"Finally," said one speaker, who perhaps was Lord Mansfield himself, "he is not a moderate minister who would rashly decide in favor of prerogative in a question where the rights of Parliament are involved, nor a prudent minister who, even in a doubtful case, commits the prerogative, by a wanton experiment, to what degree the people will bear the extent of it. The opposite course was that by which a minister would consult the best interests of the crown, as well as of the people. The safety of the crown, as well as the security of the subject, requires the closing up of every avenue that can lead to tyranny."[22]
These arguments prevailed, and the indemnity bill was passed, to quote the words of the "Annual Register"-at that time written by Burke-"very much to the satisfaction of the public." And that it should have been so accepted is creditable to the good-sense of both parties. The precedent which was thus established does, indeed, seem to rest on a principle indispensable to the proper working of a constitutional government. In so extensive an empire as ours, it is scarcely possible that sudden emergencies, requiring the instant application of some remedy, should not at times arise; and, unless Parliament be sitting at the time, such can only be adequately dealt with if the ministers of the crown have the courage to take such steps as are necessary, whether by the suspension of a law or by any other expedient, on their own responsibility, trusting in their ability to satisfy the Parliament, instantly convoked to receive their explanation, of the necessity or wisdom of their proceedings; and in the candor of the Parliament to recognize, if not the judiciousness of their action, at all events the good faith in which it has been taken, and the honest, patriotic intention which has dictated it. The establishment of the obligation instantly to submit the question to the judgment of Parliament will hardly be denied to be a sufficient safeguard against the ministerial abuse of such a power; and the instances in which such a power has since been exercised, coupled with the sanction of such exercise by Parliament, are a practical approval and ratification by subsequent Parliaments of the course that was now adopted.[23]
The next year a not very creditable job of the ministry led to the enactment of a statute of great importance to all holders of property which had ever belonged to the crown. In the twenty-first year of James I. a bill had been passed giving a secure tenure of their estates to all grantees of crown lands whose possession of them had lasted sixty years. The Houses had desired to make the enactment extend to all future as well as to all previous grants. But to this James had refused to consent; and, telling the Houses that "beggars must not be choosers," he had compelled them to content themselves with a retrospective statute. Since his time, and especially in the reigns of Charles II. and William III., the crown had been more lavish and unscrupulous than at any former period in granting away its lands and estates to favorites. And no one had been so largely enriched by its prodigality as the most grasping of William's Dutch followers, Bentinck, the founder of the English house of Portland. Among the estates which he had obtained from his royal master's favor was one which went by the name of the Honor of Penrith. Subsequent administrations had augmented the dignities and importance of his family. Their Earldom had been exchanged for a Dukedom; but the existing Duke was an opponent of the present ministry, who, to punish him, suggested to Sir James Lowther, a baronet of ancient family, and of large property in the North of England, the idea of applying to the crown for a grant of the forest of Inglewood, and of the manor of Carlisle, which hitherto had been held by Portland as belonging to the Honor of Penrith, but which, not having been expressly mentioned in the original grant by William III., it was now said had been regarded as included in the honor only by mistake. It was not denied that Portland had enjoyed the ownership of these lands for upward of seventy years without dispute; and, had the statute of James been one of continual operation, it would have been impossible to deprive him of them. But, as matters stood, the Lords of the Treasury willingly listened to the application of Sir James Lowther; they even refused permission to the Duke to examine the original deed and the other documents in the office of the surveyor, on which he professed to rely for the establishment of his right; and they granted to Sir James the lands he prayed for at a rent which could only be regarded as nominal. The injustice of the proceeding was so flagrant, that in the beginning of 1768 Sir George Savile brought in a bill to prevent any repetition of such an act by making the statute of James I. perpetual, so that for the future a possession for sixty years should confer an indisputable and indefeasible title. The ministers opposed it with great vehemence, even taking some credit to themselves for their moderation in not requiring from the Duke a repayment of the proceeds of the lands in question for the seventy years during which he had held them. But the case was so bad that they could only defeat Sir George Savile by a side-wind and a scanty majority, carrying an amendment to defer any decision of the matter till the next session. Sir George, however, was not discouraged; he renewed his motion in 1769, when it was carried by a large majority, with an additional clause extending its operation to the Colonies in North America; and thus, in respect of its territorial rights, the crown was placed on the same footing as any private individual, and the same length of tenure which enabled a possessor to hold a property against another subject henceforth equally enabled him to hold it against the crown. The policy not less than the justice of such an enactment might have been thought to commend it to every thinking man as soon as the heat engendered by a party debate had passed away. It had merely placed the sovereign and the subject on the same footing in respect of the security which prescription gave to possession. And it might, therefore, have been thought that the vote of 1769 had settled the point in every case; since what was the law between one private individual and another, and between the sovereign and a subject, might well have been taken to be of universal application. But the ministry were strangely unwilling to recognize such a universal character in the late act, and found in the peculiar character of ecclesiastical bodies and ecclesiastical property a pretext for weakening the force of the late enactment, by denying the applicability of the principle to the claims of ecclesiastical chapters. In 1772 Mr. Henry Seymour, one of the members for Huntingdon, moved for leave to bring in a bill, which he described as one "for quieting the subjects of the realm against the dormant claims of the Church;" or, in other words, for putting the Church on the same footing with respect to property which had passed out of its possession as the crown had been placed in by the act of 1769. He contended that such a bill ought to be passed, not only on the general principle that possessors who derived their property from one source ought not to be less secure than they who derived it from another, but also on the grounds that, as ecclesiastical bodies occasionally used their power, "length of possession, which fortified and strengthened legal right and just title in every other case, did in this alone render them more weak and uncertain," from the difficulty which often occurred in finding documentary proof of very ancient titles; and that this was not an imaginary danger, since a member of the House then present had recently lost L120,000 by a bishop reviving a claim to an estate after the gentleman's family had been in undisturbed possession of it above a hundred years. The defence of the Church, however, was taken up by Mr. Skinner, Attorney-general for the Duchy of Lancaster, who argued that though, in the case of the crown, the
nullum tempus which it had formerly claimed, and which had been put an end to in 1769, was "an engine in the hands of the strong to oppress the weak, the nullum tempus of the Church was a defence to the weak against the strong," as its best if not its sole security "against the encroachment of the laity." The "Parliamentary History" records that in the course of a long debate Lord North opposed the bringing in of the bill, as did "the Lord-advocate of Scotland, who gave as a reason in favor of the bill, though he voted against it, that a law of similar nature had passed in Scotland, and that the whole kingdom, clergy as well as laity, found the very best effects from it."[24] Burke argued in favor of the bill with great force, declaring that in so doing "he did not mean anything against the Church, her dignities, her honor, her privileges, or her possessions; he should wish even to enlarge them all; but this bill was to take nothing from her but the power of making herself odious." But the ministerial majority was too well disciplined to be broken, and Mr. Seymour could not even obtain leave to bring in the bill.