This part of the case was so plain, that when, after the different resolutions proposed by Pitt had been adopted in both Houses, Fox insisted that, instead of proceeding by a bill to create a Regency, and to appoint the Prince of Wales Regent, the only course which could be adopted with propriety would be to present an address to the Prince, to entreat him to assume the government, he failed to induce the House to agree with him; and finally, as if he were determined to find a battle-field in every clause, he made a vigorous resistance to the expedient by which Pitt proposed that the formal royal assent which was necessary to make the bill law should be given. Fox, on one occasion, had gone the length of denying that the two Houses had any right to be regarded as a Parliament while the King, an essential part of Parliament, was incapacitated. But such an objection could have had no force, even in the mind of him who raised it, since the proceedings of the two Convention Parliaments of 1660 and 1689 labored under a similar defect; and yet their acts had been recognized as valid, and ratified by subsequent Parliaments. And now, in reference to the expedient proposed by the minister, that the two Houses should empower and authorize the Lord Chancellor to affix the Great Seal to the bill, Burke, with great, but for him not unusual, violence, denounced both the proposal and the Chancellor, declaring that such a step would be the setting up of a phantom of sovereignty, a puppet, an idol, an idiot, to which he disclaimed all allegiance. A more perilous amendment was one proposed to another clause by Mr. Rolle, enacting that if the Regent should marry a Roman Catholic his authority should cease. Since the Bill of Rights, as we have seen, forbade a sovereign to marry a Roman Catholic without incurring the forfeiture of his crown, it was evidently reasonable that the same restriction should be imposed on every Regent; but it was hard at the moment altogether to dissociate such a clause from the discussions of the preceding year; and Mr. Rolle endeavored to give the clause a more pointed meaning by an amendment to enact that the forfeiture should be incurred by the mere celebration of any marriage ceremony, whether the marriage thus performed were legal and valid or not. His amendment, however, was unanimously rejected. The bill was passed without alteration by the House of Commons; the Prince, while protesting in an elaborate and most able letter, drawn up for him by Burke, against the restrictions imposed by the bill, nevertheless consented to sacrifice his own judgment to the general good of the kingdom, and to accept the authority, limited as it was. And by the middle of February the bill was sent up to the House of Lords. There Lord Camden had charge of it, and his position as a former Chancellor gave irresistible weight to his opinion that the mode proposed to give the final sanction to the bill was strictly in accordance with the spirit and practice of the constitution. The point with which he dealt was the previous one, how Parliament, which was to pass the bill, was to be opened, for, "circumstanced as it was, Parliament could not at present take a single step." The law, as he put it, declared that the King must be present, either in person or by a representative. When he could not attend personally, the legal and constitutional process was to issue letters-patent under the Great Seal. In the present dilemma, therefore, he recommended that the two Houses should direct letters-patent to be issued under the Great Seal, authorizing commissioners to open Parliament in the name of his Majesty. He "must use the liberty to say that those who treated this proposal with ridicule were ignorant of the laws of their country. A fiction it might be termed, but it was a fiction admirably calculated to preserve the constitution, and, by adopting its forms, to preserve its substance." The authority of the Great Seal he explained to be such that, "even if the Lord Chancellor, by caprice, put it to any commission, it could not afterward be questioned;" and he adduced a precedent of a very similar character to the course now proposed, which occurred "at the commencement of the reign of Henry VI., when, the sovereign being an infant of nine months old, the Great Seal was placed in his hand, and it was supposed to be given to him by the Master of the Rolls, whereupon many commissions were sealed by it, and the government was carried on under its authority." That precedent, he reminded the peers, had been followed as recently as the year 1754, when, during an illness of George II., Lord Chancellor Hardwicke affixed the Great Seal to a commission for opening a session of Parliament. And, finally, he concluded by moving, "That it is expedient and necessary that letters-patent for opening the Parliament should pass under the Great Seal."[119] The motion was carried, and Parliament was opened in accordance with it; and, if it had been necessary, the same expedient would have sufficed to give the requisite assent to the Regency Bill, a necessity which was escaped by the fortunate recovery of the royal patient, which was announced by his medical advisers a day or two before that fixed for the third reading of the bill in the House of Lords.
Though the question was thus left undetermined for the moment, it was revived twenty-two years afterward, when the same sovereign was attacked by a recurrence of the same disease, and the existing ministry, then presided over by Mr. Perceval, brought forward a Regency Bill almost identical with that which on this occasion had been framed by Mr. Pitt; and the Opposition, led by Lord Grey and Sir Samuel Romilly, raised as nearly as possible the same objections to it which were now urged by Fox and his adherents. The ministerial measure was, however, again supported by considerable majorities; so that the course proposed by Mr. Pitt on this occasion may be said to have received the sanction of two Parliaments assembled and sitting under widely different circumstances; and may, therefore, be taken as having established the rule which will be adopted if such an emergency should, unfortunately, arise hereafter. And indeed, though the propriety of Pitt's proposals has, as was natural, been discussed by every historical and political writer who has dealt with the history of that time, there has been a general concurrence of opinion in favor of that statesman's measure. Lord John Russell, while giving a document, entitled "Materials for a Pamphlet," in which he recognizes the handwriting of Lord Loughborough, and which "contains the grounds of the opinion advanced by him, and adopted by Mr. Fox, that, from the moment the two Houses of Parliament declared the King unable to exercise his royal authority, a right to exercise that authority attached to the Prince of Wales," does not suppress his own opinion of the "erroneousness of this or any other doctrine that attributes to any individual or any constituted authority existing in the state a strict or legal right to claim or to dispose of the royal authority while the King is alive, but incapable of exercising it."[120]