs of this ftate many who would renounce the monarchical form of Go- vernment, which, except for a very Ihort, and a very unhappy period, has, from the remoteil time?, been the law of this- iiland ? If amongft ihe members of fuch an aiTembly of the whole community, it were realbnable to fuppofe that a confiderable number might prefer a govern- ment totally republican, I ihould with fome confidence refer to them a fecond queflion ; Whether, if a majority had adopted monarchy, they chofe that monarchy fhould be heredi- tary or elective ? That the welfare of . mifr lions fhould be entrufted to the hazard of a fuc- D ceffion ccflion of good Princes in a courfe of defcent, is certainly a very debatable point ; but if uner- ring experience has proved, that the contefts for fovereign fway are more pernicious to any flate, than the unfitnefs to reign of individuals in a given feries of Princes, and that prudent laws may controul and remedy their defects moreeafi- ly than they can reftrain the luft of power, the rage of ambition, the regnandi dira cupido, which inflame the minds of private men when there is no ftable rule of fucceflion ; that the mifconduct ot Princes is lefs pernicious, as in general the effects of it are lefs attrocious, than the commotions excited by the inordinate ambition of indivi- duals ; there could be no doubt that the opinion of the beft and wifeft politicians would be con- firmed ; that of every given fpecies of Govern- ment, an elective monarchy was the lead deiirable. This queftion being decided, it might then be very fafely put to all, whether they would leave a poflibility of election in any cafe of the inter- miffion of royal power which their forefight could difcern, and particularly whether they would entruft that election to thofe bodies of men with whom they had thought proper to entruft the checks and limitations of regal authority, and in diftruft of whom they had inverted in the So- vereign, certain powers of controul, and beftowecj upon ( '9 ) xipon him certain prerogatives for their due regu- lation ? I can entertain little doubt, that the common afient of all would declare that the ex- crcife of regal power ought in every cafe to de- volve in a courfe of fucceffion, on the fame prin* ciples, and for the fame political good that an he- reditary monarchy was preferred to an elective. It would argue a very imperfect consideration of this queftion, Ihould it be difmiffed without any obfervation on that collection from the re* cords of the kingdom, which are fuppofed to have furnifhed fome precedents for the prefent occa- fion. That none can be produced ftrictly appli- cable (as what lawyers call a precedent in point) muft be apparent to every man who knows only the regal table in his almanack, for in a courfe of eight hundred years it has never happened that by any means, except a real demife of the crown, there has been a ceflafion of the actual exercife of the royal authority in {he perfon of the King, when his eldeft fon and heir apparent was at the fame time capable to fupply his place. The precedents produced are either in the cafe of the infancy of the Sovereign, of his tempo- rary abfence, or of his fuppofed incapacity from the infirmity of his mind. The faireft way to examine their force, as applied to this queftion, will be to difcufs them feparately, before any ge- D 2 ncral ( 20 ) neral observations are drawn from them'; pre- mifmg only this remark, .that extrads from the rolls of Parliament, in a country fo often diitravfted by civil convulfions as England, without any re- ference to the cotemporary hiflory, will often convey to the reader the moft erroneous ideas of the lavys and government of the kingdom. The fif-ft- -precedent in the lift is an excerpt from the Parliament roll of the 4th of Edward the Third ; containing the firft article of the im- peachment of Mortimer : it flates that " in the " m-ft Parliament of the King, held after his (( coronation, a Council of fourteen perfons was ee appointed, of which four were always to be moved by the infreaty of both Houfes, is at lafl prevailed on to give the King's affent to his own appointment ; which inftead of being durin-g the King's pleafure, was then made irrevocable, with- out the confent of Parliament. The Lords and Commons promife hrm their fupport, vote him a falarr, pafs an aft of refumption of the King's grants, with a long firing of exceptions in favour of their own friends, and are then prorogued on the 1 3th of December to the i4th of January following. The Lancaftrian party had, in the mean time, been collecting frefh forces j they rcfcued the King from his confinement ; and ori the 25th of February, 1456, an inftrument ap- pears, revoking the Duke of York's commiffion of Protector. The excerpts from the Parliament rolls flop here; had the fearch gone on but to the roll im- mediately following, it would have produced a -condemnation of all thcfe acts in favour of the Duke of York, and an attainder of the perfons concerned in them, by the fucceeding Parlia- ment held at Coventry, in the 38th of Henry the Sixth ; and had it proceeded but one flep further, the collection of precedents would have been complete* As it begins with the depo- fition of Edward the Second, and tile election of his fon, it would have clofed with the ex- clufion ( 35 ) clufion of the Prince of Wales, the depofition of his father Henry, and the transfer of the crown to the houfe of York. Precedents from the public acts of a kingdom, ought never to be ufed for the purpofe of ex- ample, without a due confideration of the cha- racter of the times in which they pafled. In the various changes to which Qovernment is fub- ject, there are frequent, and fometimes long pe- riods, where fraud and force alone bear fway ; from the practice of fuch times we can only draw examples of what ought to be (hunned. The true principles of civil policy were but lit- tle underftood in England before the laft cen- tury ; .and the theory of the Conflitution but ill defined before the Revolution. The arbitrary doctrines advanced,, during the reigns of the Stuarts, were maintained, and have, even in our days, been attempted to be juilified by prece- dents during the reigns of the Tudors. The hiftory of England, from the death of Edward the Third, to the acceflion of Henry the Seventh, is a feries of acts of violence, fedition, and ufur- pation, The power of Parliament was feldom exerted, but as an inftrument of the external force that overawed its deliberations, and was ufed to give a colour of law to the acts of fuc- cefsful violence. The Houfe of Commons had F 2 not ( 36 ,) not yet begun to feel its own confequence, nor fhaken off its dependance on the great Lords* who avowedly interfered in the election, and dictated the conduct of its Members. When the power of the Lords was reduced by the ci- vil wars, we find Parliament yielding a ready af- fent to the defpotic meafures of the Tudors ; till by the increafe of the wealth of the people, the reformation of religion, and the progrefs of reafon, a fpirit of liberty broke forth, which after great convulfions, eftablifhed the Govern- ment upon its prefent bafis. It muft, therefore, excite fome furprife if, at the clofe of the i8th century, precedents are produced from the an- nals of the 1 4th and I5th centuries for any other purpofe, than to mark the long train of evils that followed from power conferred by election, and confequently the great utility of fixing fome certain rule, by which the exercife of executive power may always be tranfmitted in a certain and undifputed courfe. For the fafety of the ftate, it feems to be of little moment in what particular courfe the exe- cutive power mould devolve, provided that courfe were certain. Had it been ordained that, in all cafes where there is an intermiflion of the royal authority, ( 37 ) authority* without an a&ml demife of the Crown, the temporary, adminiftration fhould be cotri- mitred to the primate, as it is in Poland en a vacancy of the throne, lels inconvenience would have followed than mull attend the total want of any certain rule. Such an arrangement would indeed appear unnatural ; becaufe it is incom- patible with tbofe habits, by which we are formed to feel a peculiar refpefl for that family which, in a courfe of lineal diiccnt, is appointed to rule over us ; a refpecl which increafes in proper ion to the degree in which the perfons of that fa- mily approach the throne, and which it is im- poffible for us to transfer to any perfon of the like condition with ourfelves. There is un- doubtedly in the difpofition of the fubjeds of an hereditary monarchy, an innate principal o loyal- ty, which, though it does not prevent an Enr glifhman from feeling a jealous anxiety for the rights of the people, will roufe itfelf, when he fuppofes any encroachment is meditated on the juft exercife of the royal authority. It can only be from a momentary mifappreheniion, that he can ever entertain a doubt of the efficacy of Par- liament to prevent the abufe of any known and accuftomed powers, whether held under the title of Regent or of King ; but he will, upon reflection, find more rtafon to be alarmed at the formation- ( 33 ) formation of new and unaccuftomcd powers con- ferred on any perfon, the operation of which may Ihift the equal balance of the Conftjtution, The progrejfs of thefe reflections naturally leads to a difcuffion of the opinion oppofed to that which has hitherto been under examination ; but it is proper firft, to take fome notice of an- other clafs of precedents, providing for the exer- cifes of the royal power during the abfence of a King. Thefe coniift of a number of commif- fions t6 fome perfon, as guardian to the kingdom, and of commiflions of Regency. Of the firft, no more is fet forth than the title, and a refer- ence to the record ; but all are to be found in the Fcedera. The commiffion of cuftos gives all power, and all adts of regal authority have been done under fuch commifTions. AH writs arc tefted by him, and he fully reprefents the King. In fome, but not in all, there is an inflrument in the nature of an inftruction, referving certain articles to the King's difpofition. In the num- ber of thefe precedents, it deferves particular notice, that, during the reign of Edward the Third, (when the Government was regular and undifturbed), the Heir Apparent, or when he is alfo abfent, the Prince of the blood next in fuc- ceflion, is univerfally appointed Cuflos. There is no lefs than nine fuch inftances, and in each of of them it has fo happened, from the ftate of the Royal Family, that the perfon appointed is an infant, and fometimes of very tender years. From commhTions granted at the King's plea- fure, who may refer ve or grant fuch portions of authority as he thinks proper, and who certain- ly intends always to retain the direction of all that he can direct, it muft be allowed, that no direct inference, can be drawn to a cafe of in- capacity ; but it feems impoffible to account for repeated appointments of infants, by a very in* telligent Prince, to an office which might re- quire immediate exertion of judgment, but upon a fuppofition, that it would be inconfiftent to de- viate from the line of fucceflion, or to veft fuch a commiffion in any perfon of inferior dignity. The like commiflions in the reign of Henry the Fifth, are in the fame manner always addrefled to the firfl Prince of the blood, refiding in Eng- land. If in the former part of this difquifition, the total impofTibility of admitting an elective Re gency has been fairly made out, from its incon- fiftency with the general principles of a monarchy founded on lineal fuccellion, from its want of analogy to any part of the conftitution, which has provided no certain means of making fuch election, from the interruption it muft give to the ( 40 ) the courfe of the known laws, and the breach it muft make in thofe which mark the limits of the feverai branches of the legislature, from the incongruity that two branches of the legislature fhould create or model to their will the third, from the inevitable mifchiefs which not only ge- neral reaibning, but the experience of the very precedents produced, proves to be the confe- quences of elective power; if this proportion has been thus made out, the obvious conclusion is, that there is fome certain perfon, who, in the cafe that has happened, muft be called by fome other title than election to the exercife of regal power, for there is no middle way by which the temporary defect can be fupplied. The iubject has been ftrangely perplexed by a mifapprehenfion of terms. When a perfon is {aid to have a right to a thing, it certainly is mennt, that if juftice is done to him, he alone ov.gbt to enjoy it ; but it by no means follows, that he is entitled to afilime the pofleffion, cfpe- ciaily if that pofleffion depends upon an antece- dent fact, of which he is not the fole judge. Everyman's experience, who has the lead tinc- ture of legal knowledge, will furnim him with a variety of inftances, where a man, with the clear- eil right,, may, by unduly averting or affuming it, make himfelf a trefpaffer, an intruder, or an ufurper. When this is fairly underftood, the diilindtion between right and irrefiftible claim vanifties. He who has an irrefiflible claim to any thing, muft be entitled to be admitted to it by thofe to whom the power of admiffion belongs ; if they exclude him, they aft unjuftly ; if without their authority he enters upon it, he ads unwarrantably. If this is clear with refpect to rights given for the fole benefit of an individual, it is flill more fo as to thofe which are in the nature of a public truft. The principle is the fame with regard to the higheft, as to the loweft clafs of fuch rights. When it is faid, that a perfon has a right by birth to a corporate franchife, no one under- flands that it is meant to aflert that he can ex- ercife it without being admitted and qualified. No one would hefitate to fay, that the nearefl heir of a lunatic has a right to the care of his eflate, becaufe, ever fince the Revolution, it has generally devolved upon him ; but we do not mean by this, that he can affume it without its being committed to him by the Chancellor. If tie Chancellor, iupported as he might be by many precedents of bad times, fhould give it to" another capricioufly, much more, if he looked to his own intereft in excluding the heir, we G fliould ( 4* ) fiiould make -no fcruple to fay, he had gone againft right. The proceedings that had pafled with general concurrence, in the examination into his Majcf- ty's ftate of indifpofition, fufBciently manifefled, that it never was meant by any one that the Heir Apparent, without a previous declaration by the two Houfes, could affurne the Regency ; though that falfe fenfe has been difmgenuoufly attempted to be given to the opinion, that the right of fuc- ceffion to the crown gave a title to the Regency. From fuch a pofition taken in a juft fenfe, what danger can be fuppofed to arife to the rights of Parliament ? Except the right to elect, which has already been difcuffed, what acknowledged right of either, or of both Houfes, would be af- fected by the admiffion of a Regent appointed as of right ? An elected Regent muft have all the authority requifite to fuftain the duties of his function, and the other could require no- more. . Precarious authority, by whatever title it is hfld, muft ever be lefs ftrong than permanent.. Can it be fuppofed, that Parliament mould be lefs able to check the acts of a Regent than of a King ? but it is on the juft controul of the two. Houfes of Parliament,, that we muft rely for the prefervation of the Constitution, and for the juft limitation if ( 43 ) limitation of the regal power in its fulleft exer- ciie. Can there be any colour for an apprehen- fiori, that a Regent, after he was in poffeflion, Ihould refufc his affent to any bill that would not apply, with equal force, to a Regent elected, as to one entitled of right; except on a fuppo- fition, that it would be eafier to depofe the Re- gent who had no right, than the Regent who had an original title ? But is there any man, who thinks the facility of unmaking, as well as making, a Regent would fecure the peace of the kingdom ? The power of making antecedent conditions (if it were ever fit to be exercifed) is not, in fact, more applicable to the one than to the other. If the power of making any law, can exift before the appointment of a Regent, it may as well, perhaps better, be applied to a perfon, who, the inftant his right is recognized, can give a legal form to any act prefented to him, as to one, who having no more right than any indivi- dual fubjecl, muft require a law to be pafled in due form, before any ad: whatever can be done by him with perfonal fecurity. By the confent of all men (whatever be their different opinions in other refpe&s) a Regent ap- pointed, or recognized, on the foundation of title, would be lawfully in poffeflion ; in the opinion of many, a Regent elected would not. if, ( 44 ) Jf, in the enacting regulations, on no given fup* pofition, except the blind devotion of an elected Regent to the pleafure of his electors, which is adverfe to the true fpirit of the Government, can there be an eflential difference between the elective, or the hereditary Regent, which is then rnofl likely to preferve the peace of the king- dom, a recognition, or a denial of title ? In another refpect, the difference, between the two, muft ftrike every man's mind alike ; the immediate fucceffor, efpecially if he is the Ap- parent Heir, can never have a real intereft diftinct from the intereft of the Crown j if he has any wifhes to gratify, they cannot be accomplifhed, but at the hazard of the fame inconvenience that would fall upon him, if he were Sovereign in full right. He muft, if he lives, attain that fituation, and be expofed to feel the confequence of his own impru^e/ice; but this is not the cafe of any other perfon, to whom the power might be delegated ; his public duty and his private in- tereft are perfectly diftinct ; he knows, that upon probable and natural events, he muft fink intQ the condition of a fubject, and ha,s an obvious bias fo to conduct his precarious fituation, as may beft ftre,ngthen him in that condition tq which he will defcend, Without ( 45 ) Without having recourfe to any confiderations of the dignity of the Royal Family ; without Hating, as a lawyer muft and ought, the pre- eminence of the Prince of Wales, and that he is held in reputation of law, as Lord Coke fays, to be one and the fame perfon with the King ; but putting the argument upon the loweft terms of convenience, utility, and public fecurity, I would venture to aik the queftion of any fenfible tradef- man, or farmer, with as much confidence as I fhould of the nrft peer in the kingdom, whether they do not feel, with fome degree of fcorn and indignation, the affertion " That the Prince of " of Wales has no more right than any other " fubject in the kingdom ?" In no town or vil- lage in England, were the father of a family dif- abled, by the act of God, from carrying on his occupation, would the fame language have been, applied to the eldeli fon of && age ; or if it had by any angry and intemperate opponent, the churlifhnefs and arrogance of the expreffion would have difgufted every worthy and ingenuous mind. The feelings of the people on fuch a qucflion, will infallibly prompt them to a very juft deci- on ; but earneftly wifhing that no appeal may ever be made, except to. their undemanding, I ftiould ( 46 ) fhould propofe, for their confideration, a few plain queffions. I. Whether the want of a certain rule to de- cide the appointment to the Regency, would' not be more pernicious to the ftate, than any given itite ? II. Whether every argument of public utility, by preferving the peace of the kingdom, main- taining the Conftitution entire in all its parts, and preventing the poffible diflblution of the Govern- ment, which has induced the nation to adopt the rule of fucceffion to the Crown, does not equally apply to eftablifh the fame rule of fucceffion to the Regency ? III. Whether any greater mifchief is to be apprehended from a fucceffive Regency, than from a fucceffive Royalty ? IV.. Whether every mifchief confequent upon an elective monarch^ is not equally to be dreaded from an elective Regency ? V. Whether the conftitutional check of the' two Houfes of Parliament over the Crown be not Efficiently ftrong, when theexercife of the regal power is held by the Sovereign in perfon ? VI. Whether, inftead of lofing any part of their authority, the two Houfes of Parliament mufl not, of neceffity, acquire fome additional influence, when the executive power is held un- der ( 47 ) der the determinable and precarious title of a Regent ? VII. Whether it is moft likely to preferve, or to overturn the balance of the Conftitution, ihould the two Houfes impofe conditions of their authority antecedent to the appointment of a Regent ? VIII. Whether this can poffibly be done with- out allowing that they can make law, by their ordinances ? IX. And laftly, whether it is fafeft for the people to adhere to the old Conftitution, or to make a new one on the occafion of the King's illnefs ? When thefe questions have been duly coniider- ed, it will not be difficult for any man to decide, whether it is moft becoming the character of a true friend to his country, to incline to the opi- nion, that the Prince of Wales has fome claim of right, or boldly to affert, that he has no more right than any other fubject in the kingdom. In a cafe fpecifically new, it is not to be ex- pected, that a perfect precedent Ihould be found; but it is remarkable that in the great variety of precedents produced from the year 1253, to the prefent time, the inftances are very few, and thofe fuch as may eafily be explained, where any other perfon but the neareft Prince of the Royal Royal Family has either held the commiflion of Cuftos, or the appointment of Regent or Pro- tector. To what eaufe can we attribute this eon- fent of all ages, but to what an ancient hifto-* rian of deferved credit, calls the common ac- cord of the land, which is not very eafily dif- tinguifhable from the common law ? The proceedings at the Revolution, it muft be confefled, do not bear an exact analogy to the prefent cafe ; but the principles on which that glorious event was decided, and the mode by which it was conducted, may afford ample mat- ter for inftruction and imitation. A real friend to liberty will never reft the legality of that juft and neceflary meafure on any. other bafts, than the firm and broad foundation of the right of the people to refume a truft delegated for their welfare, becaufe it had been perverted to their deftruction. The members of that aflembly, which a'ddrefTed the Prince of Orange to take upon himfelf the administration, poiTefied no powers but what the concurrence of public opi- nion bellowed. They did well in a'ffuming to aft without aiking by what authority of law they were warranted ; for neither the fubilance, nor the forms of law, were at that moment fubfift- ing, and the intention of their acting was to re- vive both. They found the great fpring of the* machine ( 49 ) machine w s broken, and their firfl care wa^ in- itantly to fupply its place, that all the parts might be reflored to their due and regular movements ; but they proceeded no further than the neceffity of the cafe required ; and, confcious that to re- eftabliih a government under a ftate of actual diflblution, reverted to the people at large, they immediately gave up the authority which, upon the exigence of the cafe, they had afiurricd, and took the lenfe of the people, by convening ano- ther aflembly, chofen in the ufual form of a Par- liament. This convention was fairly and fubftan- tially a full and free reprefentative of the nation, fpecially delegated for eftablifhing the government. In the courfe of its proceedings, theutmoft caution was obferved to eftablifh tha^ government upon the bafis of its. ancient constitution. In the no- mination of the Sovcrign, as clofe an attention was given to the' courfe of lineal defccnt, as the fafety of the ftate could in that moment permit. The nomination was clogged with no conditions to de- prefs the regal power. The rights which had been violated, were merely declared ; and all which could bear a fufpicion of being newly in- troduced, however reafonable in themfelves, were referved for the future difcuffion of a perfect Parliament, held under a King who was free to- withhold his aflint. An anxiety not to d;fcom- H pofe ( 5 ) pofe any of the parts of the machine, nor to weaken the energy of the firfl moving principle, is confpicuous in the whole proceeding. The idle and paltry contrivance of throwing the great feal into the Thames, which James had ufed in hopes of erhbarralung affairs, by precipitating them into anarchy and confulion, was juftly fcorned by an affembly which difdained the mean fubterfuge of borrowing any colour of authority from unfubftantial forms. In a manly, open, and bold manner they declared, by refolution, the va- cancy of the throne, and the appointment of the Prince and Princefs of Orange, and prayed them by addrefs to accept it. The government was then completely reinftated, with no other altera- tion than in the name, and the perfonal character of the Sovereign. This event, which no human prudence could have forefeen, led men's confider- tion to the poffibility of a cafe of election recur- ring by a failure of the branch of the Royal Fa- mily, on which the crown had been conferred, and to prevent (as far as any forefight could ex- tend to prevent) fo alarming a fituation, the act of fettlement* was framed, in a confidence, which all good men muft ftill entertain, that no occafion mould ever offer for any future election. 1 2th and i3th of William III. ch. 2. From ( 5' ) From this fummary view of thofe proceedings^ the applications are fo obvious to what ought to be the courfc of proceeding on an occafion of a lefs difficult nature, which the revolution of a century has produced, that it is fit thefe Reflec- tions fhould clofe here ; and if they are of any ufe to others to form their own opinions upon the fubjedt, the Author will have nothing to regret, but that the hafte with which they have been publifhed, afforded no leifure to attend to the correctnefs of language. Lincoln's Inn, Dec. 19, 1788. FINIS. CONSTITUTIONAL DOUBTS, humbly fubmitted to His Royal Highnefs the PRINCE OF WALES : on the-rPrctenfions of the Two Houfes of Parliament, to appoint a Third Ef- tate : By the Author of Letters on Political Liberty, in the Year i/8z. Price is. 6d. ROYAL RECOLLECTIONS, on a TOUR to CHELTENHAM, GLOCESTER, WOR- CESTER, and PLACES adjacent, in the Year 1788. The Eleventh Edition, revifed, correcl- ed, and enlarged. Price zs. 6d. 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