Tuesday, November 14, 2017

Affixing the Great Seal to Letters Patent: Regency Bill 1789.

The following is taken from parliamentary debates surrounding the Regency Bill of 1789. The bill passed the House of Commons, but George III subsequently recovered his faculties, rendering the bill unnecessary. Thus it never reached the statute book.

Debrett, History of the Proceedings and Debates of the House of Commons, Volume 25 (1789), p.351

The Solicitor General begged leave to explain to the Committee why he advised them to order the commission, now moved for, to be issued under the great seal; any why it would be right afterwards to put the great seal to another commission, in order to give the Royal assent to the bill appointing a Regent. He was glad that it had not been said in that House, that such a mode of proceeding was not legal. No man had ventured to make such a declaration; nor could any man have dared to have done it; who knew the law and the constitution of the country. When he had troubled the House, with the resolution that it was their right to determine on the means to provide for the deficiency of the exercise of the Royal authority had been under consideration, the Committee would recollect that he had stated, that a Regent could not be appointed but by act of Parliament, nad, in order to pass that act, there mus necessarily be a commission issued under the great seal to open the Parliament, and a subsequent commission to give the Royal assent to such a bill as should be passed by the two Houses. That was the legal mode of proceeding; the other, that of addressing the Prince to take upon him the Regency, a term unknown in law, was clearly illegal. If they addressed the Prince to take upon him the Regency, he could not be Regent, but by some such fiction as that now proposed to be resorted to. It was his duty, the Solicitor General said, as a professional man, to satisfy the House that the mode of proceeding recommended to them was legal. It was a point on which they ought to be satisfied. In the course of the debate on the resolution then before the House, he observed, that the statutes referred to, as bearing upon the question, were the 33d of Henry the Eighth, the act of Charles the Second, and the act of the first of Queen Mary; each of which pointed two ways; but, if it was contended that those were negative statutes, and that they were to regard them in that point of construction, he begged leave to ask how they were to appoint a Regent at all? He denied it to be possible, because the consent of the Crown must be obtained to the act; and it was well known to them all, that His Majesty could not attend in Parliament to signify his consent in person, neither could he put his sign manual to a commission. The only mode of obtaining the King's consent, was by putting the great seal to the commission for passing it, and making it a public act. If it was so authorized, that rendered it a public act; and if, upon the face of it, it expressed that it passed by the consent of the King, Lords, and Commons, the judges of the land could not dispute it. The great seal, once put to it, gave it all the authority of law, and on inquiry could be instituted as to the mode of its having been passed. If letters patent passed, without the King's warrant having been previously granted to direct such letters patent to be made out and sealed, yet, having the great seal annexed to them, however criminal it might be in the person who should, under such circumstances, take upon himself to put the great seal to those letters patent, they would prove of full force, and bind the King himself, although it might be known that His Majesty had not granted his warrant for making out such letters patent.

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