Images de page
PDF
ePub

pursuance of, or in obedience to, the late order of council, laying an Embargo on wheat and wheat-flour; and for discharging all proceedings against any persons, for or upon account of the said Embargo.

Those who conducted the ministerial business in the House of Commons, gave but little opposition to this Bill when it was suggested to them; and there appeared on this occasion, for the first time, plain marks of some disagreement in opinion, and alienation in affection, among the ministry. However, it was remarked, that though this Bill provided for the indemnity of the inferior officers, who had acted under the proclamation, yet it passed by the council who advised it; and had not a preamble fully expressive of the illegality of the measure. In these respects the Bill was amended, and made perfect. But this produced much altercation and debate, especially in the House of Lords. Some of the ministry and their friends, who had been not only the warmest advocates for liberty, but who set up as the patrons and defenders of it, were charged with such a change in their minds and opinions, that they vindicated the present exertion of prerogative, not only from the peculiar circumstances that seemed to influence it, but they also supported it as a matter of right; and asserted, that a dispensing power, in cases of state necessity, was one of the prerogatives inherent in the crown. This seeming desertion from the side of liberty, to principles so directly opposite, as it had some severe strictures made upon it within doors, so it was the occasion of many pointed sarcasms with out, on the beaten subject of occasional patriotism.

In the course of the debates occasioned by these high prerogative tenets, the real causes of the necessity for the late exertion of power were first enquired into; and then the doctrine of a dispensing power in such cases was ably and powerfully attacked. It was urged, that the ministry had received such information in the beginning of August, of the state of the harvest, the quantity of corn in the kingdom, and of the great increase of its price, that they became then as thoroughly masters of the subject, and as fully sensible of all the probable consequences, as they had been at any time after that period. That from this information they should at that time have issued a proclamation for the parliament to meet on the 16th of September, the day to which it was prorogued, to take

that important matter into consideration, which would have given the members above thirty days notice, and would have prevented every appearance of necessity for the ministers to commit an illegal action.

That, on the contrary, when the distresses of the poor were risen to the highest pitch, they issued, on the 10th of September, an ineffectual proclamation against forestalling, which could not give them the smallest relief; and on the same day prorogued the parliament, from the 16th of that month, to the 11th of November following. That by this long, unseasonable, and extraordinary prorogation, all advice of parliament was precluded; all legal restrictions of the export, as well as effectual provisions to increase the stock of grain, were entirely put out of the question: and in case of riots, tumults, or even a rebellion, it was put out of the king's power to receive their assistance. That the proclamation for an embargo was issued in sixteen days after that for so long a prorogation; though the reasons given in it, for so extraordinary an exertion of authority, were, that his Majesty had not an opportunity of taking the advice of his parliament.

On the other hand, the advocates for the dispensing prerogative, citing the opinion of Mr. Locke, asserted, that it was ridiculous to suppose any state without a power of providing for the public safety in cases of emergency. That this power must in all states be lodged somewhere, and that in ours it was lodged in the king. They maintained that this doctrine was not contrary to the security of the constitution, or to the spirit of liberty, since they admitted that it could be legally exerted only in cases of great necessity during the recess of parliament, and when parliament cannot be conveniently assembled; that in those cases the evil cannot be very great, since it is but forty days tyranny at worst.

To this it was answered, that this doctrine of necessity was the very principle by which all the evil practices in the reigns of the Stuarts had been defended. That the advocates for the court in the reign of Charles the first, would have added this exception of necessity to the Petition of Right; the House of Lords had even come into it, but upon conference with the Commons, were convinced that this exception would have enervated the whole law; and it was accordingly rejected.

only draw forth into action the power that before existed, but was quiescent. There is no such prerogative in any hour or moment of time, as vests the semblance of a legislative power in the crown.

As to the plea of necessity, this answer is ready in the mouth of every one, that if the crown is the judge of that necessity, the power is unlimited, because the discretion of the prince and his council may apply it to any instance whatever; and so discretion degenerates into despotism. Therefore the wisdom of the constitution has excluded every discretion in the crown over positive laws, and emancipated acts of parliament from the royal prerogative, leaving the power of suspension, which is but another word for a temporary repeal, to reside where the legislature is lodged, to which only it can belong, that is, in King, Lords, and Commons, who together constitute the only supreme Sovereign authority of this government. Nor did parliament ever allow of the dispensing power, or any thing of the kind, because it was exercised under the specious pretence of the safety of the nation being concerned, and the whole kingdom in danger, which was the usual jargon, and, if true, implied the most urgent necessity.

That the recess of parliament, or its not being convenient to assemble it, are distinctions not known by the constitution. That as it is now modelled, the parliament must always be in being, ready to be called, and that in so great a degree, that even an expired parliament revives when necessary to be assembled, and another is not chosen. That as to the laws, there are no days in which acts of parliament sleep. They are not like jurisdictions, that may be evaded by going into a sanctuary. They are of equal force while in being, at all times, in all places, and over all persons; though made in a short time, they have a constant and lasting force. Acts of the executive power are incident, temporary, and instantaneous; but acts of parliament are permanent, made as the general rule by which the subject is to live and be governed.

Unless, therefore, it can be said, that the moment parliament breaks up, the king stands in its place, and the continuance of acts is resigned into his hands, he cannot of right suspend, any more than he can make laws, both requiring the same power. The law is above the king; and the crown, as well as the subject, is bound by it as much during the recess as in the session of parliament: because no point of time, nor emergent circumstance, can alter the constitution, or create a right not antecedently inherent; these

If the crown had a legal right to suspend or break through any one law, it must have an equal right to break through them all. That no true distinction can be made between the suspending power and the crown's raising money without the consent of parliament. That they are precisely alike, and stand upon the very same ground. They were born twins, lived together, and together it was hoped were buried at the Revolution, past all power of resurrection. That if any difference was to be made between raising money and the suspending and dispensing power, the latter is the most dangerous, as that which might do the most universal mischief, and with the greatest speed, as it includes the whole. But that as neither of them ever did belong to the crown, no doctrine is admissible that maintains either the one or the other. That the present distinctions are only an alleviation of the dispensing power to sweeten it so as to go down, it being too nauseous in the full stinking potion. That the safety of the crown, as well as the security of the subject, requires us to shut up every avenue that leads to tyranny; and that the super-eminent prerogative of the kings of England, by which they excel in glory all the sovereigns upon earth, is this, that they rule over freemen, not over slaves.

Upon the whole, it was said, that if the doctrine of suspension, on the plea of state necessity, was admitted as constitutional, the Revolution could be called nothing but a successful rebellion, and a lawless and wicked invasion of the rights of the crown; the Bill of Rights, a false and scandalous libel, and an infamous imposition both on prince and people: and that James the second neither abdicated nor forfeited, but was robbed of his crown. In the course of these debates the necessity of the embargo was universally allowed; and the illegality of the authority was only objected to.*

December 10. The Bill having passed the Commons, was carried to the Lords, where it occasioned a long Debate, the distinct speeches of which have not been preserved: but the arguments were thrown

* See Annual Register for 1767, p. 45.

into the form of one Speech, entitled, "A Speech against the suspending and dispensing Prerogative," which we shall

here insert:

A SPEECH IN BEHALF OF THE CON-
STITUTION AGAINST THE SUSPEND-
ING AND DISPENSING PREROGA-
TIVE,* &C.

were patrons of liberty at the cost of their lives; but they secured our liberty by protecting the law against a dispensing power, which they resisted unto blood. Quid a majoribus defensum est aliud quam libertas: neu cui nisi legibus pareremus!' Shall we then be the præclara proles, geniti ad ea, quæ majores virtute peperere, subvertunda?' We are yet free, and, "The freedom of men under governPer Legem Terra.ment is to have a standing rule to live by, common to every one of the society, and made by the legislative power created in it. So says Locke, who is appealed to as a great authority. What he says in these few words is equally in favour of law and liberty. I shall be proud to shew myself the patron of both.

"It is but forty days tyranny at the outside."

"Populus Romanus beneficii et injuriæ memor esse solet.--Nemo civis, qualis sit vir, po test latere.--Quemdam, hominem nobilem, factiosum, novis rebus studere, advorsum quem--neque Leges valerent.--Neque modestia, neque modus contentionis erat. Sed eos frequens Senatus judicavit contra Rempublicam et salutem omnium dixisse."

Sall.

My lords; permit me, late as it is, to express my thoughts upon one of the most momentous subjects, in my opinion, that I have ever heard agitated in parliament. I hardly know what more important matter could occupy your lordships' attention, short of a question touching the actual dissolution of government. Sure I am, if what we have this day heard strikes your lordships as it does me, it must have brought fresh to your remembrance the fatal ground upon which that unhappy question was decided, with a vengeance, when it was debated in the House near fourscore years

ago.

We are, as it were, surprized into a debate upon the dispensing power, and what astonishes me still more, we are got, at least some of us, into a vindication and defence of it a thing I had long thought so odious in its very name, but so settled in the notions of it, and so exploded in theory as well as practice, that nobody ever thought of it, but to hate it, and to thank God it was utterly exterminated out of the pure solar system of the English government, and English liberty.

One noble lord has told us, he rose in this debate not as a patron of liberty, in the modern phrase, as he was pleased to call it, but as a patron of law. Modern phrase did the noble lord say? I hope it will never cease to be a modern phrase; though it is an ancient, and has in all countries been a glorious title. Our ancestors

*This Speech was supposed to be penned by lord Mansfield, but was, in fact, written by Mr. Macintosh, assisted by lord Temple and lord Lyttelton.

My lords; the same noble lord has been pleased to claim, if not the whole, yet the best knowledge of the constitution on behalf of the profession which has raised his lordship to the stations he has enjoyed. But I have always looked upon lawyers at the best, to be but the most skilful midwives to help forward the birth of the wisdom of great statesmen, sound, enlightened and enlarged politicians, to the energy and sagacity of whose genius, in all ages, and in every country, the best models of government have been most indebted: of this the appeal made to day, as well as on a late notable occasion, to the speculations of Mr. Locke, that great philosopher, legislator, and senator, as we have been told he was, is a strong proof.

This also I will be bold to say from the history of England, that our liberties owe most to great noblemen who were not lawyers. Sure I am, lawyers have often appeared amongst us, to be the worst guardians of the constitution, and too frequently the wickedest enemies to, and most treacherous betrayers of the liberties of their country. Of this truth, the preamble of the Bill of Rights, which the learned lord has himself appealed to in the debate, as his chief, though I think, much mistaken and much misrepresented authority, will be a perpetual monument, in these words: 'Whereas king James 2, by the assistance of divers evil counsellors, judges, and ministers, employed by him, did endeavour to subvert and extirpate the Protestant religion, and the laws and liberties of this kingdom. Certain it is, that no arbitrary prince, when meditating the subversion of the constitution, ever was at a loss for lawyers and judges to second his designs; in spite of their learning, and in spite of

opinions that have slept so long, before they are restored, or licensed, so as to pass current.

the religion of the oaths that bound them to support and maintain the constitution. And so ship money and the dispensing power, have, in former times, had the vile countenance, and, if it could be so called, the authority of the bench, and of the sages or the fathers of the law (as Charles 1 named his ship-money judges) while a Hampden, and such like patriots, who were the greatest honour, and the great est blessing of England in their day, stood forth the saviours of their country, by resisting the usurpations of the crown, supported by the perfidy of corrupt judges.

Such a sort of monopoly as the noble lord suggests in favour of the long robe savours too much of what a Lord Keeper (who made many excellent prerogative speeches for Charles 1,) said in the conclusion of the speech he delivered, after publishing that shameful opinion of the Judges on Ship-money. The words I allude to are these: If any contrary opinion should yet remain among men, it must proceed from those who are sons of the law. Of the latter, I will say, Felices demum essent artes, si de illis solum judicarent artifices.' So that prerogative lawyer was for keeping the judgment of the constitution to the art and mystery of the law. Your lordships will not, from the occasion, be fond of adopting the example.

But it is necessary, for preventing mistakes, to premise, that I heartily concur with all your lordships who have spoken in the debate, in expressing my approbation of the measure immediately under consideration, when taken, the em bargo on wheat and flour laid by order of council so late as the 26th of September. The evil of an enhanced price of that grain, which had for so considerable a time before been prognosticated, and growing by a quick pace, was then come to so alarming a height, that it awakened even our administration from the pleasing dream of pecuniary emolument, and extravagant compensations, most liberally doled about to one another, beyond the example of any former time. It awakened them to the cries and risings of the poor, and at last made them take notice that there was such an imminent danger of famine, that it became indispensably necessary to put a stop to the exportation; and by a long prorogation of parliament, which themselves had so culpably advised, that there was no other way left of doing it, but by an interposition of the royal power. I choose to use that word, though

authority' is the word used in the speech from the throne, because I materially distinguish between the two expressions, for reasons I shall afterwards give.

If the learned lord has now got so high an opinion of the advantages of the long My lords; on the other hand, I most robe, I remember when he had it not. warmly deplore and lament the calamity But this is not the only proof this day has produced by the want and dearness of furnished from his lordship and from some provisions, mentioned likewise in the others too, of the wonderful change in opi- speech, I mean that spirit of insurrection, Dions, that difference of interests, as well as riot, and disorder, that has gone forth, and situation, brings with it. For I think the rages in all corners of the kingdom, big same learned lord has likewise told us with fire and sword, to afflict a country alto-day, that we are undone by divisions, ready groaning under a weight and presthough I can recollect the time when his sure of evils, greater than she can bear. lordship regretted in this House that we It would ill-become this place to palliate were ruined by an intoxicated unanimity, or excuse, on any account whatever, under an administration of which one of such dangerous tumults and riots, much his new friends constituted a most brilliant less to incite and encourage them, by saypart. I congratulate the learned lord on ing, as I have once heard it said within this change of mind for the better, which these walls, by one sworn to execute the is more than I can say of all the opinions laws, that the subjects, cruelly harassed his lordship has given to day, though I by burdens and other grievances, imposed believe they proceed also from a new light. upon them by the legislature, are made I cannot however say, the noble and learn-desperate. This daring and lawless exed lord's opinions are modern. They are old, and what is more, they are antiquated. His lordship has but revived an old farce not acted near these hundred years. It will therefore be fit, I think, to examine

pression, I confess, related only to the justification of the American subject in wanton rebellion. God forbid that I should adopt the detestable language, even in favour of the English subject, taxed till

the power of taxing can no farther go, fa- | but an utter subversion of the power of mished, and starving. It must, however, parliament, and of the most fundamental grieve one to see the nerves of govern- and essential rights and liberties of the ment so totally relaxed, and its proper subject. Upon my word, if I did not energy and vigour, almost wholly lost. know I was awake, I should be apt to The truth of the matter, and the root of think I had been in a dream, and that some the evil is, we have had no government fairy midnight scene had carried my imafor some years, or, which is much the same gination back an 130 or 140 years, in an thing, we have had the form of it only, illusory audience of some of the speeches without any reality, energy, or spirit, de- of a James or Charles, or their lord chanscending ever from bad to worse. cellors and lord keepers; for with no other standard of the prerogative, that I know of, will such notions square; and these they will fit.

'Tota discors machina divulsi turbat fædera mundi.'

And the noble lord in the blue ribbon has too good reason to put us in mind of what he told your lordships last year, that you would import rebellion from America. Would to God he had not been so true a prophet! The indulgence shewn to Americans is not, I fear, altogether free of the blood that must be sacrificed in England, at the altars of justice, to restore and preserve peace and good order, maintain authority, and secure property. Nor can I acquit the blunders of administration in this very corn business of that charge. I am afraid, the unseasonable and extraordinary long prorogation of parliament, which excluded the prospect of relief from famine, by a legal prohibition of the exportation, had no small share in producing the riots and risings: and by a shameful blunder in the proclamation against forestalling, misreciting the laws it promulgates, a pretence was given for the riotous people to seize the grain for their own use, under a mistaken notion that the grain itself was forfeited, as the proclamation declares it to be, instead of a forfeiture of the value of it, which is what the misrecited statute enacts.

I said, I approved of the Embargo as necessary, when laid on; but I do not approve, on the contrary I complain of the preceding conduct of administration, by which they brought themselves into that dilemma, which necessitated them to advise his Majesty to that measure, by what is called the royal authority. And as to the principles I have heard laid down to day, and the doctrine that has been advanced in justification of the legality of the Embargo; so far am I from approving of them, or acquiescing in them, that I cannot even hear them with patience. I declare they make all the whig-blood in me boil: for, to use an expression that has, I think, been miserably misapplied on the other side, these doctrines, if adopted, lay the axe to the root of the constitution. They can tend to nothing

I shall hereafter endeavour to point out that assemblage of circumstances on which I found the complaint of blunder, inattention, and neglect, in the administration : but your lordships will allow me, in the first place, to consider the general doctrine that has been drawn into the debate, as by much the most important matter, and what indeed principally called me up: I say has been drawn into the debate, for sure I am it could never have come from the measure in question, if it had been allowed to rest upon its true bottom, with a claim to such a sanction as could be given it by law: which sanction, by the way, I fancy your lordships will find necessary, notwithstanding all that has been said in support of the Embargo as a legal exercise of prerogative.

The question debated is, whether the Embargo on corn, the largest freedom of exportation of which is permitted by many acts of parliament, and encouraged by a statute bounty, is a prohibition according to law; a legal act of government, within the constitutional bounds of the prerogative of the crown; or is only a mere act of power, induced by an urgent necessity in the state, exceeding the true limits of the royal prerogative, but that ought, for its beneficial tendency and effect, to be approved, and must be confirmed by the sanction of law, to give it legal force and valid operation.

This question comes to a general point, and it has been brought to that in the debate. A general proposition must be maintained, and the general proposition has been maintained, that of any, and if of any, of every act of parliament, the King, with the advice of the privy council, may suspend the execution and effect, whenever his Majesty, so advised, judges it necessary for the immediate safety of the people.

I limit it so to give the proposition

« PrécédentContinuer »