HL Deb 15 November 1830 vol 1 cc500-9
The Lord Chancellor

addressed their Lordships to the following effect:—My Lords, I rise in consequence of the notice which I gave last week, in order to submit to your Lordships' judgment the measure which his Majesty's Ministers have prepared, in consequence of his Majesty's recommendation in his most gracious Speech from the Throne, for the purpose of providing for the Administration of the Government of the country, in the event of the demise of his Majesty, before the successor to the Crown shall have arrived at years of maturity. My Lords, I do not intend on this occasion to enter into any detailed consideration of the measure. At present, I will confine myself to stating the principles on which his Majesty's Ministers have proceeded in framing the Bill which I hold in my hand, and to describe the outline of its provisions. In the first place, my Lords, I must observe, that in framing this Bill his Majesty's Ministers have not thought it necessary to provide for every possible contingency that may occur. The principle by which they have been governed is this:—Having, in the first place, considered what were the various exigencies that might arise, the various periods at which those exigencies might arise, and the means which would exist of legislating for any of those exigencies at any of those periods, his Majesty's Ministers, for those cases in which it appeared to them that it would be difficult or inconvenient to legislate on their occurrence, have proposed to legislate on the present occasion. On the contrary, my Lords, whenever it appeared to them that, on the occurrence of any of the events under consideration, an opportunity would be afforded for legislating with no more difficulty or inconvenience than at the present moment, they have determined not to anticipate the decision of a future Legislature, but to leave the question free and untouched. Again, my Lords, in framing the Bill which I am about to have the honour of requesting your Lordships will allow me to lay on the Table, his Majesty's Ministers have thought it the wise and prudent course to legislate as little as the necessity of the case would admit; and to leave the existing law and the Constitution to operate wherever they are applicable. I think your Lordships will feel that, in pursuing this course, and acting on these principles, his Majesty's Ministers have discharged their duty in a manner the most consistent with prudence and wisdom. It must be obvious to your Lordships that the main point is, to protect the person, and to secure the succession to the Throne of her royal highness the Princess Victoria. That illustrious personage is now in the twelfth year of her age. The period of her majority, as qualifying her for the sovereignty of this country, will not arrive until her royal highness is eighteen years old. The principal object of this Bill, therefore, is to provide, in the event of the demise of his Majesty before the Princess Victoria shall have arrived at the age of eighteen, for the Administration of the Government of the country during the interval. That, my Lords, was the duty imposed upon his Majesty's Ministers in preparing this Bill; but I am quite sure that I am only speaking in unison with the feelings of every noble Lord who hears me, and in unison with the feelings of the great body of the people of this country, when I offer an earnest prayer that the valuable life of his Majesty may be long preserved to his faithful and affectionate subjects. I am quite sure that your Lordships, and the great body of the people of this country, feel that no greater calamity could befall us than the death of our present most gracious Sovereign. But, my Lords, notwithstanding all the wishes and all the hopes that we may entertain on that point, it is necessary that we look to what, however much it is to be deprecated, is nevertheless a possible occurrence; and it is in that view of the subject that his Majesty's Ministers have prepared the measure in question. The provisions of that measure are of the most simple character The first question which your Lordships will naturally ask is— whom we propose as the guardian of her royal highness under the circumstances inferred? I am sure, however, that the answer will at once suggest itself to every mind. It would be quite impossible that we should recommend any other individual for that high office than the illustrious Princess, the mother of her royal highness the Princess Victoria. The manner in which her royal highness the Duchess of Kent has hitherto discharged her duty in the education of her illustrious offspring—and I speak upon the subject not from vague report, but from accurate information—gives us the best ground to hope most favourably of her royal highness's future conduct. Looking at the past, it is evident that we cannot find a better guardian for the time to come. With respect to the Regency, and the means to be provided for discharging the functions of the Sovereignty, it is important to separate that consideration from the other. It is, however, the recommendation of his Majesty's Ministers that, on the event of the demise of the Crown, what appears to us to be the only constitutional course should be adopted, and that her royal highness the Duchess of Kent should be appointed sole Regent. There is another question on which it is necessary for me to say a few words. It will be asked me—"it may happen that a child may be born to his present Majesty; do you intend to provide in your bill for that event?'' My answer is distinctly in the negative. His Majesty's Ministers have thought it unnecessary to provide for such a contingency, for this reason:— Whenever such an event may occur, or whenever there may be a reasonable probability of its speedy occurrence, as it will be competent to the Legislature to provide for it, and it will be more easy to provide for it at the time than by anticipation, the case comes under the principle upon which we determined to frame the measure— namely, to abstain from legislating with reference to those contingencies, on which, whenever they occur, Parliament may legislate without any difficulty or inconvenience. For that reason, my Lords, we do not propose to provide for such an event. The next point to which I am desirous of calling your Lordships' attention is one of no inconsiderable importance. I have already said, that his Majesty's Ministers propose that her royal highness the Duchess of" Kent shall be the sole Regent. The question is, whether her royal highness should have a Council to assist her? If we were to be guided by precedents, those precedents are in favour of the appointment of such a Council. I do not speak of the precedents of old times; the alteration of habits, the change in the circumstances and situation of the country, render such precedents very remotely applicable to the present case. It would be difficult also to find in any of those ancient precedents an instance similar to the present. Passing by, therefore, all those precedents, I proceed at once to advert to two of more modern date; the one occurring in the latter part of the reign of George 2nd, in the year 1751; the other occurring in the fifty-first year of George 3rd. In both those cases a Council was appointed to assist the Regent. My Lords, no opportunity was afforded us of judging, by practical experience, how far those precedents were such as it would be desirable to follow. On that point, therefore, no argument can be raised. But, my Lords, it has appeared to his Majesty's Government, and I have no doubt that it will appear to your Lordships, that as the prerogatives with which the Crown is invested are intended for the preservation of that balance between the different estates of the realm indispensable to the maintenance of the Constitution; and as, therefore, the Crown itself ought not to be deprived of prerogatives so essential, the expediency of not diminishing the Royal prerogatives applies still more strongly to a Regent; because the limited duration of the power of a Regent renders that power less influential. If, my Lords, you take from a Regent those prerogatives which you would hesitate to take from a Sovereign, because you know that by so doing you/would endanger the Constitution, you would certainly produce the evil that you would wish to avoid. On these principles, and on these grounds, we object to the appointment of a Council, professedly to assist, but in reality to control, the Regent. I do not mean to say that a position of affairs might not arise— that a Regent might not be chosen, which position and which choice might not render it highly proper to appoint a Council. A case might occur in which it would be necessary to select as Regent an individual of great ambition, of great popularity, of great influence, of great authority, whose sole sway might be dangerous to the State. The power of such an individual it might be wise and prudent to circumscribe by surrounding him with a Council. But such, my Lords, is not the case now. The Regent whom we propose to appoint can never succeed to the Throne; her interests are identified with those of the future Sovereign; she is united to her by the tenderest ties; it will be the interest of the Regent to add to the authority of the future Sovereign; none of those motives for self-aggrandisement can occur in this real case, which might occur in the imaginary case that I have just described. In the precedent of 1751 many debates took place in the other House of Parliament. The arguments of Mr. Speaker Onslow, and of other hon. Members who were opposed to the appointment of a Council of Regency, appear to me to have great weight. The Attorney-general of that day, Mr. Dudley Ryder, gave it as his decided opinion, that a sole Regent, unfettered by any Council of Regency, was much more consonant to the principles of the Constitution than a Regent surrounded and checked by such a Council. The only argument urged at that time by the supporters of the Council was, that Parliament was establishing a precedent; and that cases might occur in which the appointment of a Council of Regency would be highly expedient, but might be resisted on the score of precedent. But surely, my lords, that was weak and shallow reasoning. Why not allow every case to be judged of by its own merits? Why not leave the Legislature to deal with every future emergency precisely according to its particular character and circumstances? To me it appears to be a monstrous proposition, that if at any period the interests of the country require the appointment of a Council of Regency, the Legislature shall be precluded from making such an appointment, because a preceding Legislature, under circumstances of a different nature, had abstained from it! At the period to which I have been adverting, the Council was to be composed of fourteen individuals, seven of whom were to be Ministers of State. There was this provision, that no Member of the Council should be removed from it without the concurrence of half the members of the Council. Looking, therefore, even at the manner in which the Council was formed, it is not a precedent which I could recommend for imitation. For these reasons, I submit to your Lordships that it is far better, in the present instance, that her Royal Highness the Duchess of Kent should not be fettered by any Council; but that she should be left to administer the Government by means of the responsible Ministers of the Crown. That is the course which his Majesty's Ministers conceive to be most consistent with a just and efficient administration of the Government.— There is still another question, my Lords, to which, however reluctantly, I am compelled to advert. I say reluctantly, because it refers to a possible case for which we have no authority, no precedent. The subject was alluded to in the last Session by a noble Earl who is not now in his place. It is a subject which is certainly beset with very grave difficulties; and I confess, my Lords, that I approach it with some degree of apprehension. It was stated by the noble Earl to whom I have alluded, that, although the Monarch might have no child living at the time of his death, a posthumous child might, nevertheless, be born. In that case, my Lords, clearly, and without the possibility of controversy, that child, whenever its birth took place, would instantly succeed to the Throne. Of that, there is no doubt whatever. But the great difficulty is to decide what are the existing rights in the interval between the demise of the Crown and the birth of such a child. It is very extraordinary, my Lords, that as far as I have been able to ascertain, assisted on the subject as I have been by some able friends, no case of the kind has occurred in this country since the Norman Conquest. It is very extraordinary, that with respect to this point, no notice has been taken by any old writer on our law and Constitution. In the debates on the Exclusion Bill in the reign of Charles 2nd, it was incidentally noticed in the other House of Parliament. A very learned man, Mr. Hargreave, in a work entitled "Brief Deductions," has stated in distinct terms, that the law on the subject is unsettled; and I confess, my Lords, that I have been unable to find anything opposed to that statement. If we turn our attention from our own country, and look to what has occurred with reference to the monarchy of France, we shall find only two instances, in which a Royal posthumous child has been born. The one was subsequently to the death of Henry 5th. On that occasion, on the demise of the Sovereign, the Presumptive Heir to the Crown was declared Regent, The child proved to be a son, and of course immediately succeeded to the Throne. Charles the Fair left his widow seven months gone with child. In that case also, the Presumptive Heir to the Crown was declared Regent. But in that case, the child proved to be a daughter, and was, of course, excluded from the Throne by the Salique law. But, my Lords, the principles of a foreign government are not those to which we ought to look for a model. Nor are the circumstances of the two countries the same. We are, therefore, driven to the necessity of considering the subject with reference to what appears to be the general principle of our own law. The descent of the Crown follows the rules of the descent of real property, in most respects, except where there are two daughters, in which the real property is shared between them. It becomes, therefore, important to inquire what happens with reference to a posthumous child entitled to real property. My Lords, it has been settled in the Courts of Justice of this country, that such a child, before it is born, cannot be seised of such property. The right to enjoy and possess it is in the presumptive heir. He has the whole interest in it, from the death of his predecessor until the birth of the child. That precisely the same doctrine stands good with respect to the Crown, I will not assert with confidence; but this principle is undoubtedly common to both; namely, that there can be no abeyance— that there can be no vacancy. The King never dies. There must always be a Sovereign: The principle applied to real property is applicable to the Crown. The child unborn cannot be seised of the Crown: it must devolve for the time to the Presumptive Heir. My Lords, I know that this is only reasoning from analogy. I submit it as such only to your Lordships' consideration; I beg to say, to your Lordship's indulgent consideration; seeing the nature of the question, and the difficulties which surround it. My Lords, we have two courses to pursue; we must either adopt the course taken in the French monarchy, or we must appoint a Regent to administer the functions of the Government in the interval between the death of the Monarch and the birth of the posthumous child. Your Lordships will, however, advert to this circumstance— that the government, under any Regency, must be administered in the name and on behalf of the Sovereign. If you appoint a Regent to administer the Government, without stating that he is to administer it in the name and on the behalf of the Sovereign, you create a Parliamentary Sovereign under the title of Regent. It would be more correct, therefore, under such circumstances, to say that the Regent shall administer the Government in the name and on behalf of the Presumptive Heir; and that he shall be liable to be divested of his authority on the birth of the posthumous child. When I say, that the King never dies, I appeal to the uniform proceedings of our Courts of Justice. There is no proceeding in any civil case, there is no proceeding in any criminal case, which does not take place in the name of the King. Such or such an act is said to be against the King's peace. The King is always supposed to exist. I repeat, therefore, my Lords, that the best course will be, to appoint a Regent, to act for the Presumptive Heir to the Crown, liable to be divested of his authority on the birth of a posthumous child. — The seisin in law must rest somewhere, and in whom ought it to rest if not in the Heir Presumptive? This is the principle of the law of real property; and the same maxim and the same principle apply, in the fullest extent, if we argue from analogy, in regulating the descent of the Crown. There is, too, another point connected with this part of the question, which I think merits your Lordships' consideration. If you say that the succession to the Throne can be either vacant or in suspension until there is no possibility of a child being born to destroy the claim of the Heir Presumptive, it may happen that, even with the probability of such an event taking- place, a child may eventually not be born. It may therefore occur, my Lords, that the Presumptive Heir may be the Monarch entitled to the Throne upon the very instant of the demise of the last possessor of the Crown, and that you have, by the appointment of a Regency under such circumstances, and under the expectation of the birth of another Heir to the Throne, deprived him of his right, and excluded him from taking that, which was his right the moment of the demise of the former Sovereign. In considering all the bearings of a question so difficult and complicated, I have felt it my duty to consult all those learned men who are the official advisers of the Crown, and they one and all concur in that view of the question which I have now endeavoured to explain to your Lordships, and agree in opinion that there are no cases on record by which we can regulate our decision, but that we must guide ourselves by reasoning from analogy, and by a reference to those laws regulating the descent of real property, to which I have already called your Lordships' attention. Before your Lordships come to any decision on a question of such grave importance, I would suggest the propriety of allowing some little time to pass by, in order that your Lordships may have an opportunity to put yourselves in possession of all the authorities which are connected with that part of the subject. On the principle, however, that it is necessary to provide for the possibility of the birth of a posthumous child, we propose, on the same terms and to the same extent that we have thought it right to make her Royal Highness the Duchess of Kent the guardian of the Heiress Presumptive, and the Regent of the Kingdom during her minority—we now propose, I say, to provide by the Bill, that in the event of the birth of a child after the demise of the Sovereign, her Majesty the Queen should become the guardian of that child, and the Regent of the Kingdom during the continuance of the minority of that child; the same arguments and the same principles apply equally to the one case as to the other, and the deep interest which the parent must always have in the safety and prosperity of her offspring point out that parent as the fittest and most proper person to be the guardian of the infant, and the Regent during its minority. This, my Lords, is the outline of the Bill which I submit to your consideration. I abstain from entering into details, because I feel that those details will be much better understood by an examination of the Bill itself. We propose then, my Lords, that her Royal Highness the Duchess of Kent shall, in the event of the demise of the present Sovereign, be the Guardian of the Heiress Presumptive, and the Regent of the Kingdom, until the Princess arrives at her majority—that is, the age of eighteen years; and we also propose, that in the event of the birth of a posthumous child, her Majesty the Queen should be in the same manner the guardian of the child, and the Regent, acting in the name and on the behalf of the infant during its minority. These, my Lords, are the heads of the Bill. The details, as I said before, it is unnecessary to enter into at this moment, and I shall therefore conclude by laying the Bill on your Lordships' Table, praying leave that it may now be read a first time.

The Earl of Eldon

said, he could not allow that opportunity to pass by without expressing his feeling that the House and the country were deeply indebted to the noble Lord for the attention he had bestowed on a question of so much importance, and still more for the able and eloquent manner in which he had brought it under their consideration, stating the grounds on which he relied for their concurrence. He should stand justly chargeable with most unpardonable vanity, if, after the grave and weighty consideration which the noble Lord had bestowed on every part of the question, he should now presume to express any difference of opinion without maturely weighing and examining all the provisions of the Bill. One thing, however, he might say now, and that was, that on the question of the law, as it applied to the cases stated by the noble Lord, He (Lord Eldon) fully agreed with him. All the points connected with the law of the case had been so fully and ably stated by the noble and learned Lord, that he had very little to say; but he would observe, that it was the interest of all on whom the settlement of this important question, depended to take care that there should be perfect unanimity on all that was said and done connected with it. Under that persuasion he was confident that advice, from whatever quarter, would be well received and conscientiously acted upon. He should, for the present, content himself with expressing again his concurrence in all that had been said of the law of the case, and take a few days for deliberation before he offered any opinion on the details.

The Bill, entitled "An Act to provide for the Administration of the Government of the country, in case the Crown should descend to her Royal Highness the Princess Alexandrina Victoria, daughter of his late Royal Highness the Duke of Kent, being under the age of eighteen years, and for the care and guardianship of her person," was then read a first time.