Fazakerley made a tedious calculation, which he seemed to intend for humour, of how long the Parliament might possibly continue if every one of the late Prince of Wales’s children should happen to die just at a given time. The Solicitor replied, “That, if such melancholy accidents should happen, the reasons for the continuation would increase in proportion.” Morton spoke for, Dowdswell and Sir John Cotton against the amendment; but it was voted. Lord Harley[127] then spoke prettily against the whole clause, and said, “That all the arguments that had been used would hold good upon all elections, and would tend to make any Parliament perpetual; and that such groundless apprehensions ought not to be appeased at the expense of the constitution; that the people will be cheated who will not have opportunities of changing such representatives as they dislike; and that upon the whole he observed, that Parliaments had originally been annual, then were stretched to triennial, then lengthened out to septennial, and now were going to be made perpetual.”
Lord Hilsborough said, “That the arguments urged against the clause were reducible to those of power, right, and expedience. That the Parliament has power to prolong itself, is plain from the very debating upon it; that it has a right, appears from the Triennial and Septennial Acts, and from the Sixth of Queen Anne; and for the expedience, it is a known maxim, salus populi suprema lex esto. That in the case of a Rebellion, would a Parliament allow of its own dissolution, which would bring on the tumults of new elections? or in case of a plague, would any wise Government give occasion to great and populous assemblies, when it would even be unfit for the Parliament itself to meet? That the event in question might include all the others, and probably would some of them; and that the prolongation now in Debate would not be actual, but discretionary, while the circumstance of the manner in which it came recommended must strike the breast of every man.” Bowes, Vyner, and T. Pitt, spoke against the clause; Charles Yorke for it. Sir John Rushout observed that T. Pitt had made the King’s Message the foundation of the Debate, and then had objected to its being pleaded. He was called to order, and so were some others; Gray and Dowdswell then spoke against, and Southwell for the clause, which was carried at half an hour after seven, by 258 to 81.
Then was read the clause to prevent the young King from marrying before the expiration of his minority, unless with consent of the Regent, and the major part of the Council; and to annul any such marriage, and to declare all the persons concerned guilty of high treason. This clause, which on the very face of it is a flat contradiction to the established opinion of the Church of England, which never heard of dissolution of marriage for political reasons, had passed uncontroverted through the House of Lords, undisputed by the Bench of Bishops. So obsequiously now did the sages of the Ecclesiastic Courts bow to temporal power! Fazakerley alone in the Commons remonstrated against it, and showed “the dangers that may arise from pronouncing the King’s wife guilty of high treason, and her children illegitimate; and the mischiefs it may occasion, as he may marry her again after his majority—unless you will divest the Crown of the prerogative of pardon, and that in the dearest case, and will bind the Regency not only to prosecute a new species of treason, but to enforce the penalty. If this illegal Queen may be pardoned, and then espoused again, what confusions, what contests may not spring from the different children she may bear during her first and second marriage, when one son may plead his birthright under the new establishment, the other his seniority under all the known descriptions of legitimacy in the Church of England.”
The Attorney-General made a slight answer, and this new kind of divorce passed without farther opposition.[128] Schisms and holy wars have sprung from smaller seeds! But religious animosities were out of date; the public had no turn for controversy; the Church had no writers to make them fond of it again. This had lately appeared; Dr. Middleton,[129] the best writer of the age, had overturned the Fathers, and exploded some visions of the Bishop of London, without a tolerable answer being made in defence of either. Of the prelates, the Archbishop[130] was a harmless good man, inclined to much moderation, and of little zeal for the tinsel of religion. Hutton, the other Archbishop, was well bred and devoted to the Ministry. Honest old Hoadley,[131] who, to the honour of his times, had, though the champion of Liberty, risen to the rich Bishopric of Winchester, was in a manner superannuated. Sherlock of London, almost as able a combatant for the power and doctrines of the Church, was past his strength, and still fonder of the politics of the Government than of the honour of the Keys. The Bishop of Durham[132] had been wafted to that See in a cloud of metaphysics, and remained absorbed in it. Gooch of Ely, the highest Churchman in his heart, had risen to his present greatness in the Church by shifting his politics. The rest were men neither of note nor temper to give the Ministry any disturbance.
Then the præmunire clause was read. Mr. Fox said, “He was ready either to wait for the opinions of the lawyers, or to endeavour to amend the clause himself. That he had several objections to the wording of it; that Acts passed may be Acts of Parliament; that in order to vary the Settlement ought never to be words in a penal Act; by the same rule a person would be guilty of robbery who went to a gunsmith’s with another to buy pistols in order to rob. That null and void must mean Acts of Parliament, not letters-patent, for they cannot supersede Acts of Parliament. That the crimes intended to be punished by this law should be certainly known, and not subject to constructions. That the door of the house where the plague was would be marked, and then whoever entered, let him die!” He then proposed to leave out the word præmunire, and to leave the pursuit of the crime to the common course of the law of the land; or to make it even high-treason, provided it was made clear to the subjects, what the crime was to be; as no man can suffer but for known crimes. That the maxim, Misera est servitus ubi lex est inserta, can only be meant of penal laws, for all other laws are undoubtedly much too uncertain. Fox frequently attacked the lawyers; he loved disputing as much as they do, but as he loved sense and argument, which they make a trade of perplexing, he could not bear a society who at once inverted the use of reason and the profession of justice.
He was answered by Murray, the Solicitor-General,[133] a frequent antagonist of his, who had quickness and eloquence enough to defend or not to want the knowledge of the Law, of which he was master. He said, “There could be no hurt in omitting the words that conveyed any doubtful meaning; that the Bill was calculated against unlawful acts, such as force and usurpation, upon the foundation of former examples, particularly the disposition made by Henry the Eighth; that it was only a clause in terrorem; that there must be an overt act; that the House had already passed a sanction of the same nature in the marriage clause: but if these words were disliked, you might insert unlawfully and without consent of Parliament; and that the Regent would certainly not be included within the words.”
Fox accepted the proposed words, but would have omitted in order, which would still leave the necessity of the overt act in full force. He insisted “that the clause affects nobody but those who assist the Regent in endeavouring the repeal of this Act, and consequently that she is tied up from innovating, while her Council are at liberty to attempt what farther usurpations they please upon hers and the royal authority. It is difficult to ascertain what her accomplices must or must not will and know, to include them within the penalty; that if she takes out letters-patent to be sole Regent, are the clerks who draw them to be subject to the præmunire? That it must be right to omit the words in order, since in the Solicitor’s opinion they were useless; in his, dangerous: but supposing they were still to remain, he could not help insisting on being told, what punishment there would be for him or any man who should attempt to cancel the Regency Bill without the connivance of the Regent?” The Solicitor replied, “That such act would be against the King, because he was in her hands; but that this provides against doing it with her consent. That the words in order were neither so unheard of, nor so formidable as was pretended; that the Coventry Act has the equivalent words with intent; and that the Mutiny Bill (brought in by Mr. Fox) has even the words in order. He owned that those words were inserted to prevent the connivance of the Regent from giving an air of legality to any attempts of innovation.” The Master of the Rolls said, “He could not point out words to describe the crime, but he thought with intent preferable to in order.”
Fox asked, “If whether, as it was allowed that it would be lawful to attempt the repeal of the Act by parliamentary methods, the attempters would be guilty of a præmunire, if the Parliament should not concur for the repeal? But that as it was confessed by great lawyers that the crime could not be described, he desired to have it considered, whether it would not be more proper, more humane, and more sensible, to leave the punishment to the Judges?” Sir Richard Loyd said “That the words in order were not dangerous, but that advising was too vague, as it may be proper to give the Regent such advice; that if the word promoting stood, he should wish to insert unless to apply to Parliament.” Fazakerley approved the addition of without the consent of Parliament. The Attorney said, “That intent could only relate to the person, not to the concurrence; that he thought the words Acts passed might be omitted, but that the lowest persons concurring knowingly to defeat the Act, ought to incur equal punishment.” Lord Strange said, “It must mean Acts of Parliament, for nothing else could set aside this:” and then he moved the amendments that had been proposed.
Pitt said, “He imagined they were already agreed to; that he would have Acts passed omitted, but liked in order: that he approved the addition of the word unlawful, but would omit without consent of Parliament, because it would be inviting applications to Parliament, and would make men turn their minds to get this Act repealed, though there was no doubt already, but that the Parliament could alter this settlement if it should please.” He then moved to leave out Acts, and was seconded by Fox. Fazakerley asked whether it would not be necessary to have a Commission of Regency if the Princess should be ill. Pitt then moved to insert unlawfully, and Fox yielded not to mention without consent of Parliament, and to let in order stand. Lord Strange said, if he were to have the Princess’s ear, he would advise her to get this Act repealed. Fox moved for leaving out concurring. Old Horace Walpole argued for its remaining; and Sir William Yonge defended it as meaning no more than the three other words that accompanied it. Fox ridiculed him on his reverence for the sacredness of tautology, and said, that if all those words had the same meaning, he would leave out three of them. Pitt was for retaining the word, because it had once been inserted, and to omit it now, would be telling the people that they might concur. Thus at half-an-hour after ten at night, this inquisition clause, having dwindled into a grammatical dispute, was voted, with corrections more worthy of grammarians than a House of Commons, by 126 to 40; a few of Mr. Fox’s and the Duke of Bedford’s friends insisting upon a division, though the former would himself have acquiesced.