Imágenes de página
PDF
ePub

(which has ultimately rendered the res ponsibility of the king's advisers, the irresponsibility of the sovereign, and the inquiring power of this House, so certain, so indisputable, and so perfect) was gradually and imperceptibly forming into regular shape, and by degrees brought to that pitch of correctness and accuracy, which better days, quieter times, and more enlightened discussion, have made the sure and easy means of extending freedom to so large a mass of mankind. If you will look into the history of the great offices of state, you will find that it was during the Tudor tyranny (a most extraordinary and unlooked-for occurrence) that the hitherto shapeless offiIcial mass first began to assume a more regular form and method that afterwards, during the reign of the Stewarts, amid all the various conflicts of that period, the official system was proceeding more and more to perfection-and, certainly with no such intention on the part of either race of princes, became at last so correctly formed, and firmly established, as to be the main safe-guard of the person of the King, and a grand security of the freedom of the people. The se

* Lord Coke's Second Institute, 556, in his reading upon the Article Clerici. "At the making of this statute, the king had another seal, and that is called Signet tum, his Signet. This seal is ever in the custody of the principal secretary. there be our Clerks of the Signet, called Clerici Signetti, attending on him. reason wherefore it is in the secretary's custody, is, for that the king's private letters are sealed therewith."N. B. He

And

The

is not called at this period Secretary of

State.

Lord Camden's Judgment in the Court of Common Pleas, in the Case of the Seizure of Papers.State Trials.

"To consider then the question of the capacity of secretary of state. This officer is in truth the king's private secretary; he is keeper of the signet and seal used for the king's private letters, and backs the sign manual in transmitting grants to the privy seal. This seal is taken notice of in the Articuli super Chartas, cap. 6; and my lord Coke, in his comment upon the chapter, page 556, describes the secretary as I have mentioned. He says he has four clerks that sit at his board, and

cretaries of state, who had originally been no more than the sealers and addressers. of the king's letters, became gradually great officers of state, with great powers and great responsibilities. The office of chancellor was, during those periods, brought nearly into its present shape. The office of lord high treasurer, or first commissioner of the treasury, came to be a matter of regular fixed appointment and establishment. The office of lord high admiral, or first commissioner of the admiralty, the same. The offices of secretaries of state, the same. Thus, instead of the irregular selection of early times, those great offices of trust, responsibility, and state, which are now, and have for a long period been, perfectly and completely formed; were regularly appointed to discharge the duties of government, and to advise the sovereign. On the appointment to those offices by the king, the persons appointed, if not before of the privy council, are sworn, ex officio, into the privy council; and, as the confidential servants and advisers of the crown, form, with little occasional variations, what is now called the cabinet.

In this manner, by this imperceptible

that the law in some cases takes notice of the signet; for a ne exeat regno may be by commandment under the privy seal, subject ought to take notice of it; for it is or under the signet, and, in this case, the but a signification of the king's commandhis Third Institute, he had been acquaintment. If, at the time my lord Coke wrote to the secretary, he would certainly ed with the authority that is now ascribed have mentioned it in this place; it was too important a branch of the office to be

omitted; and his silence therefore is a strong argument, to a man's belief at least, that no such power existed at that time. He has likewise taken notice of this officer in the Prince's case, in the eighth report. He is mentioned in the statute of 27th Henry 8 cap. 11: and in the statute of the same king, touching precedency; and it is observable that he is called in these two statutes by the single name of secretary, without the addition which modern times have given him of the dig. nity of a state officer.

[ocr errors][merged small]

is permitted to pass uncensured, the true
principle of the executive government of
England is at an end.
On the contrary,

if a private and secret communication to
the King of public matter is condemned as
adverse to the clear and invariable practice
of the constitution, we are safe.

Sir, the course taken by the earl of Chatham is as injurious to the inquisitorial power of this House as it is to the system of the executive government itself; for instead of being able to trace the public acts of the state through their accustomed channels, we shall remain ignorant of what the public acts are, or where the public documents are to be found; whereas, if the regular, well-known, and longestablished official system is adhered to, information and inquiry can proceed with certainty and without obstruction. But, Sir, if the public documents of the kingdom are to be locked up in secrecy in the private repositoty of the king, and all ac

course, the mere physical body of the official system (if I may be allowed the expression) was brought to perfection in shape and figure, but before the revolution it was an uninspired and lifeless form, subject to violation by the reigning monarch, while the powers of parliament were not always properly directed to counteract the infringement; and when the pliancy of those appointed by the crown was almost at all times ready to make the duties of their situation yield to the will of the sovereign, and to become the base instruments of tyranny, instead of being upright advisers. But, Sir, the revolution came. That great and wonderful event infused life and soul into this well-formed, but hitherto inanimate frame. Then it was that the passing of the Bill of Rights gave certainty and vigour to the efforts of Parliament, secured its power and its independence, and, by forming the character of its members, confirmed and regulated the discreet but firm exercise of the in-cess to them shut out, there is not only an quisitorial functions of the House of Commons. Then it was that the character of those who were employed in the public service, secured the just execution of the system, and established the great doctrine of responsibility on a firm and unalterable basis; a position from which it cannot be displaced if this House does its duty. But if the violation of the system thus recognised in ancient, and thus practised in modern times-if a distinct act, subverting the established, invariable course of official communication by official document,

of such magnitude as he grew up to after the restoration, being only employed, by this account, to make up dispatches at the conclusion of councils, and not to govern or preside in those councils.

"It is not difficult to account for the growth of the minister's importance. He became naturally significant from the time that all the courts in Europe began to admit resident ambassadors; for, upon the establishment of this new policy, the whole foreign correspondence passed through the secretary's hands, who by this means began to be an instructed and

confidential minister.

"The first time he appears in our books to be a granter of warrants is in 1 Leonard, 70 and 71, 29th and 30th Elizabeth, where the return to a Habeas Corpus was a commitment by sir Francis Walsingham, principal secretary, and one of the privy council."

end of the great system of official responsibility and its controlling concomitantthe inquiring power of parliament; but that most sacred principle of the constitution to which my hon. friend under the gallery (Mr. Johnstone) has so justly referred, will be shaken to its foundation-I mean the principle, 'that the king can do

no wrong.

In all discussions of the constitution, in every elementary book it is laid down, as a first and leading maxim, that the king can do no wrong; and it seems to me,

State Trials, Vol. 2. Page 731.-See also

the Commons Journals, 1678. "The first article of impeachment against the earl of Danby was for giving instructions to his Majesty's ambassadors without the participation of the secretary of state, or privy council."

[ocr errors]

Clarendon's History of the Rebellion, Vol. 1. Page 210.

"The earl of Bedford was to be treasurer; in order to which, the bishop of London had already desired the King 'to receive the staff into his hand, and give him leave to retire to the sole care of his bishoprick;' by which he wisely with drew from the storm.-And so the treasury was for the present put into commission, Mr. Pym was to be chancellor of the exchequer: which office the lord Cottington was likewise ready to surrender, upon assurance of indemnity for the future,"

1

ment.

were it not for the strange and unheard-of manner in which this question has been dealt with, that it would be almost absurd to rest upon this obvious topic for a moI refer to all who hear me, whether this is not what we are taught in early youth, and what we now teach our children. And am I now to be called upon in this enlightened age, in this enlightened assembly, after having learned these principles in my early life, and heard them in this House for thirty six long years sanctioned as invariable and leading maxims as plain and certain as that I hear myself now speaking-I say, Sir, am I now to be called upon to prove this constitutional maxim to the House, when we have only to open the commentaries of Blackstone,* to see, that when he discusses the king's ubiquity, the king's perpetuity, and the other attributes of the Sovereign (as he calls them,) that he likewise represents the king's perfection as the greatest and most important feature of the royal character, as that which, together with his perpetuity, secures at once to this free country the safety of the monarch, and the independence of the people.

That the king can do no wrong is a maxim which should seem, on its bare statement, to be almost too strong for absolute monarchy, or even for the most deplorable despotism; yet this is the attribute of our king, this is the maxim applicable and appertaining to the sovereign

[blocks in formation]

"Besides the attribute of sovereignty, the law also ascribes to the king, in his political capacity, absolute perfection:-The king can do no wrong;which ancient and fundamental maxim is not to be understood, as if every thing transacted by the government was of course just and lawful, but means only two things-First, that whatever is exceptionable in the conduct of public affairs is not to be imputed to the king; nor is he answerable for it personally to his people: for this doctrine would totally destroy that constitutional independence of the crown, which is necessary for the balance of power in our free and active, and therefore compounded constitution. And, secondly, it means that the prerogative of the crown extends not to do any injury; it is created for the benefit of the people, and therefore cannot be asserted to their prejudice."

of a free people; to the king of this mixed and limited monarchy. What is more, this maxim, which sounds too strong for despotism itself, is that which (paradoxical as it may seem at first sight) fortifies us against the inroads of royal power itself, and protects the people from all illregulated arbitrary authority whatever. This is it which secures the monarch from degradation, and places him in the most elevated state of dignity and safety: and such is the extraordinary and well-contrived system, under which we live, such the just temperament of the different jarring elements of which our constitution appears (at first sight) to be composed, that by the sound practice of the apparently discordant parts of the machine it proceeds with perfect smoothness and regularity, uniting the purest system of freedom with the most efficacious executive authority that ever blessed the civilized world, or was ever in any age or country extended over so large a portion of the human race. Whether the representative body is a little more or a little less correct, is not now the consideration→→ Whether it should be rendered more so, is not now the question. But I assert, that the grand and fundamental principles on which we have combined (the only instance in the history of the world) civil and political freedom on the one hand, and a powerful executive government on the other, rest mainly and principally upon the maxim that the king can do no the king's advisers-the necessity of pubwrong-out of which the responsibility of

lic documents-the absence of all secret advice and secret councils-the obligation on all executive officers to make their communications to avowed ministers-and the great superintending inquisitorial authority of this House, necessarily and unquestionably arise. Whatever therefore has a tendency to infringe upon, or to destroy, this attribute of the sovereign, his perfection, (is destructive of the constitution. Shall it then be said, Sir, as the learned gent. (Mr. Stephen) and the hon. gent. (Mr. Bankes) have argued, that the act of the earl of Chatham, in delivering his Narrative to the King, is not unconstitutional? Does not such an act tend to violate, directly violate, that great maxim which I have been endeavouring to enlarge upon and enforce? Does it not destroy the official and responsible, and establish an unofficial and irresponsible, system? Does it not, by removing the communication

and that, from the year 1765, when the old duke of Cumberland advised in forming the ministry, the earl of Bute never had any the least connection, directly or indirectly, with public affairs.

from its regular channel, and placing the sovereign in a predicament unknown to the constitution, make him fiable to be obliged to act without an adviser? Is not this the immediate result of the transaction which we are examining, and does it But my opinion respecting the secret not besides, by the unconstitutional in- influence of lord Bute has, in my way of junction of secrecy, keep the other confi- viewing the motion before us, no influence dential advisers of the crown ignorant of whatever. I consider the question (if I those facts and circumstances, on a know- may be allowed to say so) in a more enledge of which their opinion must be larged point of view, as it regards the conformed, and their counsel to their Sovc-stitution; and, as in practice, tending to reign depend? So that it is an act which at once interferes with the official system; embarrasses the inquiring power of this House; infringes the great maxim that the king can do no wrong; and, lastly, what has not yet been adverted to, introduces into the government of the country that most ruinous and unconstitutional of all practices, a double government, where one set of men, or one man, is to advise, and another set of men are to act and be responsible.

When I say that this is the immediate, the necessary and mischievous effect of what has been done; I beg to have it understood that I am not one of those who have or ever had any belief in the secret influence, which has been so much rested upon by some gentlemen in the course of this discussion, referring to the secret influence of the late earl of Bute-On the contrary, I utterly disbelieve it. I have been very many years an observer of the transactions of men in this country-I have, during all that time, lived in the greatest intimacy with the family of that noble person-I know their character to be that of the most perfect veracity; and relying upon my own observation and knowledge of public men and ministers, and upon the veracity to which I have alluded, I am most decidedly of opinion, that the secret influence, which has been so often referred to, had no existence ;*

* Lord Mountstuart's Letter, 21st of October 1778.-Dodsley's Annual Register, vol. 21, p. 256.

"Here is a letter under the earl of Chatham's hand, vouched to be such by the authority of his family, imputing to lord Bute those counsels which lord Chatham says (whether justly or erroneously, is not the present question,) have ruined the king and kingdom. Every reader will at once have understood this imputation to be founded on lord

VOL, XVI.

form, nay as actually forming, the most ruinous of all systems, a double government-with all the evils of ignorance and counteraction which belong to that deplorable system.

But, Sir, the name of Mr. Pitt is invoked with a view to create an influence in favour of this act of his brother the earl of Chatham, as if Mr. Pitt, if now living, would have defended or given his sanction to this proceeding. Mr. Pitt and

Chatham's opinion of lord Bute's secret influence (as it is called,) by which he has been imagined to dictate or control the measures of the cabinet ever since the earl of Chatham left it. Lord Bute has not been ignorant of the long prevalence of this error, having seen himself most injuriously treated in consequence of it, for many years past, by writers of pamphlets, newspaper essays, and political paragraphs; all which he passed over in silent indignation and contempt; but when he sees the same cruel mistake advanced and countenanced by such an authority as the earl of Chatham, he thinks he should be wanting to himself, if he did not encounter it with the best evidence that can be supposed to lie within his reach.

"There are but two persons in the kingdom who are capable of knowing the negative of that opinion with absolute certainty. One of them is of rank too high to be appealed to, or even mentioned on this occasion: the other is himself; he does, therefore, authorize me to say, that he declares, upon his solemn word and honour, he has not had the honour of waiting on his Majesty, but at his levee or drawing-room; nor has he presumed to offer an advice or opinion concerning the disposition of offices, or the conduct of measures, either directly or indirectly, by himself or any other, from the time when the late duke of Cumberland was consulted in the arrangement of a ministry in 1765 to the present hour."

B

Mr. Fox, alas! are in their graves, but are we therefore to lose all sense and knowledge of the practice of the constitution? Are we to be idle and indifferent, and make no research to learn that which they knew? Is it fit or just to suppose that Mr. Pitt would have sacrificed, even to a brother, his unvaried and well ascertained constitutional opinions on this subject? On this subject, Mr. Pitt's opinions were declared. They were uniform, from his earliest youth, and acted upon to his last hour. It was my fate to differ very widely, upon great and leading public points with that great man; but of this I am sure, that no one who observed the whole tenour of his public life can doubt that he would have reprobated, in the strongest manner, this unofficial communication-this passing by the regular established channels of responsibilitythis secret communication to the king upon a public subject-this act of establishing a double government-this course by which the official and confidential advisers of the King were kept ignorant of the facts on which they were to advise their sovereign. As to the other great and illustrious person, Mr. Fox, I lived with him for many, many years in the utmost private friendship, and the most unreserved confidence, communication, and coincidence on public subjects. I shall therefore say no more of his opinions, than that I am confident that I have not expressed one sentiment that would not perfectly accord with his just and profound views of the constitution of this country.

Sir, there now remains of this momentous question but one topic untouched; and that is, the evil effects in practice attending such a course as the delivery of the Narrative by the earl of Chatham. Fortunately, Sir, it is not necessary to travel out of the facts which the transactions respecting this matter afford, in order to illustrate this mischief. The earl of Chatham returned from the isle of Walcheren in September, and, most unaccountable desertion of duty! the right hon. gent. opposite, the prime minister, the secretary of state for the war department, lord Liverpool, as I have already said, never appear to have asked him for an account of the causes of his ill success, or of the state of the forces which he left behind him.

Lord Chatham, however, thinks it necessary to compose, for his own defence and justification, a Narrative of his transactions, and completes that Narrative on

the 15th of October. On the 20th of December the city vote their address to the King; and here, sir, give me leave to say, that the address of the first corporation in the united kingdom, nay, of the first corporation of the world, is in the nature of an act of state, of no immaterial consideration, either as to the form of its reception, or as to the manner in which it is to be answered. Sir, the time has been when there was an earl of Chatham, who considered the acts and addresses of the corporation of London of no mean or trivial account-The address of the city was to be answered-His Majesty was to be advised by his confidential servants to answer it-Under what circumstances?-In an utter ignorance of the earl of Chatham's Narrative-totally unacquainted with the fact, that his lordship had, by that Narrative (to be placed in the hands of the king, who was to be advised by the earl of Chatham to keep it secret,) attributed the ill success of the Expedition to the naval department of the service. Is it possible for imagination to suggest a more opposite instance of evil effect, arising from evil conduct? Will not the same principle apply to every other measure of advice to be given to the King, in any other department of the state? Can we then for one moment hesitate to declare that the permitting such a practice would equally violate the constitution and injure the interest of the country? And is it a defence to say, that the noble lord had been acting in his character of military commander, had approached his Sovereign in that character; that he was a peer and privy counsellor, and had a right to approach the King, or that his right was founded on his appointment, being under the sign manual ?

I sincerely regret (as I have said in the outset) that lord Chatham is the person who has fallen into this predicament; but whoever it might have been, at whatever æra of our history it might have happened, I should equally reprobate it as unconstitutional. In the days when Marlborough conquered and Godolphin planned," had that illustrious commander, who extended the glory of his country, in defence of the liberties of Europe, returning covered with laurels, attempted to step out of the official course to approach his Sovereign privately, to deliver a public narrative of his command, I should have said that it was a violation of the constitution, which could not be permitted in

« AnteriorContinuar »