CHAP. CLXXXVI. tuated by a better motive. I venture to say firmly to your Lordships, that the bill I now propose to you, if it shall receive the sanction of Parliament, will not only be an honour A.D. 1809. to the country, but an era in the history of the world.”” 6 against it. The bill passed the Lords after a slight opposition from Windham's Lord Ellenborough, but was thrown out in the Commons by speech a speech of Windham's, who thus sneered at its author. "We ought to be cautious how we begin new eras of legislation,' and ought to have a reasonable distrust of the founders of 'eras,' lest they should be a little led away by an object of such splendid ambition, and be thinking more of themselves than of the credit of the laws or the interest of the community. To be the first who has stood up as the champion of the rights of brutes' is, indeed, a marked distinction. But I wish to know why, to tarnish his glory, he has excluded from protection animals not tamed or reclaimed; for one would have supposed that their rights were more unqualified and more unquestionable. It is said they are feræ naturæ a learned distinction, but never before so whimsically applied. Again, we are told, if never treated with cruelty, they would become too numerous and overrun the earth; but how does this apply to a class of animals with which we are accustomed to make very free - the fishes! If it is to be a misdemeanour to beat a donkey, surely to crimp a cod, or to skin an eel, ought to be felony without benefit of clergy. What a pretty figure shall we make in the world, if in one column of a newspaper we read a string of commitments under the Cruelty to Animals Act,' and in another, the account of a grand Battue attended by princes of the blood, and ministers of state -- or of a glorious run, five horses only being in at the death, of fifty who started, several having died in the field!' If the horses be within the purview of the statute, the hounds are not, and at all events the rights of the fox' are violated with impunity!”* Erskine again introduced his bill, with some amendments, A. D. 1810. in the next session, and it underwent much discussion, but *17 Parl. Hist. 1207. CHAP. CLXXXVI. finding that he was not likely to carry it through the House of Commons, he withdrew it after it had passed the comA.D. 1810. mittee.*— When Windham was gone, and the passion for bullbaiting and boxing had subsided, it was introduced there by Martin of Galway, and finally, in Erskine's lifetime, received Bill after the sanction of the Legislature. † Independently of "the rights of brutes," which it may be difficult to protect by human laws, although the subject of religious and moral obligation, I think there can be no doubt that any malicious and wanton cruelty to animals in public, — outrages the feelings,has a tendency to injure the moral character of those who witness it, and may therefore be treated as a crime. wards car ried. A. D. 1810. Erskine's notions of "Parliamentary When the dispute arose upon the commitment of Sir Francis Burdett to the Tower,--yielding to the sin which most easily beset him, the love of popularity, - Erskine Privilege." took a violent part against the House of Commons, and main tained that all questions of privilege ought to be decided by the courts of common law. He dwelt upon the danger of either House of Parliament exceeding its jurisdiction, -forgetting the danger which has since been exemplified, of judges, with the best intentions in the world, attempting to deprive the two Houses of Parliament of powers "essential to the due and effectual exercise and discharge of their functions and duties, and to the promotion of wise legislation." In a very unnecessary ebullition of bravery, after referring to the fact of Chief Justice Pemberton being sent to Newgate by the House of Commons, he exclaimed, "If a similar attack were made upon my noble and learned friend who sits next me [Lord Ellenborough], for the exercise of his legal jurisdiction, I would resist the usurpation with my strength, and bones, and blood."§ Nay, he went so far as to lay down for law, contrary to repeated decisions of all the Courts in Westminster Hall, that a warrant of commitment by either House of Parliament must upon the face of it specify the particular facts alleged to constitute a breach of privilege, for the consi *16 Parl. Deb. 726. 845. 881. 883. 1017. + See stat. 3 Geo. 4. c. 71.; stat. 5 & 6 Wm. 4. c. 59. See 3 Vict. c. 9. § 16 Parl. Deb, 851. deration of the Common Law Judges upon a writ of habeas * CHAP. CLXXXVI. corpus. It certainly would be desirable, for public information, that such warrants were so drawn; but the pre- A.D. 1810. tension of judges to review the cause of commitment renders this course impossible, without subjecting all parliamentary privilege to their summary caprice, and the established sufficiency of a warrant of commitment, generally alleging a breach of privilege, is the only practical security which the two Houses retain for the undisturbed enjoyment of the powers which they have hitherto exercised, and which the public good requires that they should continue to exercise. Although Erskine on various occasions so nobly repelled attacks on public liberty, I cannot hold him up as an accomplished jurist or a great authority in constitutional law. 1810. He be comes more fa vourable to the Catho lics. I am happy to say that he gradually took a more liberal view June 5. of the claims of the Roman Catholics, and although he was not yet prepared to put them, as to civil rights, on an equal footing with Protestants, he supported Lord Donoughmore's motion for referring their petitions to a committee, saying, "The question now to be decided is not whether the Roman Catholic religion be good or evil as a religion, but whether so long as it exists among so large a proportion of the population of Ireland, we are not called upon so to deal with its professors as to make them safe and sound members of the British empire." † I could have wished much, for his fame, that he had been more active in leading or assisting the efforts which now began strenuously to be made to soften the atrocious severity of our penal code: but I can only find that he once offered a few observations, and voted in a small minority, in favour of the bill for taking away capital punishment from the offence of stealing in a shop to the value of five shillings. ‡ The Whigs were again tantalised by the seemingly certain prospect of a speedy accession to power. In the end of the year 1810, the mental illness of King George III. was so aggravated that it could not be concealed from the public, and the functions of the Executive Government could not be His neglect ation of the of the form Penal Code. The Regeney un der George IV. esta blished. *17 Parl. Deb. 588. 598. † lb. 395. Ib. 198. CLXXXVI. CHAP. carried on without the intervention of Parliament. The belief became general, which was verified by the event, that A.D. 1810. his Majesty was now permanently disabled from personally performing the duties of his high office. Notwithstanding the democratic doctrine adopted in 1788, that on such an emergency the two Houses of Parliament were entitled to elect any individual at their pleasure as Regent, and to confer or withhold from him any of the prerogatives of the Crown, it was easily foreseen that the Heir Apparent would soon be to all practical purposes upon the throne. After a little vacillation, in consequence of a supposed revolutionary movement in the country at the commencement of the war, he had remained true to the political party to which he attached himself in his youth; and at this very time he was living on terms of the most familiar intimacy with the leaders of it talking to them of the distribution of the great offices of state among them as soon as they were his to bestow. Erskine in particular was in high favour with him, and when they met, his Royal Highness, without loss of dignity, laying aside court etiquette, addressed him by the endearing appellative of TOM. If the Ex-Chancellor again desired the Great Seal, it seemed within his reach. Erskine's opinion on the right of the Heir Apparent. Upon the question as to the mode of proceeding to supply the deficiency in the exercise of the royal functions, he laid down what I consider the true doctrine - that the two Houses, as the states of the realm, should find and declare the fact of the incapacity of the Sovereign, and that then the Heir Apparent, by right of birth, should carry on the government while that incapacity continues. He said, "Not having been in Parliament in the year 1788, I had not then an opportunity publicly to declare my sentiments upon the subject, but I considered it most anxiously and deliberately, and I came to the conclusion that the power of election, arrogated to themselves by the two Houses of Parliament, is wholly inconsistent with the principles of hereditary monarchy, and may lead to all the horrors of civil war. There is no analogy between this case and the Revolution of 1688; for then the throne was vacant, and the two Houses were driven by ne CLXXXVI. cessity to fill it by calling in a new dynasty. But the throne CHAP. is not now vacant, and the two Houses have no jurisdiction to assume or to change the royal authority." This short A.D. 1810. statement seems absolutely conclusive against the proceeding by bill; for that proceeding cannot take place without the direct assumption of the royal authority, however strongly this usurpation may be disavowed. The Great Seal is not the organ of the two Houses, but of the King only. The Great Seal is used in judicial proceedings by virtue of the King's general authority; but for such, solemn acts of state as opening Parliament, or giving the royal assent to bills, it is the symbol of the King's mind and intention, signified by the indispensable sign-manual. To employ the Great Seal for such purposes by the two Houses of Parliament is, therefore, a manifest violation of the Constitution. The proposed plan assumes the power of the two Houses to exercise the royal power during the King's incapacity-by which evil men may introduce confusion I not to terminate with one generation. This is no visionary fancy; the Constitution has fallen a sacrifice to the principle of separating the political power from the natural person of the sovereign, and may again lead to the levy of armies in his name to fight against him.”* op poses re When the restrictions to be put upon the Regent came to He be discussed, Erskine strenuously opposed them, contending strictions that they were wholly unnecessary for the purpose of ensuring on the Regent. his Majesty's resumption of his royal authority on his recovery; and he denounced the prohibition against promotions in the peerage as particularly disrespectful to that House, because they conveyed an insinuation "that their Lordships were ready to barter their allegiance against additional balls or strawberry-leaves for their coronets." as to proxies. On the clause respecting the patronage of the household, Question the Government was beaten by a small majority in the committee, where proxies could not be used; and proxies being called on the "Report" to reverse this decision, the question arose, whether, under the circumstances, the right of voting 18 Parl. Deb. 72. |