to the extraordinary conduct of lord Chat- | into the details of it, as if it had not been ham,) is without precedent in the records a subject of most anxious public concern, of parliament; not only in the correct and one for which they are most deeply and constitutional æra which has suc- responsible. Nay, Sir, what is still more ceeded the Revolution; but in all that long extraordinary, those ministers, those conand less formed period of our parlia fidential servants of the king, instead of mentary history which preceded it. From considering the public account of the conthat answer we learn, that when lord Chat- duct and transactions of a public officer, ham delivered this official, this public do- in a great command, as a matter for pubcument to the king, in which he asserts lic account, have, in violation of every the correctness of his own conduct, and principle that regulates the government of impeaches that of the naval department; this free country, represented the matter he delivered it to his Majesty, accom- connected with this public narrative as of panied with advice to keep it secret: and a private nature, relating to the private accordingly, until it was asked to be de- concerns of the king, and not to the publivered back, it remained secret. So that lic and official affairs of the kingdom. from the 15th of January to the 14th of For, Sir, when the matter first came before February, during a whole month, all the the House, on a motion for an Address to other confidential servants of the crown the king, to communicate every thing that were entirely ignorant of this most im- respected the transaction under our conportant communication. sideration, the secretary of state for the Home Department (most wonderful that such things should be attempted!) had the boldness to argue the matter, as if the communications of a public officer to the king, respecting the execution of a public command, were of a private nature analogous to the private concerns of his Majesty; and that those who asked farther information on the subject were proposing to search his Majesty's private escrutoire. Sir, it does seem to me most extraordinary, and, I believe, hitherto it has been unheard of in the conduct of public affairs, that a person, sent in the chief command of an expedition, should return from his command, and that months should elapse after his return, during which neither he should tender, nor the king's ministers require, an account of his conduct, and of his transactions in that command. When the noble earl came back from Zealand in September, it might be difficult for him in the dissolved, disordered, and distracted state in which the cabinet then stood, to know to whom he was to address himself. But when lord Liverpool was appointed secretary of state for the war department, when the right hon. the Chancellor of the Exchequer was induced by his loyalty to accept of the situation (as he has termed it) of prime minister; when those two persons were thus invested with the character of the responsible ministers of the crown, why did not they demand from lord Chatham an account of his services? For any thing that appears, they did not then discharge that most important duty of their station; and lord Liverpool has not even now taken any step to call upon lord Chatham, in the terms and according to the order given in his appointment under the sign manual, to account to him as secretary of state. the contrary, the discharge of this great public duty in this, I believe, the greatest, and, I am sure, the most unfortunate expedition that ever left the shores of this country, seems to have been passed over by the king's ministers without inquiry VOL. XVI. On Sir, I am sure that the indelicacy of such a search never entered the mind of any individual here. God forbid that there should not be the most sacred respect for every thing that relates to the private affairs and domestic concerns of our Sovereign. I trust I am the last person to entertain or promulgate a doctrine that could intrench, in the smallest degree, upon the most inviolable security to his Majesty's private repositories. The veneration for the person and character of his Majesty, which is entertained throughout the nation, ensures against such a violation of all decency; and the particular circumstances, in which I am known to stand, will ensure me, I trust, against the possible imputation of any thing but the most profound respect and attackment to the person of the King. But, Sir, I cannot under these impressions, powerful as they are, he led to forget the clear and marked distinction between the public government of the monarchy and the private concerns of the monarch. I do then most boldly and stedfastly deny that the doctrine, which has been contended for on the other side of the House, has any foundation in the constiA**** do we find it declared that the delivering a public document respecting a discharge of a puplic duty to his Majesty, under the seal and advice of secrecy, so that it shall not find its way to the accustomed channel, and to the knowledge of his Majesty's other confidential servants, is unconstitutional?" My answer is distinctly this: That the unconstitutional character of that act is not to be found in any charter, in any statute, or in any written decree, but that as a matter of invariable, ancient, and indelible usage, it is against the practical constitution of the country; and that the practice of the constitution can be made as clear, as certain, and as intelligible, as if it were emblazoned in black and white in the most distinct and legible characters. tution of this country: and I insist, that | it is unconstitutional to assert that the King (I speak of the office of King generally, according to the constitution of England) can have a private repository for a public paper; that this is a position adverse to the very essence of this constitution, and has been so in all times of our history-that the great security of this free country, as it respects the royal power and authority, is, that the King does no public act of himself; but that he acts by the advice of known and sworn counsellors, who are responsible to this House, and to the country, for their advice that all acts, therefore, and all accounts of those acts given by those who are appointed to the discharge of public duties in short, that all public transactions of the state must be official-that I do not mean, Sir, in proving and ilthey cannot be the subject of conceal- lustrating this from history and authorities, ment; they that cannot be communicated to draw the House into minute consideraunder injunctions and advice of secrecy to tions of detail, or into deep antiquarian the Sovereign; but must pass through investigation. Such a discussion is not that public and official course which is well suited to this place, and fortunately, known to the constitution, which public it is not necessary to this subject; in official course secures to this House the which (as in all those general rules and application of its great inquisitorial regulations which are best calculated to power, a privilege which has always ex- govern and direct the conduct of manisted, and which is limited only by the kind; the facts by which they are estadiscretion of the House. So that this un-blished are well known, plain, and incondoubted right to inquire into the conduct of the executive officers of the crown, thus renders it essentially necessary that all the parts of the executive government should pass in the usual, the accustomed, and well-known official channels. The secret communication which is the subject of our present consideration, with every act of a similar kind, I therefore assert to be totally inconsistent with the clear and indisputable characteristics of the constitution which must never be lost sight of in the consideration of this sub. ject:-I mean the irresponsibility of the King; the responsibility of ministers; and the inquisitorial power of the House of Commons. That the system of the king acting by advice in the government of the realm, and being according to the constitution, incapable of acting but by advice of public responsible advisers, is the practical constitution of this country, nobody can deny; yet the learned gent. (Mr. Stephen) and the hon. gent. (Mr. Bankes) with this clear and acknowledge principle before them, ask (I cannot help repeating it to expose it), "In what charter, in what statute, in what written decree, trovertible. They may, no doubt, be made clearer by research, and more confirmed by details, but they are manifest to general and popular observation. All those who know the history of the official system (now so well understood, and so firmly established) know that the seeds of the system were sown in the earliest periods of the English constitution, and that they have gradually grown to strength and perfection. The responsibility of the advisers of the crown belonged originally to the office of Privy Counsellor. Any person who has ever opened lord Coke's fourth Institute, knows that the office of Privy Counsellor may be said to be as old as the monarchy; that it certainly approaches to the time of legal memory; that the great office of president of council is an ancient and well-known office, which has existed during all that time, thereby affording direct evidence of the very early institution of responsible counsellors to the crown; showing that the principle of responsibility in the king's public and sworn advisers is an inherent part of the constitution, and evincing that there is no period of our history when the sovereign could, accord But, Sir, the hon. gent. (Mr. Bankes) says, in answer to the admirable speech of my learned friend, (Mr. Brougham) a ing to the law and constitution, act by himself in the public concerns of the kingdom; but that the public affairs of the state ought always to have been admini-speech which fulfilled that expectation of stered by the advice of responsible sworn officers, by whatever name they might be called *. * Coke Littleton, Page 110, Section 164. « The King of England is armed with divers councils; every one knoweth that he hath a privy council for matters of state." Lord Coke's Fourth Institute, Page 53, Cap. 2-Of the Council Board. "This is a most noble, honourable, and reverend assembly of the king and his privy council, in the king's court of palace. With this council, the king him self doth sit at his pleasure. These counsellors, like good sentinels and watchmen, consult of and for the public good; and the honour, defence, safety, and profit of the realm. A consulendo, secundum excellentiam, it is called the council table; private causes, lest they should hinder the public, they leave to the justices of the king's courts, of justice, and meddle not with them—they are called Concilium regis privatum, concilium secretum, et continiuum concilium regis. The number of them is at the king's will, but of ancient time there thereabouts. Of the university of the king's several councils, you may read in the first part of the Institutes, section 164."-N. B. lord Coke cites many authorities from the rolls of parliament.See above, Co. Lit. 110. were twelve or talent so truly formed of him, and which it gave me for many reasons, most peculiar pleasure to hear, that the cabinet is of modern date, and is therefore no part of the constitution; and that conducting the executive government of the country by a cabinet council cannot therefore be founded upon as establishing the prac tice of the constitution. Surely, Sir, the hon. gent. cannot think that we are to be put down with a word, or to be diverted from our principle by a mere name: Surely, Sir, he does not mean to argue, that because the name of cabinet did not exist till comparatively modern times, that in substance, the thing has not always existed as a fundamental part of the great system of executive responsibility in the practical constitution of this country Does the hon. gent. mean to say that the period can be named in which the king of England has ever, according to the constitution, acted of his own personal authority in public affairs? and that he has not always had responsible, sworn members of his Privy Council to advise him? The king has, at all times, especi ally if the Privy Council was numerous, selected (and by his prerogative could always select) certain persons of that council, in whom he more particularly confided, and by whose advice he more particularly acted *. That selection, in Dormivit tamen hoc officium regnante magna Elizabetha." Comyns's Digest, Vol. iv. 424. such numbers as the king pleases." 4 Inst. 53. "The residue of the council consists of "And by the custom of the realm, upon summons to the council, and taking the oath of a privy councellor, each of them continues of the council during the king's life, with letters patent, or other grants." 4 Inst. 54. * Blackstone, Vol. i. p. 229. "The king's will is the sole constituent of a privy counsellor; and this also regulates their numbers, which of ancient time was twelve, or thereabouts. Afterwards it increased to so large a number, that it was found inconvenient for secrecy ano dispatch; and therefore, king Charles 2. in 1679, limited it to thirty; whereof fif a bad sense, as in the reign of Charles the Second, when men, without character or principle, were chosen by that prince teen were to be the principal officers of state, and those to be counsellors, virtute officii; and the other fifteen were composed of ten lords and five commoners of the king's choosing. But since that time, the number has been much augmented, and now continues indefinite. At the same time also, the ancient office of lord president of the council was revived in the person of Anthony, Earl of Shaftesbury; and officer, that by the statute of 31 Hen. VIII. cap. 10, has precedence next after the ford chancellor and lord treasurer." Sir William Temple's Memoirs, third Part, Page 493. "I saw a probability of matters growing to such a pass, that his Majesty might be forced to part with them: and yet I saw not authority enough left in the crown, either to do that without the venture of great mischiefs, or to live without another parliament till the present humours might cool. And both these considerations meeting together, cast me upon the thoughts of the king's establishing a new council, of such a constitution, as might either gain credit enough with the present parliament, by taking in so many persons of those who had most among them, and thereby give ease and quiet both to the king and his people; or if, on the other side, the humours should grow outrageous and beyond opposing, the king might yet, at the head of such a council, with more authority, and less hazard of ill consequences, either prorogue or dissolve them, as any necessities of his own, or extravagancies of theirs, should require. "For these ends it seems necessary to take into the council, some lords and commoners who were of most appearing credit and sway in both houses, without being thought either principled or interested against the government; and mix them with others of his majesty's more general choice, for making up one half of the council, whilst the other half, being fifteen, were ever to be the present chief officers of his crown and household, who being all of his majesty's known trust, as well as choice, would be sure to keep the council steady to the true interest of his majesty and the crown. Hume's History, Vol. vii. Page 458. “It was remarked, that the committee to advise him, was nick-named a Cabalfrom the first letters of the names of those who composed it; in the good sense, and, now-a-days, it is ordinary called a cabinet; but, in reality and in substance, it is a selection of the Privy Council, which has in all ages, been known to the law and the constitution; the essence and character of which cannot be varied by the designation given to it, and which, therefore, shows my learned friend (Mr. Brougham) to have been perfectly correct in his view, and that the hon. gent. (Mr. Bankes) under a mistake, has had recourse to a modern phrase in order to subvert an ancient system. Sir, I have already said that this system of selection of responsible sworn counsellors, as advisers of the crown, is as ancient as the monarchy itself. At the period succeeding the conquest, when the charters of our liberties were exacted from the crown, the system prevailed. During the reigns of the Plantagenets it was equally conspicuous. The the system in the most distinct manner; best princes of that race acknowledged and in the reigns of the weak and misguided princes of that line, particularly in those of Edward the Second and Richard had occasion to refer), the advisers of the the Second (to whose reigns I have already sovereign were most severely called to account by parliament-thus exhibiting of council, established for foreign affairs, was entirely changed, and the Prince Rupert, the Duke of Ormond, Secretary Trevor, and Lord-keeper Bridgman, men, in whose honour the nation had great confidence, were never called to any deliberations. The whole secret was intrusted ham, Arlington, and Lauderdale. These to five persons, Clifford, Ashley, Buckingthe CABAL, a word, which the initial letters men were known by the appellation of of their names happened to compose. Never was there a more dangerous ministry in England, nor one more noted for pernicious counsels." * Whitelocke's Memorials, Page 99.3 Edw. II. It is required, that strangers should be banished, the counsellors removed, public affairs be treated by the council of the clergy and the nobles, and no war be made without common council." Petyt's Jus Parliamentarium. Cap. 7. In which the proceedings against the earl of Suffolk, the lord Chan the constitution in distinct characters, by grave, deliberate, and well ascertained overt acts, handed down in history, as transacted by our ancestors, and recognised, confirmed, and formed into shape by their posterity-showing at one view the responsibility of the king's advisers, the irresponsibility of the sovereign, and the inquisitorial power of parliamentthe three grand and leading features of the constitution, of which, as I have already said, we must never lose sight, but always recognise as the cement which binds together and secures the free monarchy of this great and civilized country. Look now, Sir, to the next æra of our history, and you will find, that, amidst all the blood that was shed in the contest between the Houses of York and Lan cellor, are detailed. Cap. 8. In which the proceedings against the archbishop of Canterbury, the above mentioned earl of Suffolk, chief justice Tressillian, and others, are detailed.-See likewise the Appendix to the third volume of Rushworth's Collections, page 262. Rolls of Parliament, 6 Rich. II. section 18. "The commons likewise pray for the honour and profit of your majesty and the commons, that your majesty will be pleased to order certain lords to be placed about your honourable person, of the most wise, honest, and discreet persons of your realm, to counsel you, &c." To which the king answers: “The king will take about his person, such sufficient persons, lords, and others, as shall seem best for his honour and profit and as to the rule and government of his household, he will act by the advice of the lords and others of his council, according to such good rule as shall seem best for his honour." Whitelocke's Memorials.-25th Edward I. "When the king was at Winchelsea, embarking for the continent, being ready to take ship, the bishops, barons, and commons, send him a roll of grievances; of his taxes, subsidies, impositions, forcing of services, his imposing 40s. upon a sack of wool, being before but half a mark, and wool the fifth part of the substance of the kingdom.-The king sends answer, that he could not alter any thing without the advice of his council, who were not now about him." Hume's History, page 291. "The king told them, that the greatest caster, the same system prevailed; and thus it is established that there never was a period when this system of responsibility in the advisers of the crown did not apertain to the executive government of the country, and invariably make a part of the constitution of England. During the reigns of the House of Tudor, from causes which it is unnecessary to stop here to investigate, but which are well known to every person acquainted with the history of the country, the crown was every thing and the parliament nothing. Yet, during that period of suspension of the original constitutional functions, which has tended to mislead many in the just consideration of the constitution of England, and to give a false impression of our original rights, the system of office part of his council were now at a distance, and without their advice he could not deliberate on a measure of so great conse quence." Rolls of Parliament of the 5th of Henry IV. 19th Section. "Likewise on the same day the commons prayed our lord the king to make nained to belong to the household of our an ordinance, that no person should be lord the king, brt honest and virtuous persons, and such as were of good re pute." Ditto, 7th and 8th of Henry IV. Section 31. "Likewise on Saturday the 22nd of May, the cominons came before the king and the lords in parliament, and there represented that they had prayed the king at the beginning of the parliament, and since, and represented besides that the archbishop of Canterbury had made report to them, that the king wished to be councelled by the wisest lords of the of every thing that should be for the good realm, who should have superintendance government of the realm; to all which the king agreed, and repeated with his own mouth, that it was his entire will; and upon this a bill was read, containing the names of all the lords who should be of the council. Then follows the bill in the Rolls of Parliament. 29th and 30th of Henry VI. 143. Proceedings respecting the duke of See Whitelocke's Memorials, page 142. Suffolk. And in Whitelocke's Memorials, page 143, the council advise in the case of Cade's rebellion. |