66 throne, formalities always held to be essential to enable Parliament to proceed with its legislative business. It was Jan. 31, 1789. now proposed, by a vote of both Houses, to authorize the passing of letters-patent under the great seal, for the opening of Parliament by commission. The necessity of adopting this expedient had been already intimated, and had been described as a " phantom" of royalty, a “fiction," and a "forgery." It was now formally proposed by ministers, on the ground that the opening of Parliament, by royal authority, was essential to the validity of its proceedings; that during the king's incapacity such authority could only be signified by a commission under the great seal; that without the direction of both Houses, the Lord Chancellor could not venture to affix the seal; but that the commission being once issued, with the great seal annexed to it, - the instrument by which the will of the king is declared no one could question its legality. It was also stated that the royal assent would hereafter be signified to the sion, executed in the same way. further relied on, in which Lord great seal to two commissions, ment, and the other for passing a bill, during a dangerous illness of George II.2 -- Regency Bill by commisA precedent in 1754 was Hardwicke had affixed the the one for opening Parlia It was contended on the other side, with much force, that if this legal fiction were necessary at all, it ought to have been used for the opening of Parliament two months ago: that hitherto the time of Parliament had been wasted, its deliberations unauthorized, irregular, and fruitless. But this fiction was also an assumption of royal authority. The Houses had already agreed to allot one portion of the prerogatives to the queen, and another to the regent, and now they were about to take another portion themselves: but, after all, the fictitious use of the king's name would be illegal. By the 33d Henry VIII., it was declared that a commission 1 Lord Camden's Speech. Parl. Hist. xxvii. 1124. 2 Speeches of Mr. Pitt and Lord Camden. In the latter this precedert is Toneously assigned to 1739. for giving the royal assent to a bill must be by letters-patent under the great seal, and signed by the king's own hand. The great seal alone would not, therefore, make the commis sion legal; and the Act for the Duke of Norfolk's attainder had been declared void by Parliament,1 because the commission for giving the royal assent to it had wanted the king's sign-manual, his name having been affixed by means of a stamp. The course proposed by ministers, however, was ap proved by both Houses. dukes decline According to invariable custom, the names of all the royal dukes, having seats in the House of Lords, had The royal been inserted in the proposed commission; but the to be in the Duke of York desired that his own name and that commission. of the Prince of Wales might be omitted, as he "deemed the measure proposed, as well as every other which had been taken respecting the same subject, as unconstitutional and illegal." The Duke of Cumberland also desired the omission of his name, and that of the Duke of Gloucester. On the 3d February, Parliament was at length opened by commission.2 Earl Bathurst, one of the commisOpening of signers who sat as speaker, in the absence of the Parliament. Chancellor, stated that the illness of his Majesty had made it necessary that a commission in his name should pass the Great Seal; and when the commission had been read, he delivered a speech to both Houses, in pursuance of the authority given by that commission, declaring the causes of summons, and calling attention to the necessity of making provision for the care of the king's person, and the administration of the royal authority. Meanwhile, it became necessary that the usual commission should issue for holding the assizes. Although the Commission sign-manual could not then be obtained, the ur- for holding gency of the occasion was so great that Lord Thurlow, the chancellor, affixed the great seal to a commission for 11 Mary, Sess. 2, c. 13 (Private). the assizes. 2 See Form of Commission, Lords Journ., xxxviii. 344. that purpose, by virtue of which the judges went their circuits.1 After all these delays, Mr. Pitt now brought the Regency Bill into the House of Commons.2 The provisions Regency Bill brought in. which attracted most observation were the nomination of the queen's council, the restriction upon the creation of peers, the power of the privy council to pronounce his Majesty's restoration to health and capacity, and a clause by which the regent's authority would cease if he married a Roman Catholic. But, as the measure was not destined to pass, the lengthened debates to which it gave rise, need not be pursued any further. The bill had been sent to the Lords, its clauses were being discussed in committee, and politicians, in expectation of its early passing, were busily filling up the places in the prince regent's first administration, — when on the 19th February, the Lord Chancellor announced that his Majesty was convalescent; and further proceedings were The king's ery. arrested. The king's recovery was now rapid: on sudden recov- the 25th, he was pronounced free from complaint, and on the 27th, further bulletins were discontinued by his Majesty's own command. On the 10th March another commission was issued, authorizing "the commissioners, who were appointed by former letters-patent to hold this Parlia ment, to open and declare certain further causes for holding the same," thus recognizing the validity of the previous commission, to which the great seal had been affixed in his name.1 He thanked Parliament for its attachment to his person, and its concern for the honor of the Crown, and the security of his dominions. Loyal addresses were agreed to 1 Speech of Lord Liverpool, Jan. 5th, 1811. Hansard's Deb., 1st Ser, xviii. 789. ? 5th February, 1789; see a copy of the Regency Bill as passed by the Commons, Parl. Hist., xxvii. 1258. 8 Commons' Journ., xliv. 159. 4 While the proceedings upon the Regency Bill were pending, several other bills were introduced into both Houses of Parliament, which received the royal assent after his Majesty's recovery. by both Houses, nem. con., as well as a message of congratu lation to the queen. The 23d April was appointed as a day of public thanksgiving, when the king and royal family, attended The king goes by both Houses of Parliament, the great officers of to St. Paul's. state, and foreign ambassadors, went in procession to St. Paul's. It was a solemn and affecting spectacle: a national demonstration of loyalty, and pious gratitude. the Regency Thus ended a most painful episode in the history of this reign. Had no delays been interposed in the prog- Fortunate deress of the Regency Bill, the king, on his recov- lay in passing ery, would have found himself stripped of his royal Bill. authority. He was spared this sorrow, partly by the numer ous preliminaries which the ministers had deemed necessary ; and partly by the conduct of the Opposition, who though most interested in the speedy passing of the bill, had contributed to its protracted consideration. By asserting the prince's right, they had provoked the ministers to maintain the authority of Parliament, as a preliminary to legislation. Twice they had caused the physicians to be examined; and they discussed the bill in all its stages, in full confidence that his Majesty's recovery was hopeless. Many of the preliminaries, indeed, would seem to have been superfluous: but the unprecedented circum- Comments stances with which ministers had to deal, the upon these entire want of confidence between them and the proceedings. Prince of Wales, the uncertainty of the king's recovery, the conduct of the Opposition, and their relations to the Prince, together with several constitutional considerations of the utmost difficulty, contributed to the embarrassment of their position. If it was necessary to authorize the opening of Parliament by a commission under the great seal, this course ought to have been at first adopted; for the law of Parliament does not recognize the distinction then raised, between legislative and any other proceedings. No business whatever can bə commenced until the causes of summons have been declared by the Crown. The king having been unable to exercise this function, Parliament had proceeded with its deliberations for upwards of two months, without the accustomed speech from the throne. And if any doubt existed as to the validity of these proceedings, it is difficult to understand how they could be removed by the commission. As the king's authority could not in fact be exercised, and as the great seal, intended to represent it, was affixed by direction of the two Houses, why was the fiction needed? The only real authority was that of Parliament, which might have been boldly and openly exercised, during the incapacity of the king. The simplest and most direct course would, undoubtedly, have been for both Houses to agree upon an address to the Prince of Wales, praying him to exercise the royal authority, subject to conditions stated in the address itself; and on his acceptance of the trust, to proceed to give legal effect to these conditions by a bill, to which the royal assent would be signified by the regent, on behalf of the Crown. Either in earlier or in later times, such a course would probably have been followed; but at that period, above all others, lawyers delighted in fiction, and Westminster Hall was peopled with legal "phantoms" of their creation.2 In proposing to proceed by address, the Opposition relied upon the precedent of the Revolution of 1688. On the other side it was contended, and particularly by Sir John Scott, the Solicitor-General, — Precedent of the Revolution of 1688. 1 Even the election of a speaker and the swearing of members in a new Parliament, are not commenced until the pleasure of the Crown has been signified. 2 See Chapter on Law and Administration of Justice. Lord John Russell says, "All reasonable restrictions might have been imposed by Act of Parliament, with the royal assent given by the regent, acting on behalf of the Crown." Mem. of Fox, ii. 265. He ridicules the "absurd phantom of a royal assent given by the Houses of Parliament to their own act, by a fiction of their own creation." |