SUCCESSION TO THE CROWN. (Hansard, 7 July 1837)

Lord Brougham
had, he said, some objections to make to this Bill. Although, he said, the monarchical form of Government might be chargeable with many defects, and from necessity it must be charged with them, yet there were some advantages of a paramount nature connected with it, and which must render it preferable to others. There was, in his opinion, no one advantage connected with monarchy, and especially with a limited monarchy, such as it was happily in this country, greater than this—the certainty of the succession to the Throne. Everything, then, that touched the certainty of the succession was of the utmost possible importance. In considering the proper manner for supplying the royal authority, it was considered to be indispensable that they should recognise the next in succession to the Throne who was of full age and of perfect capacity. In 1705, if there had been a person so situated in this country, there could be no doubt he would have been recognised in the Act then passed for providing for the Government of the country in the absence of the descendants of the electress, Sophia. It 1837 happened, however, at that time, that there was no such person to be found in this country; but in 1751 and 1761, when a person was empowered to act as custos regni, there was fixed upon to be in the council of regency the person next in succession; such person was inserted in the Bills passed upon both occasions, Their Lordships were aware that there was a vast difference between lords justices nominated by the King, and lords justices such as were created by the present Bill. They were only the same in name. In the one case the lords justices were the lieutenants of the King; they acted under his control, and by his instructions, while in this case there was an absolute investment of the royal authority in those persons, subject to the restrictions contained in this Bill. His Majesty, the King of Hanover, could not, until he made the proper declaration, have all the functions of royalty in this country. Until he did that he could only have the powers conferred upon him by the present Bill. The circumstances, however, upon which they were legislating were such as were not likely to happen, and he hoped to God! might not happen—a prayer and a hope in which he was sure he was joined by their Lordships and all her Majesty's subjects. What they were providing for was a remote possibility, but one still which might happen; and if, instead of eight or ten days, his Majesty was to be absent for months from this country, supposing him to be prevented by illness, a case much more likely to occur—certainly not so improbable as his surviving their present Sovereign—supposing him to be absent for three months (for in this case they were going upon possibilities), then they ought to adhere to strict constitutional principles, and they ought not to do anything which was inconsistent with, or repugnant to, those principles—that which he believed they were doing in this Bill, by not including amongst the lords justices the next in succession to the Throne, of full age, and resident in this country. His proposition was not by name to include the Duke of Sussex in the present Bill as the next in succession; his object was not to single out any individual by name, but to take the description of that person as being one of full age, resident in the country, and next in succession to the Throne. It was true that if the son of the King of Hanover, 1838 the Crown Prince, were in this country, and that he was of full age, then he would be the person. If neither he nor the Duke of Sussex were here, then the person to whom the description would apply would be the Duke of Cambridge. What he objected to was the omission of the name of any such person. He had — another objection to urge—it was the insertion of the Lord Chief Justice of the King's Bench as one of the lords justices. He was sure he should not be considered guilty of disrespect in thus arguing upon a matter which, after all, was only one of a bare possibility. As he meant no disrespect to that Sovereign, he was sure his motives could not be misinterpreted, nor that he could be thought guilty of any disrespect to the Chief Justice of the King's Bench, when he objected to the insertion of his name amongst those of the lords justices. He objected to his being vested with high political functions, when at the same time he exercised the highest civil and criminal jurisdiction. It was well known by his noble and learned Friend that the latter was exercised by him with honour to himself, with advantage to the country, and with the greatest credit to the law. But such a junction of offices ought not to be allowed by Parliament to be made in the person of any individual. He had rather see these offices combined in the hands of his noble and learned Friend than in those of any other individual: but he thought it was contrary to the true principles of the constitution to invest a person who exercised such high civil and criminal powers also with the functions of a political regent. What were the consequences of precedents? From one precedent came another;—if it were bad, from the bad came something worse. Thus they found the Act of 1705 was taken as a precedent for that which was done in 1806. What was the main authority upon which was grounded the act of the Government of 1806?—an act upon which he, as an individual, ventured to express his opinion —for they were only the opinions of a private individual—but which were still strongly in opposition to what was then done—that was, placing an eminent judge, the Lord Chief Justice Ellenborough, in the Cabinet formed in 1806. He always thought that a most unfortunate Act on the part of the Administration of the day, and one such as he was sure no one now 1839 would be found to advocate. And yet in that case the putting a Lord Chief Justice in the Cabinet was justified by a precedent—that precedent being chiefly the Act of 1705. He considered that the argument which would exclude a Chief Justice of the King's Bench from the Cabinet ought also to exclude him from the regency. The noble Lord concluded by moving that the next in succession to the Throne, of full age and resident in the country, should be included amongst the lords justices, and also that the Chief Justice of the King's Bench should be excluded from being one of the lords justices.

§ The Duke of Wellington
considered that there was a clear distinction between the Bill of 1705 and the measures referred to for appointing regencies in this country. These regencies were to provide for a certain event, and were brought into the House under the immediate authority of the Crown, and which it was the duty of the Crown itself to provide for. But now the case was quite different. Here the case to be considered was that of the succession of the next heir, who happened to be absent from this country, and most probably would continue to be absent. They were, then, to look to what Parliament had done formerly, and what they had provided for in that event. Persons were nominated to the regency who possessed all the confidence of Parliament and the public—men of high office—the great officers of State—the Archbishop of Canterbury, and others, known to the country, and known to possess its confidence; and means were also provided for the person who succeeded to the Throne to nominate the persons who possessed his confidence to be also in the regency. But the noble and learned Lord said that they ought to put into the regency the names of certain other persons of a certain description, because their names were introduced into other regencies appointed for another purpose, and in a different manner. Now, provision was made for the Sovereign having such persons in the regency if he thought it right that they should belong to the regency; and if he did not, why should Parliament place such persons in the regency? He, therefore, recommended their Lordships not to adopt the amendment of the noble and learned Lord. With respect to the appointment of the Chief Justice of the King's Bench, 1840 he agreed with the noble and learned Lord that it was highly improper to introduce a Chief Justice into the Cabinet; but in forming a council of regency, where there were six other great officers, with seven or ten others to be named in the absence of the Sovereign, the exercise of his functions could not be attended with any injury to the public. It was to be observed, that in Ireland the Chief Justice had frequently been named one of the lords justices. At this moment the Chief Justice of the Queen's Bench was one of the lords justices, in the absence of the Lord-lieutenant. He did not know but the noble and learned Lord himself had been a party to such appointments of the Chief Justices in that country. He did not see any distinction between a Chief Justice in Ireland being one of the lords justices, and a Chief Justice in England being one of the council of regency in this country.

§ The Lord Chancellor
considered that cases of precedent ought to be attended to in matters of this description. Regencies had been appointed on account of the incapacity of the Sovereign, or to provide for the exercise of the royal authority in the absence of the Sovereign. The Bill provided, as far as possible, to put the Government of the country and the Sovereign in the same situation in which they would be if the Sovereign were here at the moment of the demise of the Crown and were about to leave the country: The Bill put it in the power of the Sovereign by anticipation, before the crown descended to him, to specify those individuals in whom he placed confidence, and in whom he wished to vest authority till he could return to this country to exercise it himself. It might happen that the heir presumptive would not exercise the power of selection which the Bill gave him; and that emergency the Bill also provided for, by-appointing certain persons who were holding high offices in the State at the moment to exercise the authority of the Crown. Those individuals would either exercise the authority in conjunction with those who had been named by the Sovereign, or, in default of any others having been named, by themselves. The Bill selected the head of the Church, and it selected the highest permanent officer of the law, persons who might be supposed to be above the contests of party; and those individuals were named, not for the 1841 purpose of permanently exercising the power of royalty, but to preserve things in a proper state till the successor to the Throne should himself appear to assume the authority which belonged to him. The precedents were for the most part regent precedents; they were cases which provided for the incapacity of the Crown. The only precedent in which provision was made during absence was the Act of Queen Anne, on which this measure was founded. He must say taking all the circumstances into consideration, he was in favour of the Bill as it stood. The other precedents alluded to by his noble and learned Friend would be applicable if this case were one of regency; but he must say he could see a very great distinction between Parliament appointing a regency on account of the incapacity of the Sovereign to exercise all his prerogatives, and appointing a regency because of the Sovereign's absence at the time of his succession, and his not being able for that reason to exercise his prerogatives. In his opinion such a Bill as the present ought to leave to the sovereign the full exercise of his authority, and should only interfere to the extent necessary to preserve his authority for him unimpaired till he appeared to assume it. With respect to the other point alluded to by his noble Friend, so far as he strongly objected to the union of political duties with those of the highest permanent law officer of the Crown, he entirely concurred with him; but he thought the provision they were now making not liable to that objection: the two officers appointed by the Act of Queen Anne, viz. the Archbishop of Canterbury and the Lord Chief Justice of the Court of King's Bench, were selected because they were individuals not likely to be influenced by party feelings, and also, in all probability, would possess the confidence of the country.

§ Lord Denman
thought he might be excused if he said a few words with respect to both the objections urged by his noble Friend. As regarded the first, he could not help thinking it desirable that royal personages should not form a part of the council. He thought it possible to conceive that if they did there might arise a collision of interests which would be more properly guarded against by taking a course which would simply insure that the royal authority, as it existed at the demise pf the Crown, should be handed over by 1842 the lords justices to the successor. That being the sole object of this Bill, it appeared to him better that all persons near the Crown should be excluded from the assumption of any of its powers. The considerations suggesting such a view of the question were obvious. He was of opinion, that it was desirable they should abide by the precedent they had, where it was a clear one, though all the circumstances of the case were not exactly similar. With regard to the observations his noble and learned Friend had made respecting himself he was not disposed to say to him. "Et tu Brute," though he had expressed it as his opinion that the Chief Justice of the King's Bench ought to be excluded; but he thought he might almost be justified in supposing that his Noble and learned Friend had been induced by his personal regard for him to raise this point, in order that he might have the opportunity of speaking of him in those terms of undeserved eulogy which their Lordships had just heard. However that might be, he was quite sure that no proposition which emanated from his noble and Learned Friend could be prompted by anything like an unkind feeling towards him. In whatever manner he as an individual, might be affected by the opinion, he should consider it his duty to say that he thought there were considerable objections to departing on the present occasion from the precedent formerly set, and which, by-the-way, was framed in the best times of the English constitution, and by some of the most eminent of the men of those times—he believed the act was drawn by his revered predecessor, Lord Holt.

§ Lord Wynford
opposed the amendment, and recommended their Lordships to abide by the precedents which had been referred to.