JN 214 1788 A694 Arguments Concerning the Constitutional Sight of Parliament to Appoint a Regency THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES L ARGUMENTS CONCERNING THE CONSTITUTIONAL RIGHT O F PARLIAMENT TO APPOINT A REGENCY. Quo Senatus aufloritas maxuma feret, bonum Publicum Cmulantes, pro fua potentla certabant. SALXUST. LONDON: FRINTED FOR J. DEBRETT, OPPOSITE BURLINCTOX- HOUSE, PICCADILLY. MDCCIXIXVIII, ADVERTISEMENT OF THE EDITOR. A great part of the following pages have already appeared in the GAZETTEER of December n. The channel of a newfpaper being the mod public, was thought the propereft, for extending information on a lubjeft which it behoved every man to confider. Thofe papers, however, are difperfed ; and at the requeft of many perfons who have enquired for them in vain, the whole is now reprinted. PREFACE. IT is the privilege of an Englifhman to en- quire freely into, and give his opinion on public affairs \ and if, on any important occafion, he can contribute to enlighten or inform his fel- low citizens, U then becomes his duty. If he writes with moderation, the moderate will not con* demn ; if with impartiality, the candid will ap- prove. If neither his labors are venal, nor his defign factious, he will receive the indulgence, and perhaps, the thanks of the public. That the queftion now agitated is of fufficient importance to excite the intereft, and that the difference of opinion upon it is. considerable enough to provoke the enquiry of every man whq loves his country, will hardly be denied. The queftion at iffue is no lefs than this, Will the Parliament , by appointing a Regent , violate, or, will they, by negLSing to do it, betray the Conftitution ? 1415102 lf> _If^ im. the one :fide, an attempt to impair the privilege of Parliament Ihould be refilled by every friend of liberty, fo on the other, let it be re- membered, that if their power is increafed beyond its proper bounds/ the Constitution will be in no lefs danger ; and this Ihould be more particularly guarded againft, becaufe it is lefs liable to fuf- picion. The effects of a barefaced prerogative, fays a celebrated author, are not the moft danger? ous to liberty, for this reafon ; becaufe they are open ; becaufe the alarm they give is commonly greater than the progrefs they make. The mofl dangerous attacks on liberty, are thofe which are made in difguife ; when powers are given under pretence of fome urgent neceflity, popular per- haps, at firft, but fuch as ought not to be ad- mitted as lawful, or drawn into, precedent. Parliament has an abfolute, but it is a dele-t gated truft. For the people* they act, and by tfrem are judged. If the following pages mould be found to carry conviction to any of thojfc whofe voice is to decide in the national council, or to affift the people in forming a juft judgment of their reprefentatives,. the author will have ob- tained at once his object and his* reward. ARGUMENT, ARGUMENT, &c. TN the various difcufTions to which the * fituation of the Sovereign has given occafion, it feems that fome efTential points have been either entirely neglecled, or not ftated with fufficient accuracy. Much re- ference has been had to precedents in a great meafure irrelevant, and much has been de- claimed on the expediency of the Prince's being Regent ; but I doubt whether the queftion of mere rigM has been fufficiently inveftigated. I am firmly perfuaded that every pafiage in our hiftory, which could be quoted as analagous to the prefent time, would tend to corroborate the doclrine which I doubt not to maintain ; but I \vifh to renounce the, aid aid of every conclufion drawn from that fource. The rights both of the king and the people fland now on a different bafis than they did before the revolution, and re- ference to precedents prior to that event, is neither fafe nor conclufive. That on any known incapacity of the So- vereign, the regal power muft be lodged fomewhere, is, I believe, denied by none : but where, in fuch a cafe, it does refide, or \vhere it ought to be placed, is the queftion to be determined, and which may be flated perhaps more correctly thus : " Wlxther on any eftablifhed incapacity of the king, does the prerogative defcend im- mediately to the heir apparent, he lying under no difqualification ; or, does it accrue to the parliament ? " In the firft cafe, as foon as the king's in- capacity is declared, the prince becomes de jure Re"gent, with the fame powers with which the king was invefted ; and in the fecond, it lies with the Houfes of Parliament to appoint Regent whom they pleafe, ancj with what powers they think proper. No\V ( 7 } Now if there be no exprefs law or lifhed cuftom whereby to anfwer this quef- tion, I prefume it will not be denied, that it can only be determined by the general fpirit of the Conftitution, and the evident welfare and fqfety of the country ; and if from thefefources direcl and unqueftionable conclufions can be drawn, I (hall not hefitate to lay down fuch a decifion, as no lefs incontrovertible than if the cafe had been provided for by Specific law, and reiterated precedent. There is not a principle more diftinclly eftablifhed by our confutation, or more ef- fential to the exiftence of it, tlian this, " that each of the three eftates has its inherent rights, independent of each other, and which can neither be altered nor confounded." This divifion of power, thefe privileges fo accurately diftinguifhed, and fo nicely ba- lanced by the wifdom of our forefathers, form the very effence of our conftitution ; and if any part of the three which compofe cmr government fhould at any time invade the rights-, or exercife the powers of the other C 8 ) other, from that moment the Conftitution is changed* I am well aware that this was the cafe at the Revolution, when the prerogative was affiimed by the Convention Parliament. But is it not for this very reafon that we call it a Revolution? thereby expr effing that the old conftitution was then done away, and a new one eftablimed. The neceffity of the cafe, proclaimed by the nation at large, juftified the meafure. To provide for the fecurity of religious and civil liberty is an act of neceffity to a free people ; and if not maintained on this ground of neceffity, the Revolution was a work of injuflice and treafon. Thofe who contend that Parliament is competent to appoint a Regent on the pre- fent occafion, will now be reduced to the neceffity of either denying the principle which I have laid down as fundamental in the Conftitution ; or they will be required to prove that a neceffity now exifts, which can juftify what that Conftitution does not allow, viz. that the two eftatesjh'juld ajjume the rights ( 9 ) rights of tbe third. The former, I think, they will not be inclined to do ; and if they chufe the latter alternative, I fhall afk, on what femblance of foundation fuch a necef- fity is alledged ? And let the man who is hardy enough to aflert that it does exift, be prepared to fay alfo, that there exifts at the prefe.nl moment the neceffity of a Revolution. Or let him, when the Houfes of Parliament have appointed a Regent, and confequeritly muft have had in themfelves firft the power which they beftowed, let him (hew why the event of the prefent day is lefs a Revolution than that of a hundred years fince. James, by his abdication, was morally difqualified as king ; his preient M y, by a phyfical caufe, is no lefs incapaciated from governing : the abdication being v oluntary, was final ; the prefent calamity is dependant on the will of God, and may ceafe . In the former cafe, the prerogative was afiumed by the convention, and conferred on king William; In the prefent cafe, if ailUmed at all, no matter on whom it is beftowed ; the a<5l of afiumption conftitutes a revolution, B But But it isfaid, " If Parliament appoint the Prince Regent, with tmdiminifhed power, is not this the fame as if they merely recog- nize him fuch ?" By no means. A right of appointment implies a right of choice ; and the moment the right of appointment is limited to one object, the inherent right of that' perfon is admitted. To deny this, would be to difpute about words ; nor (hall I ufe any ceremony in concluding, that who- ever maintains the right of Parliament to appoint, equally contends that they may appoint whom they pleafe. I have nothing to do with what might be the expediency of fuch a meafure ; but as a matter of right they may appoint themfelves Regents, and thus compleatly annihilate the third eftate. Other cafes may be imagined, in con- fequence of this doc'trine, not only of incon- venience and danger to the ftate, but of folecifm and confufion. I am at liberty to 'fuppofe the. Miniflerfor the time being appointed 'Regent. He would ftand in a fituation ab- folutely hoftile to the conftitution of a king beine being his own minifter. The " King 'can never die ; the prerogative can never be diminifhed," fays the Conftitution. It muft then be lodged entire fomewhere. Where is it lodged ? In the hands of a Regent. But one part of the prerogative is, that the King can do no wrong. Then the Regent can do no wrong. But the Regent is minifter, and his meafures, ihielded by this principle of the conftitution from enquiry or cenfure, he may hold the power, and execute all the functions of government, without re- fponfibility. Let me fuppofe another cafe, and who, fhall fay that it is even an improbable one. The Irifh Parliament is independent of the Engliih Parliament ; but their conftitutions are the fame: and if the Parliament of Eng- land has a right to appoint a Regent, the Zrifh Parliament has an equal right, and different Regents may exift in the two king- doms at the fame time. I afk, by what tie the nations will then be united ? The Par- liaments are independent, and the Regents B* r.9 fi& Jefs fo ; each ufmg his prerogative, may involve the fubjefts of one Sovereign in hof- tilities with one another, which could hardly be called a civil war. To fay that things will not happen, is no anfwer. It is fufficient to me that they are poffible ; for when in philofophy or politics, a fyftem carried to any extent involves you in abfurdity and contradiction, its foundation muft be in error and iniecurity. Another principle of our conftitution, and indeed of every conftitution, is this, " That in all cafes not efpecially provided for, that fcourfe fhould be held, and that do6lrine maintained, by which it incurs the leaft chance of being altered or deftroyed." This principle, perhaps, never promulgated, be- canfe it is inherent in the nature of every human eftabliihment, is decifive on the prefent occafion. For if the fafety of our conftitution confifts in the nice equipoife of power in each of its three parts, its chiefeft danger muft be when a greater power is vefted in any ; and will the prerogative be moft formidable when lodged in the hands of ( '3 .) of the Heir Apparent, who had none before, or when united with the power already ex- i fling in the other branches of the legif- kture ? Many ftrong arguments to confirm this right of the Heir Apparent, might be de- rived from the natural defcent of an here- ditary office, to which the prerogative bears the neareft analogy. Whenever a tem- porary or permanent caufe difqualifies the holder of fuch an office, I believe that the laws and cuftoms of every country prefcribe, that its fun6lions and power fhould devolve immediately to the Heir, who would have fucceeded in cafe of his demife. And I am fure that all the principles of right, from which this rule is derived, apply more ftrongly to the regal power than to any other. But we want not the aid of thefe. ftrong grounds ; for Unlefs the fplrit of our conftkution admits the rights of its three eftates to be con- founded without neceflitv ; Unleft t H .1 Unlefs a fyftem which involves contradic- tion, and creates confufion, is preferable to a fyftem of harmony and order ; Unlefs the danger of the Conftitution is better than its fafety ; Or, unlefs the circuinfhmces of the pre- fent juncture juftify a fubverfion of the go- vernment, and create the neceflity of a re- volution ; We are authorifed to conclude, that from the moment that the incapacity of the Sovereign to govern is eftablifbed by conjlitutional enquiry, from that moment, the Heir Apparent, lying wider no difqualification, is de jure Regent of thefe kingdoms, with all the powers of the pre- rogative undimini/bed. Till I hear thefe arguments refuted, or thefe facts difproved, I think it unneceflkry to conftder the fubject in any other view : I neither enquire whether from the character of thofe, who propofe fuch a meafure, there is any particular temptation 'to recede from that path which the conftitution has pre- fcribed ; nor (hall I indulge in reviewing the character of him whofe fubjects we are, and ought ( 15 ) ought to be, till the hand of God (hall re- move from the K g that calamity which renders him incapable to govern. The bell merited panegyric of the Heir Apparent would at this moment be ufelefs ; and per- haps at this only moment of his life it might be unfeafonable. For as the worft repu- tation could not diminifh his right* fo the moft amiable qualities cannot increafe it. Yet may thofe who know him be permitted to congratulate their country, that Heaven has provided the only adequate alleviation of the prefent calamity in the virtues of the Heir Apparent. Hitherto it has only been for a few to feel in what an irrefiftable manner he never fails to attach thofe who know him ; but the time is come when pa- negyric will be as unnecelTary as it is in- adequate ; when his character unfolded to the nation will fhew, that if he has not been every where idolized, it is becaufe he could not be univerfally known : when his friends will find their boldeft promifes outdone, and their warmeft wifhes more than gratified. NEW PUBLICATIONS Primed for J. DF.BRETT. ANSWFR to the CONSIDERATIONS, &c. on th~ ESTABLISHMENT of. a REGENCY. Price is. A SHORT VIEW OF THE PRESENT. GREAT QUESTION. Prices. REFLECTIONS on the FORMATION: of a RE- 'GENCY. In a Letter to a M;:\r,ber o4 the Lower Houfe of Parliament. The Second Edition. Price is. AN ADDRESS to.thoCe Citizens who, i- their public and private Capacity, RESISTED the Claim of the . ;iarte HOUSE OF COMMONS to NOMINATE , the MINISTERS of the CROWN. Price 6d. The LAW OF PARLIAMENT, in the PRESENT SITUATION -of GREAT BRITAIN confident. Prfff is. 6d. TKe SPEECH of M. NECKER, Director G-.-neral of the Finances, at the Meeting of the ASSEMBLY of NOTABLES, held. at Verfailles, Nov. 6, 1788. To is -added, the Speeches of the KING, and the of the Seals. Price is. 6d. A CONCISE ACCOUNT of the Climate, Produce,, . Trade, Government, Manners, and Cuftoms o^ ihe Kingdom of PEGU, interfperfed \vitli R^inarkc Mo- ral and Political ; with an Appendix, pontai^ng^ I ft. Enq'iiry into the Catile of the Variety onk;;vable in the Fleeces of Sheep in Different Climates. id. Ddcription at fome Caves at Elephanta, Am- bola, and Canara. The Whole being the Refult of Obfen-atkiriS^nade on a Voyage 'performed, by Order of the Hon<:ur:;b!e E$.$ Indi^Compawy, by W. HUNTER, A. M. Surgeon, Price 2*. 6d. :jt^fej^ CONSIDERATIONS on the War with the TURKS. Tranflated from the French of M. DE VOLNEY, Pries 2s. 6d. r bola, and Canara. The Whole being the Rcfult of Obfefifttiittltlnttde on a Voyage 'performed, bv Order of the Houmirabk' K:t'i: Indil&ompMiy, by W. HUNTER, A. M. Surgeon, Price 26. 6d. CONSIDERATIONS on the War with the TURKS. Tranflated from the French of M, DE VOLNEY. Pries 2s. 6ci. lord \ ay or PAMPHLET BINDER Syracuia, N. Y. Stockfon, Calif. JN 21k 1788