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 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: 
 
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 ST. JAMESVSQJTARE. 
 
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 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 
 <f attendant on his perfon, without whofe aflent 
 " no great bufmefs was to be done. That Mor- 
 <f timer, accroaching to himfelf royal power, 
 " and the government of the kingdom, above 
 " the fta-te of the King, put out and placed the 
 " ofhors of the houfhold, and others, fuch as 
 <( were of his party, and fet perfons about the 
 " King, to eipy his words and a&ions, fo that 
 " he could do nothing as he would, but only as 
 " a man under guani and reftraint." 
 
 From this entry it may probably be inferred, 
 that a Parliament called by Edward the Third, 
 in the firft year of his reign, who, at the time of 
 his acceflion, was certainly jufl entered into his 
 
 fifteenth
 
 fifteenth year, had appointed a Council of Re T 
 gency to dired the affairs of the kingdom during 
 his minority. The roll of Parliament in the firft 
 of Edward the Third is not extant ; but from 
 the rcfult of an accurate inquiry, made by Mr. 
 Juilice Foftcr *, we know that the Parliament 
 entitled in the firft of Edward the Third, was, 
 in fact, begun and ended in the life-time of Ed- 
 ward the Second : from the writs of fummons 
 we know that it was called by writs, iflued in 
 the name of Edward the Second, and opened by 
 the Prince as cujlos regnl : from the hiftorians, and 
 the public ac"ls in the Fxdera, we know that the 
 fame Parliament depofed the King, and eleded 
 the Prince as his fuccefTor, after which it is very 
 probable they appointed a Council to dired him. 
 That Council, it is certain, never was fuffered to 
 interfere, the government being entirely in the 
 hands of the Queen, and of Mortimer ; who, by 
 the management of the houQiold, made it im- 
 poffible for Edward to govern, when the un- 
 common maturity of his underftanding had fully 
 qualified him for the duties of royaky ; which 
 he, after a fuccefsful ftruggle for it, fo glorioufly 
 difcharged. 
 
 If it were material, after a true account of the 
 tranfadion to which this firft quotation from the 
 * Fofter, p. 384. 
 
 record,*
 
 ( 22 ) 
 
 Tecords relates, to make any remarks, on fuch a 
 precedent, it might be obferved, ift, That the 
 appointment of the Council of Regency was what 
 a mere lawyer might contend to be a regular act 
 of a parliament with the royal aifent ; and no one 
 afferts, that acts done by the King, Lords, and 
 Commons, may not limit the crown, and the Go- 
 vernment thereof, and confequently the Regency. 
 2dly, That if the quotation has any effect, it 
 proves the crown to be elective, not the Regency; 
 though it muft alfo be added, that it proves the 
 Heir Apparent to have been the object of that 
 election, sdly, Tt proves that a Prince of very 
 extraordinary refolution and talents could nei- 
 ther carry on the Government, nor protect 
 himfelf ; in the words of the record, " could 
 " do nothing as he would, but only as a man 
 " under guard and reftraint," while the putting 
 out and placing the officers of the houfhold, fuch 
 as were of their party, belonged to the Queen his 
 mother, and to her Minifter. But the trueft ob- 
 fervation is, that no inference fhould be drawn 
 from fuch a precedent, except that the times in 
 which fuch tranfactions pafled were very fero- 
 cious, very irregular, and very unhappy. 
 
 The next precedent from the records contains 
 fome extracts, but incomplete, of the proceed- 
 ings of Parliament in the fkft year of Richard 
 
 the
 
 C *3 ) 
 
 Second. That Prince was eleven years 6f 
 age at the time of his acceflion, and the nation 
 Nvas ftrongly attached to him from a regard to 
 the memory of his father, the Black Prince. The 
 Princes of the blood royal were numerous, and 
 not united. His eldeft uncle, the Duke of Lan- 
 cafter, was a Prince of abilities, and of great 
 power, but extremely unpopular ; and the ca_ 
 lumny of his enemies had imputed to him dan- 
 gerous intentions againfl the King. We do not 
 find his appointment, as Regent or Protector, 
 upon the rolls of Parliament ; but we know from 
 cotemporary hiftorians that his title was acknow- 
 ledged, that he declined the office from motives 
 of prudence and duty, and that the Council was 
 appointed with his confent. Froyfart fays, 
 1 England was then to be governed by the Duke 
 ' of Lancafter, by accord of all the land ; yet, 
 " foon after the coronation, perceiving that all 
 - c things in the kingdom were like to become 
 ' new, and his care not to be valued amongft 
 1 new men, and fearing if any thing Ihould hap- 
 " pen amifs to the King and kingdom, it would 
 " be imputed to him, and that he fhould, for the 
 ' good he did, receive fmall or no thanks ; with 
 " the King's leave he retired from Court." This 
 paflage is copied from Brady *, who refers to the 
 Brady's Hiilory of England, Vol. II. p. 326. 
 
 places
 
 places in Froyfart and Walfingham, but he has 
 omitted what follows in Walfingham -f-, "fed 
 " ante receffum, ( Duds Lamafr'ue) cjus conniventid 
 t( ordinati funt qui Regis htfrerent conjilio, & qui 
 " quodam modo tutelam haberent" The names of 
 that Council were afterwards declared in Par- 
 liament. The adminiftration proved very un- 
 fteady and perplexed, and the contentions of the 
 different parties occafioned frequent appeals to 
 Parliament, and many interferences with the ex- 
 ecutive government far beyond the bounds of 
 difcretion. An attentive reader of the Englifh 
 hiftory at this period, will not fail to obferve, 
 that all the diforders of that reign, the difgraces 
 abroad, the diflenfions at home, and finally the 
 depofition of the King, had their origin in the 
 confufion and mifrule of his minority; and he 
 will be inclined to clafs this precedent with the 
 laft in point of utility, both fetting forth what 
 ought to be fhunned, and not what ought to be 
 followed. It is however, when fairly ftated, ra- 
 ther to be quoted in favour of the right of the 
 Royal Family, than againft it. 
 
 The next precedent is taken from the tern- 
 peftuous minority of the unhappy H&fcry the 
 Sixth, ever diftradted by the ambitious defigiis 
 
 f Walfingham, f. 198. n. 30. 
 
 of
 
 of Cardinal Beaufort, ill reftrained by the imper- 
 fect authority of the Duke of Gloucefter, who, 
 with many virtues, was neither poflefied of pru- 
 dence, nor of temper. At that time the A.dmi- 
 n-ftration was committed to a Protector with a 
 Council, by whofe diffenfions and mifrule the 
 inrerefts of the King and kingdom were facrificed, 
 France was loft, the honour of the Englifti arms 
 fullied, and a fine foundation laid for the emi- 
 nent mifery by which the fequel of that reign was 
 fatally diftinguilhed. It is by no means true, 
 however, that tiie claim of the Princes of the 
 blood was then adjudged to be groundlefs. The 
 Duke of Gloucefter claimed to have the govern- 
 ment, affirming that it belonged to him of right, 
 as well by the mean of his birth, as by the laft 
 will of the King his brother. To the laft ground 
 of his claim it was truly anfwered, that the King 
 could not commit to any perfon the government 
 or rule of the land, longer than he lived ; and 
 his claim, by the mean of his birth, could not be 
 admitted in the life-time of his elder brother, the 
 Duke of Bedford. The conclufion is truly ftated 
 in the afta rcgia, fo. 263. " The Duke of Bed- 
 ' ford was the eldeft of the two brothers, and 
 1 by confequence had a right to the adminiftra- 
 " tion of the affairs of England preferably to his 
 " younger brother; therefore the parliament 
 
 E " made
 
 " made an order that the Duke of Bedford fhould 
 " be Protector in England as long as he was 
 "actually reading in the kingdom, and that, in, 
 4 his abfence, the Duke of Glouccfter Ihould 
 " enjoy all the prerogatives annexed to that 
 " dignity, in his own right, and not as deputy 
 " or lieutenant.'* 
 
 In all the other cafes of minorities, the ap- 
 pointment being made by aft of Parliament, no 
 inference can be drawn from them, but that the 
 Kings or Queens of this realm, with and by the 
 authority of Parliament, are able to make laws 
 to bind the Crown, and the defcent, limitation, 
 inheritance, or government thereof ; a propofition 
 no man ever questioned, and which confirms, in-, 
 ftead of contradicting, the doctrine that the twq 
 Houfes alone poflefs no fuch power. 
 
 But it is argued, that limitations and reflric- 
 tions have been impofed on the Government dur-. 
 ing a minority. They have fo ; and have they 
 not ' alfo been impofed when the King was of full 
 age ? It has often been the right and duty of 
 Parliament to propofe fuch reftrictions, and the 
 nation is much beholden to them for perfevering 
 till they had obtained the royal aflent to many 
 of them. The laft Parliament is entitled to the 
 public gratitude, for the redactions obtained for 
 diminifhing the influence of the Crown. But all 
 
 (uch
 
 *7 ) 
 
 fuch meafures, as well, thofe during a minority 
 as the others, have been carried in a complete 
 and perfect Parliament, when the royal authority 
 was either in full exercife, or duly reprefented. 
 And the Cole difficulty of the prefent cafe arifes 
 from the defedt of the exercife of the royal 
 power, which renders all fuch precedents totally 
 inapplicable. The reftrictions impofed on the 
 power of protectors, during a minority, were 
 undoubtedly all legal ; whether they were alfo 
 wife, let the hiftory of the kingdom, during fuch 
 minorities, teftify. 
 
 Another precedent is fet forth of the election 
 of the Duke of York to be protector, in the 32d, 
 and again in the 34th years of Heijry the Sixth. 
 This has been treated as a cafe of incapacity, 
 bearing a clofe analogy to the prefent. May 
 God forbid that any iimilitude be ever traced 
 between the tranfadYions of which that precedent 
 makes a diftinguimed part, and the hiftory of 
 the prefent sera. It cannot but be obferved, 
 however, with fome degree of alarm, that refort 
 mould be made to a proceeding, and entries of 
 acts produced as legal authorities, which not 
 only all hiftorians have reprobated, but which, 
 in a book fo well known, and fo highly valued 
 as Fofter's Crown Law, are ftated with the con- 
 demnation they deferve. 
 
 E z The
 
 The hiftory of that proceeding requires fome? 
 difcufiiori. Henry the fixth, who never was pof- 
 feffed of a very ftrong mind, fell about the month 
 of Ovflober, 1453, into a deep melancholy, the 
 confequence probably of an epidemical dilbrdcr, 
 which had then broke out in England. The 
 Duke of York, who had long entertained a de- 
 fign upon the crown, fetting up a title by heredi- 
 tary right againft the parliamentary entail on the 
 houfe of Lancafler, was ftimulated by the birth. 
 of a Prince, in October, 1453, to make the at- 
 tempt, which he had hitherto forborn, becaufe 
 the King had been twelve years married without 
 children, and was of a fickly conflkution. By 
 allianc'e and by friendihip he had attached to his 
 party fome of the niofl powerful noblemen in. 
 England ; by their influence in council, he had 
 procured a commiffion to himfelf, as the King's 
 Lieutenant to hold the Parliament, and have it ad- 
 journed from Reading to Weflminfter, more con- 
 veniently fituated for his purpofes, the interefl of 
 his brother-in-law the Earl of Warwick, and his 
 own being very powerful in the City of London 
 and the adjacent country. Previous to the day 
 of meeting Thorpe, Speaker of the Houfe of 
 Commons, and zealoufly attached to the houfe 
 of Lancafter had been taken in execution upon 
 a judgment, in a fuit trumped up againfl him by 
 
 the
 
 the Duke of York, in the preceeding Michael 
 mas term. 
 
 The Parliament met on the i4th of Februa^ 
 ry, 1454, the Duke of York's commiflion to 
 hold it being then read, and the mil pro- 
 ceedings is a requeft of the Commons for the 
 enlargement of their Speaker. The Lords afked 
 the opinion of the Judges, who declining to anf- 
 wer as to the privileges of Parliament, declare 
 at the fame time, that it is ufed in the courts be- 
 low, that if any member be arrefted for any cafe, 
 but treafon, felony, or furety of the peace, or 
 condemnation before the Parliament, he Ihall 
 be releafed to attend upon the parliament. With- 
 out regard to this opinion, which hath ever been 
 clear law, the Lords agree, and conclude that 
 Thorpe according to tbe law, ihall remain {till in 
 prilbn, the privilege of Parliament, or that he was 
 Speaker thereof notwithftanding, and the Com- 
 mons are commanded in the King's name to 
 choofe another Speaker, which they verv humbly 
 <lo, and their choice of Thomas Charleton is ap- 
 proved on the 1 6th of February. An adjourn- 
 ment then took place till the ipth of March. 
 Cardinal Kempe, who was Archbifhop and Chan- 
 cellor, died fuddenly ; he is mentioned as prcfent 
 in Parliamernt on the iQth, and on the 23d, his 
 death is notified to the Lords, who agree to ap- 
 point certain Bifhops and Lords to repair to the 
 
 King's
 
 C 30 ) 
 
 thing's prefence at Windfor, not to examine into* 
 his (anity, but to inquire his pleafure whom he 
 \vould have for Archbifhop and chancellor, and 
 whether he will change any of the council; the 
 Lords having, at the requeft of the Commons, 
 in execution of his Majefty's declaration, former- 
 ly made in the Parliament at Reading, that he 
 'would appoint and declare a council, taken upon 
 them to name certain Lords and perfons under 
 Ins MajeftVs correction. On the 25th of March, 
 the Lords who had returned from Windfor, make 
 their report, which in effect is, that they had 
 moved and flirred his majefty by all the ways and 
 means they could think to have anfwer of the 
 faid matters, but they could have none. No 
 circumftance is mentioned relating to his liate of 
 health, but that he was feeble, and led into the 
 chamber between two men. On the 2yth the 
 Lords, by themfelvcs, elect and nominate the 
 Duke of York, for certain caufes them moving, 
 Protector and Defender of the realm, not during 
 the King's illnefs, ]?ut during his pleafure. The 
 Duke thus elected delivers in a declaration in 
 mod humble terms of his own inability, with 
 ample profciTions of his reliance on their fupport, 
 and the Lords return an anfwer, encouraging him 
 to undertake the arduous talk, declaring his ap- 
 pointment mall be without prejudice to the 
 Prince, who was then five months old ; after this 
 
 exhibition,
 
 ( 3' ) 
 
 exhibition, a fucceffion of grants and appoint- 
 ments follows, fanclioned by the fame aGthority 
 which had conferred the office of Protestor on the 
 Duke qf York. The Government of Calais (a 
 very important command at that time, as it af- 
 forded the means of keeping a conliderable body 
 of troops) was added to the Duke of York's ap- 
 pointment of Protector, the great feal was given 
 to his father-in-law the Earl of Salisbury, Tha- 
 mas Bourchier, his nephew, promoted to the 
 fee of Canterbury, others of his adherents were 
 equally gratified, and this very loyal Parliament 
 was then difmifled. It is obfervable from one 
 entry in the rolls * reciting that divers and many 
 Lords had abfented themfelves after the four- 
 teenth day of February, and impofing fevers 
 fines for fuch abfence, that this feffion of Parlia- 
 ment was chiefly compofed of Peers, who were 
 the Duke of York's adherents, and we know 
 from collateral evidence lately publiihed -j~, the 
 great dependance in which the Members of the 
 Houfe of Commons were then kept by the Peers, 
 of his party. 
 
 Thus ftands the hiftory of the firft part of this, 
 precedent, namely the election of the Duke oj 
 
 * Rolls of Parliament, Vol. V, 248. 
 f Paftqn Letters, Vol. I. Pages 97, 99. 
 
 York,
 
 ( 3* ) 
 
 York, as Protector, in the thirty-fecond of Henry 
 the Sixth, and undoubtedly as much credit be- 
 longs to it as is due to an act by which a Parlia- 
 ment takes upon itfelf to elect, for Proteclor of the 
 King, the only enemy whom from the innocence 
 of that King's life he could have in the kingdom, 
 on whom, with a reafonable attention to their 
 ewn particular interefts, thofe by whom that Par- 
 liament was led, had beftowed all the power of 
 the ftate, with the direction of the great offices, 
 and the moft important military command. 
 
 The fecond part of the precedent is found in 
 the next Parliament, which met on the 9th of 
 June, 1455, ^7 writs tefted the 26th of May. 
 At this Parliament the King was perfonally pre- 
 fent, and it was immediately adjourned to the 
 izth of November. The report of precedents 
 begins with the proceedings upon the 12th of 
 November, by which means the attention which 
 the entry on the 9th of July would naturally have 
 excited, and the reference to the events, which 
 before that date had taken place, are totally kept 
 out of view. 
 
 It muft be remembered then, that there is no 
 entry of the prorogation or diflblution of the lad 
 Parliament ; the lateft date in the rolls * of that 
 
 * Rolls of Parliament, Vol. V. page 272. 
 
 Parliament
 
 ( 33 ) 
 
 Parliament is the i/th of April, and it is pro- 
 bable that it broke up foon after by an unforefecn 
 turn of affairs. The friends of the Houfe of 
 Lancafter, animated by the Queen, were not 
 much difpofed to acquiefce in the election of 
 fuch a Protestor ; they had collected forces, taken 
 pofleffion of the King's perfon, and advanced 
 towards London, when the Yorkifts, who were 
 not unprovided, met them at St. Alban's on the 
 23d of May, routed their army with great flaugh- 
 ter, and made the king, who was wounded in the 
 action, prifoner. One of the hiftorians near to 
 that time fays, that they would not then have 
 fpared his life, but for the reverence the common 
 people felt for the fanctity of his character. 
 Three days after the victory, writs were iflued 
 with a very fhort return ; the captive King was 
 produced to the Parliament to declare the inno- 
 cence of his conquerors, and the treafon of his 
 own adherents. 
 
 It was not thought neceflary that the King 
 fhould be prefent at the meeting on the i2th of 
 November ; the proceedings of which are gravely 
 produced as the acts of a legal Parliament. The 
 Duke of York again appears in the character of 
 the King's Lieutenant ; the Commons requeft 
 that he may be appointed Protector ; the Lords 
 affent ; the Duke alledges his own inability, but 
 
 F moved
 
 ( 34 > 
 
 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. 
 
 OBSERVATIONS on the POLITICAL 
 LIFE of WILLIAM PITT. Price is. 
 
 The TRIAL of WARREN HASTINGS, Efq. 
 late GOVERNOR of BENGAL, before the 
 Court of Peers in Weftminfter Hall, for HIGH 
 CRIMES and MISDEMEANORS, in two^ 
 parts. Part I. 35. 6d. Part II. 6s. or toge- 
 ther, making one large volume, 8vo. Price 
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