The Last Royal Veto

HISTORY, it is said, repeats itself. It sometimes — at long; intervals — reverses itself. When Louis XVI. was bankrupt, his advisers bade him summon the StatesGeneral, and a body that had last met in 1614 came together once more in 1789, reversing the whole system of six generations. But the revived corpse was less manageable than Frankenstein’s monster.

English politics are in a parlous state. Parliamentary control and party government are, it seems, on their trial. Can they perhaps derive new strength from the revival of a power often called dead — so dead, that the very date of its death is forgotten ? If the reader will exercise a little patience to learn the date of the supposed decease, he may be interested to speculate on the chances of a possible resuscitation.

The veto of a chief magistrate — the refusal of assent to a bill which has passed all the other stages of legislation — is always an interesting event in political history. The veto of a President of the United States, or a Governor of one of them, invariably creates much interesting speculation. Sometimes, on these occasions, reference will be made to the fact that a bill is never vetoed by the Sovereign of England; and perhaps the exaggerated language of Mr. Bagehot may be resorted to, — that “ Queen Victoria must sign her own death-warrant, if both Houses present it for her signature.”

Yet, beyond all doubt, our own ancestors adopted the veto provision first in their State Constitutions, from which it was copied in that of 1787, because they believed that the English executive had such a power, and that indeed to an extent beyond what they were willing to trust their elective governors ; for American vetoes are merely suspensive, — bills may be passed over them ; a royal veto in England is final. John Adams in the Defence of the American Constitutions finds fault with the Americans for not imitating the English Constitution in respect to the negative given to the executive power; but a suspensive veto certainly belonged to Ins own State Constitution before 1787.

And, indeed, there is no difference of opinion among the earlier text-writers, like Blackstone and Delolme, that the King does possess this absolute negative, as expressed in the terms “ Le Roy s’avisera ” (The King will consider of it) ; they speak of this as an actual power. Later writers, however, invariably tell us that the power is entirely disused ; and Bagehot goes to the length I have stated, — that it must be considered as extinct. What has taken its place, — if, as some say, the sovereign cannot affect legislation at all, or if he can do so only by influence, or, finally, if there are established but indirect methods by the agency of the ministry, — I shall not at this moment discuss. My present purpose is to dwell on the most recent or least remote use of the sovereign’s negative, as it has been recorded and treated, whether as belonging to the actual history or the theoretic Constitution of England.

In what reign was the sovereign’s assent last refused to a bill passed by the Lords and the Commons ? The answer is, in that of Queen Anne, on the 11-22 of March, 1707-8, when the Act for Settling the Militia of Scotland was met by “ La royne s’avisera.” There is not the least mystery about this fact; it is recorded in the Journals of the House of Lords, which are easily accessible, and has been mentioned in several books which are still handier ; and yet I find, on consulting about thirty prominent historians and text-writers, not a single one who does not either omit all allusion to the fact, or commit errors about it more or less serious; always excepting Lord Macaulay, who alludes to it correctly but very casually. Now, this seems to me a very remarkable comment on the way history is written. That the entire body of accessible historians and text-writers who have handled this period or this subject should either not know or omit or misstate the latest exercise of this very interesting power, is enough to make the most indifferent and lazy investigate for himself anything that strikes him in his historical or legal study.

Taking it first from the historians’ point of view, — the chief chroniclers who handle the reign of Queen Anne have absolutely nothing to say about this event. They tell us that the Parliament of 1707-8 (the first so called of Great Britain) was engaged in perfecting the union of England and Scotland ; they tell us how, on the 11th of February, Harley and St. John were ousted from the government by the Whigs, supported by the Duchess of Marlborough ; they tell us how intelligence was received that the Old Pretender, James Edward, set sail from France, in charge of Admiral Forbin, on the 8th of March, and that Sir George Byng prepared to intercept this descent on Scotland ; they tell us that the Queen came in person to the House of Lords on the 11th of March, announced that she had received news of this expedition, and asked for the assistance of Parliament, which was promptly voted ; they do not tell us that, before making this announcement and appeal, she gave her assent to various acts, public and private, and then, for the last time, as it turned out, refused it to the one named. The historians who thus wholly omit or ignore the event are Luttrell the Diarist, Burnet (who was present), Tindal, Smollett, McPherson, Mortimer, Belsham, Hallam, Keightley, Lord Stanhope, King, Burton, Morris, Knight, Lecky, Green, Wyon, and McCarthy.

When we come to text-writers on the British Constitution, I find that Lord Brougham, Lord Russell, and Sir Edward Creasy say nothing whatever about the last exercise of the veto power. Neither does Blackstone ; but in the note of his editor (Christian) we find the mistake of saying that it was last exercised by William III.; and this same error appears in Delolme (translated by Stephens), in Fischel (translated by Shee), in David Rowland, in Curtis on the United States Constitution, in Justice Story, and in an address of Webster’s.

Now let us see who have with somewhat greater accuracy alluded to the event. Macaulay, who has given such an interesting account of four of the vetoes of William III., says the words of refusal “ have only once been heard since his reign.” I can hardly doubt that if he had reached 1708 he would have told us the whole story, and told it right. Hatsell, in his Parliamentary Precedents (second edition), records the event, and refers to the Lords’ Journals ; but he admits that he did not know of it when he published his first edition. He is followed by Fonblanque (How We are Governed), Sir Erskine May, Sir W. Anson, and Ewald. But every one of these writers says the event took place in March, 1707, ignoring the old style, which they never do in their account of other events which have a similar double dating. The date is 11—22 March, 1707—8, and however we may prefer to write the day of the month, 1708 we shall call the year in all accurate historical writing. The same inaccuracy occurs in an Australian writer, Mr. William Hearn, whose book on the British Constitution is yet the only one I have read that gives full recognition to the event, and tries to analyze its cause. He points out that the sudden outbreak of Jacobite insurrection, supported from France and directed to Scotland, would naturally create a dread of establishing a militia in that part of the island, still chafing under the unpopular Act of Union, and with many of its Lords Lieutenants, who would be commanders of the militia, notoriously disaffectedBut as the Act had passed both Houses, the Queen’s veto was the only way to arrest its perilous operation.

Mr. Hearn refers to Somerville, whose History alludes to the event, but in the most perversely incorrect way : “ But while the Militia Bill was depending, the attempt of the Pretender to invade Scotland excited a general suspicion that it would be unsafe to trust the people with arms, and prevented the bill being presented for the royal assent.”

Just the reverse of the facts ! In point of fact, the bill had been reported from Committee of the Whole on the Queen’s speech on the 11th of December, 1707 ; went regularly through its readings without a division in the Commons, under the charge of King, afterwards C. J. C. P. and Lord Chancellor; was reported to the Lords on the 11th of February, the day of the ministerial crisis; went through its stages, and passed on the 25th of February, also without a division or protest; and met the fate I have described.

I may add that I cannot find in Lord Campbell’s Lives of the Chancellors of this reign a single allusion to the veto, even in that of Sir Peter King, the patron of the Militia Bill; while on the other hand, a Mr. P. F. Aikin, who wrote in 1842 a comparison of the United States and English Constitutions, says the King’s veto power has not been exercised since the Revolution, that is, since 1688 ; whereas King William refused his assent to at least six bills in the course of the years 1692-96. But such a blunder is exceptional indeed ; every historian who has dealt with the reign of William III. has had something to say about his refusing his assent to several bills. Two only have discussed the matter with any attempt at penetration, — these are McPherson and Macaulay, the insidious enemy and the thoroughgoing friend.

Almost every writer of history copies the statements of his predecessor to an extent hardly to be imagined by those who have not compared a variety of authors. It is particularly noticeable that when a new historian has possessed himself of some freshly discovered correspondence or memoirs throwing new light on some special theme, while making the very most of his material, he does not hesitate to copy what has been said a score of times, in the parts on which his new treasure throws no light, without suspecting that there also one should look deeper. I have little doubt, for instance, that if a new history of William III.’s reign were written, the author, finding some of the King’s vetoes alluded to by all his predecessors, but only Macaulay and McPherson mentioning as many as four, and discussing these four with much acumen, would conclude that there were these four and no more. Yet the Lords’ Journals show that the King vetoed at least two more, whose titles would indicate that they were private bills.

I have not found that the Stewarts refused their assent to any bills ; but I have not searched the entire Lords’ Journals of their eighty-five years. Charles II., not liking the last bill passed by his last Parliament, just before its dissolution contrived to have the Clerk of the Crown steal it, before the Clerk of the Parliaments had formally presented it to him. Sir Simonds D’Ewes is quoted as saying — I have not yet verified the quotation — that Queen Elizabeth at the end of one session rejected as many bills as she passed. Of the earlier Tudors I can say nothing; the earliest veto I have found mentioned is when King Henry V., shortly after the victory of Agincourt, said, “Le Roy s’avisera” to a petition of Parliament against the transferring of suits at Common Lawinto Chancery. And the Plantagenet monarchs were less likely to veto the measures of the two Houses, because acts were then framed by some of the King’s advisers, in compliance with petitions from the Houses, and really emanated from the King ; and to this day it is conceived in England that legislation, in the overwhelming majority of cases, should proceed from the ministry, who are in theory supposed to represent the Crown, and not from the opposition, although now the ministry are in fact the spokesmen of a popular majority.

Since 1708 the veto has never been used. Queen Anne soon after got the majority of Parliament in accord with her personal predilections. The first two Georges were shrewd enough — for they were anything but the fools that it is fashionable to call them — to put themselves completely in the hands of a parliamentary majority. George II. and his two sons, though they frequently attempted, and not seldom succeeded, in influencing and even in reversing legislation, found easier ways of doing so than by refusing their assent to bills passed by both Houses. But the sturdy Tories, with ex-Lord Chancellor Eldon at their head, really hoped George IV. might veto the Catholic Emancipation Bill of 1829 ; and he probably would have, if he had not stood in mortal terror of the Duke of Wellington.

Since then, — a period of seventy years, — scarcely any one has talked about the royal veto. Bryce’s American Commonwealth 1 quotes a Canadian writer, Mr. Tod, on a threatened exercise of the veto by Queen Victoria in 1858. Mr. Bryce — or Mr. Tod — gives the usual date of Queen Anne’s veto as 1707 ; but he ascribes to William III. five vetoes. Mr. Fielden gives William III. three vetoes, and gives no date to Queen Anne’s. But there is not the least absurdity in supposing its use, and even its salutary use. The ordinary theoi’y is that if the sovereign refused assent to a bill, the ministers would be in danger of impeachment by the Commons and condemnation by the Lords for having advised such action by their master ; that they would at once resign, and that no other ministry could be found boltl enough to take their places unless the Crown withdrew its refusal. But this entirely overlooks the very possible case of a non-partisan measure, forced through both Houses by some independent interest, which should divide both ministry and opposition, so to speak, across and not lengthwise. In this case a large minority might be backed by a very strong outside opinion, which the Commons had failed adequately to represent; and yet a ministry, which on all party questions held a working majority might greatly hesitate to dissolve the Parliament. In such a case the royal veto might very well cause a too confident majority to pause and see if they really were sustained by popular opinion. There is also the perfectly possible case analogous to Queen Anne’s veto, — that between the passing and the signing of an act some striking occurrence should make it expedient to check its operation.

I have already remarked that the royal veto is final; there is nothing corresponding to the American practice of passing a bill over a President’s or a Governor’s veto by increased majorities. Further, there is nothing analogous to our fixing a limit of time for the executive to make up his mind. Apparently, the King may take till the end of the session to decide whether to give or withhold his assent. King William did so with at least two of the bills he vetoed. In that case, if the Parliament were merely prorogued, apparently he might give his assent in the next session ; if it were dissolved, the unsigned bill would seem to be waste paper.

It is the fashion now with some modern purists to draw a distinction, unwarranted by the history of our language, between the “ last ” and the “ latest ” of any series. Queen Anne’s veto of 1708 was undoubtedly the latest exercise of that power; most writers assume it was and always will be the last. Yet from time to time suggestions are made that the prerogative, never formally renounced, may be usefully revived. It is not many months since some of those who objected on religious grounds to Mr. Balfour’s Education Bill made frequent and loud suggestions that King Edward should refuse his assent to it if it passed. He has not done so ; but the idea was started, and it may be that the historian who, before the nineteenth century is quite forgotten, undertakes to record the beginning of the twentieth may have to tell some such story as this, — different doubtless in details, but not in the upshot: —

The end of the session of 1903 found the Conservative, Tory, or Unionist government — for all these names were applied to it by one and another faction — seriously discredited. It had had a long lease of life, renewed by its appeal to the country to support the African war. When the fighting was over, and the bill came in, the enthusiasm which had kept Mr. Balfour in power cooled rapidly. The Education Act passed against bitter protests, and met with avowed and dogged resistance in many parts of England from those who ordinarily show great respect for law ; the Irish Land Bill, though generally approved, did not pass without serious misgivings, finding expression in many influential quarters ; other acts had equally been forced through against weighty opposition ; and finally Mr. Chamberlain’s attack on free trade had stirred up the hottest excitement, and seemed likely to split the ministry.

Still the session ended without an absolute defeat of the government. The recess began, and members went down to the country to be “ heckled ” to pieces by their constituencies. These were not likely to be in very good humor.2 But apart from any dissatisfaction with particular measures, the men who were at the head of both parties, or all three parties, had not aroused the enthusiasm of their supporters. Mr. Balfour, Mr. Chamberlain, Mr. Broderick, Lord Lansdowne, and other members of the government had every one been the victim of the sharpest criticisms ; but when the question came to turning them out, who was to replace them ? Sir Henry Campbell - Bannerman, Mr. Morley, Mr. Asquith, Lord Rosebery, had every one done something or omitted something to displease some important section of the Liberal party — if there were such a party at all. Lord Salisbury, the undoubted oracle of the Tories, was dead, and Sir William Harcourt, who still commanded greater respect than any other Liberal, was too old to be relied on for continuous help. It might be said that with all the talk of the supremacy of the House of Commons the only two leaders who had retained unbroken confidence for consistency were two peers, the Duke of Devonshire and Earl Spencer, opposed in their views, but both relics of the ancient and much abused Whig party.

But there had begun to diffuse itself among the people a more serious feeling than that of mere distrust of individuals. Not a few persons openly avowed a downright distrust of parliamentary government, as of machinery that was antiquated and worn out. Some declared that the government had no power to carry out really needed and promised measures ; others declared that all the different Reform Acts had left the people unrepresented ; and all felt that the machinery was rusty and creaky, and the debates, sadly protracted at the beginning, were indecently hurried toward the end of the session. These doubts of what once was extolled as perfect were confined to no party.

Meanwhile King Edward VII. had achieved a remarkable popularity, or rather a solid confidence very different from every-day popularity. He had long been known as possessed of perfect tact, and always saying the right word to everybody. But now Englishmen opened their eyes wider every day to the fact that their King’s personal presence had not only retained the regard of ancient allies, like Italy and Portugal, but had strengthened the ties witli the United States, and brought the Papacy and the French Republic completely over ; more wonderful still, that he had been hailed with an effusive loyalty in Ireland, never before dreamed of. He was about the only public man who had brought out increased honor from the anxious conflicts of two years. The anticipated split in the Cabinet came like a thunder clap before the autumn was far advanced. First, Mr. Chamberlain himself resigned ; then, when Mr. Balfour replied to his letter of resignation in terms which appeared to show sympathy, one after another of his most important colleagues withdrew, the last being the Duke of Devonshire. The Cabinet was wholly reconstructed, and the national tension increased to the utmost.

All through the recess of Parliament the country was uneasy ; it did not know what would happen, nor what it wanted to happen; and when Parliament met again, every one knew things would not go comfortably. An expression in the King’s speech was understood to favor Mr. Chamberlain’s semi-protective policy ; it was met by a sharp amendment to the address declaring in unflinching terms for free trade. The government carried the original form by a very small majority ; but it was plain that its basis was tottering. Every measure it introduced was fought; every weak point was struck. The crisis came very unexpectedly. Early in 1904 the much abused Education Bill had contained an ambiguous provision, which it was apparent must be defined by a special act; such an act was early brought in, and was represented as a matter of course ; no serious contest was expected, and no debate prepared for; the opposition watched its chance, rallied its forces, and put the government in a minority. Mr. Balfour instantly dissolved Parliament.

The election was carried through early in 1904 under the bitterest excitement; parties seemed to be breaking up and re-forming on no intelligible bases. Tories, Liberals, Unionists, Home Rulers, Churchmen, Nonconformists, separated and coalesced on no traceable principles. It was soon evident that the existing government was not likely to stand ; but who should succeed it ? As soon as Parliament reassembled, tbe opposition precipitated the issue by moving the blunt amendment to the address “that Your Majesty’s government, as at present constituted, does not possess the confidence of this house.” It was strongly represented, by members solicitous for decorum, that such a direct order to the King to dismiss his ministers had rarely if ever been incorporated in an address, and the form was a little softened. None the less the blow was struck, and the Balfour government was turned out.

It was succeeded by a “ Liberal ” government under Lord Spencer and Sir Henry Campbell-Bannerman. But could that Liberal government carry its measures ? Could it satisfy its Irish supporters like Dillon, iconoclasts like Labouchere, nonconformists and labor men, and keep in hand its practical moderate business supporters ? It very soon appeared that it could do no such thing. It was allowed to carry on ordinary business,— to run the government; but as soon as it attempted to achieve any decided reforms, or carry out any vigorous plans, it knew that it must expect dogged opposition in the House of Lords ; nor did it have that firm and strong majority in the House of Commons that might enable it to defy the Lords. Two or three absolute defeats, and victories by small majorities hardly distinguishable from defeats, taught it how precarious was its existence. The ministry was re-formed and recast more than once ; but all would not do.

Yet the Conservatives could not come in again. More than once the Liberal premier tendered his resignation : but no attempt to reconstruct the old Conservative ministry could succeed. Many declared Mr. Chamberlain was at the bottom of the trouble, and that the old line, “ there is no living with thee or without thee,” was strictly applicable to him. However that might be, the parliamentary government of England was in a most unhealthy state.

At length the cat came out of the bag. The Irish members spoke out. They told the Liberal government openly, on the floor of the House, that Home Rule they must and would have; that all the Land Purchase Bills in the world would only whet their appetite ; that if they returned to Mr. Gladstone’s plan, the Liberals might stay in; if not, out they should go, and any other government which attempted to rule England should go out too.

There was no disguising the danger : it must be looked in the face. Years before Mr. Gladstone’s Home Rule measure had split the Liberal party, and swept the Liberal Unionists into the arms of the Conservatives. The House of Lords had blocked that measure, to the general satisfaction of England and Scotland. Now the ghost had risen. The Tories and Unionists had had their full chance, in war and in peace. The country was sick of them ; they had split among themselves. The Gladstonians, as a thousand tongues called them, were in again. Would their ruthless Celtic allies force Home Rule on them ? Could the House of Commons help passing it ? And if it did, would the Lords think of voting it down again ?

The ministry yielded. The Home Rule measure was brought in, to a deafening chorus of mingled cheers and howls. Obviously, if it passed, it would shake the country to the bottom. King Edward felt how dangerous the experiment was. He sent for the chiefs of the ministry. He assured them of what they well knew without his assurance, that he was the warmest friend of Ireland in his whole empire; but that he believed this measure was most impolitic. They readily put their resignations in his hands. He sent for the Conservatives. Mr. Balfour attempted to re-form his ministry ; but he found it impossible to unite the opponents of Home Rule on a single other question of policy. Many Conservatives really believed the time for it had come ; and many honestly averred they wished to give the Liberal party rope to hang themselves. The measure must at least be allowed to run its course.

It could hardly, however, be said to run its course ; it was rather hobbling. The proceedings, for delay and tumult, were such as had not been known within the memory of man. The Irish members sought to block any other possible measure of legislation ; their opponents sought to block the bill itself. The King had to resort to the desperate and almost obsolete measure of adjourning both Houses for some days to let the members come to some sort of decency. The whole country rang with attack and counter-attack in newspapers, pamphlets, and public meetings. Still, step by step, with ever decreasing majorities, the bill forced its way through the Commons, and was carried by only fifteen votes to the House of Lords.

Nobody supposed the Peers would pass the bill at once. They rejected it; but after long and brilliant debates, and by a small majority. The delays on both sides in every form of legislation had so spun out the session that it was necessary to prorogue the Parliament for sheer weariness.

The Houses broke up in August, 1905, to meet again in the autumn. When that meeting came passions were boiling. A new bill, possibly less objectionable, perhaps even more so, was sure to be brought in, and this time its friends defied the Lords to reject it. But nothing, it was rumored, could induce the King to recommend it in his speech to Parliament. The words, “ I consider it highly important that the relations of Ireland to the rest of the empire should be discussed in a spirit of conciliation and prudence, and with a view to the permanent as well as the immediate requirements of all my people,” were the utmost he would consent to read from the throne.

His popularity during all these stormy times had continued unabated, and increasing ; he bad renewed his visits to Ireland, each time meeting with greater enthusiasm ; it was understood that his quiet mediation had been accepted in more than one European complication which had threatened war ; and among all the harsh words on the hustings or in the newspapers his name had been used with something more than respect.

The Home Rule Bill was pressed and opposed with ever increasing bitterness; the Irish members presented an unbroken front in its support; but outside Parliament many thoughtful Irishmen expressed grave doubts of its expediency. As the weeks went on, the King’s veto began to be alluded to more and more seriously. The very newspapers which had at first declared it preposterous and impossible began to recognize that the prerogative had never been renounced, and that the time might come to revive it. The bill, as every one expected, passed the Commons by a large majority ; it passed its first stages in the Lords ; but the excitement and the bitterness outside the walls of Parliament came but little short of civil war.

Just at this point, an incident, sad indeed, yet not of itself what would be called one of national interest, became strangely significant. This was the death of Lord Wakefield, a venerable man of universal popularity. He had gained the Victoria Cross in youth by an exploit which had crippled him for further warfare ; he had gone into diplomacy and won a highly honorable name, at home and abroad, for courtesy, tact, and firmness combined; he had then held high office in the government, from which the need of paying some political debt had forced his retirement, and he had refused the pension to which such service was entitled by law. His son had served gallantly in South Africa, and after his return was on the eve of marriage to a woman endowed with every charm except fortune, which neither father nor son deemed necessary. Suddenly it was announced that Lord Wakefield had lost all his property by the knavery of a near kinsman, who had lured him into an unsound investment, whence he himself had escaped with plunder and left the head of his house with nothing.

There was a general feeling that something should be done for the gallant old man ; and an easy method was at hand. There was a small estate in the neighborhood of Lord Wakefield’s birthplace belonging to the Crown ; the trouble of managing it was a tax on the nation for which it poorly compensated ; in private hands it might be a suitable provision for a faithful old servant of the Crown. It was therefore agreed by all concerned that a bill should be brought in to confer the manor of Enstone on Frederick Lord Wakefield and his heirs forever ; the two Houses waived their quarrels to pass it, and it stood ready for the King’s signature on the very day the Houses were to adjourn for the Christmas recess. That very morning the papers announced that Lord Wakefield and his son had been killed the night before in an automobile accident. If the bill became an act, it conferred the estate on him whom their deaths had made Frederick Lord Wakefield, namely, the kinsman who had ruined them. Such a perversion of royal and national bounty was impossible, — but how to stop it ? The affair was pressing ; the Houses were on the point of adjourning ; the Commons were expecting to be summoned to the House of Peers to hear the assent given to several bills by commission. They were startled by the trumpets announcing that the King would be there in person ; soon they were summoned to his presence ; the titles of various bills were read, and in the King’s presence the clerk of the parliaments announced “ Le Roy le voet; ” then came “ a bill for conferring the manor of Enstone on Frederick Lord Wakefield and his heirs forever.” The words were uttered, “ Le Roy s’avisera; ” and it was announced that the Houses stood adjourned till 8 January, 1906.

The bill was nullified; the objectionable grant was averted; but how ? TheKing had vetoed it; the royal prerogative, dormant for all but two centuries and by many called extinct, had revived. It was for a good object; it had saved Parliament from perplexity, not to say disgrace ; no party, no ministry, no principle had been touched ; but — if a king was to refuse his assent to this bill, might he not to any ? If both Houses agreed, agreed unanimously it might be, on a measure, was there an impassable obstacle ? If the Lords felt obliged to pass the Home Rule Bill, which the majority of them doubtless hated, could that which had been done once be done twice ?

William Everett.

  1. Vol. i. p. 70, note.
  2. The report of the committee to investigate the South African war had convicted the government of shameful neglect.