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 PARLIAMENTARY GOVERNMENT IN ENGLAND 
 
 VOLUME I.
 
 PRINTED BV 
 9POTTISWOODK AND CO., NEW -STREET PQUAKE 
 
 LONDON
 
 ON 
 
 PARLIAMENTARY GOVERNMENT 
 
 IN 
 
 ENGLAND 
 
 ITS ORIGIN, DEVELOPMENT, AND PRACTICAL OPERATION 
 
 BY 
 
 ALPHEUS TODD, LL.D., C.M.G. 
 
 LIBRARIAN' OF PARLIAMENT FOE THE DOMINION OP CANADA 
 
 AUTHOR OF ' PRACTICE AND PRIVILEGES OF THE TWO HOUSES OF PARLIAMENT" 
 'PARLIAMENTARY GOVERNMENT IN THE COLONIES' ETC. 
 
 SECOND EDITION 
 
 BY HIS SON 
 
 IN TWO VOLUMES VOL. I. 
 
 LONDON 
 LONGMANS, GKEEN, AND CO, 
 
 1887 
 
 All riyhts reserves
 
 V, 
 
 EDITOE'S PEEFACE. 
 
 IN presenting a second edition of Dr. Todd's work to 
 the public, a word of explanation, and brief mention of 
 the author's career, may not be inappropriate. 
 
 In the month of January, 1884, the author was 
 contemplating the expediency of issuing a new edition 
 of this work, when his sudden death removed him 
 from an active and laborious life, over fifty years of 
 which was spent in the public service. The whole of 
 his official life, from the date of his appointment, when 
 he was but a mere lad, was spent in the Parliamentary 
 Library, which in those days was but a nucleus of 
 the fine collection that now stands a monument to the 
 memory of his labours. His predilection for parlia- 
 mentary studies developed at a remarkably early age, 
 so that he found himself a constitutional adviser to the 
 uninitiated members of the Upper and Lower Legis- 
 latures, who in those days of the dawn of constitutional 
 government in Canada were one might almost say 
 groping in darkness ; for as yet no author had ven- 
 tured on any treatise bearing on the practice and 
 development of parliamentary government by which 
 they might have been guided. This early training 
 enabled the author, when but twenty years of age, to 
 be the pioneer in the field with his first effort : ' The
 
 VI EDITORS PREFACE. 
 
 Practice and Privileges of the Two Houses of Parlia- 
 ment,' a work that was cited as an authority only the 
 other day in the British House of Commons. 
 
 The motives which prompted the author to compile 
 and publish the present work are amply stated in his 
 preface. 
 
 Finally, in 1880, the author completed a design, 
 long entertained, of supplying a want that he felt was 
 much needed in the colonies, viz., the application of 
 parliamentary government to colonial institutions, as 
 illustrated in his ' Parliamentary Government in the 
 Colonies.' The work deals largely with questions that 
 have arisen out of the working of the new constitution 
 conferred upon Canada in the confederation of the 
 various provinces in 1867. 
 
 After the death of the author I took in hand, as 
 time would permit, the preparation of the second 
 edition of this work, and found that considerable altera- 
 tions had been made in the text, as well as a large 
 accumulation of additional matter in manuscript added. 
 Beyond making a greater division, with some alteration 
 in the arrangement, of the chapters, and embodying 
 many of the more important notes in the text, my task 
 has been confined to its necessary preparation for the 
 press. 
 
 For the reasons stated in the author's preface to 
 the second volume, the first chapter of that volume has 
 been introduced as the second of Vol. I. 
 
 It may be observed by the reader that in some 
 instances there is a repetition of subject ; it must be 
 borne in mind that the author has aimed at treating 
 each subject in its entirety whether as a matter of
 
 EDITOR'S PREFACE. vii 
 
 prerogative, of parliamentary right, or of procedure, 
 each in its own aspect. The same precedent, there- 
 fore, will be sometimes found illustrating the doctrine 
 from these various standpoints. 
 
 In conclusion, I would call the attention of the 
 reader to the eminently practical character of the 
 work. The author has not contented himself merely 
 with expounding the law and practice of the consti- 
 tution, but he has richly illustrated his text throughout 
 with precedents gleaned from Hansard, Sessional Papers 
 of the Lords and Commons, Eeports of Committees and 
 Commissions, &c., &c., and all writers of eminence who 
 have written on parliamentary history thereby ren- 
 dering the work most important to the student or en- 
 quirer as a complete bibliography of parliamentary 
 literature. 
 
 A. H. T. 
 
 OTTAWA February 1887.
 
 PREFACE. 
 
 AN ATTEMPT by a resident in a distant colony to 
 expound the system of Parliamentary Government, as 
 administered in the mother country, may call for some 
 explanation. I venture, therefore, to prefix to my 
 work a few personal remarks. 
 
 More than twenty-five years ago, when in the service 
 of the House of Assembly of Upper Canada, as an assis- 
 tant in the Provincial Library, I was induced to com- 
 pile a Manual of Parliamentary Practice for the use of 
 the Legislature. The valuable treatise of Sir Erskine 
 May, on the ' Usage of Parliament,' had not then ap- 
 peared ; and no work then published was sufficiently 
 elementary and comprehensive to be of any service to 
 our colonial legislators in the performance of their 
 parliamentary duties. My little volume, although the 
 crude and imperfect production of a very young man, 
 was received with much favour by the Canadian Parlia- 
 ment. At the first meeting of the Legislature of United 
 Canada, in 1841, the book was formally adopted for 
 the use of members, and the cost of its production 
 defrayed out of the public funds. 
 
 It was in the same year, and immediately after the 
 union of the two Canadas, that 'responsible govern- 
 ment' was first applied to our colonial Constitution.
 
 X PREFACE. 
 
 In carrying out this new, and hitherto untried, scheme 
 of colonial government, many difficult and complex 
 questions arose, especially in regard to the relations 
 which should subsist between the popular chamber 
 and the ministers of the crown. Upon these ques- 
 tions, my known addiction to parliamentary studies, 
 together with my official position as one of the libra- 
 rians of the Legislative Assembly, caused me to be 
 frequently consulted. I speedily became aware that 
 then, as now, no work previously written on the 
 British Constitution undertook to supply the particular 
 information required to elucidate the working of 
 ' responsible ' or ' parliamentary ' government. For, all 
 preceding writers on this subject have confined them- 
 selves to the presentation of an outside view, or 
 general outline, of the political system of England. 
 There is nowhere to be found a practical treatment of 
 the questions involved in the mutual relations between 
 the Crown and Parliament, or any adequate account 
 of the growth, development, and present functions of 
 the Cabinet Council. In the words of Lord Macaulay, 
 (History of England, iv. 437), ' No writer has yet 
 attempted to trace the progress of this institution, an 
 institution indispensable to the harmonious working of 
 our other institutions.' 
 
 My own researches in this field enabled me to 
 accumulate a mass of information which has proved of 
 much utility in the settlement of many points arising 
 out of responsible government. I was frequently 
 urged, by persons whose opinions were entitled to 
 respect, to digest and arrange my collections in a 
 methodical shape. The fact that the greater part of
 
 PREFACE. XI 
 
 my notes had been collected when engaged in the 
 investigation of questions not of mere local or tempo- 
 rary significance, but capable of general application, 
 led me to think that, if the result were embodied in 
 the form of a treatise on parliamentary government as 
 administered in Great Britain, it might prove of prac- 
 tical value both in England and her colonies ; and that 
 in the constitutional states of continental Europe it 
 might serve to make more clearly known the peculiar 
 features of that form of government, which has been 
 so often admired, but never successfully imitated. I 
 therefore determined to avail myself of the resources 
 of the well-stored library under my charge, and 
 attempt the compilation of a work which, while trench- 
 ing as little as possible on ground already worthily 
 occupied by former writers, should aim at supplying 
 information upon branches of constitutional knowledge 
 hitherto overlooked. 
 
 I proposed at first to prepare, more especially for 
 colonial use, a manual which should include a disser- 
 tation upon the peculiar features of ' Responsible 
 Government ' in the colonies. But I decided, after 
 much reflection on the subject, to change my plan, 
 and to confine myself to the exposition of parlia- 
 mentary government in England. I arrived at this 
 conclusion, firstly, from a conviction that the safest 
 guide to the colonies, whose institutions are professedly 
 modelled upon those of the mother-country, will be 
 found in a detailed account of the system which 
 prevails in the parent state ; and, secondly, because 
 parliamentary government in our colonies is still in its 
 infancy, and its success is as yet but problematical.
 
 Xll PREFACE. 
 
 4 The well-understood wishes of the people as expressed 
 through their representatives ' has indeed been the 
 acknowledged maxim of colonial rule ; and, so far as 
 they are applicable to colonial society, the principles of 
 the British Constitution have, in the main, been faith- 
 fully carried out. But it is easy to foresee that some 
 considerable modifications must at no distant day be 
 introduced into the fabric of colonial government, to 
 enable it to resist the encroachments of the tide of 
 democratic ascendency, which is everywhere uprising, 
 and threatening to overwhelm ' the powers that be.' 
 Most of the British colonies still enjoy the advantage of 
 an immense extent of unoccupied territory, affording 
 to industrious men of the humblest class the oppor- 
 tunity of becoming landowners, and of achieving a 
 degree of comfort and independence which naturally 
 inclines them to be supporters of law and order. 
 Nevertheless, from an observation of the working of 
 our municipal institutions in Canada, and of the char- 
 acteristics and results of responsible government in 
 the British dependencies generally, it is evident that 
 the democratic element is everywhere gaming the 
 mastery, and is seeking the overthrow of all insti- 
 tutions that are intended to be a check upon the 
 popular will. 
 
 The great and increasing defect in all parliamentary 
 governments, whether provincial or imperial, is the 
 weakness of executive authority. It may be difficult 
 to concede to the governor of a colony the same 
 amount of deference and respect which is accorded to 
 an English sovereign. But any political system which 
 is based upon the monarchical principle must concede
 
 PREFACE. Xlll 
 
 to the chief ruler something more than mere cere- 
 monial functions. It is the tendency of the age in 
 which we live to relax the bonds of all authority, and 
 to deprive all rank and station, not directly derived 
 from the people, of the influence which it has hereto- 
 fore possessed. The hereditary dignity of the British 
 Crown itself has, within the last half-century, sustained 
 considerable loss. In popular estimation in our own 
 day the prerogatives of royalty are accounted as well- 
 nigh obsolete ; and whatever may be the degree of 
 affection expressed towards the occupant of the throne, 
 the sovereign of England is too often regarded as but 
 little more than an ornamental appendage to the state, 
 and her rightful authority either derided or ignored. 
 These erroneous ideas, it need scarcely be said, are not 
 shared by any who have participated in the direction 
 of state affairs. But they are widely diffused, even 
 amongst educated men. The true position of the sove- 
 reign in a parliamentary government may not appear 
 to be capable of exact definition, because much will 
 always depend upon the personal character of the 
 reigning monarch. But in the treatment of this diffi- 
 cult question, I have endeavoured to reflect faithfully 
 the views of the most experienced statesmen of the 
 present day ; and while I have elsewhere claimed for 
 the popular element in our constitution its legitimate 
 weight and influence, I have here sought to vindicate 
 for the monarchical element its appropriate sphere ; 
 being convinced that the functions of the crown are 
 the more apt to be unappreciated because their most 
 beneficial operations are those which, whilst strictly 
 constitutional, are hidden from the public eye.
 
 XIV PREFACE. 
 
 In attempting to define the limits between the 
 authority of the crown and that of the legislature 
 under parliamentary government, I have never relied 
 upon my own interpretations, but have always illus- 
 trated the matter in hand by reference to the best 
 opinions recorded in the debates of Parliament, or in 
 evidence before select committees of either House. 
 Such testimony, for the most part from the lips of 
 eminent statesmen and politicians of the present gene- 
 ration, is of the highest value, especially when it 
 embodies information upon the usages of the consti- 
 tution which had not previously appeared in print. 
 It is in the abundant use of such valuable material, 
 never before incorporated in any similar treatise, that 
 the chief claim of my work to public attention must 
 consist. 
 
 Notwithstanding these obvious advantages, I am 
 deeply conscious of its many defects and shortcomings : 
 and in submitting it to the favourable consideration of 
 those to whom it is addressed, I can only plead, as an 
 excuse for its deficiencies, an honest endeavour to 
 supply a want which must have been often expe- 
 rienced, by men engaged in public Jife, both at home 
 and abroad. 
 
 ALPIIEUS TODD. 
 
 LIBRARY OF PARLIAMENT, OTTAWA, CANADA : 
 December 18G6.
 
 CONTENTS 
 
 OF 
 
 THE FIRST VOLUME. 
 
 CHAPTER I. 
 
 GENERAL INTRODUCTION. 
 
 PAGE 
 
 Definition of English Parliamentary Government 1 
 
 Power of the Sovereign under Parliamentary Government ... 2 
 Ministerial relationship between the Crown and Parliament ... 2 
 Exercise of the powers of the Crown through ministers ... 3 
 Constitutional principles established by the Revolution of 1688 . . 3 
 Government by Prerogative defined, and contrasted with Parliamentary 
 
 Government . . . 4 
 
 Dormant powers of the Crown and of the House of Lords ... 7 
 Concentration of political power in the House of Commons under Par- 
 liamentary Government 8 
 
 Introduction of ministers of the Crown into the House of Commons . 9 
 The necessity of Party Government caused thereby .... 9 
 The true bases of representation in the House of Commons . . .11 
 
 Influence of the Landed Aristocracy therein 11 
 
 Use of Nomination Boroughs 13 
 
 Effect of their Abolition 16 
 
 Difficulties of an efficient Parliamentary Government with a purely 
 democratic House of Commons . . . . . . . .16 
 
 Peculiar excellences of our Representative System . . . .17 
 
 The beneficial influence of Public Opinion .17 
 
 Necessity for a moderate preponderance of Executive authority in Par- 
 liament 10 
 
 Effect of the Reform Act of 1832 in lessening that authority . . 20 
 Effect of the Reform Act of 1867 on the Constitution . . . .21 
 
 Dangers of enlarging the Franchise 21 
 
 Necessity for strengthening the authority of the Executive in a Reformed 
 
 House of Commons 
 
 Statistics of representation ......... 
 
 VOL. i. a
 
 XVI CONTENTS OF 
 
 PAGE 
 
 Earl Grey's plan for conserving and strengthening Executive authority 
 in connection with further Parliamentary Reform . . . .26 
 
 General measures of the Reform Bill of 1867 29 
 
 Arguments in favour of strengthening the authority of the Crown in 
 Parliament 31 
 
 Objection to allowing ministers of the Crown to hold seats in the House 
 of Commons ex-officio ......... 34 
 
 Relative position of the two Houses of Parliament in the English poli- 
 tical system ........... 34 
 
 The House of Lords 36 
 
 The House of Commons ........ 43 
 
 Peculiar advantages of Parliamentary Government . . . .45 
 
 Subjects to be considered in the following Treatise . . . .47 
 
 CHAPTER II. 
 
 THE COUNCILS OF THE CROWN UNDER PREROGATIVE GOVERNMENT. 
 
 The Anglo-Saxon polity 49 
 
 Position and power of the Saxon Kings 50 
 
 The Witenagemot 51 
 
 Relations between the Sovereign and his Witan 53 
 
 Results of the Norman Conquest 57 
 
 Germs of our present Constitution in that of the Saxons . . .53 
 A Privy Council always associated with the Crown of England . . 59 
 
 The King's Councils after the Conquest 60 
 
 The Curia Regis or permanent Council ....... 61 
 
 Origin of the Law Courts 63 
 
 The Great Council of the Nation 64 
 
 Origin of our representative system 66 
 
 Early Legislative Assemblies 68 
 
 The development of constitutional forms under Edward I. . . .69 
 
 Growing power of the Commons in Parliament 71 
 
 Presence of Privy Councillors therein 75 
 
 Independent authority of the Privy Council 76 
 
 Responsibility of the King's ministers under Edward II. and Henry IV. 77 
 Supremacy of Parliament over the Privy Council . . . .79 
 
 Administrative functions of the Privy Council . . . . .81 
 Custody and use of the Seals '.... 82 
 Resti-aints upon the exercise of the Royal Authority . . . .83 
 
 Privy Council under Henry VI 84 
 
 ,, under the Tudor Sovereigns 86 
 
 Ascendency of the Crown under Henry VIII. . . . . .87 
 
 Proceedings in Council during this reign ..... 88 
 
 Origin of the office of Secretary of State ...... 91 
 
 The Star Chamber and other Committees of the Council . . 92 
 
 Personal powers of Privy Councillors 93 
 
 The Councils of the Crown under Queen Elizabeth and Charles I. . 93 
 Increasing power of the House of Commons ..... 94
 
 THE FIRST VOLUME. XV11 
 
 PAGE 
 
 Contest between the Long 1 Parliament and Charles I. . . . .96 
 The Council of State during the Commonwealth . . . . .98 
 
 The Restoration of the Monarchy 102 
 
 Downfall of Prerogative Government 102 
 
 Review of the Constitution at this period 102 
 
 CHAPTER III. 
 
 ORIGIN AND PROGRESS OP PARLIAMENTARY GOVERNMENT. 
 
 Case of the Partition Treaties 106 
 
 Constitutional provisions in the Act of Settlement .... 107 
 
 William III. as a constitutional monarch 108 
 
 Development of ministerial responsibility under the Hanoverian dynasty 111 
 
 Character and conduct of George III 112 
 
 His irregular practice of consulting with ' friends,' inbtead of with his 
 responsible ministers . . . . . . . . .114 
 
 His dismissal of the Coalition ministry in 1783 116 
 
 Mr. Pitt's first administration ........ 119 
 
 Lord Grenville's administration 121 
 
 The office of commander-in-chief of the army ..... 122 
 The Grenville administration disagree with the King on the Roman 
 Catholic question .......... 123 
 
 Political influence of George III. . . 124 
 
 Influence of ' the great governing families ' . . . . . . 125 
 
 Reign of George IV .126 
 
 Case of Queen Caroline 128 
 
 Reign of William IV 130 
 
 Effects of the Reform Bill of 1832 131 
 
 Abrupt dismissal of the Melbourne ministry and short-lived administra- 
 tion of Sir Robert Peel in 1835 133 
 
 Return of Lord Melbourne to office ....... 135 
 
 Reign of Queen Victoria 136 
 
 CHAPTER IV. 
 
 CONSTITUTIONAL ANNALS OF THE SUCCESSIVE ADMINISTRATIONS OF 
 ENGLAND FROM 1782 TO 1873, GIVING A BRIEF ACCOUNT OF THE 
 CIRCUMSTANCES ATTENDING THEIR APPOINTMENT, RESIGNATION, 
 OR DISMISSAL, WITH A NOTICE OF THE VARIOUS CONSTITUTIONAL 
 QUESTIONS, ILLUSTRATIVE OF MINISTERIAL DUTY OR RESPONSI- 
 BILITY WHICH AROSE WITHIN THAT PERIOD. 
 
 Reasons for selecting the year 1782 as a starting-point .... 138 
 
 1. Marquis of RocHngham's administration (March, 1782) . . 139 
 
 2. Earl of Shelburne's administration (July, 1782) . . .140 
 
 3. Duke of Portland's first administration (April, 1783) , .142 
 
 a 2
 
 XV111 CONTENTS OF 
 
 PAGE 
 
 4. Mr. Pitt's first administration (December, 1783) . . . 143 
 
 5. Mr. Addington's administration (March, 1801) .... 147 
 
 6. Mr. Pitt's second administration (May, 1804) .... 153 
 
 7. Lord Grenville's administration (January, 1806) . . . 155 
 
 8. Duke of Portland's second administration (March, 1807) . . 157 
 
 9. Mr. Perceval's administration (October, 1809) .... 161 
 
 10. Earl of Liverpool's administration (June, 1812) . . . 168 
 
 11. Mr. Canning's administration (April, 1827) .... 177 
 
 12. Lord Goderich's administration (August, 1827). . . . 179 
 
 13. Duke of Wellington's administration (August, 1828). . .182 
 
 14. Earl Grey's administration (August, 1830) . . . .188 
 
 15. Viscount Melbourne's first administration (July, 1834) . . 193 
 
 16. Sir R. Peel's first administration (November, 1834) . . . 195 
 
 17. Viscount Melbourne's second administration (April, 1835) . 200 
 
 18. Sir R. Peel's second administration (September, 1841) . . 212 
 
 19. Lord John Russell's first administration (July, 1846) . . 217 
 
 20. Earl of Derby's first administration (February, 1852) . .219 
 
 21. Earl of Aberdeen's administration (December, 1852) . . . 222 
 
 22. Lord Palnierston's first administration (February, 1855) . . 224 
 
 23. Earl of Derby's second administration (February, 1 858) . . 228 
 
 24. Lord Palmerston's second administration (June, 1859) . . 234 
 
 25. Earl Russell's second administration (October, 1865) . . . 234 
 
 26. Earl of Derby's third administration (June, 1866) . . .236 
 
 27. Mr. Disraeli's first administration (1868) 238 
 
 28. Defeat of Mr. Gladstone's first administration (March 1873) . 246 
 Tabular view of the administrations of Great Britain from 1782 to 
 
 1880 . 253-258 
 
 CHAPTER V. 
 
 THE SOVEREIGN. 
 
 Supremacy of the Sovereign in the State 259 
 
 Responsibility of ministers for all acts of the Crown .... 264 
 
 Public acts of the Crown to be transacted through the medium of 
 responsible ministers .......... 267 
 
 Development of the principle of ministerial responsibility . . . 273 
 Extent of royal interference in affairs of State since the accession of 
 Queen Anne ........... 275 
 
 Character and public conduct of George I. and George II. . . . 276 
 
 George III. . . . . .279 
 
 ,, George IV 283 
 
 William IV 285 
 
 Queen Victoria 287 
 
 Right of the Sovereign in regard to appointments in the royal house- 
 hold 290 
 
 Right of the Sovereign to employ a private secretary .... 294 
 
 Constitutional position of a Prince Consort 299 
 
 Prince Albert, his character and public service* .... 299
 
 THE FIEST VOLUME. XIX 
 
 PAOB 
 
 Constitutional position of the Sovereign of Great Britain . . . 305 
 
 Personal and moral influence 308 
 
 Ceremonial and social functions 300 
 
 Opinions of eminent statesmen on this subject 311 
 
 Lord Brougham ......... 311 
 
 Earl Grey. 313 
 
 Earl Derby 313 
 
 Influence of the Sovereign in political affairs 315 
 
 Right of the Sovereign to select the ministers of State . .316 
 Constitutional limitations thereto ........ 316 
 
 Circumstances under which Parliament may advise the Crown in the 
 
 choice of its ministers 317 
 
 Restrictions upon the Crown in the choice or dismissal of individual 
 ministers ............ 323 
 
 Precedents of nomination of ministers by the Crown .... 324 
 
 Free choice of the Crown in regard to the prime minister . . . 326 
 Restrained only by the necessity for obtaining the confidence of Parlia- 
 ment in the new administration ....... 328 
 
 Proceedings upon the formation of a new cabinet .... 330 
 
 The prime minister empowered to select his colleagues in office . . 331 
 During a ministerial interregnum, the Sovereign may consult any peer 
 or privy councillor .......... 334 
 
 But whilst a ministry is in office, it should receive the unreserved sup- 
 port of the Sovereign ......... 335 
 
 Cabinet councils not attended by the Sovereign 335 
 
 The prime minister the channel of communication between the Sovereign 
 and the ministry .......... 336 
 
 Epistolary form in which ministers address the Sovereign . . . 336 
 Mode of obtaining the sign-manual to official papers .... 336 
 
 Parliamentary authority to dispense with the royal sign-manual in 
 
 certain cases 337 
 
 Circumstances under which the royal functions may be delegated . 338 
 Absence of the Sovereign from the realm ...... 338 
 
 Proceedings during the illness of George III. ..... 339 
 
 Royal prerogative in respect to suits-at-law against the Crown . . 343 
 
 Petitions of Right 343 
 
 Personal immunity of the Sovereign before all earthly tribunals . . 347 
 Personal acts and opinions of the Sovereign and Royal Family not 
 
 cognizable by Parliament 348 
 
 The ' civil list ' granted fur the support of the royal household . . 349 
 Matters wherein the Sovereign represents the State in dealings with 
 foreign powers : 
 
 1. The right of declaring war, and making peace . . . 351 
 
 2. Intercourse with foreign powers ...... 355 
 
 3. The right of making treaties ....... 365 
 
 4. Interference in the domestic concerns of foreign nations . . 373 
 Concluding remarks .......... 381
 
 XX CONTENTS OF 
 
 CHAPTER VI. 
 
 THE ROYAL PREROGATIVE IN CONNECTION WITH PARLIAMENT. 
 
 PAGB 
 
 The royal prerogative generally 383 
 
 In relation to Parliament itself ........ 386 
 
 Legislative efforts to facilitate despatch of public business between 
 
 both Houses 389-405 
 
 Assembling of Parliament '. . 405 
 
 Communications between the Crown and Parliament .... 406 
 The scope and effect of resolutions of Parliament ..... 407 
 
 CHAPTER VII. 
 
 THE ROYAL PREROGATIVE IN MATTERS OF ADMINISTRATION. 
 
 I. General principles which govern the relations between the Crown 
 
 and Parliament in matters of administration . . . .414 
 The right of Parliament to tender advice to the Sovereign . . 414 
 Responsibility of ministers is in their freedom in exercising the 
 
 lawful authority of the Crown 415 
 
 Parliamentary control over this right ...... 415 
 
 Interference of Parliament by resolutions into details of government 
 
 injurious 419 
 
 Limits of control, by either House, over the Executive Government 420 
 Encroachments of the House of Commons . . . . .421 
 Ministerial measures open to the censure of either House . .421 
 
 Precedents illustrating this doctrine 422 
 
 II. Practice of Parliament in the appointment of select committees to 
 
 enquire into administrative questions 428 
 
 Uses to which select committees are applied ..... 428 
 Motions of concurrence by the House in the results of the enquiries 
 
 of select committees not customary 431 
 
 Precedents illustrating the appointment and labours of public com- 
 mittees with the action of Government taken thereon . . 432-439 
 III. Practice in regard to the granting or withholding, by the Execu- 
 tive, of information desired by either House of Parliament. . 439 
 Necessity of Parliament being informed concerning the policy and 
 proceedings of Government ....... 439 
 
 Information that should be granted to, or withheld from, the House 440 
 Concerning prejudicial debate ....... 441 
 
 Premature communication of despatches ..... 441 
 
 Confidential reports ......... 442 
 
 Circumstances under which papers have been refused by ministers . 443 
 Information not to be refused on account of the cost and labour of 
 furnishing returns ......... 443 
 
 Precedents of enquiry instituted in the House, and of resolutions 
 and addresses affecting matters of administration . . 444-450
 
 THE FIRST VOLUME. XXI 
 
 PAOB 
 
 Ministers the guardians of the rights of private individuals and 
 
 companies against parliamentary intrusion 451 
 
 Parliamentary ground for ordering papers 453 
 
 Summary 453 
 
 CHAPTER VIII. 
 
 CIRCUMSTANCES UNDER WHICH PARLIAMENT HAS A RIGHT TO 
 INTERFERE, IN ORDER TO RESTRAIN THE ILLEGAL EXERCISE 
 OF EXECUTIVE AUTHORITY. 
 
 Abuse of executive authority ........ 456 
 
 Authority of the Crown in the issue of orders in council and royal 
 proclamations ........... 457 
 
 Limited authority of the Executive in this respect . . . 457 
 The Crown may declare and enforce the execution of law by pro- 
 clamation, but cannot add to, alter, or dispense with, any law 459 
 Jealousy of Parliament iii this respect ..... 460 
 
 Orders and proclamations ........ 460 
 
 Orders in council ......... 461 
 
 When they require the sanction of Parliament .... 462 
 
 Proclamations, as distinct from orders in council . . . 462 
 Control of Parliament over the issue of orders and minutes of council, 
 and other departmental regulations ....... 464 
 
 Minutes ot the Committee of Privy Council on Education . . 465 
 
 CHAPTER IX. 
 
 LEGISLATION BY PUBLIC DEPARTMENTS. 
 
 Control of Parliament over Executive legislation ..... 470 
 Mode of questioning provisional orders by Parliament . . . .471 
 When they should be submitted to Parliament for approval . . .471 
 Parliament the supreme trustee of endowments . . . . .472 
 Withholding of Royal Assent to educational schemes .... 473 
 Powers of the commissioners to issue orders under the General 
 
 Inclosure Acts 474 
 
 Rules made pursuant to the Prisons Act ...... 475 
 
 Report on the working of the provisional order system .... 476 
 
 Requirements under the Irish Coercion Act of 1881 .... 476 
 
 Powers delegated to the commissioners under the Eudowed Schools 
 
 Acts 477 
 
 Necessary caution of Parliament in entrusting legislative powers . . 482 
 Curtailment of powers of judicial tribunals ...... 483 
 
 Growth of the provisional order legislation ...... 484 
 
 Advantages of the system 485 
 
 Contracts entered into by public departments ..... 488 
 Standing order concerning 490
 
 XX11 CONTENTS OF 
 
 PAGE 
 
 Contracts of conveyance must be approved by the House . . .491 
 Likewise contracts in excess of grant ....... 493 
 
 Remedy against illegal or oppressive acts by ministers of the Crown . 493 
 Immunity of ministers of Parliament in courts of law .... 494 
 
 Unity of responsibility in the cabinet ....... 494 
 
 Protection of officials from liability to actions at law .... 495 
 
 Constitutional remedy against an executive government by private 
 individuals who may be wronged ....... 496 
 
 Ministers sworn to keep the king's counsel secret ..... 497 
 
 Not to divulge the same in a court of law 497 
 
 Legal immunity of subordinate officers of State 499 
 
 CHAPTER X. 
 
 ROYAL PREROGATIVE IN MATTERS ECCLESIASTICAL. 
 
 Supremacy of the Crown in Ecclesiastical matters. .... 501 
 I. Position of the Church of England in the mother-country . . 502 
 Appellate authority vested in the Crown of England , . . 502 
 Licence of the Crown necessary prior to the consecration of a 
 
 bishop 502 
 
 The Crown has not the power to create a new See . . . 603 
 
 The Sovereign the ' supreme governor ' 504 
 
 Convocations can only assemble by command of the Crown . . 504 
 II. Position of the Church of England in the colonies . . . 506 
 Not to be regarded as an established Church in any British 
 
 colony .......... 
 
 Jurisdiction in the case of Crown colonies .... 
 
 In other than Crown colonies ...... 
 
 Decision of the Privy Council" in the case of Bishop Colenso . 
 
 Effect of this judgment 
 
 Episcopal Church in Canada 
 
 Episcopal Church in New Zealand. ..... 
 
 III. Position of the Church of England in foreign countries. 
 
 IV. Obligations of the Act of Uniformity 
 
 IN ew terms of clerical subscription ..... 
 
 CHAPTER XI. 
 
 ROYAL PREROGATIVE CONCERNING THE ARMY AND NAVY. 
 
 Jealousy of Parliament of any increase in the army .... 690 
 
 Levy and maintenance of the forces 621 
 
 The Mutiny Act 522 
 
 Army Discipline and Regulations Act 523 
 
 Standing army maintained by the consent of Parliament . . . 524 
 Early settlement of the militia on a constitutional basis . . . 525 
 Maintenance of volunteer corps 525
 
 THE FIRST VOLUME. XX111 
 
 PAQK 
 
 Military law 526 
 
 Responsibility of ministers for the control of the army and navy . . 527 
 Security against abuse in the necessary sanction of Parliament . . 529 
 Absolute power of the Crown to remove officers from the army and 
 
 militia 530 
 
 Extent of parliamentary investigation and control . . . .531 
 
 Precedents of parliamentary enquiry ....... 634 
 
 Martial law as defined by Chief Justice Cockburn .... 548 
 
 Circular addressed to colonial governors on the subject of martial law . 551 
 Ministers held responsible when it is resorted to . . . . . 553 
 
 Enquiry into the circumstances under which martial law was pro- 
 claimed bj Governor Eyre in Jamaica ...... 554 
 
 Royal Prerogative of Mercy. 
 
 The Sovereign the proper person to prosecute for all offences and 
 breaches of the peace. ......... 654 
 
 This prerogative subject to the control of Parliament .... 555 
 
 Mode of dealing with a general act of grace, by the House of Lords, 
 
 when received from the Sovereign 555 
 
 Bills of indemnity may originate in either House ..... 555 
 
 The prerogative is strictly confined to criminal offences where the 
 Crown is a prosecutor ......... 556 
 
 The responsible officials for the granting of royal pardons . . . 556 
 The Home Office a court of review in criminal cases .... 557 
 
 The duties of the Secretary of State in the exercise of this prerogative . 557 
 The Crown cannot remit a portion of a sentence merely . . . 558 
 But may extend its mercy on what terms it pleases .... 558 
 
 The consent of the felon must be given to a change of punishment . 558 
 Criminal cases come under the notice of the Home Secretary only when 
 the mercy of the Crown is invoked ....... 559 
 
 Lord Brougham on the prerogative of mercy. ..... 560 
 
 The issue of proclamations of amnesty . ...... 560 
 
 Withdrawal of the exercise of the prerogative of mercy from lieutenant- 
 governors in Canada 561 
 
 Parliament should only interfere in this prerogative under extraordinary 
 
 circumstances 561 
 
 Enquiries addressed to ministers by members of the House . . . 562 
 Precedents illustrating the interference of Parliament .... 563 
 
 CHAPTER XII. 
 
 ROYAL PREROGATIVE IN MATTERS OF JUSTICE. 
 
 The Sovereign the fountain of justice and conservator of peace . . 570 
 But cannot erect a court of justice without the indispensable co-opera- 
 tion of Parliament . . . . . . . . . . 570 
 
 Which has the power to remove judges by address to the Crown . 571 
 Limits of parliamentary interposition ....... 572
 
 XXIV CONTENTS OF 
 
 PAGE 
 
 Charges preferred against judges should be submitted to Parliament in 
 
 writing ............ 573 
 
 Matters subjtidice should not be discussed in either House . . . 573 
 Conduct of judges not to be lightly impugned ..... 674 
 
 Corrupt practices in elections ........ 575 
 
 Parliament has the right to demand full information on matters of 
 
 administration of justice . . . . . . . . .576 
 
 But may not ask for copies of opinions of the law officers of the Crown 
 
 to the executive government ........ 576 
 
 Judges' notes and coroners' notes can only be produced by consent of 
 
 the officer himself .......... 578 
 
 The Sovereign and House of Lords have a right to require the opinions 
 
 of judges on abstract questions of law ...... 578 
 
 Precedents illustrating the procedure of Parliament in abuses concerning 
 
 administration of justice 578 
 
 CHAPTER XIII. 
 
 ROYAL PREROGATIVE IN GRANTING HONOURS AND REWARDS. 
 
 This prerogative is exercised on the advice of responsible ministers . 589 
 Honours should be bestowed by the spontaneous action of the Crown, 
 
 not necessarily at the instigation of ministers ..... 589 
 
 Exceptional cases admit of the advice of Parliament thereon. . . 590 
 
 llule with regard to the acceptance of foreign orders by British subjects . 690 
 Precedents of parliamentary action taken in the House with regard to 
 
 this prerogative .......... 591 
 
 In the case of Speakers of the House of Commons .... 592 
 
 Parliament has no control over the creation of peers .... 592 
 
 A bankrupt peer disqualified from sitting in the House of Lords . . 593 
 
 Procedure in resolutions and votes of thanks. . 593 
 
 CHAPTER XIV. 
 
 ROYAL PREROGATIVE IN GRANTING CHARTERS. 
 
 The Crown cannot create corporations with powers which transcend 
 
 the law 598 
 
 Chartered rights to universities 599 
 
 Procedure in founding a college or university 601 
 
 Creating local or municipal corporations ...... 601 
 
 Royal charters . 601 
 
 Private corporations .......... 602 
 
 Power of Parliament to dissolve a corporation 603 
 
 Precedents illustrating procedure in the House in the affairs of cor- 
 porate bodies 603
 
 THE FIRST VOLUME. XXV 
 
 CHAPTER XV. 
 
 ROYAL PREROGATIVE IN REGARD TO OFFICES AND PUBLIC OFFICERS. 
 
 PAGE 
 
 The Crown has the power to create offices 609 
 
 And to choose persons to fill places of emolument and trust . . . 609 
 
 Restrictions in the creation of new offices 609 
 
 Abuse of patronage 610 
 
 Division of officers of the Crown into political and non-political . ,612 
 Principle of permanence in the civil service ...... 613 
 
 A contrast to the American system ....... 613 
 
 Appointments, though made in the name of the Sovereign, must be 
 
 made through a minister 615 
 
 Political patronage 616 
 
 Concerning appointments to the Church 618 
 
 army and navy 618 
 
 judicial offices 619 
 
 The system of promotion in the service 621 
 
 The extent and distribution of Crown patronage ..... 622 
 Introduction of competitive examinations .... 623 
 
 Appointment of parliamentary officials 627 
 
 Necessity of having every public department represented in Parliament . 628 
 Subordination of all permanent officials to some political head . . 629 
 The Crown has absolute power to dismiss all public servants holding 
 office ' during pleasure '......... 629 
 
 Permanent officials can only be dismissed for incompetence or misconduct 630 
 Such officials should abstain from taking an active part in political 
 
 contests 631 
 
 Fidelity in the public service 632 
 
 Exercise of the power of dismissal 635 
 
 Employe's not permitted to engage in outside work detrimental to the 
 interests of the service ......... 636 
 
 The justice of pensions and retiring allowances ..... 637 
 
 Reports on civil service expenditure ....... 638 
 
 Reports on civil service inquiry and organisation 643 
 
 Salaries regulated by the Treasury 646 
 
 The system of superannuation ........ 650 
 
 How pensions are granted 654 
 
 Civil list pensions. .......... 656 
 
 Allowances to widows and orphans of civil servants .... 657 
 
 "Widows and orphans of army and navy officers ..... 658 
 
 Summary of this prerogative. ........ 659 
 
 Control of Parliament by virtue of the grant of supplies for the main- 
 tenance of the service ......... 660 
 
 Salaries and allowances of the officials of both Houses . . . .661 
 
 Precedents illustrating the control, appointment, and dismissal of public 
 officers . 668
 
 XXVI CONTENTS OF 
 
 CHAPTER XVI. 
 
 PREROGATIVE IN REGARD TO SUPPLY AND TAXATION. 
 
 PAGE 
 
 The Crown demands money, the Commons grant it, and the Lords 
 
 assent to the grant 689 
 
 I. (o^ Restrictions upon Parliament in matters of supply r . . . 690 
 
 Supplies only granted on demand of the Crown . J . . . 690 
 Also petitions for pecuniary relief, or public service . .691 
 Select committees may not recommend compensation to indivi- 
 duals without previous sanction by the Crown . . . 692 
 
 Bills imposing public charges 693 
 
 j Standing orders affecting these Bills 695 
 
 Practice of the House of Lords less stringent in regard to pecu- 
 niary measures ......... 696 
 
 Controversy as to the right of the Lords to inquire into public 
 
 expenditure 697 
 
 Precedents of recommendations involving expenditure by the 
 
 Lords 697 
 
 Wisdom of the restrictions in the Commons on pecuniary grants 699 
 
 Resolutions or addresses incurring expenditure .... 699 
 
 Should originate in committee of the whole House . . . 700 
 
 When an address is objectionable ...... 701 
 
 Increase of a specific grant on the suggestion of the House. . 701 
 
 Formal motions to take the sense of the House for a pecuniary aid 702 
 
 Precedents illustrating this mode of procedure .... 703 
 
 II. (i) Restrictions upon Parliament in matters of taxation . . . 709 
 
 Propositions concerning imperial taxes should emanate from 
 
 ministers . . 709 
 
 But concerning local taxes, may emanate from members . . 710 
 
 Precedents. .......... 711 
 
 Enquiries of ministers concerning taxation. .... 711 
 
 When amendments to government schemes of taxation are in order 711 
 When it is inexpedient for private members to propose such 
 
 questions t 713 
 
 Precedentsof motions for the reduction or repeal of particular taxes 714 
 
 CHAPTER XVII. 
 
 RIGHTS AND PRIVILEGES OP PARLIAMENT, AND ESPECIALLY OF 
 THE HOUSE OF COMMONS, IN THE GRANT OF MONEY FOR 
 THE PUBLIC SERVICE. 
 
 Grant of supplies by Parliament 722 
 
 Question of prize-money 723 
 
 The Crown may not receive gifts or raise loans without consent of 
 
 Parliament 724 
 
 Military reserve fund 724
 
 THE FIRST VOLUME. XXV11 
 
 PAGE 
 
 Public departments not permitted to dispose of stores without the 
 sanction of Parliament . . . . . . . . .725 
 
 Precedents of advances of money for public works .... 726 
 
 Remission of loans or debts require the sanction of Parliament . . 730 
 
 Precedents illustrating loans to foreign powers 731 
 
 Appointment of the Committee of Supply ...... 732 
 
 Sources from which the revenue is derived ...... 732 
 
 The Consolidated Fund . . . 733 
 
 Gross receipts to be paid into the Exchequer . . . . . 733 
 Salaries of officials in the revenue departments ..... 736 
 
 Permanent grants 737 
 
 Annual charges for payment of interest on the unfunded debt . . 738 
 
 The unfunded debt . . .738 
 
 Resolution governing the presentation of the estimates . . . 739 
 
 The estimates 740 
 
 Supplementary estimates 742 
 
 Precedents of unsuccessful attempts to revise the estimates by select 
 committees . . . . . ... . . . . 744 
 
 Precedents of motions to reduce public expenditure .... 746 
 
 Classification, and contents, of the estimates 749 
 
 Proceedings in Committee of Supply . . . . . . . 751 
 
 Votes in Committee of Supply ....... 754 
 
 Motions to reduce or omit an item 755 
 
 Money voted only for the current year ..... 756 
 
 Votes of credit 757 
 
 Votes ' on account '.'....... 758 
 
 Increasing or restoring an item . . . . . . . 761 
 
 Beneficial effect of debate 762 
 
 Controlling influence of the House 763 
 
 Precedents of particular items rejected by the House . . 763 
 
 Bills involving money charges 765 
 
 Addresses for advance of money 766 
 
 Votes for contracts of public works ....... 766 
 
 military works ....... 767 
 
 dockyard works ....... 
 
 Proceedings of the committee on packet and telegraphic contracts 
 (1859-60). The Churchward case . . . . . . .771 
 
 Proceedings of the committee in the Galway mail contract . 
 Right of the Commons to refuse the supplies .... 
 
 Resolutions of the Committee of Supply reported to the House . 
 
 Votes in Committee of Ways and Means 
 
 Ways and Means Act ......... 
 
 Ad interim advances of money ........ 787 
 
 The time appointed for the House to resolve itself into a Committee of 
 Ways and Means .......... 787 
 
 The budget 787 
 
 Questions put , . . . 789 
 
 Measures considered in ........ 790 
 
 Taxes may be proposed in Committee of Ways and Means or other 
 committees . ... . . . . . . 701
 
 XXV1U CONTENTS OF THE FIRST VOLUME. 
 
 PAGS 
 
 Annual and permanent taxation 791 
 
 Due time must be allowed in deliberation of financial questions . . 792 
 New rates of duty immediately enforced by the government pending 
 
 ultimate decision 793 
 
 How levied 794 
 
 Foreign commodities 795 
 
 All financial operations must come under the review of Parliament . 796 
 Immediate effect given to resolutions on stocks ..... 797 
 Budgets rejected or amended by the House ...... 797 
 
 Do not necessitate a change of ministry 798 
 
 Precedents of amended or rejected budgets .... 799 
 Rights of the Houses of Lords and Commons in regard to the grant of 
 
 Supply . . . . . .806 
 
 Practice of the House of Lords in Supply 808 
 
 The Paper Duties case (1860), illustrating the practice between both 
 
 Houses in matters of Supply 809 
 
 The Commons include the whole budget resolutions in one Bill . . 814 
 
 Nature of money Bills 815 
 
 Appropriation Bill .......... 815 
 
 Duty of the Speaker of the House of Commons to take oversight in 
 
 financial proceedings 816 
 
 Appropriation clauses .......... 817 
 
 Provisions of the Appropriation Act 818 
 
 Procedure upon the Bill ......... 819 
 
 INDEX . . 827-844 
 
 Table of Abbreviations used in the Foot-notes. 
 
 Ad. & Ell Adolphus & Ellis Queen's Bench Eeports. 
 
 Adolphus .... History of England under George III. 
 
 Am. L. Rev. . . . American Law Review. 
 
 Ann. Reg Annual Register. 
 
 Best & Smith . . . Queen's Bench Reports. 
 
 Bisset The Commonwealth of England. 
 
 Black. Mag Blackwood's Magazine. 
 
 Blackstone .... Commentaries on the Law of England. 
 
 Bro. & Bingham . . . Broderip & Bingham's Common Pleas Reports. 
 
 Brod. & Freem.'s Judgments. Broderick & Freemantle's Ecclesiastical Cases. 
 
 Broom Leg. Max. . . Legal Maxims. 
 
 Const. Law . . . Constitutional Law. 
 
 C. & B. . . . . Common Bench Reports. 
 
 Campbell's Chan. . . Lives of the Lord Chancellors. 
 
 Can. Sess. Pap. . . . Sessional Papers of the Dominion of Canada. 
 
 Chan, of the Exch. . . Chancellor of the Exchequer. 
 
 Chitty Prerog. . . . Prerogative Law.
 
 TABLE OP ABBREVIATIONS USED IN FOOT-NOTES. XXIX 
 
 Clode, Mil. Forces 
 Col. Pol. . 
 Com. . 
 Corn 8 . . 
 Com. Dig. . 
 Com. Jour. . 
 Com. Pap. . 
 Con. Kev. 
 Const. Hist. 
 
 Prog. 
 
 Cooley, Const. Lim. 
 Cox, Anc. Parly. Elec. 
 
 Inst. 
 Crim. . 
 
 De Lolme, Const. . 
 
 Dicey . 
 
 Dub. Eev. . 
 
 Ed. ... 
 
 Ed. Eev. 
 
 Ell. & B. . 
 
 Ency. Brit. . 
 
 Eng. Const. . 
 
 Fin. Eeforrn Aim. 
 
 Forsyth, Const. Law 
 
 Fort. Eev. . 
 
 Fost. & Fin. . 
 
 Fras. Mag. . 
 
 Freeman 
 
 Govt. of Eng. 
 
 Gt. Gov. Fam. 
 
 H. of C. 
 
 H. of L. 
 
 H. of Eep. . 
 
 Hale . 
 
 Hallam's Const. . 
 
 Hans. D. 
 
 Hats. Prec. . 
 
 Hawkins' P. C. 
 
 Hearn, Govt. of Eng. 
 
 Hist, of Eng. 
 
 Tnst. 
 
 Int. Eev. 
 
 Irish Stat. Soc. Jour. 
 
 Kemble 
 
 Knight . 
 
 L. E. App. Cases . 
 
 Prob. Div. 
 
 L. T. Eep. N.S. . 
 
 L. Can. J. . . 
 
 Law Mag. N.S. 
 
 Ld. 
 
 Lewis, Admin. 
 
 Lords' Pap. . 
 
 Mac. Mag. 
 
 Mac. & G. 
 
 Martin, Pr. Consort 
 
 May, Const. Hist. . 
 
 Parl. Prac. 
 Mill, Eep. Govt. . 
 Mir. of Parl. . 
 Moore, P. C. C. 
 
 Clode Military Forces. 
 
 Colonial Policy. 
 
 The Commons. 
 
 Committee. 
 
 Comyn's Digest of the Laws of England. 
 
 Journals of the House of Commons. 
 
 Sessional Papers of the House of Commons. 
 
 Contemporary Eeview. 
 
 Constitutional History. 
 
 Progress. 
 
 Constitutional Limitations. 
 Ancient Parliamentary Elections. 
 Institutions of the English Government. 
 Criminal. 
 
 Constitution of England. 
 
 The Privy Council. 
 
 Dublin Eeview. 
 
 Edition. 
 
 Edinburgh Eeview. 
 
 Ellis & Blackburn's Queen's Bench Eeports. 
 
 Encyclopaedia Britannica. 
 
 English Constitution. 
 
 Financial Eeform Almanac. 
 
 Cases and Opinions on Constitutional Law. 
 
 Fortnightly Eeview. 
 
 Foster and Finlason Nisi Prius Eeports. 
 
 Fraser's Magazine. 
 
 Norman Conquest. 
 
 Government of England. 
 
 Great Governing Families. 
 
 House of Commons. 
 
 House of Lords. 
 
 House of Eepresentatives. 
 
 Pleas of the Crown. 
 
 Constitutional History of England. 
 
 Hansard's Debates. [of Commons. 
 
 Hatsell's Precedents of Proceedings in the House 
 
 Pleas of the Crown. 
 
 Government of England. 
 
 History of England. 
 
 Coke's Institutes. 
 
 International Eeview. 
 
 Irish Statistical Society Journal. 
 
 The Saxons in England. 
 
 History of England. 
 
 Law Eeports Appeal Cases. 
 
 Probate Division. 
 
 Law Times Eeports, New Series. 
 
 Lower Canada Journal. 
 
 Law Magazine, New Series. 
 
 Lord. 
 
 Administrations of Great Britain. 
 
 Sessional Papers of the House of Lords. 
 
 Macmillan's Magazine. 
 
 Macnaghten and Gordon's Chancery Eeports. 
 
 Life of the Prince Consort. 
 
 Constitutional History. 
 
 Parliamentary Practice. 
 
 Eepresentative Government. 
 
 Mirror of Parliament. 
 
 Moore's Privy Council Cases.
 
 XXX 
 
 TABLE OF ABBREVIATIONS USED IN FOOT-NOTES. 
 
 N. Am. Bev. . 
 Nicholas 
 19th Cen. 
 Norm. Conq. . 
 
 P 
 
 P. 0. .. 
 
 Palgrave 
 Parl. D. 
 Parl. Govt. . 
 Parl. Hist. . 
 Parl. Prac. . 
 Parl. Bememb. 
 Parry, Parlts. 
 Peel's Mem. . 
 Pict. Hist, of Eng. 
 
 Pol 
 
 Prac. . 
 Prm. of Gov. 
 Q. B. Bep. . 
 Quar. Bev. . 
 Bep. of Sel. Com e . 
 Bept. Govt. . 
 
 Bept 
 
 Bose, Corresp. 
 
 S 
 
 S. O., H. of L. (or C.) . 
 Sat. Bev. 
 Shower's Bep. 
 Stat. of Can. 
 Stat. Soc. Jour. . 
 Step. Com. . 
 Stephen's Ecc. Stat. . 
 Hist. Crim. Law 
 Stockmar's Mem. 
 Stubbs' Const. Hist. 
 Term Bep. . 
 v. . 
 
 Wallace, Sup. Ct. Bep. 
 Well. Desp. . 
 West. Bev. . 
 Wheaton 
 Wilson 
 
 North American Beview. [cil of England. 
 
 Proceedings and Ordinances of the Privy Coun- 
 Nineteenth Century. 
 Norman Conquest. 
 
 Privy Council. 
 
 English Commonwealth. [1830 to 1880). 
 
 Parliamentary Debates (Series of Debates from 
 
 Government. 
 
 History. 
 
 Practice. 
 
 Smith's Parliamentary Bemembrancer. 
 
 Parliaments and Councils of England. 
 
 Peel's Memoirs. 
 
 Pictorial History of England. 
 
 Political. 
 
 Practice. 
 
 Principles of Government. 
 
 Queen's Bench Beports. 
 
 Quarterly Beview. 
 
 Beport of Select Committee. 
 
 Bepresentative Government. 
 
 Beport 
 
 Diaries and Correspondence. 
 
 Series. 
 
 Standing Orders, House of Lords (or Commons). 
 
 Saturday Beview. 
 
 King's Bench Beports. 
 
 Statutes of Canada. 
 
 Statistical Society Journal. 
 
 Stephen's Commentaries on the Laws of England. 
 
 Ecclesiastical and Eleemosynary Institutions. 
 
 History of the Criminal Law of England. 
 
 Memoirs of the Baron. 
 
 Constitutional History of England. 
 
 Durnford and East's Term Beport. 
 
 Volume. 
 
 Wallace's United States Supreme Court Beports. 
 
 Wellington's Despatches. 
 
 Westminster Beview. 
 
 United States Supreme Court Beports. 
 
 King's Bench Beports.
 
 ON 
 
 PARLIAMENTARY GOVERNMENT 
 
 IN 
 
 ENGLAND, 
 
 CHAPTER I. 
 
 GENERAL INTRODUCTION. 
 
 THE GOVERNMENT of England is conducted in con- Definition 
 formity with certain traditional maxims, which limit of P arlia - 
 
 m6nt&rv 
 
 the exercise of all political powers therein. These govem- 
 maxims are, for the most part, unwritten and conven- ] 
 tional. They have never been declared in any formal 
 charter or statute, but have developed, in the course of 
 centuries, side by side with the written law. They 
 embody the matured experience of successive genera- 
 tions of statesmen in the conduct of public affairs, and 
 are known as the precepts of the constitution. a 
 
 The principle of a constitutional or parliamentary 
 government is essentially different from either that of 
 a republic or of a despotism. A constitutional king is 
 not responsible to the people, but he is bound by the 
 laws ; he is not free to govern as he pleases, but must 
 rule in conformity to the recognised usages of the 
 
 a See Freeman, Growth of Eng. Const, c. iii. ; Bonamy Price, Gout. Rev. 
 v. 38, p. 943. 
 
 VOL. I. B
 
 2 GENERAL INTRODUCTION. 
 
 constitution, and in subjection to its fundamental pre- 
 cepts, which regulate and define the rights and privileges 
 of all classes and estates in the realm. 
 
 Power of Society, like the family, is of divine appointment ; 
 
 reign"' anc ^ headship, in either case, has a divine origin. In a 
 under par- parliamentary government, rule and authority must 
 
 liamentary 1 /> i i i 
 
 govern- receive the sanction or popular consent, though it does 
 not necessarily emanate from the will of the people. 
 The obligation of a king to rule righteously is as great 
 as that of a people to obey those who have the rule 
 over them. It is indeed more difficult to control and 
 punish a sovereign who may abuse his office than to 
 call people to account for treason and rebellion. But 
 in a parliamentary government the kingly power is sub- 
 jected to such rigid limitations and restraints that its 
 abuse is difficult, if not impossible. The axiom that 
 the king can do no wrong, is necessary for the pro- 
 tection of the monarchy from injurious aspersion or 
 attack ; but it is rendered innocuous, as a means of 
 oppression or misrule, by the affirmation of the doctrine 
 that ministers of state are responsible for every exercise 
 Relation of kingly authority. These ministers have been per- 
 stersTothe mitted to share, with the crown, in all the functions of 
 crown. royalty, on condition that they assume a full responsi- 
 bility for the same, before the Parliament and people. 
 And inasmuch as no minister could properly undertake 
 to be responsible for a policy which he could not con- 
 trol, or for acts which he did not approve, it has neces- 
 sarily followed that the direction and administration of 
 the policy of government have passed into the hands of 
 the constitutional advisers of the crown, for the time 
 being ; subject only to their continuing to retain the 
 confidence of their sovereign and of Parliament. By 
 this means, the services of statesmen in whom the 
 country has confidence, and who represent the varying 
 needs of the age, and its progressive intelligence, are 
 secured on behalf of the empire ; while the equilibrium
 
 LEADING PEINCIPLES OF THE CONSTITUTION. 3 
 
 of the state is duly preserved, amidst the recurrent 
 changes of its actual rulers, by the permanence of the 
 monarchical principle in the person of the sovereign. 
 Such are the theory and practice of the British consti- 
 tution, which it will be the endeavour of the author 
 to explain, both historically and practically, in the fol- 
 lowing pages. 
 
 ' Since the establishment of parliamentary govern- Powers of 
 ment, the ordinary description of the British constitu- must^e 11 
 tion, as one in which the executive power belongs exercised 
 
 i i i i'ii P i -i through 
 
 exclusively to the crown, while the power of legislation ministers. 
 is vested jointly in the sovereign and the two Houses of 
 Parliament, has ceased to be correct, unless it be under- 
 stood in a legal and technical sense. It is the dis- 
 tinguishing feature of parliamentary government that 
 it requires the powers belonging to the crown to be 
 exercised through ministers, who are held responsible 
 for the manner in which they are used, who are ex- 
 pected to be members of the two Houses of Parliament, 
 the proceedings of which they must be able generally 
 to guide, and who are considered entitled to hold their 
 offices only while they possess the confidence of Parlia- 
 ment, and more especially of the House of Commons.' b 
 Through the instrumentality of the cabinet, as a con- 
 necting link between the crown and Parliament, a close 
 union, an intimate reciprocal action, has been effected 
 between the executive and legislative powers. It is 
 this which has given peculiar vitality to English parlia- 
 mentary government. 
 
 The great and leading maxims of the British consti- Revoiu- 
 
 - . . tion of 
 
 tution, as now interpreted, are the personal irresponsi- 
 bility of the king, the responsibility of ministers, and 
 the inquisitorial power of Parliament. For the com- 
 plete recognition of these cardinal principles, the nation 
 is indebted to the statesmen who effected the Eevolution 
 of 1688. 
 
 b Grey on Parl. Govt. p. 4. c See Bagehot on the Eng. Const, p. 12. 
 
 B 2
 
 4 GENERAL INTRODUCTION. 
 
 We have the great Lord Camden's authority for asserting that 
 ' The Revolution restored this constitution to its first principles ; it 
 did no more. It did not enlarge the liberty of the subject, but gave 
 it a better security. It neither widened nor contracted the foun- 
 dation, but repaired and perhaps added a buttress or two to the 
 fabric.' d To the same effect it has been well observed by a recent 
 political writer, that, 'Prior to 1688, the theory of our constitution 
 was, that the crown was limited, and that its powers were checked 
 by the Houses of Parliament ; but this theory was not always recog- 
 nised by the king in practice. The Revolution of 1688 brought the 
 theory and practice into harmony. Since that time the crown has 
 never attempted to govern without Parliament.' e 
 
 Govern- Prior to that epoch, the government of England was 
 
 ment by . . ' . 
 
 preroga- mainly carried on by virtue of the royal prerogative, 
 that is to say, by the king in person, with the advice 
 and assistance of ministers appointed by himself, and 
 who were responsible to the sovereign alone for the 
 ordinary conduct of public affairs ; whilst they were 
 amenable to Parliament for any direct abuse of their 
 functions. Under this system Parliament had no voice 
 in the selection of ministers of the crown, and whenever 
 adverse opinions in regard to questions of administration 
 were entertained by either House of Parliament they had 
 no means of making those opinions known, except by 
 retrospective complaint and remonstrance. This occa- 
 sioned frequent contests between the crown and Parlia- 
 ment, which sometimes ended in civil war. 
 
 While the sole executive authority of the realm was 
 possessed by the king in whom, together with his 
 ministers and officers of state, was vested the exclusive 
 right of administering the laws of the land the legis- 
 lative authority was divided between three co-ordinate 
 powers, the King, the House of Lords, and the House 
 of Commons. Each of these branches of the one Par- 
 liament enjoyed an equality of rights, and had a de- 
 liberate choice of assent or dissent to every legislative 
 measure. 
 
 d I'J Ho wells State Trials, p. IOCS. c Ed. llev. v. 100, p. 274.
 
 BALAXCE OF POWERS. 5 
 
 So long as this form of government prevailed, it was Balance of 
 customary to assume that the well-being of the English jrSnsS- 
 cornmonwealth consisted in the preservation of the tution. 
 balance of power between these co-ordinate branches 
 of the supreme Parliament, so that any abuse of autho- 
 rity on the part of one, might admit of correction by 
 the interposition of the authority of another branch. 
 For example, the power of the two Houses of Parlia- 
 ment to frame laws was presumed to be held in check 
 by the king's negative, which could always be interposed 
 to prevent the adoption of an unwise or unnecessary 
 statute. Again, the arbitrary exercise of the king's 
 right of veto was itself restrained by the power which 
 Parliament possessed of refusing a grant of supplies for 
 the service of the crown. On the other hand, freedom 
 of speech, though nominally conceded to Parliament 
 from a very early period, was not invariably respected 
 by the crown. In some instances, even the Tudor 
 nionarchs went the length of charging the Speaker of 
 the Commons to forbid members from meddling with 
 matters of state. Occasionally we read of free-spoken 
 representatives being cited before the Privy Council, 
 interrogated and reprimanded, or sent to the Tower. 
 In self-defence, the Commons adopted a standing order 
 for the exclusion of strangers during debate, and making 
 it punishable to repeat out of doors what had passed 
 within/ And in order to maintain the due independence 
 of the legislative chambers, it was held to be an infringe- 
 ment of constitutional privilege for the king to take the 
 initiative in legislation by submitting any Bills to the 
 consideration of the two Houses save only acts of 
 grace and pardon or even for the sovereign to take 
 formal notice of any resolution or proceeding of Parlia- 
 ment which did not affect the interests of the crown, 
 
 f Macaulay, Hist, of Eng. v. 3, p. 543 ; Park's Dogmas, p. 104 ; May, 
 Parl. Prac. c. iv.
 
 GENERAL INTRODUCTION. 
 
 until the same had been regularly communicated to him 
 for his concurrence. 8 
 contrast This was the doctrine and usage of the English 
 
 the theory constitution which prevailed before the era of parlia- 
 tiS of *the ment ary government ; and notwithstanding the funda- 
 constitu- mental alterations that have since taken place in con- 
 stitutional practice, this is still the theory of the British 
 government, as expounded by Blackstone, Paley, De 
 Lolme, and other text-writers of a later date. And yet 
 how strikingly is this theory at variance with the recorded 
 facts of our Parliamentary history for the past century 
 and a half ! While for many generations the forms of 
 the ancient constitution of England have continued un- 
 changed, the principle of growth and development has 
 been at work, and has silently effected numerous and 
 important alterations in all our governmental institu- 
 tions. For instance, the prerogative of the crown to 
 veto obnoxious measures presented for its sanction by 
 the Legislative Chambers has never been invoked since 
 the reig,n of Queen Anne. The undoubted right of the 
 Commons towithhold supplies from the crown has not 
 been exercised in a single instance since the Revolution 
 of 1688. All important public bills are now submitted 
 to Parliament by ministers of the crown, with the 
 avowed sanction and express authority of the sovereign ; 
 and it has become a recognised and prominent part of 
 the functions of the king's ministers that they shall be 
 able to lead and control the two Houses of Parliament, 
 and to carry on the government therein, by themselves 
 undertaking the oversight and direction of the entire 
 mass of public legislation. Moreover, the exercise of 
 every branch of the royal prerogative is now subjected 
 to free criticism in both Houses of Parliament ; and 
 although the standing orders for the exclusion of 
 strangers are still retained, they are practically a dead 
 
 Hats. Prec. v. 2, p. 356.
 
 THEORY AT VARIANCE WITH FACTS. 7 
 
 letter ; and so much publicity is allowed to the debates 
 and proceedings as to justify the saying that ' the entire 
 people are present, as it were, and assist in the delibera- 
 tions of Parliament.' 11 As a natural consequence of 
 these momentous changes, harmony has been established 
 between the executive and legislative powers, in place 
 of the jealousy and spirit of antagonism which were 
 characteristic of the former system. 
 
 This wide discrepancy between theory and prac- A proof 
 tice between the ordinary functions of the several granges in 
 branches of the legislature as defined in our old con- theconsti- 
 stitutional text-books, and the modern usages in respect 
 thereto, affords unmistakeable proof that the constitu- 
 tion itself has really undergone a material alteration 
 within the last 150 years, albeit these changes, for the 
 most part, have been unnoticed by political writers. 
 Formerly the obsolete privileges above enumerated 
 were regarded as so many proofs of an admirable system 
 of * checks ' and ' balances of power,' whereby the 
 different parts of our complex political system were 
 maintained in equipoise. They now remain as mere 
 indications of ancient landmarks, which have ceased 
 to be effectual restraints in the existing development of 
 our institutions.' 
 
 And here it may be remarked, parenthetically, that Dormant 
 because the crown and the House of Lords are pre- thTcrown 
 eluded by modern constitutional usage from making and Lords. 
 direct use of the powers which originally appertained to 
 them as distinct and independent branches of the legis- 
 lature, it must not, therefore, be assumed that they are 
 but of small account in their separate and individual 
 capacity. Their ancient rights, though dormant, have 
 never been disallowed ; but are still held in reserve, in 
 i' any sudden or violent attack upon their new 
 
 h May, Const. Hist. ed. 1871, v. 2, paper, by T. M. Oooley, the learned 
 
 p. 53. American jurist, in the Int. Rev. v. 3, 
 
 ' As to general futility of ' checks p. 317. 
 and balances ' in government, see
 
 GENERAL INTRODUCTION. 
 
 House of 
 Commons 
 under 
 parlia- 
 mentary 
 govern- 
 ment. 
 
 mode of operation. This may surely be affirmed of the 
 royal veto, in the present state of our constitutional 
 system, although, as a matter of constitutional practice, 
 the system of parliamentary government has fortunately 
 done away with the necessity for collisions between the 
 crown and the people on questions of public policy or 
 internal administration, and has caused all such matters 
 to be decided within the walls of Parliament by the 
 relative strength of existing political parties. The same 
 principle holds good in regard to the two Houses of 
 Parliament. While no formal alteration has taken 
 place in the original limits of authority between the two 
 co-ordinate and co-equal chambers of the legislature, 
 and it is now generally conceded that the proper func- 
 tion of the House of Lords is not to take a prominent 
 part in the initiation of public bills, but to control, 
 revise, and amend the measures of legislation "which 
 have received the sanction of the House of Commons, 
 nevertheless, if need be, it would be perfectly com- 
 petent for the House of Lords to claim its ancient 
 privileges, and to assume a more active share in the 
 origination of measures which concern the general 
 welfare of the community. 
 
 The principal change effected by the development 
 of the English constitution since the Eevolution of 1688 
 has been the virtual transference of the centre and force 
 of the state from the crown to the House of Commons. 
 Instead of prerogative government we now have parlia- 
 mentary government. Instead of the will of the crown 
 being paramount, or else engaged in direct conflict with 
 the other branches of the legislature, we now find the 
 constitutional influence of the crown, and of the great 
 landowners, exerted in the House of Commons, through 
 the instrumentality of members who obtain seats therein, 
 expressly in order that they may uphold and carry out 
 these legitimate influences. The introduction of mem- 
 bers into the House of Commons for such a purpose,
 
 PARTY INFLUENCE. 9 
 
 however at variance it may be with the abstract idea 
 of popular representation, has, indeed, become essential 
 to. the maintenance of monarchical institutions in Great 
 Britain. Curtailed in the exercise of their original 
 rights, as independent branches of the legislature, it 
 has become impossible for the crown and the nobles 
 to retain their proper share in the government of the 
 country unless they are both fairly represented in that 
 assembly wherein the supreme political power of the 
 state is now concentred. This result has been attained 
 by the growth of a system under which each of the 
 three co-equal elements of the crown, the aristocracy, 
 and the commonalty, representing respectively the 
 principles of authority, of stability, and of progress, 
 have been effectually, if not formally, incorporated into 
 the Commons' House of Parliament. 
 
 By the formal introduction of the king's ministers introduc- 
 into Parliament, which took place in the reign of ministers 
 William III., but was not directly ratified by law until therem - 
 the reign of Anne, the monarchical element in the con- 
 stitution began to make itself felt in the House of Com- 
 mons. The great advantages of this step were not at 
 first appreciated, even by its promoters ; but they gra- 
 dually became apparent in the harmonious working of 
 the machinery of government. As a natural consequence, 
 it necessitated a recourse by the rival factions on both 
 sides to a system of party organization, in order to 
 give strength and consistency to their endeavours. ' For 
 parliamentary government is essentially a government Party go- 
 
 /- .-, -,.,. /... . . vernment. 
 
 by means oi party, since the very condition of its exist- 
 ence is that the ministers of the crown should be able 
 to guide the decisions of Parliament, and especially of 
 the House of Commons ; and all experience proves that 
 no popular assembly can be made to act steadily under 
 recognised leaders except by party organization.' ] No 
 
 I Grey, Parl. Govt. ed. 1864, p. 49. May, Const. Hist. c. viii. ; Austin, 
 See further, as to the benefits of party, Plea for the Constitution, p. 34 ;
 
 10 GENERAL INTRODUCTION. 
 
 reliance can be placed on the support of a party ' occu- 
 pying the position of a detached auxiliary force, ready 
 to act on one occasion, to retire on another, and to be 
 a perpetual object of anxiety to those whom they mean 
 to serve, of hope to the enemy, and of speculation to 
 the rest of the world.' k Seats in the House of Commons 
 for the king's ministers and their adherents were obtain- 
 able from the first by means of various small boroughs, 
 which were under the direct control of the Treasury, 
 and of other boroughs which were subject to the in- 
 fluence of certain great families or wealthy proprietors, 
 who were willing to dispose of the same in support of 
 an existing administration. 1 Thus the government for 
 the time being were always able to command from forty 
 to fifty seats in a new Parliament, in addition to the 
 natural strength of the party they represented. 111 
 Property, In like manner, the holders of landed property 
 bers, r~ throughout the country, and especially the great heredi- 
 
 aristocracy, were able, in their own behalf, to 
 Commons, control many of the smaller constituencies. The com- 
 manding influence thus exercised by the crown, and the 
 landed gentry of the kingdom, over the election of 
 members of the House of Commons, appears at first 
 sight to be a departure from the strict rule of repre- 
 sentation in a popular assembly. The case however 
 assumes a very different aspect when it is considered 
 that property, and bodies, or classes of men having 
 
 Park's Lectures, pp. 61, 128 ; Bur- Political Problems, c. x. (or Quar. 
 
 rows, Const. Prog. p. 80; Amos, Rev. v. 126, p. 394). Fitzjames Ste- 
 
 Fifty Years of Eng. Const, p. 66; phen, in Con. Rev. v. 23, pp. 1, 165 ; 
 
 Mr. Disraeli's Speeches, in Hans. D. Syme, Rep. Govt. in England, 1881, 
 
 v. 153, p. 1304; Ib. v. 174, p. 1221; c. iii. ; and see Mr. T. E. Kebbel's 
 
 and see the Ed. Rev. v. 108, p. 277, review of the question, on both sides, 
 
 in reply to an article in the West, in 19th Cen. v. 11, p. 378. 
 
 Rev. v, 13, p. 402, condemnatory of k Life of Earl Minto, v. 2, p. 383. 
 
 party government. See also the argu- And see Amos, Primer of Eng. 
 
 ments against party government in Const, ed. 1875, p. 54. 
 
 Brougham's Essay on the Effects of l See Bulwer's Life of Palmerston, 
 
 Party, in his Sketches of the States- v. 1, p. 52. 
 
 men of the Time of George III. ; Greg's m Grey, Parl. Govt. new ed. p. 227.
 
 INFLUENCE OF HEREDITARY ARISTOCRACY. 11 
 
 separate interests not mere numbers have been hither- 
 to the acknowledged bases of representation in the 
 House of Commons. 11 It is true that the interference of i nter . 
 any lord of Parliament, or other peer or prelate, at elec- f g r e e r nce t of 
 tions is declared by a standing order to be a high breach elections. 
 of the privileges of the House of Commons, and that 
 the voting of peers is now distinctly forbidden by recent 
 decisions. But the peers themselves have repeatedly 
 disputed the force of this declaration, and even denied 
 that they are incapacitated for voting at parliamentary 
 elections ; p nevertheless, it has been admitted by the 
 most eminent constitutional authorities, including Lord 
 John Russell, Sir Eobert Peel, Lord Palmerston, and 
 Mr. Disraeli, that there is ' a customary and due in- 
 fluence ' which may be resorted to by all landlords over 
 their tenantry, in the choice of members to serve in the 
 House of Commons ; and that the interference of peers 
 at parliamentary elections, which was originally for- 
 bidden under widely different circumstances, ought not 
 now to be accounted unconstitutional, if exercised with 
 discretion and moderation. Occasional complaints have 
 been made to the House, under peculiar circumstances, 
 of the infringement of the standing order by peers or 
 bishops, but the House has always evinced great reluct- 
 
 n See Russell, Eng. Const, ed. 1865, Common Pleas, but the appeal was 
 
 pp. xxxi.-xxxvi. ; Disraeli, Hans. D. summarily dismissed by that tribunal 
 
 v. 187, p. 1955 ; v. 188, p. 224 ; v. (L. T. Rep. N.S. v. 27, p. 606). At 
 
 192, p. 998. And see Smith, Parl. an election of the University of Cam- 
 
 Remeuib. 1859, p. 3; Hearn, Govt. bridge in Nov. 1882, two peers at- 
 
 of Eng. pp. 515-518. tempted to vote, but their votes were 
 
 S. O. H. of Com. Jls. 1883, p. 6. rejected. See L. T. v. 74, p. 83. 
 
 p See Hats. Prec. v. 3, p. 72 ; By a later decision, this disability 
 
 Anstey's Notes on the Reform Act of was declared to extend to Irish 
 
 1867, p. 106. On Oct. 10, 1872, at peers, who are not entitled to be 
 
 a revising barrister's Court in the upon the Register of Voters, unless 
 
 county of Hereford, the name of the actually sitting as members of the 
 
 Marquis of Salisbury was struck off House of Commons. (Lord Reudle- 
 
 the list of claimants to vote at the sham v. Tabor, L. T. Rep. N.S. v. 29, 
 
 county elections, because he was a p. 679.) In confirmation of these 
 
 peer of the realm. Leave was decisions see Ib. v. 30, p. 795 ; May, 
 
 granted to appeal to the Court of Parl. Prac. ed. 1883, p. 719.
 
 12 GENERAL INTRODUCTION. 
 
 ance to proceed thereon. q For, in fact, the influence 
 influence which is exercised by peers is mainly that which right- 
 elections! 11 fully appertains to them as the guardians and repre- 
 sentatives of vast hereditary estates ; and there is a 
 4 legitimate influence which a popular and respected 
 landlord must always exercise in his neighbourhood.' r 
 In a monarchical government, property must necessarily 
 be in the hands of the few ; and ' the law-maker must 
 be a possessor of property, because the end of all legis- 
 lation is the security of property.' s 
 
 It is said that even in the United States, where a nearly universal 
 suffrage prevails, the landed interest is so powerful, owing to the 
 almost universal possession of property, that ' the great mass of the 
 farmers, when they choose to exert themselves, are able to overrule the 
 mob of the cities, and decide the policy of the nation.' * 
 
 influence The extent to which the influence of property prevails 
 perty~ m England at the present time is very considerable, 
 notwithstanding the disfranchisement of so many small 
 boroughs by successive Reform Bills. This influence is 
 more or less exerted in every constituency ; but it is 
 only in the counties and in certain of the smaller 
 boroughs that it usually affects the result of the elec- 
 tions. Mr. Gladstone admits that ' the criterion of pro- 
 perty has assigned to it a considerable sphere of direct 
 operation through plurality of franchise ' enjoyed by ' a 
 man of property in different capacities and constitu- 
 encies,' which, he says, ' no one wishes to disturb.' 
 Property lias, also, ' a sphere of indirect operation, 
 larger still.' u The larger manufacturing towns and 
 cities are generally under the control of the commercial 
 
 o See Mir. of Parl. August 6, 1832, p. 425. 
 
 p. 3588 ; Hans. D. v. 83, p. 1167 ; v. r Rep. Com c . Parl. Elec. Cora. 
 
 95, pp. 1007, 1354; v. 15!), p. 1569; Pap. 1868-9, v. 8, p. 17. 
 
 v. 174, pp. 933, 945; v. 186, p, Letter to Mr. Bright, by Henry 
 
 1353; v. 190, pp. 801, 1976 ; v. 193, Drummond, M.P., 1858, p. 36. 
 
 p. 1382 ; v. 197, p. 1294 ; Mac. Mag. * Goldwin Smith, Mac. Mag. v. 11, 
 
 v. 11, p. 476; and Ld. Palmerston's pp. 418, 424. 
 
 speech on the Ballot, Hans. D. v. 180, u 19th Gen. v. 2, p. 545.
 
 SERVICES RENDERED BY NOMINATION BOROUGHS. 13 
 
 or manufacturing interests. Nevertheless, it was com- 
 puted that in 1865 the thirty-one great governing fami- 
 lies of England supplied ' one clear fourth of the English 
 House of Commons.' v 
 
 In the House of Commons, chosen in 1865, the aristocratic Aristo- 
 element including sons and grandsons of peers and baronets, and cratic^ele- 
 others connected with the peerage by marriage or descent consisted Ho^g^f 
 of 326 members, or about one-half of the House. Trade and manu- Commons. 
 factures were represented by 122, and the railway interest by 179 
 members. w And by an analysis of the House of Commons, elected in 
 1868, it appears that, notwithstanding the widely-extended franchise, 
 ' nearly half the House of Commons belong to the landed nobility 
 and gentry.' x In ' Notes and Queries ' y we have a list of fifty mem- 
 bers of the Reformed Parliament of 1869, who (so far as can be 
 ascertained) are the direct lineal descendants of those who sat in the 
 Long Parliament, in 1640. By the general election in 1874, it was 
 computed that the aristocratic element in the House of Commons 
 was reduced to 149 members. 2 But another calculation places this 
 element at 170 members ; the trade and manufacturing interests at 
 122 ; the railway and moneyed interests at 129 ; the liquor interests 
 at 19 ; the legal element at 120 ; the literary and scientific interests 
 at 85. a [By the general election in 1885, the aristocratic element in 
 the House of Commons was reduced to 46 members ; and that of 
 ' landowners' to 71 barely a sixth of the entire House. b ED.] 
 
 And here it may be well to record the important Nomina- 
 services which were rendered to the state by the smaller boroughs. 
 or nomination boroughs before their disfranchisement. 
 Some of the ablest and most uncompromising advocates 
 of parliamentary reform have acknowledged an indebted- 
 ness to these boroughs for the introduction into the 
 House of Commons of many of its most eminent and 
 useful members, who could not otherwise have obtained 
 entrance there ; and for the representation in Parliament 
 of various classes and interests which would else have 
 failed to acquire the weight and influence therein to 
 which they are justly entitled. 
 
 v Sanford and Townsend's Gt. * Quar. Rev. v. 126, p. 278n. 
 
 Gov. Fam. of Eng. 2 vols. London, * V. 3, 4th S. p. 190. 
 
 1865, v. 1, pp. 3-20. z Greg in Con. Rev. v. 23, p. 874w. 
 
 w Essays on Reform, 1867, pp. 172, a Fin. Reform Aim. 1877, p. 146. 
 
 327-329. b The Spectator, 1885, p. 1692.
 
 14 GENERAL INTRODUCTION. 
 
 For example, the small borough of Arundel, which before the 
 Reform Act of 1867 had but 174 registered electors, ' represented the 
 largest constituency in England, because for many years it was the 
 sole English constituency which returned a Roman Catholic to the 
 House of Commons.' c Subsequently, in 1870, the Isle of Wight 
 returned the only Roman Catholic member representing a con- 
 stituency in England or Wales. d At the general election in 1874 
 no Roman Catholic was returned for any constituency in England, 
 Wales, or Scotland. 6 
 
 The nomination boroughs served also to redress, in 
 however irregular a manner, the balance of authority 
 between the several branches of Parliament, which 
 would else have been overthrown by the increasing 
 power of the Lower House. This is emphatically true 
 of the legitimate authority and influence of the crown 
 in the House of Commons, which has been heretofore 
 maintained, under our parliamentary system, chiefly by 
 means of the control exercised by government over cer- 
 tain of the smaller constituencies. For, as a general rule, 
 nearly all our ministers of state, and eminent politicians of 
 the class out of which ministers are necessarily chosen, 
 have had recourse to the small boroughs for a seat in 
 Parliament.* Even when able to command a county 
 constituency, ministers of the crown have generally 
 preferred to represent small boroughs, on account of 
 the comparative immunity thereby obtained from the 
 incessant demands upon their time and attention on be- 
 half of their constituents, which are so great a tax upon 
 members who represent populous constituencies. 
 
 Thus, when Mr. Canning was appointed Foreign Secretary, and 
 leader of the House of Commons, in 1822, he retired from the 
 representation of Liverpool, and was elected for the borough of Har- 
 
 c Hans. D. v. 189, p. 594. sell, Eng. Const, pp. xxxv., xlix. ; 
 
 d Ib. v. 201, p. 67. Austin, Plea for the Const, p. 28. 
 
 e Lcl. Hougbton in Fort. Rev. Earl Derby, Hans. D. v. 188, p. 1795 : 
 
 v. 23, p. 211. Ed. Rev. v. 135, p. 532. 
 
 f Grey, Parl. Govt. p. 195 ; Bus-
 
 EFFECT OF ABOLITION OF NOMINATION BOROUGHS. 15 
 
 wich, considering that the duties entailed upon him as member for 
 that great commercial town were incompatible with the faithful 
 discharge of his functions as a minister of state.? In like manner, 
 Sir Robert Peel, Lord Palmerston, Lord Stanley, Sir G. Grey, Sir 
 Stafford Northcote, and other noted parliamentary leaders, have 
 almost invariably sat for small boroughs, and have refused to repre- 
 sent large constituencies. Again, statesmen of the highest eminence 
 who, through their connection with great governing families, have 
 obtained seats for counties, have not seldom been obliged to resort to 
 boroughs in order to retain a seat in Parliament when they have 
 chanced to incur the displeasure of their numerous electors. For 
 example, in 1835, Devonshire rejected Lord John Russell, and com- 
 pelled him to seek a refuge in Stroud ; in 1834 Lord Palmerston was 
 defeated in Hampshire, and afterwards sat for Tiverton ; in 1852 
 Sir G. C. Lewis was defeated in Herefordshire, and was obliged to 
 have recourse to Radnor; in 1847 Macaulay was defeated at Edin- 
 burgh, and kept out of Parliament for five years. It has been 
 computed that out of some sixty -three members, in the last House of 
 Commons, who either held, or were qualified to hold, the highest 
 administrative offices, by far the greater proportion represented 
 small constituencies. The more populous boroughs only contributed 
 one-fifteenth of this governing element. 11 
 
 In fact, it is notorious that there has been, of late Local 
 years, a decided and increasing disposition on the part 
 of lame boroughs to make choice of local celebrities, of the 
 
 T)60t)lc 
 
 or persons of limited reputation, to represent them in 
 Parliament, in place of electing men possessed of states- 
 manlike qualities, administrative experience, or intel- 
 lectual gifts. 1 
 
 Owing to the disfranchisement of the smaller boroughs, the in- 
 fluence of a ' patron,' able to return some friend of his own, or some 
 leading member of his party, in want of a seat, has been mostly got rid 
 of. The tendency in boroughs now is to select either a very rich or 
 a ' local ' candidate, instead of men capable of legislating for the 
 interests of the whole empire, and as little as possible hampered by 
 local ties and prejudices.J 
 
 e Stapleton, Canning and bis speeches by Mr. Gladstone and Mr. 
 
 Times, p. 334. And see Grev, Parl. Disraeli, &c., Hans. D. v. 183 pp 
 
 Qovt. p. 121. 488, 874, 904, 1385, 1883, 1904. 
 
 h See Fras. Mag. v. 72, p. 153. J Mr. E. H. Knatchbull-Hugessen, 
 
 1 See illustrative tables in Ed. M.P., in Mac. Mag. v. 27, p 72 
 Rev. v. 106, pp. 273-277, and
 
 16 
 
 GENERAL INTRODUCTION. 
 
 Effect of 
 abolition 
 of nomi- 
 nation 
 boroughs. 
 
 Peculiar 
 excel- 
 lences of 
 our repre- 
 sentative 
 system. 
 
 If, therefore, the few remaining small boroughs are 
 disfranchised, it will become indispensably necessary to 
 find some other mode of entrance into the House of 
 Commons for the great statesmen to whom the admi- 
 nistration of public affairs is or may be entrusted. k 
 
 In 1871, Mr. Henry Fawcett, a thoughtful and in- 
 fluential leader of the Liberal party in the House of 
 Commons, testified that, since the abolition of nomina- 
 tion boroughs, ' important opinions are unrepresented, 
 and considerable sections of the community are virtually 
 disfranchised,' because ' an extended suffrage gives a pre- 
 dominant popular feeling a better chance of asserting 
 itself,' and ' excludes men from the House of Commons 
 who value independence more than parliamentary 
 honours. 1 And in 1877, Mr. Gladstone deplored ' the 
 rapid and constant advance of the money power ' in 
 attracting the favour of constituencies ; and ' the reduc- 
 tion, almost to zero, of the chances of entrance into 
 Parliament for men who have nothing to rely upon but 
 their talent and their character.' 111 
 
 It has been justly observed that ' the history of the 
 world affords, as yet, no example of the permanent suc- 
 cess of parliamentary government with a legislature 
 formed on the strict principles of popular representa- 
 tion.' 11 
 
 ( Parliamentary government is a machine of the most exquisite 
 delicacy.' ' America during the last five years has only repeated to 
 the world the lesson that had already been taught by France, that, if 
 
 k See the protests of Lds. Ellen- 
 borough and Selkirk on the third 
 reading of the Reform Bill (1867), 
 Hans. D. v. 189, p. 953. And see 
 some thoughtful observations on 
 ' the wholesome organic connection 
 between university life and public 
 life,' which, so long as nomination 
 boroughs existed, made it possible 
 for young men of ability and ambi- 
 tion to achieve political distinction 
 in England at a comparatively early 
 
 age, without long purses, or a ' com- 
 plete surrender of intellectual indivi- 
 duality,' in the Memoir of Edward, 
 Ld. Lytton, prefixed to his collected 
 speeches, by his son, v. 1, pp. ix-xii. 
 And see Bagehot's paper on the 
 Reform Act of 1832, in Fort. Rev. 
 v. 20, p. 673. 
 
 1 Fort. Rev. N.S. v. 10, pp. 498, 
 499. 
 
 m 19th Cen. Nov. 1877, p. 555. 
 
 n Grey, Parl. Govt. p. 67.
 
 CHARACTERISTICS OF OUR REPRESENTATIVE SYSTEM. 17 
 
 you will have democracy, you must have something like Caesarism to 
 control it. The feeble and pliable executive of England is wholly 
 unsuitecl to such an electoral body. A government that yields, and 
 must yield, to the slightest wish of the House of Commons, is only 
 possible so long as that House of Commons is the organ of an 
 educated minority. Such an instrument of government has never 
 yet, in the history of the world, been worked by a legislature chosen 
 by the lower class.' 
 
 The House of Commons owes its success as an active Peculiar 
 part of the supreme authority, and its peculiar excel- ^ces of 
 lences, to ' what are regarded as defects and departures ur f epre- 
 
 7 . . . sentative 
 
 from principle in our representative system ;' and ' it is system, 
 chiefly by means of these defects that the ministers of 
 the crown have been enabled to obtain the authority 
 they have exercised in the House of Commons. >p Able 
 to rely upon the support of a certain number of stead- 
 fast adherents, every administration in turn has hitherto 
 possessed, in general, sufficient power to conduct the 
 government of the country consonantly to the best and 
 most enlightened opinions, even though in opposition to 
 popular prejudices, or superficial ideas which might 
 temporarily prevail throughout the kingdom. The 
 policy of an administration charged with the govern- 
 ment of the British empire must indeed, of necessity, be 
 a reflex of the best-informed opinion of the nation. q Control of 
 But this opinion ' is expressed, not by the clamorous opinion. 
 chorus of the multitude, but by the measured voices of 
 all classes, parties, and interests. It is declared by the 
 press, the exchange, the market, the club, and society 
 at large. And it is subject to as many checks and 
 balances as the constitution itself; and represents the 
 national intelligence rather than the popular will.' r And, 
 after all, it should be remembered that while public 
 
 Quar. Rev. v. 119, p. 279. 543 ; May, Const, Hist. v. 1, p. 430. 
 
 P Grey, Parl. Govt. pp. 67, 08. r May, Const, Hist. v. 2, p. 25:3 ; 
 
 And see Ld. Dudley's speecli in see also Park's Dogmas, pp. 88, 97 ; 
 
 Knight's Hist, of Eng. v. 8, p. 282. and Mr. Walter's observation in 
 
 > Macaulay, Hist, Eng. v. 3, p Hans. D. v. 228, p. 497. 
 
 VOL. I. C
 
 18 GENERAL INTRODUCTION. 
 
 opinion, in a free state, must ultimately determine into 
 whose hands authority shall be entrusted, and what 
 shall be the general policy of government, it is chiefly 
 within the walls of Parliament that the contest for power 
 between the rival candidates for office is conducted ; 
 and that one of the most important functions of Parlia- 
 ment is that of being ' an instrument for the instruction 
 of the nation, and for enabling it to arrive at just and 
 wise conclusions on matters affecting its welfare.' 3 
 Creation The custom which has grown up within the present 
 
 opinion, generation of members meeting their constituents during 
 the recess, to address them upon the political topics of 
 the day, and to invite inquiry and discussion upon the 
 course taken by their representatives in Parliament, is 
 ' one of the most powerful and beneficial engines for the 
 creation of a moderate, temperate, tolerant, yet clear 
 and definite public opinion.'* 
 
 ' Public opinion determines, in the last resort, to 
 what hands authority shall be entrusted ; for though 
 the ministers are the servants of the crown, and are 
 appointed by the sovereign, yet as the sovereign must 
 choose ministers who can command the confidence of 
 Parliament, it is practically the people who decide, 
 through their representatives, by whom the powers of 
 government shall be wielded. There is, however, a vast 
 difference in the effect produced by giving to the people, 
 instead of the power of nominating their rulers by direct 
 election, only an indirect control, through their repre- 
 sentatives, over the selection of the ministers by whose 
 advice the powers of the crown are exercised.'" Latterly, 
 however, ministers of the crown have adopted this 
 method of vindicating their conduct and policy, an 
 
 8 Grey, Parl. Govt. pp. 27-37. ' Fort. Rev. v. 4, p. 60. 
 
 And see Hans. 1). v. 185, p. 1905, and u Grey, Parl. Govt. p. 25 ; see also 
 
 v. 23'5, p. IGoO. Also, some weighty Mill 011 Rep. Govt. p. 96; Fort. Rev. 
 
 observations in Bagehot, on the Eng. v. 18. p. 189. 
 Const, pp. 22, 205 ; and Amos, Fifty 
 Years of Eng. Const, p. 464.
 
 EFFECT OF PAELIAMENTARY REFORM. 10 
 
 innovation upon constitutional usage of very question- 
 able propriety/ 
 
 How essential, therefore, is it that Parliament should 
 consist of the most intelligent, educated, and enlightened 
 men that are to be found in the whole community ! 
 
 In order that the ministry may be in a position to impor- 
 devise and recommend to Parliament a policy that shall aTtrons 
 commend itself to the highest intelligence of the country, govem- 
 it is indispensable that they should have sufficient 
 strength in the popular assembly to enable them to 
 withstand the pressure of temporary political excite- 
 ment. Prior to the passing of the first Eeform Bill, 
 there was no impediment of this kind, but thoughtful 
 politicians foresaw, as an inevitable consequence of that 
 measure, that parliamentary government would become 
 more and more difficult and embarrassing. Special Authority 
 attention was bestowed upon this subject by Mr. J. J. crown in 
 Park, who at that period filled the chair of English Parha - 
 
 D ment 
 
 Law and Jurisprudence at King's College, London. In weakened. 
 a course of lectures on the theory and practice of the 
 constitution, delivered before that institution, Mr. Park 
 pointed out with great force and perspicuity the altered 
 Telative position of 'King, Lords, and Commons,' by the 
 establishment of parliamentary government, to which 
 attention has been directed in the preceding pages. 
 And in a petition to the legislature which he drafted 
 when the Reform Bill was under consideration, Pro- 
 fessor Park strongly urged the necessity for making 
 legislative provision to ensure ' a moderate preponde- 
 rance of the influence of the crown in the Houses of 
 Parliament, so as to preserve the government there 
 carried on from factious intrigue, and daily and 
 capricious opposition, and to reserve that opposition 
 for occasions of real misconduct or misjudgment.' w 
 But in 1832 the Eeform Bill became the law of the 
 
 See Hans. D. v. 209, p. 55. 
 
 Park's Lectures on the Dogmas of the Const, p. 147.
 
 20 GENERAL INTRODUCTION. 
 
 The Re- land.* The passing of this measure was of vital neces- 
 LCt ' sity. The unreformed House of Commons had done 
 excellent work in its time. But its members were not 
 adequately impressed with a sense of the growing 
 wants of the nation, and it had failed to legislate for 
 the people after the close of the great French war as 
 their necessities required. A readjustment and enlarge- 
 ment of the constituent body was therefore imperatively 
 demanded/ By the Eeform Act the representative 
 power was taken away from fifty-six boroughs, and 
 reduced in thirty-one others. The representation of no 
 shire was either taken away or reduced. But new 
 members were given to thirty-five counties and to forty- 
 two boroughs. At the same time, the county franchise 
 was extended, and a uniform ten pound household fran- 
 chise substituted for the various borough franchises 
 then in operation. 2 Thus the representation of the 
 people was placed upon a wider basis, by the introduction 
 of the commercial and manufacturing classes which, 
 ever since the peace of 1815, had been growing in 
 wealth and importance to a share of political power. 
 In its immediate results this great measure was just 
 and beneficial in its operation. At the same time, by 
 increasing the weight and influence of the House of 
 Commons in public affairs, while it diminished the 
 means previously at the disposal of the crown for 
 exercising a constitutional control over the proceedings 
 of Parliament, it served to render parliamentary govern- 
 ment a more onerous undertaking. The preservation 
 of the English constitution, in its integrity, and the 
 carrying on of the Queen's Government in connection 
 
 x The special reasons which neces- of property holders in general, over 
 
 sitated the first Reform Act are well the deliberations of the II. of Com. 
 
 stated by Mr. Gladstone, in the 19th and the authority of the executive 
 
 Cen. v. 2, p. 341. See also Grey's government therein. Well. Desp. 3rd 
 
 Corresp. with William IV. v. 2, p. S. v. 8, pp. 135, 337. 
 
 30. And the Duke of AVellington's y See a paper by A. V. Dicey in 
 
 Memorandum on Reform which Fort. Rev. v. 33, N.S, p. 11(5, on' the 
 
 points out the beneficial effects of Reform Act of 1832 and its critics, 
 
 the influence exercised by peers, and * 2 Will. IV. c. 45.
 
 ELECTORAL SUPREMACY TRANSFERRED. 21 
 
 with a reformed House of Commons, has become in- 
 creasingly difficult since the second Reform Act of 1867. form Act 
 This measure has taken the control of the representation Jhe ? con- 
 out of the hands of the upper and middle classes the stitution. 
 propertied classes and conferred it upon the wage- 
 receiving classes, thereby transferring electoral supre- 
 macy from capital to labour ; and by lowering the 
 average intelligence, education, and foresight of the 
 electoral body, it has reduced in equal ratio the average 
 wisdom, capacity, and character of the representatives. a 
 The highest constitutional authorities, not only in 
 England but even in the United States, formerly con- 
 curred in declaring the franchise to be a trust bestowed 
 on the voter, to be exercised for the benefit of the 
 nation, and not a personal right. b Since the basis of 
 representation is no longer a limited constituency acting 
 on behalf of those who were not represented, but has 
 been widened so as in theory, though not yet in 
 practice to include all the householders of the nation, 
 the franchise should rather be regarded as a political 
 privilege, to be exercised for the common good, 
 
 Some, indeed, contend that the progress of educa- 
 tion and general enlightenment would avert many, if the fran- 
 
 
 
 not all, of the evils anticipated from entrusting the 
 masses with political power. But the experience 
 afforded by the working of democratic institutions in 
 Australia,* 1 in America, 6 and in France under the Em- 
 
 a See Greg's ' Rocks Ahead ' in Amos, Fifty Years of the Eng. Const. 
 
 Con. Rev. May, 1874. And an pt>. 33-63. 
 
 article on the dangers of Democracy, d Hans. D. v. 182, pp. 613, 2108; 
 
 in West. Rev. v. 50, p. 390. Law Times, Aug. 10, 1867, p. 233. 
 
 b Compare an article in the North And see deplorable accounts of the 
 
 Am. Rev. v. 101, pp. 111-116, on working of a democratic constitution 
 
 ' The Democratic View of Demo- in Australia, and especially in the 
 
 cracy ' with Russell, Eng. Const, p. Colony of Victoria. West. Rev. v. 
 
 xxxi. ; Tremenheere, The Franchise a 33, p. 1. Dangers of Democracy, Ib, 
 
 Privilege, and not a Right ; Ld. Pal- p. 480. The statements in this Review 
 
 merston on the Ballot, in Hans. D. are supplemented and confirmed by 
 
 v. 180, p. 426. letters in 'The Colonies' newspaper, 
 
 c See Mr. Gladstone, Hans. D. May 13, 1876, p. 131. See also Fort, 
 
 'v. 203, pp. 1030, 1031 ; Mr. Disraeli, Rev. v. 20, N.S. p. 43. 
 
 Ib. v. 208, p. 1113, v. 219, p. 250; e Fertile theory of the constitution
 
 22 GENERAL INTRODUCTION. 
 
 pire, f does not justify this conclusion. On the contrary, 
 we have every reason to fear that a wide extension of 
 the suffrage to a class who are less instructed, and less 
 capable of apprehending political questions, than those 
 who are now enfranchised, must have a downward 
 tendency. Eival parties will bid against each other 
 for the support of this new portion of the national con- 
 stituency ; and in order to obtain it must adopt their 
 views, and pander to their prejudices. Thus, by sure 
 degrees, the interests of the nation will be subjected to 
 the ultimate control of ' its more ignorant, instead of 
 its more educated classes of its lowest instead of its 
 highest intellects.' g The transference of power to a 
 class of men who are incapable of exercising a sound and 
 enlightened judgment upon political questions, who are 
 full of misapprehensions concerning the province and 
 purposes of government, and are ignorant of the causes 
 which determine their own economical condition, must 
 be fraught with the greatest peril to the noble institu- 
 tions of England, which have been the safeguard of 
 liberty, and are the admiration of the world. ' Hardly 
 any other feature of our parliamentary system appears 
 so ominous to a thoughtful observer as the growing 
 exclusion of young men from the House of Commons ; ' 
 ' perverted as the nomination boroughs undoubtedly 
 were to a very large extent, they brought into the 
 House of Commons a far larger proportion of young 
 men of promise and genius than have ever, under any 
 other system, entered its walls.' h 
 
 For a careful statement of the main arguments against any 
 further reform of Parliament in a decidedly democratic direction, 
 
 of the United States, see Dub. Rev. v. f See Ed. Rev. v. 122, p. 272; 
 
 29, N.S. pp. 494-508. For its prac- Fras. Mag. v. 72, p. 158 : Hans. D. 
 
 tice, see Tremenheere's Eng. and Am. v. 182, p. 2110. 
 
 Const, compared ; Grey's Parl. Govt. K See Fras. Mag-, v. 72, p. 158. 
 
 new ed. pp. 155-184; and Jenning's h W. E. II. Lecky : N. Am. Rev. 
 
 Eighty Years of Repub. Govt. in v. 126, pp. 71-76. 
 
 the United States.
 
 PROBABLE EFFECTS OF DEMOCRATIC REFORM. 23 
 
 pointing out the probable effects of certain specific changes, and 
 showing how a deterioration in the House of Commons would neces- 
 sarily re-act upon the national character, see Professor Austin's 
 Plea for the Constitution, London, 1859, pp. 16-42. See also Report 
 of the Lords' Committee, in 1860, upon the probable result of a 
 reduction of the franchise. 1 
 
 But in view of the tendency of recent legislation, we Effects of 
 must anticipate that, ere long, the few remaining small cratic" 
 boroughs will be disfranchised and absorbed into larger reform 
 constituencies. The disastrous consequences of any such authority 
 change may be easily inferred from the explanations 
 already given as to the assistance rendered by the small 
 boroughs to the work of parliamentary government^ 
 It is already but too evident that the weak point in our 
 political system is the feebleness of executive authority. 
 Mr. Pitt foresaw what is now happening when he said, 
 1 the part of our constitution which will first perish is 
 the prerogative of the king, and the authority of the 
 House of Peers ; ' k and Mr. Disraeli has observed, with 
 equal truth, that ' in this age the elements of governing 
 are daily diminishing, the power of governing nations 
 is every day weakening.' 1 Mr. Bagehot, in the intro- 
 duction to the new edition of his work on the ' English 
 Constitution,' published in 1872, admits that he is 'ex- 
 ceedingly afraid of the ignorant multitude of the new 
 constituencies.' As a class, the new voters are as yet 
 unconscious of the extent of their power, and decidedly 
 unfit to exercise it wisely. But their numbers have 
 made them virtually supreme in the country, and unless, 
 as heretofore has been the case, they should defer to 
 the guidance of the aristocratic and moneyed interests, 
 
 ' Mr. Lowe's speech, Hans. D. on the effects of the Reform Bill, 
 
 v. 187, pp. 788-799 ; and Mr. Hans. D. v. 182, p. 1959. 
 Goschen's speech, Hans. D. v. 235, ' Hans. D. v. 170, p. 430. In the 
 
 p. 558, deprecating an extension of debate on the Address in 1852, Mr. 
 
 the county franchise. Disraeli remarked that he thought it 
 
 j See ante, p. 13, Earl Russell in 'one of the great misfortunes of our 
 
 Hans. D. v. 189, p. 445. time, and one most injurious to public 
 
 k Stanhope's Life of Pitt, v. 1, p. liberty, that the power of the Crown 
 
 133. And see Sir R. Peel's remarks had diminished.' Ib. v. 119, p. 138.
 
 24 GENERAL INTRODUCTION. 
 
 the result must be disastrous. Before and even after 
 the Eeform Act of 1832 the prominent leaders in the 
 Commons, whether of the Government or of the Oppo- 
 sition, were principally of the aristocratic class. They 
 are now, and especially since the Eeform Act of 1867, 
 being gradually supplanted by the middle-class element. 
 Wealth, not birth, is now the prevailing influence in 
 the Commons, whereby the aristocratic element, and 
 likewise the political influence of the House of Lords, 
 are proportion ably weakened. ' The full effects of the 
 last extension of the franchise,' says a writer in the 
 'Nineteenth Century,' 1 " 'have not yet had time to 
 declare themselves, but it is surely impossible to main- 
 tain that the experience of the past twelve years with 
 its revelations of popular fickleness and popular ex- 
 citability, of decline in the authority and repute of 
 Parliament, of platform dictation, of ministerial policy, 
 and of ministerial gropings for the opinion of the 
 platform has not confirmed the gloomy forebodings ' 
 of those who predicted disastrous consequences from 
 this measure. Anticipating, therefore, that a further 
 reform of Parliament will inevitably lead to further 
 democratic encroachment, it should be the endeavour 
 of practical statesmen to devise some plan to strengthen 
 the authority of the ministers of the crown in Parlia- 
 ment pari passu with the concession of a reformed and 
 Necessity extended franchise. But such an attempt, to be suc- 
 for con- cessful, must be urged upon proper grounds. It should 
 
 serving ... 
 
 themon- distinctly claim for the monarchical and aristocratic 
 andarfs- elements in our constitution as their right, that they 
 tocratic should be adequately represented in that branch of 
 
 cl6TH6nts 
 
 incur the legislature which has now become the source and 
 
 tSm" centre of political power. No considerations of mere 
 
 expediency would warrant the recognition of such a 
 
 demand. No attempt to increase the authority of the 
 
 m V. 8, p. 643.
 
 LANDED INTEREST NO LONGEE SUPREME. 25 
 
 crown in the House of Commons merely because it was 
 abstractedly desirable, would be likely to succeed. But 
 if it could be shown that unless we are willing to 
 admit the right of the crown, and of the landed gentry, 
 to a proportionate influence in the councils of the 
 reformed popular assembly we must be prepared to 
 acquiesce in the curtailment of their just share in the 
 control of public affairs, in the overthrow of the prin- 
 ciples of English constitutional monarchy, and in the 
 virtual establishment of a democratic form of govern- 
 ment, the bulk of the nation would, it may be hoped, 
 be ready to acknowledge the justice of such a concession, 
 and to discern in it, moreover, a reasonable solution of 
 a great political problem. 11 
 
 In 1873, Mr. Disraeli, adverting to the great questions which 
 have been disposed of in our day, pointed out that other questions of 
 equal, if not greater, importance must soon engage public attention, 
 and especially ' the attributes of a constitutional monarchy ; whether 
 the aristocratic principle should be recognised in our constitution, 
 and if so, in what form ; and whether the Commons of England 
 shall remain an estate of the realm, numerous, but privileged and 
 qualified, or whether they should degenerate into an indiscriminate 
 multitude.' 
 
 Thus far, we have seen, the landed proprietors of Represen 
 
 England, the natural guardians of law and order, have 
 
 no cause to complain of being inadequately represented interest. 
 in the House of Commons. It is true that, since the 
 Reform Bill of 1832, the landed interest is no longer 
 supreme ; and that the commercial and manufacturing 
 interests have acquired a share of power, to which, by 
 their growth and development, they had become justly 
 entitled. But although, by this great measure, the 
 House of Commons became a truer representation of 
 the people, the groundwork of our electoral system was 
 
 n See Hans. I), v. 185, pp. 230- Lessons of the War ' in the Qunr. 
 232. And an article by the Marquis Eev. v. 130, p. 256. 
 of Salisbury C?^ ou the ' Political Black. Mag. v. 118, p. 242.
 
 26 
 
 GENERAL INTRODUCTION. 
 
 Statistics 
 of repre- 
 sentation. 
 
 Earl 
 Grey's 
 sugges- 
 tions on 
 reform. 
 
 not changed. Even since the later Eeform Act of 1867 
 property has not wholly ceased to be regarded as the 
 rightful basis of representation, although, in the changes 
 of the franchise, effected since 1831, the tendency has 
 been increasingly to regard the claims of occupancy 
 rather than that of ownership. But should ever the 
 theory of representation according to population find 
 favour and acceptance, the influence of the aristocracy 
 in the Commons' House of Parliament will be materially 
 diminished, if not altogether annihilated. 
 
 In a paper read by Professor Leone Levi, before the British 
 Association, in September 1865, on the Statistics of Representation, 
 it is computed that if representation in England were based upon 
 population, 'for every 100 votes there should be given 4 to the 
 upper, 32 to the middle, and 64 to the working classes. If, on the 
 other hand, it were in proportion to the amount of taxes paid by 
 each, of every 100 votes 83 should be given to the upper classes, 
 13 to the middle, and 4 to the working classes.' This will afford 
 some idea of the vast social revolution which would be effected by 
 the introduction of representation according to population into the 
 electoral system of England. 
 
 This contingency, indeed, has not yet arrived ; but the 
 danger is so imminent, and the practical difficulties of 
 government are so increasingly apparent, that our states- 
 men are becoming impressed with the necessity for 
 strengthening the authority of the crown in Parliament, 
 as well as for improving the machinery of representation, 
 in connection with any further extension of Reform. 
 
 Various suggestions to this end have been offered 
 by political thinkers to which it may be useful to direct 
 attention. Thus, Earl Grey, in a revised edition of his 
 able essay on ' Parliamentary Government,' has urged 
 that in connection with any further measure of parlia- 
 mentary reform provision should be made, 1. For the 
 representation of minorities ; 2. For the apportionment 
 of a certain number of seats in the House of Commons 
 to members representing universities, the learned pro- 
 fessions, and the principal industries and trades; 3. For
 
 EARL GREY ON PARLIAMENTARY GOVERNMENT. 27 
 
 the election, by the House itself, of from twelve to 
 fifteen life members, to be chosen by a ' cumulative 
 vote,' in batches of three at a time, from amongst the 
 leading men of different political parties. 
 
 By a ' cumulative vote ' is meant the principle of giving to every 
 elector as many votes as there are members to be chosen by the con- 
 stituent body, with the option of giving all his votes to a single 
 candidate, or of dividing them amongst the several candidates pro- 
 posed. By this process minorities would have a fair opportunity of 
 ensuring the election of their favourite candidates. This mode of 
 voting was approved by Mr. J. Stuart Mill.P It has also obtained 
 the qualified support of Earl Russell.i 
 
 4. For the election, by the House, at the commence- 
 ment of every Parliament, and for the duration of the 
 Parliament, of a limited number of persons, to be pro- 
 posed for membership in a list which should be framed 
 and submitted to the House by the existing administra- 
 tion. This would afford an opportunity for the intro- 
 duction into political life of young men of talent, who 
 could be trained for the future service of the state ; it 
 would provide seats for such holders of political offices 
 as were required to be present in the House of Commons, 
 but could not otherwise find entrance therein ; and it 
 would confer upon the ministry the inestimable benefit 
 of a compact body of staunch supporters, who, while 
 they contributed to uphold the authority of the crown, 
 were themselves approved of by the suffrages of the 
 House of Commons. The selection of this class of 
 
 p See his Rep. Govt. p. 141. 1299. And it has been proposed to 
 q Eng. Const. Introd. p. 51. See extend it to Municipal Elections, Ib. 
 Grey's Parl. Govt. p. 203. And it v. 217, p. 482 ; v. 225, p. 1425. 
 has been successfully applied to the Rep. Com e . H. of Com. on Local 
 School Boards in England and Wales, Govt. (Ireland), 1876, Index, p. 439. 
 chosen under the Elementary Educa- And in regard to Plural voting at 
 tion Act, 1 870. See Hans. D. v. 207, Municipal Elections, see Ib. p. 484. 
 pp. 1525-1538. See Statistical Re- But the principle itself is still con- 
 turns as to the Cumulative Vote at eidered as open to grave objections ; 
 these Elections : Com. Pap, 1877, v. see Duke of Argyll, Ib. v. 229, p_ . 
 67, p. 571. And to School Boards 192. For other instances of its appli- 
 in Scotland by Act 35 and 36 Vic. cation, see Law Mag. N.S. (1872), v. 
 c. 62, sect. 12; Hans. D. v. 211, p. 1, p. 206.
 
 GENERAL INTRODUCTION. 
 
 Objec- 
 tions to 
 Earl 
 Grey's 
 
 members being made by lists, a majority of the House, 
 acting in concert, would have the power of naming the 
 whole ; and the lists being presented for the sanction of 
 the House by ministers, the agreement thereto would 
 be a question of confidence. Finally, his lordship pro- 
 poses that members of the House accepting parliament- 
 ary offices should be relieved from the necessity of being 
 re-elected by their respective constituencies/ 
 
 The acknowledged reputation of Earl Grey as a 
 political philosopher, and his practical experience in 
 proposal? administration, entitle these suggestions to a respectful 
 hearing. It is nevertheless worthy of remark, that 
 other men, of equal consideration, have differed from 
 him in regard to certain portions of his scheme. Thus, 
 Professor Austin strenuously denounces the introduction 
 of an electoral qualification consisting in the mere pos- 
 session of intelligence and knowledge, apart from pro- 
 perty. 8 Earl Eussell contends that a graduated franchise, 
 as a means of 'averting the dangers of universal suffrage, 
 and of unlimited democracv,' would be an ' invidious ' 
 
 / 7 
 
 novelty/ And a writer in the ' Saturday Eeview ' pro- 
 tests against the ' elaborate complications of electoral 
 machinery which are recommended by Lord Grey and 
 Mr. Hare, n in order to afford artificial protection to the 
 minority, as being fit only to serve as intellectual amuse- 
 
 T Grey, Parl. Govt. pp. 204-240. 
 For a careful review of the literature 
 of this subject, see an article on The 
 Machinery of Politics and Propor- 
 tional Representation, in the Am. L. 
 Rev. v. 6, p. 255. It gives the 
 origin and meaning of ' Gerryman- 
 dering.' To the same effect, see Mr. 
 H. R. Droop's paper on the various 
 methods of Electing Representatives, 
 read before the Statistical Society on 
 12th April, 1*81, with the discussion 
 thereon; Statis. Soc. Jour. v. 44, 
 
 Bp. 141-202. And a debate in the 
 ew Zealand II. of Rep. July 6, 
 1881, in favour of the application of 
 * Hare's System ' to representation in 
 
 both Houses. The motion did not 
 pass. Mr. L. Courtney's paper in 
 19th Cen. v. 6, p. 141. Amos, Fifty 
 Years of the Eng. Const, pp. 54-64. 
 And Mr. Buckalew's Rep. of Sel. 
 Com e . to U. S. Senate in 18C8-9, 
 No. 271. 
 
 5 Plea for the Const, pp. 21, 22. 
 And see some pithy remarks to the 
 same effect in Henry Drummond's 
 Letter to Mr. Bright (London, 1858), 
 p. 35. 
 
 * On the Ensr. Govt. new ed. p. li. 
 
 n The Election of Representatives, 
 by Thos. Hare, 4th ed. London, 
 1873; and Hare's paper in Fort. 
 Rev. v. 23, p. 75.
 
 REPRESENTATION BY MINORITIES. 29 
 
 ments ; ' declaring with great justice that ' the minority 
 is more or less effectually protected at present by the 
 limitations of the franchise, by the dissimilarity of diffe- 
 rent constituencies, and by their great inequality in 
 numbers. ' v This, indeed, is undeniable, so long as the 
 interests of the minority continue to be secured indirectly 
 and unconsciously by the number and variety of the 
 constituencies into which the electoral body is divided ; 
 but the extreme liberal party contended for a redistri- 
 bution of electoral power, which they claimed would 
 secure a more complete representation of the people. 
 
 The representation of minorities was suggested by Earl Grey in 
 a report from a Committee of the Privy Council, in 1850, on the 
 Constitution of the Cape of Good Hope, as proper to be applied 
 to the election of legislative councillors in that colony. w A similar 
 principle was introduced by Earl Russell into the Reform Bill 
 which he laid before the House of Commons in 1854, x and approved 
 by Sir G. C. Lewis, y 
 
 As at first introduced, this Bill contained certain checks and Reform 
 limitations, which, in the progress of the measure through the House ' 
 of Commons, were either modified or done away with. The principal 
 provision of this kind was to allow a dual vote, in boroughs, in 
 
 r Saturday Review, February 25, question was disposed of by the Court 
 
 1865 The objections to the principle of Common Pleas on Nov. 7 and 9, 
 
 of the representation of minorities are 18G8, who decided on appeal from a 
 
 very admirably put in a paper by Mr. decision of a revising barrister that 
 
 J. Boyd Kinnear, in the Fort. Rev. women were legally incapacitated 
 
 v. 4, p. 40, &c. And see arguments from voting under the said Act. L. 
 
 against the system proposed, by Mr. T. Rep. N.S. v. 19, p. 534. See 
 
 Hare and Mr. Mill, of ' plurality of debates on Bills to remove the poli- 
 
 votes,' and, ' personal representation,' tical disabilities of women, Hans. D. 
 
 in Hearn, Govt. of Eng. c. xix. and v. 201, pp. 194, 607 ; v. 206, p. 68; 
 
 in the Ed. Rev. v. 122, p. 277. On v. 211, p. 1 ; v. 223, p. 418 ; v. 228, 
 
 the other hand, for arguments in p. 1658 ; v. 234, p. 1362. 
 
 favour of Mr. Hare's scheme of ' per- w Grey's Col. Pol. v. 2, p. 456. 
 
 sonal representation ' see Mr. Mill's x Hans. D. v. 130, p. 498. 
 
 speech in Hans. 1). v. 187, p. 1343. y Ed. Rev. v. 100, p. 226. See 
 
 See also his ingenious speech in fa- Lewis's Letters, p. 283 ; also Tremen- 
 
 vour of conferring the franchise upon heere's Prin. of Govt. [18821. For 
 
 women, Ib. p. 817. Though this debates on motions for the partial 
 
 proposition was rejected by the introduction of the principle of the 
 
 House, it has been argued that by a representation of minorities, see 
 
 legal construction of the new Act Hans. D. v. 188, pp. 1037-1068; v. 
 
 females are entitled to the franchise. 189, pp. 433, 535, 1125; v. 192, p. 
 
 See Anstey's Notes on the Reform 900 ; v. 212, p. 890. And see Fras. 
 
 Act of 1867, pp. 74-104. But the Mag. v. 72, p. 155.
 
 30 GENERAL INTRODUCTION. 
 
 certain cases. It has been computed that, through the agency of 
 the dual vote, some 300,000 new electors of the middle and upper 
 classes would have been raised up to counterbalance the votes of 
 some 100,000 working men already on the register, and of another 
 Eeform 100,000 who would have been enfranchised by the Bill as it stood 
 Bill, 1867. a t first. Other checks were established by the permission to use 
 voting papers ; by requiring a two years' residence to give a vote 
 in boroughs, because they did not pay their own rates ; and by the 
 provision refusing the franchise to compound householders. But all 
 these limitations were swept away, and, by the abolition of ' com- 
 pound householders,' an immense addition was made to the con- 
 stituent body. 2 But, by returns laid before Parliament in 1869, 
 it appears that the constituent body in England and Wales was 
 doubled by the new Reform Act. In counties the electors were 
 increased from 542,633 to 791,916 ; and in boroughs, from 514,026 
 to l,220,715. a In round numbers, a total of 2,000,000 voters, which, 
 deducting 10 per cent, for plural votes and other casualties, leaves a 
 constituency of 1,800,000 to a total population of 22,700,000, or, to 
 an adult male population, by the census of 1870, in England and 
 Wales, of 5,753,000. b Earl Grey considered that it would be the 
 tendency of the new Reform Act ' to substitute, for the influence of 
 old connection and the territorial power of great families, the bare 
 influence of money in its lowest and most degrading form.' This 
 influence, he thought (as was the other) would be exercised through 
 the small boroughs ; and therefore he advocated ' the plan of uniting 
 these boroughs in groups for the purpose of forming constituencies 
 sufficiently numerous to give a hope of their independence.' This, he 
 contended, would be far better than their total disfranchisement, as 
 ' it is desirable to keep this element of small towns in the representa- 
 tion.' c But the system of grouping boroughs, though it has worked 
 successfully in Scotland and Wales, has not found favour in England. 
 It was one of the features of the Reform Bill of 1866 which inspired 
 general dissatisfaction,* 1 and the resolution in favour of it was rejected 
 by the House of Lords. 6 
 
 1 Ed, Rev. v. 126, pp. 548, 551, (in Bradley v. Baylis, and two other 
 
 and 553. cases, on appeal from decisions of 
 
 a L.T. Oct. 16, 1869, p. 421. And revising barristers), the number of 
 
 see Mr. C. Anstey's paper in ' Recess electors in borough constituencies 
 
 Studies,' p. 351. has been largely increased, the fran- 
 
 b Mr. Disraeli, Hans. D. v. 207, p. chise being distinctly conferred on 
 
 852; Com. Pap. 1873, v. 53. A all separate tenements in the same 
 
 later return gives the registered house. L. T. v. 72, pp. 75. 70. But, 
 
 electors of England and AVales at on appeal, two out of these three 
 
 2,377,761 ; of Ireland, at 231,265; decisions were reversed. Ib. p. 129. 
 
 of Scotland, at 302,313. Com. Pap. c Hans. D. v. 189, p. 531. 
 
 1877, v. 68. By decisions of Judges d Ib. p. 640-575. 
 
 Denman and Bowen, in Nov. 1881 c Ib. p. 592.
 
 OBJECTIONS TO EARL GEEY S SCHEME. 31 
 
 The second part of the new Reform Act provided for the re- 
 distribution of seats. It empowered Manchester, Liverpool, Birming- 
 ham, and Leeds to return three members each, which, it was supposed, 
 would usually confer a seat upon the party in the minority in these 
 places ; no boroughs were disfranchised by this Act, but thirty-eight 
 boroughs, having a population of less than 10,000 each, were to 
 return one member only. Nine new boroughs, to return one member 
 each, were enfranchised ; also the borough of Chelsea to return two 
 members. Merthyr Tydvil and Salford to return each two members; 
 and the Tower Hamlets to be divided into two divisions, and each to 
 return two members. Thirteen counties to be subdivided, with two 
 members for each division ; and the University of London to be 
 empowered to return one member. But the anomalies of the present 
 system under which a minority of the whole population of the 
 Kingdom, dwelling in represented towns, returns to Parliament a far 
 greater number of members than the majority, who reside in counties, 
 are clearly shown in a paper by Mr. E. H. Knatchbull-Hugessen, in 
 ' Mac. Mag.' Nov. 1872. See also debate in the House of Commons, 
 on May 6, 1873, on Sir C. W. Dilke's motion, to resolve, ' That it is 
 desirable to redress the inequalities of the distribution of electoral 
 power in England, Scotland, and Ireland.' And on Mr. Trevelyan's 
 Bills to introduce household franchise in English counties/ And on 
 Sir C. W. Dilke's motion, on July 15, 1875, ' That it is the duty of the 
 Government to cause inquiry to be made into the various methods of 
 bringing about a juster distribution of political power, with a view of 
 securing a more complete representation, of the people.' 
 
 But these objections are only aimed at those recom- His plan 
 meiidations of Earl Grey which are designed to create creasing 
 a counterpoise to the diminution of aristocratic or terri- fche 
 torial influence in the House of Commons, as a result of of minis- 
 changes effected in the representation by further mea- ^riia 1 - 
 sures of parliamentary reform ; they do not at all affect ment. 
 the integrity of his plan for obtaining a moderate in- 
 crease of the power of ministers in Parliament, which 
 has already become ' a matter of urgent necessity.' 
 
 In the new edition of his Essay, his lordship has pointed out 
 with great force and clearness the growing evils arising from the 
 want of sufficient power in the House of Commons on the part of 
 
 { On July 23, 1873, on May 30, to treble the number of voters in the 
 
 1876, on June 29, 1877, and July 7, counties. Hans. D. v. 229, p. 1408 ; 
 
 1875. It has been calculated that v. 235, p. 524. 
 the effect of this measure would be
 
 32 GENERAL INTRODUCTION. 
 
 ministers, e We are here reminded of an anecdote told by Lord 
 Brougham, in the House of Lords, in 1847. In conversation with 
 Bishop Burnet, King William III. once remarked that he had no 
 very clear opinion whether a monarchical or a republican form of 
 government was the best, for he saw many reasons in favour of both. 
 ' But,' said his Majesty, ' I am quite sure which of all governments 
 is the worst, and that is a monarchy without due power vested 
 in the executive ; anything is better than that.' ' So say I,' added 
 Lord Brougham, ' of an impotent ministry ; give me any ministry 
 rather than that.' h 
 
 ' Our constitution brings the whole conduct of the 
 government under the virtual control of the House of 
 Commons ; unless therefore ministers, as its leaders, are 
 enabled to exercise in that chamber an authority that 
 cannot easily be shaken, and to command a majority on 
 all ordinary occasions, it is obvious that the policy of 
 the government must fall under the direction of a fluc- 
 tuating majority of the House ; and their measures will 
 necessarily be ruled by popular passion and feeling, 
 instead of by reason and prudence.' For the require- 
 ments of government continually demand the aid of 
 legislation ; whether for the grant of money, or for the 
 amelioration of existing institutions. A strong govern- 
 ment, enjoying the confidence of Parliament, is able to 
 rely upon its concurrence in all acts which may be 
 fcviis deemed advisable for the public good. But if those 
 from a ng who have been entrusted with the administration of 
 ministry public affairs are unable to control the legislation of 
 Parliament, so as to bring it into unison with their own 
 policy, good and stable government will be impossible. 
 In such a case, ' the law-makers and tax-imposers are 
 sure to quarrel with the tax requirers.' The executive 
 is crippled by not getting the laws it needs, or the money 
 it wants ; and becomes unfit for its name, since it can- 
 not execute what it may decide upon : while the legis- 
 lature becomes demoralised, by attempting to assume 
 
 Grey's Parl. Govt. pp. 00-104, 220-220, 232. 
 " Hans. D. v. 101, p. 814.
 
 NECESSITY OF STRENGTHENING THE EXECUTIVE. 33 
 
 the reins of government without being itself responsible 
 for the consequences of its own acts, and by venturing 
 to intrude upon matters which are beyond its province 
 to determine. 1 But where the balance of power between 
 the component parts of the supreme authority is duly 
 preserved, these evils will have no existence. Parlia- Benefits 
 ment, on the one hand, will be able to fulfil its proper admits- e 
 function, of exercising a vigilant control over every act tration - 
 of administration, and being prompt to interpose upon 
 every occasion of abuse or misgovernment ; and, on the 
 other hand, the responsible servants of the crown, while 
 always dependent upon an enlightened public opinion 
 for the approval of their conduct, and subject to dis- 
 missal if they fail to secure the confidence of Parliament 
 in their general policy, will nevertheless, so long as they 
 retain that confidence, be in possession of ' sufficient 
 power to act according to their own deliberate judgment, 
 instead of being compelled to follow the shifting currents 
 of the popular will.' j 
 
 This has been the practical working of parlia- 
 mentary government in England, at least until the 
 present day, when we are beginning to experience the 
 injurious effects of weak administrations. A result so 
 excellent, however, has not been attained without con- 
 siderable alloy. In the gradual development of the 
 constitution, the separate rights of other estates of 
 the realm, which have become absorbed into the House 
 of Commons, have only been preserved by means of 
 anomalous and corrupt practices and departures from 
 principle in our representative system, which no one 
 would willingly see perpetuated . k It is to be hoped 
 that the wisdom of Parliament may be able to devise 
 some method of preserving the just weight and influence 
 
 1 See Bagehot on the Eng. Const. 182, pp. 158, 2108. 
 pp. 20, 172. For examples of the J Grey, Parl. Govt. pp. 236, 238. 
 increasing weakness of the executive k See Park's Dogmas, p. 59. 
 in the II. of Com. sea Hans. D. v. 
 
 VOL. I. D
 
 34 GENERAL INTRODUCTION. 
 
 of the crown in a reformed legislature which would be 
 free from objection in principle, and whereby the full 
 benefits of an equitable parliamentary government could 
 be secured with the sanction and authority of law. 
 Ministers Under the altered circumstances herein contem 
 
 in the 
 
 House of plated, it is probable that as a general rule the sove- 
 reign would select her leading ministers in the House 
 of Commons either from the life members, or from 
 amongst the members chosen by the House at the 
 commencement of every Parliament. This would be 
 very preferable to the plan that has been suggested by 
 
 Ought not some writers, of authorising ministers, who are required 
 
 to sit ex- , , . ,. . , TT .. 
 
 ojKcio. by the public service to have seats in the House ot 
 Commons, to sit in that assembly by virtue of their 
 offices. 1 Such an arrangement, however convenient, 
 would be a great innovation upon the acknowledged 
 principles of the constitution, and might occasion 
 very serious consequences. By ceasing to combine 
 the character of member of Parliament with that of 
 servant of the crown, and holding their seats in the 
 latter capacity only, much misapprehension as to the 
 true position of ministers would naturally be engendered. 
 It might appear as though the crown, whom alone they 
 professed to represent, was a power apart from, if not 
 antagonistic to the legislature. The prevalence of any 
 such idea would materially jeopardise the harmonious 
 action of the three branches of Parliament. 111 
 
 It now only remains to point out the position occu- 
 pied by the Houses of Lords and Commons respectively 
 in the English political system. 
 
 of fl o e n e ^ e R ev l ut i n f 1688 placed the control of the 
 
 families, government of England in the hands of the great 
 
 county families ; and from that period until 1832 the 
 
 1 See Greg's Pol. Essays, v. 2, first Earl Grey and of Ld. Althorp 
 
 p. 582. to the same efr'ect, Hans. D. v. 147, 
 
 m See Austin's Plea for the Const, p. 903 ; and Baprehot, Eng. Const. 
 
 p. 28, n ; also the opinions of the p. 224.
 
 POWER OF PEERAGE PRIOR TO THE REFORM BILL. 35 
 
 power of the peerage was immense. But that Revo- 
 lution was mainly aristocratic. From the time of the 
 Revolution to the reign of George III., the Whig party 
 almost always preponderated in the House of Lords, 
 and included the families of the greatest influence and 
 dignity. Liberal tendencies, in fact, have always been Liberal 
 a distinguishing mark of the English nobility from the Jesof' 
 days of King John, when they obtained Magna Charta nobilit y- 
 for the people ; and their interests, as a class, have ever 
 since been indissolubly interwoven with those of the 
 people. n Nevertheless, the House of Lords, as a part 
 of the nation, owing their position to their individual 
 territorial possessions, and to the stable principle of here- 
 ditary descent, continues to exercise important political 
 functions, which the independence and security of their 
 position peculiarly qualify them to discharge. They 
 embody, in a practical form, the Conservative element 
 as an important and necessary counterpoise to the 
 progressive element, which is the distinctive quality of 
 the House of Commons. This power was exercised, 
 however, not so much in their own Chamber as indi- 
 rectly towards the sovereign, and over the county and 
 borough elections. Their influence at court, and their 
 authority as landed proprietors in the constituencies, 
 generally made them virtually supreme over every suc- 
 cessive administration. Consequently, the fate of a 
 cabinet was virtually determined by the relative 
 strength of the rival factions into which the leading 
 families were divided. But the Reform Bill of 1832 
 deprived them of the greater portion of this power, and 
 transferred it to the middle class. The landed interest 
 is still, indeed, very influential in the House of Com- 
 mons, but it is no longer dominant, as heretofore. The 
 commercial and manufacturing interests, which have 
 
 n W. E. H. Leckv, in N. Am. See a paper by Bonamy Price 
 Re,v. v. 126, p. 02. in Con. Rev. v. 38, p. 942. 
 
 n 2
 
 36 GENERAL INTRODUCTION. 
 
 attained to such enormous magnitude within the 
 present century, now possess a great and increasing 
 share of political power. 
 
 Adminis- It has been said that ' the power of the peerage is 
 
 capacity greater in every part of England than in their own 
 of the House. ' p ' Its members hold innumerable elective 
 offices of more or less importance, conferred upon them 
 because the community at large, when it exercises its 
 own unbiassed discretion, rightly or wrongly prefers 
 peers and men of large landed estate to all competitors 
 of pretensions otherwise equal. ' q Thus our aristocracy 
 have shewn a special capacity for administration as 
 governors of colonies and as viceroys of India and of 
 Ireland. And at home they naturally take the lead in 
 the management of local affairs. In Parliament, how- 
 ever, J,he Lords have always reflected, with more or less 
 distinctness, the prevailing characteristics of- the age 
 in which they lived. In addition to their legitimate 
 weight and influence as representing the great bulk of 
 the landed property of the kingdom, they have generally 
 been conspicuous for the amount of legal ability, poli- 
 tical knowledge, and administrative experience to be 
 found amongst them. Moreover, as a class, they are 
 eminently distinguished for their high personal qualities. 
 For cultivation, refinement, moral worth, active and 
 intelligent interest in the welfare of those dependent 
 upon them, and for general sympathy in the progress 
 of the whole community, the aristocracy of England 
 will favourably compare with that of every other nation 
 in Christendom/ As an independent branch of the 
 legislature, they are therefore entitled to exercise a 
 very substantial power, which should serve as a posi- 
 
 P Mr. Disraeli, Hans. D. v. 185, p. v. 11, p. 4. 
 
 232; Mr. Gladstone, 19th Cen. v. 2, ' See Hans. D. v. 143, p. 609; v. 
 
 p. 547. 159, p. 1571 ; also 76. v. 162, p. 2137 ; 
 
 J See Sat. Rev. Oct. 7, 1871, p. and Lord Carnarvon's speech, Ib. v. 
 
 453 ; also, Ld. Iloughton'e paper, on 196, p. 1179. 
 the House of Lords, in Fort. Rev.
 
 INFLUENCE OF THE HOUSE OF LORDS. 37 
 
 five check upon the Lower House when it may have 
 been induced to act with unwise precipitation. 9 
 
 But the growing political importance of the House Modified 
 of Commons, since the establishment of parliamentary between* 
 government, has materially modified the relations be- ? th , 
 
 * . Chambers. 
 
 tween the two Chambers, and lessened the authority 
 which theoretically appertains to the House of Lords 
 as a co-ordinate and co-equal branch of the imperial 
 legislature. Though equally free with the Commons 
 to express their opinion upon all acts of administration, 
 and their approval or otherwise of the general conduct 
 or policy of the cabinet, they are unable, by their vote, 
 to support or overthrow a ministry against the will of 
 the Lower House. ' To place upon the House of Lords 
 the weight and responsibility of controlling the executive 
 government of this country, would soon put that House 
 in a position which they have never hitherto occupied, 
 and which they could not safely maintain.' 1 Never- 
 theless, the censure of the policy of a government by 
 the House of Lords is ' a matter of very great import- 
 ance,' and can only be counterbalanced by the formal 
 approval of the same policy by the House of Commons. 11 
 It is true that the Grey ministry resigned, in 1832, in 
 consequence of the rejection of the Reform Bill by the 
 House of Lords ; but this was an instance of parlia- 
 mentary obstruction to a measure of vital importance, 
 which the administration had pledged themselves to 
 carry through the legislature. After an ineffectual 
 attempt to form a new ministry, the former cabinet was 
 
 s See Grey, Parl. Govt. p. 64 ; and Parl. 1838, pp. 2062, i>104, 2114, 
 
 Corresp. Will. IV. with Earl Grey, 2121; 1839, pp. 1705, 1737, 1963; 
 
 v. 2, pp. 98, 109, 118. Hans. D. (Lords) August 24, 1841 ; 
 
 * Lord John Russell, in Hans. D. Hans. D. v. 112, pp. 105, 694, 721; 
 
 v. 112, p. 105. censure of foreign policy of ministers 
 
 u Ld. John Russell in Hans. D. by the Lords, on July 8, 1864; a 
 
 v. 112, p. 105 ; F.arl Derby, Ib. v. similar vote of censure proposed in 
 
 206, p. 1856 ; May, Const. Hist. v. the Commons on July 4, negatived 
 
 1, p. 467. See precedents: Mir. July 8, 1864.
 
 38 GENERAL INTRODUCTION. 
 
 reinstated in office, and succeeded in obtaining the con- 
 sent of the Lords to their measure of reform/ 
 The Lords In one important particular the House of Lords differs, 
 sectional and has always differed, from the House of Commons, 
 interest. j> ne representation of sectional interests has never found 
 a place therein. ' It has never had a railway interest, or 
 a public-house interest, or an interest adverse to the 
 reformation of law, or indeed any of that importunate 
 advocacy which disturbs the due course of political 
 action, and perverts the instrument of legislation to 
 private and particular advantage. On the contrary, 
 it has acted as a sharp corrective to some of the risks 
 which the public good runs when parliamentary 
 measures are manipulated by the representatives of 
 sectional interests. ' w Moreover, the members of the 
 House of Lords, from their independent position as 
 hereditary legislators, are comparatively free from the 
 bondage of party influences an inestimable advantage 
 in lessening the evils unavoidably connected with party 
 government in our political system. 
 
 The Lords I n the fulfilment of their legislative functions, the 
 initiate Lords, from the commencement of the present century, 
 tion Sla have been becoming less and less a House for the 
 initiation of great public measures. Bills which concern 
 the improvement of the law, and certain private Bills 
 of a semi-judicial character, appropriately commence 
 with the Lords ; and in 1859 an arrangement was made 
 whereby a fair proportion of ordinary private Bills 
 should be first introduced in the Upper House, with 
 a view to facilitate the despatch of private business. 3 " 
 But as a general rule, the Commons are not disposed 
 to receive very favourably Bills which do not origi- 
 nate with themselves ; and every Ministry has felt the 
 
 v See post, p. 190. tors in Railway Companies. Fin. 
 
 w Thorold Rogers, Coll. of Lords] Reform Al. 1876, p. 129. 
 
 Protests, v. l,p. 27. But there are " May, Parl. Prac. ed. 1883, p. 
 
 about forty-six members of the House 759 ; Com. Jour. Feb. 7, 1859. 
 of Lords, who are Chairmen or Direc-
 
 INFLUENCE OF THE HOUSE OF LOKDS. 39 
 
 advantage of having the support of the House of 
 Commons in bringing a measure before the Lords. 7 
 The province of the House of Lords appears more 
 properly to be that of controlling, revising, and amend- 
 ing the projects of legislation which emanate from the 
 House of Commons. 2 ' To balance and regulate the 
 political movement of the nation ; ... to test, by 
 temporary resistance, the sincerity and strength of the 
 will which demands a change ; to make legislation take 
 its stand on the good sense and ultimate judgment 
 instead of the momentary desire of the country ; and 
 to give continuity and stability to the general policy of 
 the nation. ' a In the discharge of this onerous and 
 important duty the House of Lords within the present 
 generation have asserted their independence, and vindi- 
 cated their responsible position as a branch of the legis- 
 lature upon several notable occasions. Witness their important 
 successful defence, in 1835, of the revenues of the Irish ^House 
 Church, their valuable amendments to the Municipal o Lords. 
 Corporations Bill, their protracted resistance to the 
 introduction of Jews into Parliament, their vigorous 
 opposition to the repeal of the Paper Duty, b their stead- 
 fast maintenance of the principle of Church Kates, and 
 their refusal to concur in legalizing marriage with a. 
 deceased wife's sister. A second Chamber, independent, 
 active, vigilant, and powerful, is, indeed, of vital neces- 
 sity to a well-regulated state. And it is generally 
 
 y Duke of Argyll, Hans. D. v. legislative Chambers will be found in 
 
 198, p. 1475. Creasy f s Eng. Const, p. 198 ; Mill, 
 
 z See Lords' Debates in Hans. Rep. Govt. c. xiii. ; Baron Stoek- 
 
 v. 119, pp. 246, 317; Ib. v. 98, p. mar's Memoirs, v. 2, c. xxviii.; W. 
 
 335 ; v. 159, p. 2130 ; v. 161, p. E. H. Lecky, in N. Am. Rev. v. 126, 
 
 182 ; v. 203, p. 234. And see Bage- p. 71 ; in Hearn, Govt. of Eng. pp. 
 
 hot, Eng. Const, pp. 130, 135. 540-545 ; Helps, Thoughts on Govt. 
 
 * Bonamy Price, Cont. Rev. v. 38, c. iv. ; Fort. Rev. v. 20, N.S. p. 46. 
 
 p. 947. See also the debates in Parliament 
 
 b See May, Const. Hist. v. 1, p. on the Australian Government Bill, 
 264 ; Hearn, Govt. of Eng. p. 167 ; in 1850; and in the House of Corn- 
 Hans. D. v. 197, p. 67 ; v. 208, p. mons on the New Zealand Constitu- 
 1873. tion, June 4, 1852; and on the S. 
 
 c The arguments in favour of two Africa Confed n . Bill, April 23, 1877.
 
 40 
 
 GENERAL INTRODUCTION. 
 
 The Lords' 
 ability to 
 estimate 
 public 
 opinion. 
 
 Advan- 
 tages of 
 a Second 
 Chamber. 
 
 conceded by the best political writers, that whatever 
 may be the theoretical objections to the constitution 
 of the House of Lords, it has fulfilled the functions 
 which belong to an Upper Chamber of the legislature 
 with signal and singular success.* 1 In fact, ' as a legis- 
 lative body, the Lords have great facilities for estimating 
 the direction and strength of public opinion. Nearly 
 every measure has been fully discussed before they are 
 called upon to consider it. Hence they are enabled to 
 judge, at leisure, of its merits, its defects, and its popu- 
 larity. If the people are indifferent to its merits, they 
 can safely reject it altogether ; if too popular, in 
 principle, to be so dealt with, they may qualify, and 
 perhaps neutralise it, by amendments, without any 
 shock to public feeling. At the same time, they are 
 able, by their debates, to exercise an extensive influence 
 upon the convictions of the people. Sitting like a court 
 of review upon measures originating in the Lower 
 House, they can select from the whole armoury of 
 debate and public discussion the best arguments, and 
 the most effective appeals, to enlightened minds.' 6 
 
 In 1871, Mr. Henry Fa wcett, M.P., argued in favour of a Second 
 Chamber as a counterpoise to democratic ascendency in a House of 
 Commons chosen, as at present, on the majority principle, and, until 
 it should be ' elected on a plan that would make it a truly national 
 assembly, in which every class and section of opinion would be fairly 
 and proportionately represented.' f 
 
 Mr. Freeman is in favour of a Second Chamber as checking the 
 acts of the popular assembly ; but, in a Federal State, he considers 
 it indispensable for another reason viz. that it represents the 
 several States in their separate character. z 
 
 The result of experience in the several States of the American 
 Union, and the value of a Second Chamber, to represent a different 
 
 For the argument in favour of a single 
 Chamber, see Mr. Kinnear's paper in 
 Fort. Rev. Sept. 1809; Mr. Leach's 
 paper, Ib. Sept. 1882; and for ad- 
 vantages of the same in the small 
 West India Islands, see Mans. D. v- 
 206, p. 1023. 
 
 d Grey, Parl. Govt. p. 64. 
 
 e May, Const. Hist, v. 1, p. 266. 
 And see Trevelyan's Life of Macaulay, 
 v. 2, p. 55. 
 
 f Fort. Rev. N.S. v. 10, p. 503. 
 
 Int. Rev v. 3, pp. 7*24-741 .
 
 THE HOUSE OF LORDS. 41 
 
 constituency, and to express, by its longer term of existence, the 
 sober second thought of the people, in contradistinction to the im- 
 pulsive first thought of the lower House, is ably shown in the 
 American ' Law Review.' h 
 
 It may be regarded, however, as a settled principle Should 
 of modern parliamentary government that it is not the persfstent 
 duty of the House of Lords to continue a persistent opposition 
 
 11 to the 
 
 opposition to measures that have been repeatedly passed commons. 
 by the House of Commons with large and increasing 
 majorities ; especially when public opinion out of doors 
 has been unmistakeably expressed to the same effect. 1 
 Such a course would inevitably lead to an infringement of 
 the constitutional independence of the Upper House, by 
 the creation of additional Peers to facilitate the passing 
 of the particular measure. But this is an extreme 
 proceeding, which could not be approved under any 
 circumstances ; although the right of the crown in the 
 exercise of this prerogative can only be restrained by 
 considerations of public policy. j 
 
 A serious defect has been noted in the conduct of Culpable 
 the great majority of the hereditary Peers of England, e nce of" 
 
 and one which has seriously impaired, if not endan- 
 gered, their political influence, namely, their indiffer- legislative 
 ence to the discharge of their parliamentary duties. 
 The House of Lords consists of about four hundred and 
 fifty Peers available for legislative service ; of these not 
 above two hundred take any part therein. The quorum 
 of the House is but three, k a number palpably inade- 
 quate for a numerous deliberative assembly, and the 
 average attendance of Peers contrasts unfavourably 
 
 h Am. L. Rev. Oct. 1869, pp. Bill, Ib. v. 149, pp. 1481, 1771 ; and 
 
 18-30. see Mr. Horsman's speech, Ib. v. 159, 
 
 1 See the D. of Wellington's letter p. 1573 ; Earl Granville, Ib. v. 196, 
 
 on his management of the House of p. 1656. 
 
 Lords, from 1830 to 1846, in Brial- J On this subject, see May, Const, 
 
 mont's Life, v. 4, p. 140 ; Lord Stanley Hist. v. 1, p. 262; and Hearn'a 
 
 (Earl of Derby) on Free Trade, remarks, in his Govt. of Eng. pp. 
 
 Hans. D. v. 86, p. 1175 ; Earls Grey 168-175. 
 and Lyndhurst on the Jewish Oaths k Hans. D. v. 74, p. 1016.
 
 42 
 
 GENERAL INTRODUCTION. 
 
 Reasons 
 why the 
 Lords 
 should 
 retain con- 
 fidence of 
 the nation. 
 
 Origina- 
 tion of 
 measures 
 in the 
 Lords. 
 
 Reform of 
 the Lords 
 necessary. 
 
 with that of the other Chamber. 1 But with a large 
 proportion of members who are fitted by natural gifts, 
 high cultivation, and political experience acquired in 
 other fields of labour for a parliamentary career, there 
 is no reason why the House of Lords, if sufficiently alive 
 to their responsibilities, should not possess and per- 
 manently retain the confidence of the nation, as an 
 essential part of the legislature, and a main safeguard 
 of constitutional liberty. 111 By a new Standing Order, 
 adopted on April 2, 1868, an attempt has been made 
 to obtain a fuller attendance of members for service on 
 Select Committees. 11 
 
 Since 1874, as a matter of fact, an unusually large 
 number of important measures have originated in the 
 House of Lords : for example, the Public Worship Bill, 
 in 1874 ; the Judicature Act, in 1875 ; the Oxford 
 University Reform Bill, in 1876. And it is questionable 
 whether the influence of the House upon legislation and 
 upon parliamentary opinion is not increasing rather 
 than diminishing at the present time, notwithstanding 
 the rapid growth of the democratic spirit. 
 
 But in this progressive age it is evident that some 
 modification in the constitution of the House of Lords 
 is called for to enable it to retain its hold upon the 
 national sympathies. At present, the House of Lords 
 stands alone in Europe as a Second Chamber founded 
 wholly upon the hereditary principle ; and it is in this 
 
 1 See May, Const. IJist. v. 1, p. 
 266; Hans. D. v. 180, p. 1034; Ld. 
 Iloughton, in Fort. Rev. Jan. 1872. 
 With the House of Com. within the 
 past few years, there is an increasing 
 disposition to attend more regularly 
 than formerly ; which is attributable, 
 in a great degree, to the higher 
 standard of duty which is enforced 
 by the constituent body. Rep. Com*, 
 on II. of Com. arrangements, 1867, 
 Evid. 264; Hans. D. v. 195, pp. 259, 
 467. But see 11. p. 303. 
 
 m See Hans. D. v. 188, p. 129. In 
 fact during the late Parliament 
 (1874-79) the hereditary Chamber 
 has certainly not diminished in im- 
 portance, or in popular estimation ; 
 and an unusually large number of 
 public measures have originated 
 therein. See Fras. Mag. v. 15, N.S. 
 p. 173. 
 
 Hans. D. v. 191, p. 694. 
 
 See Escott, on England, its 
 People and Polity (in 1879), v. 2, 
 c. xxiii.
 
 REFORM OF THE UPPER AND LOWER HOUSES. 43 
 
 direction that some alteration in its constitution, with 
 a view to bring this august body into greater harmony 
 with modern political ideas, may be anticipated. p 
 
 Though the representative peers for Scotland and Ireland are 
 elected from amongst their own order, their qualification is based on 
 the hereditary principle. The same is true in regard to the arch- 
 bishops and bishops, who individually occupy a position which may 
 be termed, in a general sense, the inherited privilege of the occupant 
 of the See for the time being. The only positive exceptions to this 
 principle are the two law lords, who were made ex-officio peers 
 for life in 1876, under the authority of the Appellate Jurisdiction 
 Act, 1876, sec. 6. 
 
 On the other hand, Mr. T. E. Kebbel, in the Opi ns 
 ' Fortnightly Review ' for May, 1882, has no faith in against 
 a reformed House of Lords, but points out, with great theLords 
 force, its truly representative character and its value 
 to the nation. Its total abolition is advocated by Mr. 
 A. F. Leach, in the same journal for September, 1882. 
 And in the ' Eeview ' for February, 1883, the learned 
 historian, Mr. E. A. Freeman, points out the remark- 
 able changes undergone by the House of Lords, in 
 successive generations, within the last six hundred 
 years, which afford ' a strong presumption in favour ' 
 of further change whereinsoever it may be needed. q 
 
 But ever since the days of Walpole, the House of Position 
 Commons have been steadily gaming political ascend- House of 
 ency. Nominally co-equal with the crown and the Commons - 
 Lords, as a constituent part of the legislature, they 
 have gradually attained to a position which enables 
 them to compel the adoption, sooner or later, of any 
 policy, or any legislative measure, upon which they are 
 agreed. Witness the Roman Catholic Emancipation 
 Act, which was carried against the deliberate will of 
 
 p See Sir D. Wedderburn. on Rathbone, M.P., on Reform in the 
 
 ' Second Chambers' in 19th Gen. v. House of Lords, in the Fort. Rev. v. 
 
 10, p. 56 ; the Marquis of Blandford, 30, N.S. p. 399. 
 
 on 'Hereditary Rulers,' Ib. p. 217; q See Goldwin Smith, N. Am. 
 
 Fras. Mag. v. 24, N.S. p. 401 ; Mr. Rev. v. 108, pp. 241-246.
 
 44 GENERAL INTRODUCTION. 
 
 George IV., the Reform Act, the repeal of the Corn 
 Laws, and the Jewish Oaths Bill, against the deliberate 
 will of the House of Lords. These, and other important 
 acts of legislation, though disapproved of either by the 
 crown or by the Peers, were nevertheless acquiesced in 
 by them, to avert more serious consequences. Again, 
 They it devolves upon the House of Commons practically 
 fate of to determine in whose hands the government of the 
 ministers. coun t r y s h a ll be placed. By giving their confidence 
 to one party and by refusing it to another, by extend- 
 ing it to certain men and refusing it to certain other 
 men, they plainly intimate to the sovereign the states- 
 men who should be selected to conduct the administra- 
 tion of public affairs, and to advise the crown in the 
 exercise of its high prerogatives. 1 In 1835, William IV. 
 was compelled to accept 'the resignation of Sir Robert 
 Peel, who, at the earnest solicitation of the king, had 
 attempted to carry on the government, and to recall 
 to his councils the Melbourne administration, which he 
 had previously summarily dismissed, on account of the 
 inability of Sir Eobert Peel to obtain the confidence of 
 the House of Commons. 
 
 The Lords In deciding the fate of a ministry, the House of Lords, 
 decide the we have already seen, 8 are practically powerless ; ' only 
 fate of f or fifteen years out of the last fifty has the ministry of 
 
 minis- > J * 
 
 tries. the day possessed the confidence of the House of Lords. ' fc 
 The Grey Ministry (in 1830 1834), which was remark- 
 ably strong both at home and abroad, was throughout 
 opposed in the Lords by a decided and constantly 
 increasing majority. On the other hand, the Derby 
 administrations, in 1852 and 1858, though approved 
 and sustained in the Upper House, were speedily broken 
 up because they could not command a majority in the 
 Commons. And the Palmerston ministry in 1864, when 
 their foreign policy was censured by the House of Lords, 
 
 * Russell, Eng. Const, p. xlviii. ' Mr. Gladstone's Gleanings of 
 
 Ante, p. 37. Past Years, v. 1, p. 236.
 
 THE SYSTEM OP PARLIAMENTARY GOVERNMENT. 45 
 
 were able to set at nought this hostile vote, in conse- 
 quence of obtaining a small majority, upon a similar 
 question, in the Lower House." These examples are 
 sufficient to prove the great and preponderating autho- 
 rity of the House of Commons. That this authority 
 has not been abused, is due to the spirit of moderation 
 which has generally pervaded the councils of that 
 assembly, and also to the legitimate influence of the 
 crown and of the hereditary aristocracy, which, happily 
 for the equilibrium of the constitution, still finds ex- 
 pression within its walls. 
 
 These preliminary observations upon the system of 
 parliamentary government in England will, it is hoped, 
 afford some idea of its true character, and serve to 
 explain the chief points of contrast between our present 
 political institutions and those which were in operation 
 prior to the Eevolution of 1688. 
 
 It must be evident to the student of history, that Pariia 
 parliameiitary government is no modern political device 
 to substitute the supremacy of Parliament for that of ment 
 the crown, but that it owes its origin to the growth of 
 foundation principles in the English constitution ; and 
 that the transition, from the ancient method of govern- 
 ment by prerogative to that which now prevails, has 
 been a gradual and legitimate development. Whether 
 the modern system is, in every respect, the most per- 
 fect or the best adapted to the wants and wishes of the 
 nation, it is not the object of the present writer to 
 inquire. He is not concerned with the special advocacy 
 of any particular form of government ; his aim has been 
 simply to describe the actual working of representative 
 institutions in England as they now exist. He has not 
 refrained from noticing, as opportunity offered, the 
 peculiar defects of parliamentary government, and the 
 dangers to which he conceives that system to be ex- 
 
 Mr. Lowe's speech, Haus. D. v. 244, p. 208.
 
 46 
 
 GENERAL IXTRODUCTIOX. 
 
 Its pecu- 
 liar ad- 
 vantages. 
 
 posed. On the other hand, he is bound in fairness to 
 point out its peculiar merits and advantages, which 
 have contributed to make it popular at home, and a 
 model for imitation in many foreign countries. These 
 advantages have been admirably stated by Rowlands, 
 in his work on the English Constitution, in the follow- 
 ing terms : 
 
 The value [of parliamentary government] in bringing the 
 monarchy into unison with the freedom demanded and obtained by 
 the other institutions of the government and by the people, cannot 
 be too highly estimated. It has changed the vague, precarious, and 
 irresponsible authority of the ancient monarchs for an executive 
 council, nominated by the monarch from the peers and representa- 
 tives of the people, but acting under the direct influence of the 
 House of Commons, and accountable there for all its proceedings. 
 It has relieved the king from the burden, and from the moral as 
 well as actual responsibility, of directing or conducting the state 
 affairs ; and whilst he retains his high position as chief of the state, 
 and the power of impressing his views of government on his ministers 
 when in office, and of selecting new ministers when a change is 
 required, he is not involved in the fluctuating fortunes of the rival 
 statesmen who from time to time become his servants as ministers of 
 the crown. With respect to the people, it has opened the road to the 
 highest offices of the state to the ambition of all who can raise them- 
 selves to distinction in the House of Commons ; and thus it places 
 political power of the highest order in the most eminent and dis- 
 tinguished of the people themselves. v 
 
 Advan- To this it should be added, that in times of difficulty 
 
 SKitl a parliamentary constitution possesses additional advan- 
 
 tionai go- tages over every other form of government. If the 
 
 over'oTner statesman at the helm should prove deficient in vigour 
 
 forms. or sa g ac ity 5 upon emergencies arising that were not 
 
 contemplated when he was originally placed in office, 
 
 he can be promptly removed, and replaced by one more 
 
 fitted for the occasion ; and this can be effected, through 
 
 the interposition of Parliament, without the necessity 
 
 for resorting to any extreme measures, and without 
 
 v Rowland's Eng-. Const, p. 438. 
 See further, as to the advantages of 
 parliamentary government over the 
 
 system which it superseded, Grey, 
 Parl. Govt. p. 344.
 
 PARLIAMENTARY REMEDY. 47 
 
 disturbing the ordinary course of public affairs. On 
 the other hand, if the majority in Parliament should 
 become advocates of extreme opinions which the 
 nation is not prepared to sustain the remedy is equally 
 efficacious. By an appeal to the constituent body as 
 in 1784, in 1831, and in 1874 political supremacy will 
 be promptly transferred to other men, whose policy the 
 nation has approved. 
 
 Thus, upon the sudden crisis of the Crimean War, and as the 
 result of parliamentary interposition, the respectable but too pacific 
 premier, Lord Aberdeen, was compelled to give place to Lord 
 Palmerston, in whom the nation had confidence as a vigorous war 
 minister. It was said of the House of Commons, on this occasion, 
 that they had ' turned out the Quaker, and put in the pugilist.' w 
 
 As a suitable introduction to the more practical Subjects 
 part of this treatise, it is proposed, in the following intbis 
 chapters, to give a brief outline of the leading events treatlse - 
 in the annals of England which tend to elucidate the 
 origin and progress of our present political institutions ; 
 together with a summary of the constitutional history 
 of the successive administrations of England from 1782 
 to our own day. 
 
 We shall next consider the precise position of the 
 sovereign in relation to parliamentary government. 
 The leading prerogatives of the crown will be then 
 separately reviewed, and the limits of the control which 
 may be rightfully exercised by the two Houses of 
 Parliament over the administration of the same, by 
 responsible servants of the crown, will be explained 
 and illustrated. The position of the privy council 
 under parliamentary government, the origin, history, 
 and duties of the cabinet council, and the political 
 functions of the several members who compose the 
 administration, will next engage our attention. Finally, 
 the duties which devolve upon members of the govern- 
 
 Bagehot, Eng. Const, p. 33.
 
 48 GENERAL INTRODUCTION. 
 
 merit, in the conduct of public business in Parliament, 
 will be briefly described. 
 
 In treating upon the various and important ques- 
 tions contained in this work, regard will be had to the 
 recorded opinions of eminent statesmen who have spent 
 their lives in the practical exposition of our parlia- 
 mentary system ; and numerous precedents will be 
 adduced, at every stage of the enquiry, not merely to 
 corroborate the doctrine advanced in the text, but to 
 illustrate the manner in which the principles and prac- 
 tices of parliamentary government have been gradually 
 developed, and become incorporated as recognised parts 
 of the British constitution.
 
 ANGLO-SAXON CONSTITUTION. 49 
 
 CHAPTER II. 
 
 THE COUNCILS OF THE CROWN, UNDER PREROGATIVE 
 GOVERNMENT. 
 
 THE origin of the political institutions of modern Eng- origin 
 land must be sought for in the governmental system of national 
 our Anglo-Saxon progenitors. Meagre and imperfect P olit y- 
 as is our information on this subject, enough is known 
 of the leading principles of Anglo-Saxon government to 
 show that in them were to be found the rudiments of 
 the institutions which we now enjoy. 
 
 The precise features of the polity of England before 
 the Norman Conquest, although they have given rise to 
 much learned enquiry, are still, to a considerable extent, 
 conjectural. But the researches of Sir Francis Pal- 
 grave a and of Mr. Kemble, b supplemented and corrected 
 by the more recent investigations of Mr. E. A. Freeman c 
 and Professor Stubbs, d have been of inestimable service 
 in elucidating much that was previously obscure in this 
 branch of historical enquiry. The student of political 
 history will find in their works ample materials to aid 
 him in forming an intelligent idea of the fundamental 
 laws and established institutions of this country in the 
 earliest days of our national life. And these writers 
 are all agreed in testifying that, however striking may 
 be the contrast, in many points of detail, between the 
 
 Rise and Progress of the Eng. 2 vols. 8vo. 1849. 
 
 Commonwealth, 2 vols. 4to. 1832. c History of the Norm. Conq. v. 1. 
 
 b The Saxons in England; a His- Preliminary History to the Election 
 
 tory of the Eng. Commonwealth of Edward the Confessor (1867). 
 
 till the period of the Norm. Conq. d Const. Hist, of Eng. (1874). 
 
 VOL. I E
 
 50 COUNCILS UNDER PREROGATIVE GOVERNMENT. 
 
 Anglo- primitive form of government in the time of our Anglo- 
 
 gOTern- Saxon forefathers and that which now prevails, ' the 
 
 ment. germs alike of the monarchic, the aristocratic, and the 
 
 democratic branches of our constitution will be found 
 
 as far back as history or tradition throws any light on 
 
 the institutions of our race.' 6 
 
 In common with other tribes of similar Teutonic 
 origin, the Saxons in England, from a very early period, 
 were ruled over by kings, whose power was not arbi- 
 trary and despotic, but was subjected to certain well- 
 defined limitations, by the supreme controlling authority 
 of the law. 
 
 The king. The dignity, authority, and power of the chief ruler 
 in England were gradually developed from that of an 
 ealdorman (who combined in his own person the func- 
 tions of a civil ruler and of a military chieftain) into 
 that of a king a change that is not peculiar to our own 
 land, but which marked the progress of political society 
 elsewhere, in countries inhabited by the Teutons and 
 other kindred peoples. The transition from ealdorman 
 to king brought with it an accession of power to the 
 ruler. As the territory over which his headship was 
 recognised expanded, his royal dignity and importance 
 increased.* 
 
 The early Teutonic constitution, when transplanted 
 into English soil, was, like that of many of the small 
 states of the Old World, essentially free. It consisted 
 of a supreme leader, with or without royal title, an 
 aristocratic council composed of men of noble birth, 
 and a general assembly of freemen, in whom the ulti- 
 mate sovereignty resided. 8 By degrees, however, the 
 primitive democracy of the ancient Teutonic communi- 
 The ties gave place to the rising influence of the comitatus, 
 nobles. or p ersona l following of the chiefs. And in proportion 
 as the kings of England advanced in strength and 
 
 e Freeman, v. 1, p. 75. * Freeman, v. 1, pp. 86-90. 
 
 f Ib. pp. 76-81. Stubbs, c. vii.
 
 ANGLO-SAXON CONSTITUTION. 51 
 
 dominion they naturally acquired a more complete 
 supremacy over their comitatus. The thanes, or body- 
 servants of the king, were gradually invested with rank 
 and power in the kingdom. Thus there arose a new 
 kind of nobility, virtute officii, which at length obtained 
 precedence over the elder hereditary nobles. h 
 
 Other elements combined to magnify the authority 
 of the chief ruler : such as the growth of feudalism 
 under which lands were held by the tenure of military 
 service due from the vassal to his lord and the control 
 assumed by the king over the lands of the nation. At 
 first the ' folkland ' could only be alienated by the king, 
 with the consent of his Witan. But after the Norman 
 Conquest, the folkland was called the terra regis, or 
 king's land, when the king claimed the right of granting 
 it at his own pleasure, and without the sanction of 
 Parliament. 1 
 
 But the power of the crown was, from the first, The 
 subjected to the control of the Witenagemot, or ' Meet- mol ena 
 ing of the Wise Men,' which appears to have formed 
 part of the national polity of the Teutons, from their 
 earliest appearance in history, and was introduced by 
 them into the Saxon commonwealth. 3 Originally a 
 democratic assembly, Freeman describes the process by 
 which this popular council, without the formal exclu- 
 sion of any class of its members, gradually assumed an 
 aristocratic aspect, k without losing any of its essential 
 powers. Under the Heptarchy, every separate king in 
 England had his own Witenagemot ; but after the other 
 kingdoms were merged into that of Wessex, their re- 
 spective Witans became entitled to seats in the Gemot 
 of Wessex, as being the common Gemot of the realm. 
 
 Our knowledge as to the constitution of these great The 
 councils, in any English kingdom, is extremely vague Witans - 
 
 h Freeman, pp. 91-97. k Freeman, v. 1, pp. 106-1 10. And 
 
 ' Ib. pp. 97-102. see his Paper on the origin of Parl. 
 
 J Kemble, v. 2, pp. 185-195. representation, in Int. Rev. v. 3, p. 728. 
 
 E 2
 
 62 COUNCILS UNDER PEEROGATIVE GOVERNMENT. 
 
 and scanty. But we have proof that the great officers 
 of the court and of the kingdom were invariably 
 present in the Witenagemot, together with ealdormen, 
 bishops, abbots, and many other of the king's thanes. 
 There was also an infusion of the popular element, by 
 the attendance of certain classes of freemen, though to 
 what extent and in what manner this took place cannot 
 be positively determined. 1 
 
 In the First Report of the Lords' Committee appointed to search 
 the Journals of the House of Lords, Rolls of Parliament, &c., will 
 be found all matters touching the Dignity of a Peer of the Realm 
 (p. 17). Learned and elaborate reports were presented to the House 
 by this Committee in the years 1819 to 1825, which were reprinted 
 in 1829. The First Report, from which alone our citations are 
 made, treats of the constitution of the legislative assemblies of 
 England, from the Conquest to the legislative unions with Scotland 
 and Ireland. 111 
 
 But, howsoever composed, it is undoubtedly true that 
 the Witenagemot was an institution which afforded to 
 the English nation a remarkable amount of liberty and 
 protection. 
 
 The powers of the Witenagemot have been defined, 
 by Kemble, as follows : ' 1. First, and in general, they 
 possessed a consultative voice, and right to consider 
 every public act which could be authorised by the king. 
 2. They deliberated upon the making of new laws 
 which were to be added to the existing folcriht, and 
 which were then promulgated by their own and the 
 king's authority. 3. They had the power of making 
 alliances and treaties of peace, and of settling their 
 terms. 4. They had the power (subject to the re- 
 striction hereinafter mentioned) of electing their king. 
 
 5. They had the power to depose the king, if his govern- 
 ment was not conducted for the benefit of the people. 
 
 6. They had the power, conjointly with the king, of 
 
 1 Kemble, v. 2, p. 237. Stubbs, m Lords' Pap., 1829, v. 10. 
 c. vi.
 
 ANGLO-SAXON CONSTITUTION. 53 
 
 appointing prelates to vacant sees. 7. They had power 
 to regulate ecclesiastical matters, appoint fasts and 
 festivals, and decide upon the levy and expenditure of 
 ecclesiastical revenue. 8. The king and his Witan had 
 power to levy taxes for the public service. 9. The king 
 and his Witan had power to raise land and sea forces, 
 when occasion demanded. 10. The Witan had power 
 to recommend, assent to, and guarantee grants of land, 
 and to permit the conversion of folcland into b6cland, 
 and vice versa. 11. They had power to adjudge the 
 lands of offenders and intestates to be forfeit to the 
 king. 12. Lastly, the Witan acted as a supreme court 
 of justice, both in civil and criminal causes.' n All these 
 instances of the powers exercised by the Witenageinot 
 are illustrated, in Mr. Kemble's narrative, by numerous 
 examples, taken from the records and chronicles of the 
 period. 
 
 In asserting that the king was elected by the Witan, The 
 and was subject to be deposed by their authority, it ^j 
 must not be inferred that the Anglo-Saxon state was, 
 either in spirit or in form, an elective monarchy, in the 
 modern acceptation of the term. In every Teutonic 
 "kingdom there was a royal family, out of which alone, 
 under all ordinary circumstances, kings were chosen ; 
 but within that royal family the Witan of the land were 
 privileged to exercise choice. The eldest son of the 
 last king was considered as having a preferential right ; 
 but if he were too young, or were otherwise objection- 
 able, some other and more capable member of the 
 royal family would be chosen instead. Again, the 
 recommendation of the king himself as to his successor 
 on the throne had great weight, and was usually re- 
 spected. On every occasion, indeed, the right to the 
 kingly office must be substantiated and confirmed by a 
 competent tribunal. But in so doing the members of 
 
 n Kemble, v. 2, pp. 204-232,
 
 54 COUNCILS UNDER PEEROGATIVE GOVERNMENT. 
 
 the great council ' are not national representatives, 
 offering the empire to a candidate whom their voices 
 have raised to authority ; but they are the " Witan," 
 the judges, whose wisdom is to satisfy the people that 
 their allegiance is demanded by their lawful sovereign.' 
 ' Though we cannot adopt the theory that the Anglo- 
 Saxon empire was elective, we arrive, however, at the 
 conclusion that it was governed by law. The Constitu- 
 tion required that the right of the sovereign should be 
 sanctioned by a competent tribunal.' Thus, ' the in- 
 choate title of the sovereign was confirmed by the 
 national assent, and his claim was to be recognised by 
 the legislature. In this sense,' says Sir Francis Pal- 
 grave, ' the king was said to be elected by the people.' 
 In like manner, the extreme right of deposing their 
 sovereign, which the law assigned to the Witan, was 
 one that was obviously to be resorted to only in cases of 
 emergency, when the conduct of the reigning monarch 
 had made him intolerable to the people. The exercise 
 Powers of this power by the Witan was an event of very rare 
 Witan occurrence, but examples are to be found, both before 
 and after the Norman Conquest, of the deposition of 
 kings by Act of Parliament. 15 
 
 From this it will be seen that the powers of the 
 Witenagemot far exceeded those assigned by law to 
 modern legislative bodies, or exercised, in conformity 
 with constitutional practice, by the House of Commons 
 at the present day. ' Every act of government of any 
 importance was done, not by the king alone, but by the 
 king and his Witan.' The Witan had a right to share, 
 not merely in ordinary acts of legislation, but even in 
 matters of prerogative and administration which are 
 now considered as exclusively appertaining to the 
 crown/ 1 It might reasonably be anticipated that such 
 
 Enp. Commonwealth, v. 1. pp. p Kemble, v. 2, p. 219; Stubbs,v. 1, 
 558-562; Kemble, v. 2, p. 214; p. 136. 
 Freeman, v. ], p. 117. ' Freeman, v. 1, pp. 113, 120.
 
 ANGLO-SAXON CONSTITUTION. 65 
 
 a polity would unavoidably give rise to frequent col- 
 lisions between the king and his parliament, and such 
 undoubtedly was the case after the Norman Conquest, 
 when the power of the sovereign had assumed more 
 formidable dimensions, at variance with the ancient 
 principles of English liberty/ But the Saxon Witen- 
 agemot appears to have co-operated more harmoni- 
 ously with the king than similar assemblies of a later 
 date. This may be accounted for by the fact that ' it 
 was not a body external to the king, but a body of 
 which the king was the head in a much more direct 
 sense than he could be said to be the head of a later 
 mediaeval Parliament. The king and his Witan acted 
 together ; the king could do nothing without the Witan, 
 and the Witan could do nothing without the king ; they 
 were no external half hostile body, but his own council 
 surrounding and advising him. 8 Under such circum- 
 stances, it is natural that this influential body should 
 have been privileged to interpose, with authority, in 
 the conduct of public affairs. 
 
 The mutual interdependence between the sovereign Royal au- 
 and his council at this period of our history must not 
 lead us to infer that a Saxon monarch was a mere 
 instrument for carrying out the resolves of his coun- 
 cillors. 
 
 The king of England, in those days, was the acknow- 
 ledged head of his people the lord to whom all the 
 nobles of the land owed fealty and service. He was the 
 fountain of honour, and the dispenser of the national 
 wealth. He appointed the time and place for meetings 
 of the Witan, and laid before them whatever matters 
 required their advice or consent, exercising over their 
 deliberations the influence which properly belonged to 
 his exalted station and personal character. If weak, 
 vacillating, or unworthy, his powers would necessarily 
 
 r Freeman, v. 1, p. 121 Ib. p. 122.
 
 56 COUNCILS UNDER PEEROGATIVE GOVERNMENT. 
 
 be impaired, and it would be the province of the Witan 
 to restrain him from acts of misgovernment, and to 
 demand security for the due administration of the royal 
 functions. Strictly limited by law in the exercise of his 
 prerogatives, the personal authority of an ancient English 
 sovereign, if at all worthy of his position, was wellnigh 
 unbounded.* 
 
 After the triumph of the Norman arms, on October 
 16, 1066, at the battle of Hastings, the crown of Eng- 
 land was transferred to William the Conqueror by a 
 forced election of the English Witan. u 
 
 Election The form of an election continued to be observed, as a general 
 
 rule, until the accession of Edward I., when the principle prevailed, 
 
 kings. that immediately on the death of the king, the right of the crown 
 is vested in his heir, who commences his reign from that moment.* 
 Nevertheless, in the ceremonial observed at the coronation of the 
 successive kings of England to that of Henry VIII. inclusive, there 
 continued to be used forms wherein the recognition, will, and con- 
 sent of the people are distinctly asked, and the kings were declared 
 to be ' elect and chosen ' by ' the three estates of the realm. ' w But 
 in the reign of Henry VIII., Parliament definitely determined the 
 succession of the crown to be in Edward, Mary, and Elizabeth ; and 
 in default of issue from them, even empowered the king to bequeath 
 the crown to whomsoever he would, provided only that his choice 
 should be made known, ' as well to the lords spiritual and temporal, 
 as to all other his loving and obedient subjects, to the intent that 
 their assent and consent might appear to concur therein. ' x After- 
 wards, Queen Elizabeth's title to the crown was formally recognised 
 by Parliament, y And upon her decease, without issue, Parliament 
 acknowledged that the English crown ' did, by inherent birthright 
 and lawful and undoubted succession,' descend to James I., as ' the 
 next and sole heir of the blood-royal of this realm. ' z Upon the ab- 
 dication of James II., Parliament conferred the crown upon William 
 and Mary, and afterwards regulated the succession in the Protestant 
 line of the descendants of James I. 
 
 * Freeman, v. 1 , pp. 123-126, 163 ; 1838, pp. 99, 103. 
 
 Kemble, v. 2, p. 232 ; Palgrave, v. 1, 25 Hen. VIII. c. 22 ; 28 Hen. 
 
 p. 657 ; Stubbs, v. 1, p. 141. VIII. c. 7 ; 35 Hen. VIII. c. 1. 
 
 u Stubbs, v. 1, p. 267; Freeman, " 1 Eliz. c. 3. 
 
 v. 1, p. 163. * 2 James I. c. 1. 
 
 * Ib. p. 340 ; Allen, Royal Prerog. 1 W. & M. sess. 2, c. 2; 12 & 13 
 pp. 44-47. Will. III. c. 2. And see Freeman's 
 
 w Chapters on Coronations, Lon. Growth of Eng. Const, c. iii. And
 
 ANGLO-SAXON CONSTITUTION. 57 
 
 During the reign of this sovereign, and of his immediate 
 successors, the character of the monarchy underwent a 
 gradual change, but far more through the spirit in which The power 
 
 of the 
 
 the government was administered than by any direct crown, 
 action of the legislature. For William I. claimed to be 
 the lawful successor of the Saxon kings. Inheriting 
 their rights, he professed to govern according to their 
 laws. b 
 
 The laws known as those of Edward the Confessor were so-called 
 because they were solemnly ratified by him, ' as the condition and 
 price of his restoration to the throne of his ancestors.' They were 
 chiefly those contained in the comprehensive statutes which Canute, 
 king of all England, enacted at Winchester, by the advice of his 
 Witan, in the years 1017 and 1033. 
 
 But with the new dynasty there came in a new nobility 
 devoted to their Norman lord, who gradually displaced 
 the nobles of the land in offices of rule, and obtained 
 possession of their estates. Thus the power of the crown 
 steadily increased, and the authority of the national 
 councils was proportionably impaired. ' The idea of a 
 nation and its chief, of a king and his councillors, al- 
 most died away; the king became half despot, half mere 
 .feudal lord. England was never without national assem- 
 blies of some kind or other ; but, from the Conquest in 
 the eleventh century till the second burst of freedom in 
 the thirteenth, they do not stand out in the same dis- 
 tinct and palpable shape in which they do both in earlier 
 and later times. ' d Nevertheless, the liberties of their 
 Saxon forefathers were always fresh in the recollection 
 of successive generations of Englishmen, until, by slow 
 degrees and after many struggles, they succeeded in re- 
 covering them not indeed in their original shape, but 
 in a form better adapted for the altered condition of 
 the commonwealth. 
 
 the West. Rev. Jan. 1882, on the e Palgrave, v. 1, p. 48. 
 Coronation Oath, its history, &c. d Freeman, v. 1, p. 122. And 
 
 b Freeman, v. 1, pp. 2, 4, 163. Stubbs, c. ix.
 
 58 COUNCILS UNDER PREROGATIVE GOVERNMENT. 
 
 The Saxon The picture of the political constitution of England 
 under her Saxon kings, which we have sketched from 
 the pages of the learned writers who have elaborately 
 investigated the subject, is replete with interest and in- 
 struction. In a primitive state of society, and amongst 
 a simple, loyal-hearted people, such a form of govern- 
 ment was admirably adapted to their wants. By it 
 freedom was maintained, life and property protected, 
 and the national welfare advanced. But it may be 
 doubted whether a system suited for such a time would 
 have stood the test of stormier days, or sufficed to give 
 adequate protection to the king and to his councillors 
 under less favourable circumstances. Difficult prob- 
 lems in the art of government require the experience of 
 centuries to solve them aright. The proper relations 
 between the sovereign and his immediate advisers, the 
 position which both should occupy towards the national 
 legislature, the true sphere and appropriate functions of 
 Parliament, are all of them questions of the highest im- 
 portance to the national welfare. And as we proceed 
 with our narrative, we shall find every one of these 
 questions arising, and obtaining, in their turn, a suitable 
 solution. Unconsciously, and oft times without apparent 
 sequence, the efforts of each succeeding generation have 
 been overruled to bring about the final issue. The 
 vigour with which at one period the authority of the 
 crown has been asserted, and the wider influence and 
 more independent action claimed for the councils of the 
 crown at another, have both alike contributed to the 
 formation of our present system. And, happily for 
 England, each new development as it arose was a result 
 of the law of growth, and not the effect of revolution, 
 and is clearly traceable to constitutional principles which 
 existed in the germ in the ancient Saxon polity. 6 
 
 Norman The special characteristic of the Norman period was 
 
 See Stubbs, v. 1, p. 637; Macaulay, Hist, of Eng. v. 1, p. 25.
 
 ANGLO-SAXON CONSTITUTION. 69 
 
 the growth of a new administrative system, deriving its 
 origin and strength from the royal power. The foun- 
 dation of this system was accomplished in the reigns 
 of William the Conqueror and his three successors 
 William II., Henry I., and Stephen/ During this epoch 
 the kings of England were practically absolute. The 
 Witenagemot still subsisted, under the title of the Great 
 Council of the realm, but it rather resembled an assembly 
 of courtiers, occasionally convened for state purposes, 
 than an organised deliberative body, subordinate only in 
 privilege and importance to the private and ' continual ' 
 council of the king. g 
 
 From the first introduction of royalty into Britain, Advisers 
 the sovereign has always been surrounded by a select of the 
 
 CI O WH 
 
 band of confidential counsellors, appointed by himself, 
 to advise and assist him in the government of the realm. h 
 It may be confidently asserted that there is no period of 
 our history when the sovereign could, according to the 
 law and constitution, act without advice in the public 
 concerns of the kingdom. 1 ' That the institution of the 
 Crown of England has always had a Privy Council inse- . 
 parable from it, is a fact which ought never to be lost 
 "Sight of. This council has always been bound to advise 
 the crown in every branch and act of its executive con- 
 duct.' j And it is, in fact, the only council, combining 
 in itself both deliberative and administrative functions, 
 which is authoritatively recognised by the law and 
 constitution of England. The number of members 
 composing this council has varied at different periods, 
 according to the king's will, ' but of ancient time there 
 were twelve, or thereabouts. ' k 
 
 At the era of the Norman Conquest there appears 
 
 f Stubbs, c. xi. p. 20; Kemble, v. 2, p. 188 ; Hearn, 
 
 * lb., v. 1, p. 356. Gov. of Eng. p. 18; Courtenay, Life 
 
 h Palgrave, v. 1, p. 325 ; v. 2, of Sir Wm. Temple, v. 2, p. 57. 
 
 p. 348 ; Stubbs, v. 1, pp. 149, 343. J Smith, Parl. Remem. (1862), p. 3. 
 
 ' Palgrave on the King's Council, k Coke, Fourth Inst. p. 53.
 
 60 COUNCILS UNDER PREROGATIVE GOVERNMENT 
 
 A.D. 1066. to have been three separate councils in existence : one, 
 The king's composed of nobles, who were assembled on special 
 llls * occasions by special writs, and who, together with the 
 great officers and ministers of state, formed the magnum 
 concilium ; another, styled the commune concilium, or 
 general parliament of the realm. These two councils 
 were mainly identical in their general character and re- 
 lations towards the sovereign. Their chief distinction 
 seems to have been in the greater care shown in sum- 
 moning the members of the commune concilium, to advise 
 the king in more general matters, and especially when 
 grants of money were required. The third council 
 was known as the concilium privatum assiduum ordina- 
 rium, or, more frequently, the king's council. It com- 
 prised certain select persons of the nobility and great 
 officers of state, specially summoned thereunto by the 
 king's command, and sworn, and ' with whom the king 
 usually adviseth in matters of state and government.' 
 This council or probably a committee of it, consisting 
 of the judges, presided over by the king, or (in his 
 absence) the chief justiciary served also as the su- 
 preme court of justice, which, under the denomination 
 ofthe curia regis, commonly assembled three times in 
 Ordinary every year, wherever the king held his court. 1 The 
 council. king's ' ordinary ' or ' continual ' council was equivalent 
 to that which was known in later times as the Privy 
 Council ; although, meanwhile, it differed widely in its 
 organisation. 
 
 ' It was by a distribution of its business to subordinate com- 
 mittees that the functions of the Privy Council, in all ages, were 
 performed.'" 1 The legal committee, above mentioned, afterwards 
 developed into a separate ' council learned in the law,' of which the 
 only remains left at the present day is in the titular distinction of 
 Queen's Counsel, accorded to leading members of the legal profession, 11 
 
 1 Hale, Jurisdiction of House of m Macqueen, Prac. H. of Lords, 
 
 Lords, pp. 5-9 ; First Lords' Report, pp. 673, 674. 
 
 pp. 20-23 ; Lords' Pap. 1820, v. 10 ; " Hearn, Govt. of Eng. pp. 295- 
 
 Stubbs, v. 1, p. 564. 297.
 
 AFTER THE NORMAN CONQUEST. 61 
 
 while the functions of this body are now fulfilled by the Judicial 
 Committee of the Privy Council. 
 
 But, apart from the fact that one was temporary and 
 occasional, and the other permanent, there seems at 
 first to have been but little difference between this body 
 and the other principal councils. Leading nobles were 
 members of the ' continual ' council, and at meetings of 
 the great council they naturally occupied a prominent 
 place, either as members or assistants of that august 
 assembly. 
 
 The permanent council under the early Norman Perma- 
 kings consisted of the great officers of state namely, council. 
 the chancellor, the great justiciary, the lord treasurer, iri . a 
 the lord steward, the chamberlain, the earl marshal, the 
 constable, and any other persons whom the king chose 
 to appoint. It also included the archbishops of Can- 
 terbury and of York, who claimed the right to form 
 part of every royal council, Avhether public or private. 
 Besides these persons there were occasionally present 
 the comptroller of the household, the chancellor of the 
 exchequer, the judges, the king's Serjeant, &c. This 
 body was then known as the curia regis, otherwise 
 styled the aula recjia, or court of the king, and its 
 powers were immense and undefinable. Its duty was 
 to assist the king in the exercise of his royal preroga- 
 tives, and to give its sanction to acts done by him in 
 virtue of those prerogatives the members thereby 
 making themselves responsible for the acts of the king. p 
 Thus, it was the executive. It acted also as a court of 
 law. It took part in acts of legislation. In fact, ' the 
 king, who was at once the ruler and judge of the whole 
 nation, exercised the powers which he possessed, either 
 directly (and this he did to a greater extent than 
 modern students are apt to suppose) or indirectly, 
 through the instrumentality of his great officers.' For 
 
 See post, vol. 2. 1829, v. 10, p. 21 ; Stubbs, v. 1, pp. 
 
 P First Lords' Report, Lords' Pap. 387, 436.
 
 62 COUNCILS UNDER PEEROGAT1VE GOVERNMENT. 
 
 in considering ' the interchange of advice between the 
 king and his nobles ' during this period, we must divest 
 ourselves of modern notions of constitutional authority, 
 and understand that, ' according to the ideas prevailing 
 in the eleventh century, it was rather the king's privi- 
 lege than his duty to receive counsel from the great 
 men of his kingdom. Their recommendations were 
 not, like the advice of modern parliaments or ministers, 
 commands veiled under a polite name, but in the strict- 
 est sense counsel ; ' q nevertheless, there were certain 
 things which the king was never able to accomplish by 
 his mere prerogative. Thus, he could neither legislate, 
 nor impose new taxes, without the consent of his Par- 
 liament. And he was bound to rule in accordance with 
 the laws of the realm ; and if he broke those laws, his 
 agents or advisers were, from a very early period, in 
 some shape or other, held accountable for his misdeeds 
 to the national assembly/ Moreover, it was the right 
 and duty of the king to demand and receive advice from 
 his great council under all circumstances of difficulty ; 
 a safeguard which the nation always jealously main- 
 tained, even though the supreme will of the monarch 
 should be afterwards enforced, in accordance with his 
 acknowledged prerogative. Always remembering, how- 
 ever, that the king of England was never an absolute 
 monarch, but was himself subject to the law. Bracton, 
 A.D. 1250. writing in the thirteenth century, says that it is ' the 
 law by which he is made king, ... so that if he were 
 without a bridle, that is, the law, his great court ought 
 to put a bridle upon him. 8 For though the king is our 
 
 i The Privy Council : the Arnold have been much indebted to both 
 
 Prize Essay, 1860. By A. V. Dicey, these works for my sketch of the 
 
 B.A., pp. 3-6. This able essay pre- history of the Privy Council under 
 
 sents, in a popular form, the results of prerogative government, 
 
 the researches of Sir Harris Nicolas, ' Macaulay, Hist, of Eng. v. 1, 
 
 in his learned prefaces to the ' Pro- pp. 20-32. 
 
 ceedings and Ordinances of the Privy s Quoted by Forster, Debates on 
 
 Council of England, 'from 10 Rich. 1 1. Grand Remonstrance, p. 28. And 
 
 (1386) to 33 Henry VIII. (1542). I see ante, p. 261.
 
 AFTER THE CONQUEST. 63 
 
 sovereign lord, he does not possess the sovereign au- 
 thority of the commonwealth, which is vested, not in 
 the king singly, but in the king, lords, and commons 
 jointly.* To enable him to govern his people with 
 wisdom and discretion, the king would summon to his 
 councils ' the most considerable persons in England, 
 the persons he most wanted to advise him, and the 
 persons whose tempers he was most anxious to ascer- 
 tain.' a 
 
 In process of time the character of the aula regia 
 underwent considerable modification. Each individual 
 officer of the court had his own particular duties assigned 
 to him. All business brought before the court would 
 naturally be referred by the king to the functionary 
 specially charged with the same. Thus, the marshal or 
 constable, assisted probably by other members of the 
 court, attended to military matters ; the chamberlain to 
 financial concerns ; the chancellor to questions affecting 
 the royal grants. Hence arose, by degrees, the separate 
 institution of curia regis, under Henry II. as an off- 
 shoot from the larger body into a distinct judicial 
 tribunal, which is the original of the present Court of 
 Queen's Bench, y and the subsequent development, at a 
 later period, of other courts of law and equity. 
 
 The first establishment of the law-courts, as distinct A . D> 
 tribunals, took place, however, in the reign of King John. 
 But it is worthy of notice that, notwithstanding the Law- 
 formation of separate courts for the administration of courts 
 justice, the king's council continued to exercise judicial 
 authority. To be the source and dispenser of justice, 
 and to supply the defects and moderate the judgments 
 of inferior courts, is an ancient prerogative of the crown, w 
 This prerogative was ordinarily exercised through 
 
 1 Allen, Royal Prerogative, p. 159 ; Richard I. edited by Stubbs, v. 2 
 
 First Lords' Report, Lords' Pap. pp. 71-80; and see Stubbs. Const- 
 
 1829, v. 10, p. 22. Hist, v. 1, p. 465. 
 
 u Bagehot, Eng. Const, p. 304. w See Palgrave, Eng. Common- 
 
 v Chron. of Reigns of Hen. II. and wealth, v. 1, p. 283.
 
 64 COUNCILS UNDER PREROGATIVE GOVERNMENT. 
 
 judges, in accordance with established precedent ; but 
 it was still regarded as within the power of the king to 
 try suits, either by his own authority, or through the 
 officers of his council.* 
 
 A.D. 1272. With the accession of Edward I. still more important 
 changes commenced. The contemporaries of the Con- 
 queror and his immediate descendants had been accus- 
 tomed to the exercise of justice by the king and his great 
 officers, after a rude and informal fashion. Meanwhile, 
 the ordinary councils of King John and of Henry III. 
 were largely influenced by the growing power of the 
 barons, which operated as a restraint upon the arbitrary 
 power of the sovereign. But when Edward I. assumed 
 the throne, a better understanding began to prevail be- 
 tween the monarch and his advisers. 7 The rise of the 
 law-courts out of the curia regis begat, in the people 
 generally, a desire for more orderly government. Those 
 who contrasted the regular administration of justice 
 with the irresponsible and uncertain procedure before 
 the king's council, longed for something more in accord- 
 ance with their ancient Saxon liberties. 2 For the func- 
 Ordinary tions of the ordinary council at this time seem to have 
 council, been coextensive with the functions of the crown. Its 
 consent appears to have been deemed necessary to every 
 important act of the king in the exercise of his legis- 
 lative as well as of his executive powers. It ' was 
 evidently then considered as a very important part of 
 the government, responsible to the king and the country 
 for the acts done under its sanction ; and the people 
 often took great interest in its proper formation, of 
 which there are striking instances in the reigns of Henry 
 III. and Edward II.' a 
 
 Contemporaneously with these events, the ' great 
 
 * Dicey, p. 8. First Lords' Report, Lords' Pap. 
 
 * Palgrave, King's Council, p. 19 ; 1829, v. 10, p. 451 ; Hearn, Govt. of 
 Stubbs, c. xv. Eng. p. 273. 
 
 * Dicey, p. 11.
 
 AFTER THE CONQUEST. 66 
 
 council' was steadily undergoing transformation, and Great 
 assuming definite shape as a legislative body, with ac- counci1 - 
 knowledged rights and privileges. Formerly, as we 
 have seen, the great council did not differ very materi- 
 ally from the smaller and more confidential assembly. 
 The functions of both were chiefly administrative. The 
 councils of William I. and his immediate successors, so 
 far as existing records show, were principally occupied 
 with matters of executive government such as the 
 grant of local charters, and the settlement of titles to 
 land. b The king could do nearly everything in his 
 ' ordinary council ' that was lawful for the great council 
 to effect, except impose taxes. William the Conqueror, 
 in ascending the throne of England, had expressly re- 
 nounced all right to tax the nation without the consent 
 of the commune concilium regni ; and had promised to 
 govern by the old laws, except as they might be altered 
 expressly for the general good. It is true that he had not 
 been faithful to his word. The larger council was very 
 rarely convened . d But every formal concession on the 
 part of the crown contributed somewhat to the growth 
 and establishment of the great national council upon 
 a firmer basis. And the continual and ever-increasing 
 necessities of the state compelled the Norman sovereigns 
 to yield, however reluctantly, new charters, with ex- 
 tended privileges, to their powerful but insubordinate 
 nobility. Thus the lawless barons won for a down- 
 trodden and spiritless people precious franchises, that in 
 due time should elevate the national character, and * so 
 balance the forces existing in the state as to give to each 
 its opportunity of legitimate development.' e 
 
 The sagacious policy of Henry II., during his long A.D. 1155. 
 and eventful reign, did much to prepare the way for 
 
 b Cox, Ant. Parly. Elecs. p. 61. admirable Preface to the Chronicle 
 
 c Taylor, Book of Eights, p. 9. of Benedict of Peterborough (Rolls 
 
 d Stubbs, v. 1, pp. 358, 369. Chronicles, published in 1867), v. 2, 
 
 e Professor Stubbs's learned and p. xxxvii. 
 
 VOL. I. F
 
 66 COUNCILS UNDER PEEROGATIVE GOVERNMENT. 
 
 these changes in the framework of English government. 
 The king Though bent upon consolidating the kingly power, Henry 
 council. !! when not absent from the realm, took frequent oc- 
 casion to convene the old national assembly, and to ask 
 the counsel of his constitutional advisers upon every pos- 
 sible subject. In fact, many matters were freely discussed 
 at these councils which would be deemed unsuitable for 
 the consideration of Parliament at the present day. But 
 the advice sought for and received, in conformity with 
 ancient usage, did not debar the sovereign from the 
 right to act as his own judgment might dictate upon 
 the particular question/ 
 
 From the grant of Magna Carta by King John, con- 
 June 15, firmed and supplemented by similar concessions obtained 
 from later monarch s, may be dated the rise of our re- 
 presentative system/ the recognition of the House of 
 Commons as a separate estate of the realm, and the 
 establishment upon a sure foundation of our national 
 liberties, 
 
 Rise of The precise period when the representative system 
 
 sentatlve" f England originated, and the circumstances that gave 
 system. ft birth, are points which, notwithstanding the laborious 
 investigations of constitutional writers, are still involved 
 in great obscurity. The learned authors of the report 
 of the Lords' Committee, however, arrived at the follow- 
 ing conclusions upon this subject. They are of opinion 
 that from the Conquest until the reign of John, prelates, 
 earls, and barons (who constituted the three estates of 
 the realm) h generally formed, under the king, the legis- 
 lative power, for all purposes except the imposition of 
 taxes ; although the advice of an inferior class in the 
 community, or of particular individuals not of the privi- 
 leged orders, would be occasionally asked by the king, 
 under exceptional circumstances, as for the purpose of 
 
 f Stubbs, Const. Hist. v. 1, p. 570. Freeman, in Int. Rev. v. 3, p. 737 ; 
 Ib., v. 1, pp. 530-543, 622. Church Quar. Key. v. 4, p, 438. 
 
 h Ib. v. 2, pp. 108-204. And see
 
 AFTER THE CONQUEST. 67 
 
 giving validity to the grant of an extraordinary aid to origin of 
 the crown. But it cannot be shown that, at this time, tation en 
 any commoners, elected by the people, or otherwise, 
 were called to the great councils, or Parliaments, as 
 members thereof. 1 That the great council of the realm 
 summoned by John, at St. Albans in 1213, included 
 certain persons who were summoned thereto by virtue 
 of their holding lands in chief of the crown. That some 
 of these individuals gave their personal attendance, 
 others possibly appeared by representation, inasmuch as 
 the lesser barons, being under no peculiar obligation of 
 personal attendance, would naturally incline to select 
 certain of their richest and most influential brethren to 
 represent them.' That during the reign of Henry III., 
 important changes probably took place in the constitu- 
 tion of the great council, and most likely, as the result 
 of circumstances, without the intervention of any ex- 
 press law on the subject. That in the forty-ninth year 
 of Henry III., through the instrumentality of Simon de 
 Montfort, Earl of Leicester, a great council was con- January 
 vened, which consisted not only of persons who were ' " 
 summoned personally, by special writ, according to the 
 charter of John, but of persons who were required to 
 attend, not merely by general summons, according to 
 the same charter, but in consequence of writs directed 
 to the sheriffs of certain counties, and to certain cities . 
 and boroughs, commanding the recipients to cause 
 ' knights, citizens,- and burgesses ' to be chosen as repre- 
 sentatives of such counties, cities, and boroughs respec- 
 tively, who should attend the king's council, together 
 with those who had been personally summoned thereto.* 
 
 Historians and antiquarians are agreed in referring to the year Earliest 
 1265, the earliest Parliament of lords, knights, citizens, and bur- represen- 
 tation. 
 
 4 See Parry's Parlts. Introd. pp. i See Stubbs, v. 1, pp. 527, 564. 
 xii.-xvi. ; Cox, Ant. Parly. Elecs. k See ib. \. 2, pp. 92, 221 ; 
 pp. 64-70 ; Stubbs, v. 1, p. 368. Simon de Montfort, the creator oi' 
 
 F2
 
 68 COUNCILS UNDER PREROGATIVE GOVERNMENT. 
 
 gesses. Before that time, indeed, there had been held many great 
 councils of the nation, but none, so far as extant records show, in which 
 the counties and boroughs of England were represented together. 1 
 
 Early That the first clear evidence remaining of any subsequent 
 
 legislative . . . . , - ,*'..,*. 
 
 assem- convention of a legislative assembly, under similar cir- 
 cumstances, was in the summoning of ' a great and 
 
 A.D. 1295. model Parliament ' in the twenty-third year of Edward 
 I. ; m while the constitution of the intervening assemblies 
 is wrapped in uncertainty. That from thence until the 
 
 A.D. 1322. fifteenth year of Edward II., the legislative assemblies 
 of England appear to have been generally, but not in- 
 variably, composed nearly in the manner in which the 
 assembly in the twenty-third of Edward I. was con- 
 stituted. That the declaratory statute of the fifteenth 
 of Edward II. gave the sanction of Parliament to the 
 constitution of the legislature as it then stood, under 
 which the legislative power was declared to be in the 
 king, ' by the assent of the prelates, earls and barons, 
 and commonalty of the realm, according as it had been 
 heretofore accustomed.' And that, after this period, 
 the constitution of the legislative assemblies of England 
 had nearly approached the form which it now presents." 
 Whilst the appropriate functions of the several orders 
 and estates of the realm were thus being gradually de- 
 veloped and matured, the divers elements of which the 
 
 A..D. 1272 - if 
 
 1307. nation itsell was composed were uniting together. Jbrom 
 the grant of Magna Carta by John the nation became 
 one, and gradually began to realise its unity. The 
 work of amalgamation, consolidation, and of continuous 
 growth, in progress during the century which succeeded 
 the Norman Conquest, was completed under successive 
 
 the II. of Commons, by R. Pauli : First Lords' Report, Lords' Pap. 
 
 translated (and revised by the author) 1829, v. 10, pp. 154, 254, 389-391, 
 
 by U. M. Goodwin, London, 1876; 473. And tee Freeman's Growth of 
 
 Prothero's Life of Simon de Montfort, Eng. Const, c. ii. ; Cox, Ant. Parl. 
 
 London, 1877. Elecs. pp. 68-85 and 96; Syme, 
 
 1 Cox, Antient Parl. Elecs. p. 60. Rep. Govt. c. i. 
 
 m Stubbs, v. 2, pp. 128, 223, 253.
 
 ORIGIN OF PARLIAMENTS. 69 
 
 monarchs, from John to Edward I. In the reign of 
 Edward L, the protracted struggle between Englishmen, 
 of whatever race descended, and the foreigners who 
 had devoured their substance and overthrown their C onsti 
 
 liberties, finally came to an end. By the efforts of this 
 prudent monarch, the English and the Normans were 
 joined together in a common bond of mutual helpfulness, 
 ancient freedom was revived, and the national institu- 
 tions began to assume ' those constitutional forms which, 
 with mere changes of detail, they have preserved unin- 
 terruptedly ever since.' p 
 
 The century that followed Magna Carta was like- 
 wise a period of growth and development, wherein the 
 three estates became conscious of their distinct identity, 
 and entered upon their separate and appropriate spheres 
 of labour. q 
 
 It was during the reign of Edward I. that the barons, 
 who had hitherto monopolised the ear of the sovereign, 
 and controlled his policy, realised the existence of a 
 new power which it was needful for them to conciliate. 
 The citizens and burgesses, who had accumulated wealth The 
 by honest industry, and who were able and willing to 
 contribute to the necessities of the state, were altogether recognise 
 
 the rights 
 
 excluded from the national councils. Whether or not of the 
 this was esteemed a grievance, at this period, it is hard Bur * es3es - 
 to conjecture : this much at any rate is certain, that they 
 stoutly objected to pay any taxes that were levied upon 
 them without their consent. In 1297, after a fruitless 
 endeavour, on the part of the king, to exact the levy of 
 a rate on the ' communaute ' of the kingdom, which 
 they had not agreed to pay, several of the principal 
 peers interposed on their behalf, and obtained a guaran- 
 tee from the king that no such illegal taxation should 
 be again attempted. Shortly afterwards, the king coii- 
 
 Stubbs, Const. Hist. c. xiii., xiv., Stubbs, c. xv. 
 xv. q Stubbs, v. 1, p. 687. 
 
 p Freeman, v. 1, pp. 6, 122 ; and
 
 70 COUNCILS UNDER PREROGATIVE GOVERNMENT. 
 
 vened a parliament, wherein this fundamental principle 
 of English liberty was solemnly ratified, by the statute 
 De Tallagio nan concedendo, which provides that ' no 
 talliage or aid shall by us or our heirs be imposed or 
 levied in our kingdom without the will and assent of 
 the archbishops, bishops, barons, milites, burgesses, and 
 the other freemen of our realm.' r 
 
 And here we may notice a practice which prevailed in the early 
 periods of English constitutional history, and which is followed 
 almost universally in other countries where parliamentary govern- 
 Payment ment is now established, namely, the payment of wages to repre- 
 of mem- sentatives. Peers invariably attended parliaments at their own 
 expense, that being one of the services they were obliged to render 
 for the baronies they held of the crown. But as soon as the smaller 
 tenants of the king in capite, or freeholders, were permitted to 
 appear by representation, they were subjected to pay the expenses or 
 wages of their representatives. This custom of representatives 
 receiving, and their constituents paying, wages began from a prin- 
 ciple of equity, without any positive law ; and so continued from 
 49 Henry III. (A.D. 1265) to 18 Richard II. '(A.D. 1394), when 
 a law was passed to regulate and enforce it. The practice prevailed, 
 generally, until the reign of Charles I., and in certain parts of the 
 kingdom to a much later period, when it gradually fell into desue- 
 tude. 8 On April 5, 1870, a private member of the House of 
 Commons moved for leave to bring in a Bill ' to restore the ancient 
 constitutional custom of payment of members.' After describing 
 the origin and history of this custom in England, the mover pointed 
 out that while there is great diversity in respect to the amount and 
 mode of payment, the practice exists in every country possessing 
 free institutions, excepting Spain and England, and some of its de- 
 pendencies. The motion was opposed by the Prime Minister (Mr. 
 Gladstone) on public grounds. He also contended that the charge, 
 if necessary, should be defrayed according to ancient usage, out of 
 local rates, and not out of the Consolidated Fund. On division, the 
 motion was negatived by a very large majority.* 
 
 r Cox, Ant. Parl. Elec. pp. 71,77; tralia), upon the practice of paying or 
 
 Stubbs, v. 2, p. 142. compensating members of the legis- 
 
 ' Henry's Hist, of Qt. Britain, 5th lature in other countries. (Victoria 
 
 ed. v. 10, p. 61 ; Hats. Free. v. 2, Assy. Pap. 1869, v. 3, Nos. 7, 18,20, 
 
 p. 78, n. 26.) Of the Australasian colonies New 
 
 1 Hans. D. v. 200, pp. 1334-1368. Zealand and Victoria are the only two 
 
 See Kept, of a Royal Commission ap- that pay their members, the former 
 
 pointed by Govt. of Victoria (Aus- by an honorarium of 2 10/. voted annu-
 
 GROWTH OF PARLIAMENT. 71 
 
 Once they obtained an entrance into the great coun- 
 cil, the lesser orders speedily began to acquire influence 
 and authority. The growth of the power of the com- 
 mons is distinctly traceable in the records of the legis- 
 lative assembly under Edward II. In the preceding 
 reign, in conformity with the usages of an earlier period, 
 the functions of the commons were limited to a declara- 
 tion of the extent of the grants which they were em- 
 powered by their constituents to offer to the crown. A.D. 1307. 
 But in the time of Edward II. the right of the commons 
 to a share in the making of laws was formally acknow- Rising 
 ledged ; and by the latter par t of the reign of Edward III. , j^! 
 the power of the commons had so greatly increased mons. 
 that we find them strenuously resisting attempts to im- 
 pose inordinate taxation, and boldly remonstrating with 
 the king upon his choice of unworthy advisers. u 
 
 About this period there was a further development 
 of the power of the commons, in relation to the mode 
 of granting aids and supplies to the crown. In the 
 reigns of Edward L, II., and III,, it had been customary 
 for the lords, the clergy and the commons, severally 
 and separately, to determine the proportion of their 
 respective grants, on the principle that they each repre- 
 sented distinct and independent portions of the com- 
 munity. v 
 
 The three estates of the realm originally sat together in one 
 chamber. When they first began to sit apart is uncertain. No 
 doubt they often deliberated separately, and gave separate advice to 
 the king, long before a formal separation took place. w Their division 
 into two houses must have been accomplished at any rate not later 
 than 1341." 
 
 Nevertheless, it was obviously desirable that there 
 
 ally for each member, prior to 1884. Cox, Ant. Parl. Elecs. pp. 84, 93 t 
 
 In that year an Act was passed making v Hatsell, Prec. v. 3, p. 95. 
 
 permanent this payment. The latter w Hearn, Govt. of Eng. pp. 394- 
 
 by Act, 1880, but the Leg. Councilre- 407. 
 
 fused to accept payment for its mem- x Stubbs, v. 2, p. 377, n. ; v. 3, 
 
 bers. (The Colonies, Nov. 6, 1880, p. 430. 
 
 p. 3. Vide Act, 1883, No. 764.)
 
 72 COUNCILS UNDER PREROGATIVE GOVERNMENT. 
 
 should be a mutual understanding between the several 
 estates on this subject, as neither would choose to be 
 subjected to a higher rate than the other. It was also 
 expedient that this agreement should be arrived at 
 before any communication upon the matter of supply 
 was made by the commons to the crown. This gave 
 rise to the practice of conferences between committees 
 of the lords and commons preliminary to the grant of 
 supply, upon which occasions each estate counted it an 
 advantage to obtain a knowledge of the intentions of 
 the other before disclosing their own/ 
 
 A.D. 1407. In the ninth year of Henry IV. the commons com- 
 plained to the king of the lords, for having made known 
 to his majesty certain particulars in regard to a pro- 
 posed subsidy before it had been finally agreed upon 
 by both houses, a proceeding which they affirmed to be 
 ' in prejudice and derogation of their liberties.' The 
 protest was successful. The king, with the assent of 
 the lords, made an ordinance declaring that ' the lords 
 on their part, and the commons on their part, shall not 
 make any report to the king of any grant by the com- 
 mons granted, and by the lords assented to, nor of the 
 communications of the said grant, before the lords and 
 commons be of one assent and accord ; and then in 
 manner and form as has been accustomed, that is, by the 
 mouth of the speaker of the commons.' This was an- 
 other triumph on behalf of the commons, which tended 
 to aggrandise their authority, especially with reference 
 to the grant of public money. 2 
 
 A.D. 1327. Up to the time of Edward III., it is not easy to 
 Functions define wherein the functions of the national assembly 
 ment rlia differed from those which appertained to the king's par- 
 ticular council. The judgments of the ordinary council 
 would undoubtedly derive additional weight and solem- 
 
 Cox, Ant. Parl. Elecs. p. 98. Parl. Hist. v. 1, pp. 110, 140, 163-171. 
 1 Cox, Ant. Parl. Elecs. p. 100.
 
 GKOWTH OF PARLIAMENT. 73 
 
 nity from being delivered in parliament ; and the king 
 himself was probably more ready to receive petitions 
 for redress of grievances when surrounded by all his 
 councillors. The chief point of difference, however, 
 appears to have been, that after the commons were in- 
 corporated into the national assembly, a considerable 
 time elapsed before they were permitted to take part in 
 any act or proceeding which bore a judicial character. 
 But in the reign of Edward III, there are instances 
 wherein the commons claimed to participate in the 
 exercise of remedial justice ; a and before the decease 
 of that monarch, we find all the governmental institu- 
 tions of England namely, a king's council, a parliament 
 of two chambers (into which the ancient great baronial 
 council had gradually merged) > and courts of law in 1377. 
 distinct shape and harmonious exercise. b 
 
 The ' great councils ' continued for a time to be occasionally con- 
 vened even after their most important functions had devolved upon 
 Parliament. ' Some hundreds of years afterwards/ in 1640, Charles 
 I. sought to find a substitute for the Parliament, with which he had 
 hopelessly quarrelled, by reviving the long-disused baronial ' council.' 
 But the endeavour to resuscitate an obsolete tribunal served only to 
 widen the breach between the king and his people, and to precipitate 
 -his downfall. 
 
 By the end of the fourteenth century the House of 
 Commons had attained to its full share of political 
 power, in the recognition of its right to represent the 
 mass of the nation, and the vindication of its claim to 
 exercise the powers which in the preceding century had 
 been exclusively exercised by the baronage. d 
 
 King Edward's legislative assemblies, moreover, were 
 vigilant asserters of popular rights. They obtained from 
 their sovereign repeated confirmations of the Great 
 
 Stubbs, v. 2, p. 604. Hist, of Eng. v. 3, p. 438 ; Hearn, 
 
 b Palgrave, King's Council, pp. 22, Govt. of Eng. pp. 407, 46] . 
 
 64. Dicey, p. 13. First Lords' Re- d Stubbs, v. 2, pp. 306, 390, 401 ; 
 
 port, Lords' Pap. 1829, v. 10, p. 169. v. 3, pp. 256, 377. 
 ' See Dicey, p. 13 ; Knight, Pop.
 
 74 
 
 COUNCILS UNDER PREROGATIVE GOVERNMENT. 
 
 Great 
 consti- 
 tutional 
 epoch. 
 
 A.D. 1299- 
 1512. 
 
 Frequent 
 meetings 
 of Parlia- 
 ment. 
 
 Charter, and succeeded in establishing three essential 
 principles of government namely, the illegality of 
 raising money without consent of Parliament ; the ne- 
 cessity that both houses should concur in any alteration 
 of the law ; and the right of the commons to enquire 
 into abuses, and impeach the councillors of the crown 
 for acts of corruption. 6 
 
 The reign of Edward III. was, in fact, a great con- 
 stitutional epoch. Independently of the organic changes 
 in the composition of Parliament which characterised 
 that century, it was also remarkable for the frequent 
 holdings of the great national assembly, and for the 
 passing of a law which rendered it imperative upon 
 the king to meet his parliament ' every year once, and 
 more often if need be.' f As a rule, under the Planta- 
 genet sovereigns the parliaments were newly elected 
 every time they were convened, and not kept alive from 
 year to year by prorogations^ 
 
 From the latter part of the reign of Edward I. until 
 the early part of the reign of Henry VIII., being a 
 period of 213 years, it was customary for the monarchs 
 of England to consult frequently with the great council 
 of the nation. A year would seldom elapse without a 
 parliament being convened, and sometimes two or three 
 meetings would take place within twelve months. It 
 has been ascertained that in the interval above men- 
 tioned, upwards of two hundred separate parliaments 
 were assembled. They usually sat for a period varying 
 from four to thirty days ; but, occasionally, the sessions 
 would be protracted for several months. h 
 
 e Taylor, Book of Rights, pp. 67, 
 68. Cox, Inst. Eng. Govt. p. 229. 
 Parl. Hist. v. 1, p. 141. 
 
 f 4 Edw. III. c. 14. confirmed by 
 36 Edw. III. c. 10. 
 
 Stubbs, v. 2, p. 613; v. 3, p. 380. 
 Smith, Parl. Rememb. (1865), p. 7. 
 The prorogation and reassembling of 
 
 the same Parliament appears to have 
 first occurred in the reign of Henry VI. 
 But it was not until the accession of 
 Henry VIII. that it became an habi- 
 tual practice. (Parry, Parlts. pp. 57- 
 59.) 
 
 h Parry, Parlts. of Eng. pp. 55, 
 59 ; Stubbs, v. 2, p. 612.
 
 THE PEIVY COUNCIL. 75 
 
 And here we may notice, that it had long been cus- The Privy 
 tomary for the king's councillors, as confidential ser- i^pariia- 
 vants of the crown, to be present at every meeting of ment - 
 the ' Magnum Concilium,' or High Court of Parliament. 
 The select or (as it was afterwards designated) ' Privy 
 Council ' were uniformly required by the sovereign to 
 assist at the deliberations of the great council. But it 
 should be borne in mind that the Court of Parliament 
 of this age really signified the House of Lords, and that, / 
 in a judicial sense, the terms were and still are synony- 
 mous. 1 It was contended by Sir Matthew Hale that in 
 very ancient times, before the reign of Edward I., and 
 perhaps down to the middle of the reign of Edward III. 
 (by which period, at any rate, the Lords and Commons 
 had regularly formed themselves into separate legislative 
 chambers), the Privy Council had an essential right 
 not merely to advise, but also to vote, in the judicial 
 determinations of Parliament. 5 Eecent authorities, how- 
 ever, are of opinion that this is erroneous. The privy 
 councillors undoubtedly formed part of the great coun- 
 cil, or Court of Parliament, but it is most probable that 
 they merely ' gave reasons,' without voting as is still 
 done by the assistants in the House of Lords, when 
 required. It is evident, at any rate, that about the 
 time of Edward III. those who sat in Parliament by 
 virtue of their office as king's councillors, began to be 
 regarded in the light of assistants or advisers merely, 
 whilst the authoritative and judiciary power was exer- 
 cised by the House itself. k And Sir Matthew Hale 
 admits that, though ' they were assistants of such a 
 nature, quality, and weight, that their advice guided 
 matters judicial and judicial proceedings in the Lords' 
 House,' yet ' they had no voice in passing of laws,' but 
 only ' spake their judgments and gave their reasons ' in 
 
 1 Macqueen, Prac. of Lords and k Macqueen, p. 674; Palgrave, 
 Privy C. pp. 671, 680. King's Council, p. 64. 
 
 j Hale, Jurisdict. PI. of Lds. p. 85.
 
 76 
 
 COUNCILS UNDER PREROGATIVE GOVERNMENT. 
 
 Growth of 
 the Privy 
 Council. 
 
 matters of judicial concern. 1 The Commons, mean- 
 while, having secured their own position as an integral 
 part of Parliament, and having acquired the right 
 of impeachment, laboured to prevent the council 
 from exercising any extraordinary jurisdiction, or 
 powers not distinctly warranted by law, when acting 
 independently of Parliament. This point they also 
 gained. 111 
 
 Gradually the connection which originally subsisted 
 between the Privy Council and the Court of Parliament, 
 i.e. the House of Lords in their judicial capacity, came 
 to be dissolved though not without leaving traces in 
 existing usage of the old relations and the Privy 
 Council began to assume a separate and independent 
 jurisdiction of its own. This change took place under 
 A.D. 1397. Richard II., when the council was entirely separated 
 from Parliament, and entered upon its appropriate func- 
 tions as a distinct tribunal. With the sanction of Par- 
 liament its separate duties were defined, and thence- 
 forward its authority was acknowledged without any 
 further opposition, save only when it attempted to in- 
 terfere in matters beyond its jurisdiction. 11 The council 
 continued to gain strength and influence until it attained 
 the climax of its powers under the Tudor princes, whose 
 policy was to increase the authority of the Privy Coun- 
 cil, and to govern as much as possible without the aid 
 of Parliaments. A notable instance of this is afforded 
 in the reign of Henry VIII., which lasted for nearly 
 forty years, during which period Parliament did not sit 
 in all for more than three years and a half ; and during 
 the first twenty years the duration of all its sessions 
 put together was less than a twelvemonth. 
 
 It will not fail to be observed that the presence, from 
 the very first, of the members of the king's Privy 
 
 Parlia- 
 ment 
 seldom 
 convened. 
 
 82. 
 
 1 Hale, Lords' Jurisdiction, p. 71. n Ib. pp. 78, 80, 84, 97. And see 
 m Palgrave, King's Council, pp. 69, post, p. 81. 
 
 Macqueen, pp. 675, 680.
 
 THE PEIVY COUNCIL. 77 
 
 Council in the great council or Court of Parliament was 
 a foreshadowing of the more intimate relations which 
 were afterwards established between the ministers of the 
 crown and the legislature under parliamentary govern- 
 ment. 
 
 In the continuous growth of free institutions which Relations 
 so happily distinguishes the reigns of our English mon- tSUng 
 archs from the accession of Henry III., a remarkable andhis 
 
 . , . T , ,, , . < TTI -, -r-r ministers. 
 
 incident is recorded, ol the time 01 JbLdward II., which 
 manifests a decided recognition, in that early period, of 
 constitutional relations between the sovereign, his minis- 
 ters, and parliament. In 1316, the Earl of Lancaster, A - D - 1316 - 
 who had heretofore been a prominent leader of a power- 
 ful confederacy of discontented barons, was himself 
 invited by the king to become president of his council. 
 The earl agreed to accept office on certain conditions, 
 which being complied with by the king, he was duly in- 
 stalled in open Parliament ; and his oath, or protestation, 
 which embodied the stipulations which he had made, 
 was ordered to be entered upon the rolls of Parliament. 
 After reciting the terms of the appointment, it proceeds 
 as follows : ' So as at any time, if the king shall not do 
 according to his directions, and those of 'his council, 
 concerning the matters of his court and kingdom, after 
 such things have been shown him, and that he will 
 not be directed by the council of him, and others the 
 earl, without evil will, challenge, or discontent, may be 
 discharged from the council,' and that ' the business of 
 the realm ' shall not be done without the assent of the 
 members of the council ; and if the council ' shall advise 
 the king, or do other thing which shall not be for the 
 profit of him and his realm, then, at the next Parlia- 
 ment, by the advice of the king and his friends, they 
 shall be removed.' The entry on the roll concludes with 
 these emphatic words, which show that the order in the 
 present case was the general and acknowledged rule 
 under similar circumstances : ' And so it shall be, from
 
 78 COUNCILS UNDER PEEROGATIVE GOVERNMENT. 
 
 Parliament to Parliament, as to them and every of them, 
 according to the faults found in them.' p 
 
 Nearly one hundred years later, in the reign of 
 Henry IV., we meet with a similar instance of the ac- 
 knowledgment of the right of a minister of state to 
 relinquish his office, without offence to the king, when 
 he found himself unable to continue to discharge the 
 same to the public welfare. It is thus noted by Sir 
 Harris Nicolas : ' In May 1406, the king having taken 
 into his consideration the numerous claims upon his 
 time and attention, in the affairs of the kingdom, ap- 
 pointed three bishops, six temporal peers, the chan- 
 cellor, the treasurer, the keeper of the privy seal, the 
 steward and chamberlain of his household, and three 
 other persons, members of his Privy Council, and com- 
 manded them to exert themselves as much as possible 
 in promoting the welfare, and in maintaining the laws 
 and statutes, of the realm. The king then directed that 
 all Bills indorsed by the chamberlain, and letters under 
 the signet addressed to the chancellor, treasurer, and 
 keeper of the privy seal, should thenceforward be en- 
 dorsed by, or be written with the advice of, the council.' 
 None of the officers aforesaid, or any others, were ' to 
 grant any charters of pardon, or collations to benefices, 
 except with the advice of the council ; and for the 
 greater security and independence of its members, the 
 important condition was added, that they might resign 
 whenever they found themselves unable to perform their 
 duties with advantage to the king's service, without their 
 retirement exciting his displeasure.'* 1 
 
 Lord Lovell, who was appointed a member of the council on that 
 occasion, prayed to be, and was, excused from serving, because he 
 had certain suits pending in the courts of law, which, he said, would 
 prevent his performing his duty ' honestement.' r 
 
 P Par!. Hist, v. 1, p. 64. Parry, v. 6, p. 146; citing Parl. Rot. v. 3, 
 Parks, of Eng. p. 80. p. 572. 
 
 > Nicolas, Proceedings Privy Coun. r Ib. p. 573.
 
 THE PRIVY COUNCIL. 79 
 
 But meanwhile Parliament had begun to direct its A - D - 
 attention to the character and composition of the king's King's 
 
 i council 
 
 COUnCll. regulated 
 
 From the time of Henry III.'s minority to the close 
 of the fourteenth century the National Council had re- 
 peatedly preferred a claim to limit the irresponsible 
 power of the king by the election of the great officers 
 of state in Parliament. But it is doubtful whether 
 unless in one or two exceptional cases the right claimed 
 was ever exercised ; the commons seem generally to 
 have been satisfied when the king informed Parliament 
 of his nominations, and to have tacitly approved of them. 
 But it is curious to note this claim, as a foreshadow- 
 ing of the most extreme pretensions of parliamentary 
 government. s 
 
 Nevertheless, during this period, the commons were The 
 unremitting in the endeavour to restrain acts of arbi- C0 uncii 
 trary power and of usurped jurisdiction on the part of restrained 
 the king's council, and to control, in the interest of the commons. 
 subject, all abuses connected with the administration of 
 justice.* 
 
 In the last year of the reign of Edward III., the com- 
 mons undertook to represent to the king, that it would 
 be for his advantage, and that of the whole realm, if he 
 would increase his council with ten or twelve ' lords, 
 prelates, and others, who should be continually near the 
 king ; so as no great business might pass without the 
 advice and assent of six, or four of them, at least, as the 
 case required.' His majesty acceded to this request, Thecom- 
 with a proviso that the chancellor, treasurer, and privy SJJjJe an 
 seal might execute their offices without the presence of increa se 
 any of the said councillors. The commons then made ciiiors. 
 further protestation of their willingness to aid the king 
 to the utmost of their power ; but pointed to the fact 
 
 * Stubbs, v. 2, pp. 658, 610 ; v. 3, pp. 43, 247. 
 * Ib. v. 2, p. 605.
 
 80 COUNCILS UNDER PREROGATIVE GOVERNMENT. 
 
 that, ' for the particular profit and advantage of some 
 
 private persons about the king, and their confederates, 
 
 the realm was much impoverished.' They then pro- 
 
 impeach- ceeded to impeach certain of these evil councillors, and 
 
 dismissal caused them to be dismissed from the king's council, 
 
 tne i r goods confiscated u a proceeding which was 
 frequently repeated during the reign of Eichard II. V 
 
 Henry IV. reigned as a constitutional king ; he 
 governed by the help of his Parliament, with the execu- 
 tive aid of a council, over which Parliament both claimed 
 and exercised a large measure of control. Henry V. 
 followed in his father's steps, acting throughout his 
 reign in the closest harmony with his Parliament. But 
 with the overthrow of the house of Lancaster, and the 
 supremacy of the house of York, a reaction set in ; the 
 influence of Parliament was diminished. Sessions were 
 held less frequently, and with small results in restraining 
 the impolicy or extravagance of the king, so that, Stubbs 
 tells us, ' the rule of the house of Lancaster was in the 
 main constitutional, and that of the house of York in 
 the main unconstitutional.' w 
 
 In illustration of the growing power of Parliament, 
 and of its acknowledged supremacy, in the reign of 
 Henry IV., and in that of his son and grandson (Henry 
 A.D. Hoe- V. and Henry VI.), we find certain of the king's house- 
 hold removed upon petition of the commons ; and Par- 
 liament occupying itself in framing regulations and 
 ordinances for the governance of the king's council and 
 the royal household, which, being made into a statute, 
 the council, together with all the judges, and the officers 
 of the household, at the command of the king, take oath 
 to observe. This is a very important assertion of the 
 principle of ministerial responsibility/ 
 
 Parl. Hist, of Eng. v. 1, p. 141. x Nicolas, Proc. P. C. v. 1, p. 62; 
 
 Stubbs, v. 2, pp. 562, 609. v. 3, pp. 8, 18; v. 5, p. 13; v. 6, 
 
 * Cox, Ant. Parl. Elec. p. 93. p. 73. Parl. Hist. v. 1, pp. 291, 303. 
 
 " Ib. v. 3, pp. 72, 191, 234, 236, Forster, Debates on the Grand Re- 
 
 267, 273. monstrance, p. 49.
 
 THE PRIVY COUNCIL. 81 
 
 Henceforward, until the accession of Henry VII., A.D. H85. 
 the history of the king's council is chiefly remarkable Deveiop- 
 for the gradual development of its administrative func- ^ e ^ e 
 tions, for the introduction of forms, intended to operate council 
 as constitutional restraints upon the personal exercise 
 of the royal will, and for a corresponding increase of 
 power on the part of the leading ministers of state of 
 whom the council was composed. During the whole of 
 this era, and until the close of the Stuart dynasty, the 
 personal influence and authority of the sovereign con- 
 tinued to be very great, though it necessarily varied 
 according to the ability or strength of character of the 
 reigning monarch. With a vigorous- prince upon the 
 throne, the royal supremacy was apt to be energetically 
 maintained to the detriment of all constitutional govern- 
 ment, and the council to become the mere instrument 
 of despotic will, the channel through which the royal 
 mandates passed. At other times, the influence of a 
 powerful nobility was exerted to curb the arbitrary ex- 
 ercise of kingly rule, and to aggrandise the authority 
 of his ministers/ Moreover, the ministers themselves 
 occupied, to some extent, an independent position. The 
 king could indeed appoint or dismiss them at pleasure ; 
 but it was essential that he should have a council of 
 some sort, and certain official personages necessarily itscom- 
 formed part of every council. These were the five P sition - 
 great officers of state above-mentioned viz., the chan- 
 cellor, the lord treasurer, the keeper of the privy seal, 
 the chamberlain, and the steward of the household, who 
 all had seats at the council board virtute officii. In addi- 
 tion to these functionaries, the council usually included 
 the Archbishops of Canterbury and York, and from ten 
 to fifteen other spiritual or temporal lords, or men of 
 mark, who possessed the confidence of the king and of 
 
 * See Dicey, Privy Council, p. 16. Stutos, v. 2, pp. 312, 499, 514, 668 ; 
 v. 3, pp. 247, 250. 
 
 VOL. I. G
 
 82 COUNCILS UNDEE PREROGATIVE GOVERNMENT. 
 
 Parliament. For while the sovereign had an absolute 
 right to appoint or remove his councillors at pleasure, 
 the English monarchs appear to have been generally 
 careful to choose men as their advisers and ministers 
 who were acceptable to the lords and commons. 2 Some 
 Growing of the official members of the council, during this period, 
 of the ne ld offices which were not in the direct gift of the 
 council, crown, but were hereditary in certain families. Again, 
 the presence of the archbishops and other ecclesiastics 
 imparted a dignity and independence to the body other- 
 wise unattainable. With such a position it was not 
 difficult for a refractory council to cause its power to be 
 felt. They were privileged to approach the sovereign 
 with advice or remonstrance upon any matter affecting 
 the common weal. Their rebukes might indeed be dis- 
 regarded, and their counsel overruled ; but the moral 
 effect of their interposition could not be ignored. 
 
 What added materially to the weight and influence 
 of the council was that, through the instrumentality of 
 the chancellor, they could refuse to give effect to the 
 king's wishes, or to legalise his grant ; for, from a very 
 early period, they had claimed to take cognisance of 
 The great ev ery grant or writ issued by the king. The ' great 
 seal' remained in the custody of the chancellor, and 
 could not be affixed to any document except by his hand. 
 It is true that this rule was often regarded by sovereigns 
 as a vexatious and unwarrantable restraint ; and that 
 they sought to escape from it, either by retaining per- 
 sonal possession of the great seal, or by claiming that 
 signature by means of smaller royal seals (which at first 
 were kept in the king's own hands) was sufficient to 
 authenticate any writ or other missive. But Parliament 
 remonstrated against such practices, and claimed that a 
 rule which was a protection to the crown itself, against 
 fraud, should be strictly enforced. At length the privy 
 
 2 Sir II. Nicolas, P. C. v. 1, pp. ii., Hi.
 
 THE PRIVY COUNCIL. 83 
 
 seal passed into the hands of a regular officer, when it 
 
 was maintained by the lawyers, though contested by the The privy 
 
 crown, that the great seal ought to be affixed to no bill 
 
 on a verbal warrant, or otherwise than upon a formal 
 
 writ of privy seal. a These circumstances contributed 
 
 to confer upon the king's council great and increasing 
 
 weight and influence. 
 
 Moreover, upon constitutional grounds, this doctrine 
 in regard to the seals was of obvious necessity : for the 
 chancellor could not prove that he had obeyed a royal 
 mandate unless he had a formal warrant to show for 
 what he had done. Yet while this plea, and probably 
 also the convenience to the crown of throwing upon its 
 servants a measure of responsibility for its own acts, 
 reconciled the king to this restriction upon the free 
 exercise of his will, the restraint was felt as peculiarly 
 irksome by the monarchs of England during this epoch. 
 During the reign of Edward IV., that sovereign ' on 
 many occasions enforced his directions in his letters to 
 the chancellor by adding his commands in his own hand- 
 writing ; ' and once it is mentioned of him that he ex- 
 pressed his indignant surprise that the chancellor did A - D - 1465 - 
 not deem his majesty's verbal commands ' sufficient 
 warrant ' for the issue of a particular instrument. 13 
 
 These constitutional safeguards against the unre- Constitu- 
 
 j ' f .t i jj > j tional se- 
 
 strainea exercise 01 the royal prerogative were enforced, CU rities. 
 from time to time, by further regulations to the same 
 effect. By an order of the council in the reign of Henry A.D. H43- 
 VI., rules were adopted which practically ensured that 
 every grant of the crown should, from the moment of its 
 presentation as a petition, or warrant, to the time of its 
 final sanction by royal writ, be brought under the 
 notice of the king's ministers. In the reign of Henry A.D. 1526. 
 VIII. all these rules were, in substance, re-enacted ; and, 
 
 * Dicey, pp. 17-20. p. 20. 
 
 b Sir H. Nicolas, Proc, of Privy c See Sir H. Nicolas, v. 6, pp. 91- 
 Council, v. 6, pp. 195, 196. Dicey, 95. 
 
 <j 2
 
 84 COUNCILS UNDER PREROGATIVE GOVERNMENT. 
 
 so far as regards the issue of royal patents, grants, &c., 
 they still continue in operation, with but little change, 
 excepting that grants which were formerly superin- 
 tended by the Privy Council now pass through the office 
 of a Secretary of State. d Nevertheless, the end which . 
 was intended to be promoted by these regulations was 
 not in accordance with the modern idea of ministerial 
 responsibility. They were designed for the security of 
 the crown itself, against fraudulent or unnecessary 
 grants ; and for this purpose numerous official person- 
 ages were required to take part in the investigation 
 into and decision upon petitions to the crown. They 
 were also intended to enforce the necessity for consulting 
 the council before the king should determine upon any 
 application for redress. But, after all, the responsibility 
 of ministers for the faithful discharge of their high func- 
 tions was to the crown, and not to Parliament. ? 
 A.D. 1422. It was during the reign of Henry VI. that the ' ordi- 
 nary ' or ' permanent ' council first assumed the name 
 of the ' Privy Council.' The habitual attendants at the 
 council, by whom the ordinary business was transacted, 
 came at this time to be distinguished from other members 
 of the same body who, like the judges, were only occa- 
 sionly summoned by the king. During the minority of 
 Henry VI. this distinction was the more apparent, as the 
 whole government was in the hands of a select number 
 of the king's council. Ordinances of council passed in 
 this reign provide for securing privacy at council meet- 
 ings, and the keeping its resolves secret, by forbidding 
 any to attend thereat unless specially summoned. 
 Meetings of the ' great council ' were occasionally held 
 by the king's command. But it is clear that under 
 Henry VI. a select council was gradually emerging from 
 out of the larger body, by a process similar to that 
 
 d Cox, Eng. Govt. p. 648. 
 Sir II. Nicolas, Proc. P. C. v. 6, p. 200, &c. ; v. 7, p. v. Dicey, p. 21.
 
 THE PKIVY COUNCIL. 86 
 
 which afterwards gave birth to the Cabinet from the 
 womb of the Privy Council. f 
 
 The business which engaged the attention of the Business 
 king's council during the epoch under review was of the council, 
 most multifarious description, and its proceedings ex- 
 hibit an extraordinary combination of the executive and 
 legislative functions of the government. Grave affairs 
 of state, and questions of domestic and foreign policy ; 
 the preservation of the king's peace, and the manage- 
 ment of the public finances ; the affairs of aliens, the 
 regulation of trade, the settlement of ecclesiastical dis- 
 putes, and the defence of the faith against heretics and 
 sorcerers all these subjects, as appears from the 
 minutes which have been preserved of the proceedings 
 of council, formed part of its ordinary administrative 
 labours. Together with these important matters the 
 time of the council was occupied, as that of every 
 government must be, with an infinite number of trivial 
 cases. And although law-courts had been established 
 for the determination of every species of action or suit, 
 we still find the council exercising judicial functions, 
 not merely for the preservation of the public peace, but 
 for the trial of ordinary offenders. Whenever, in fact, 
 either from defect of legal authority to give judgment, 
 or from want of the necessary power to give effect to 
 their decisions, the law-courts were likely to prove in- 
 efficient, the council interposed, by summoning before it 
 defendants and accusers. A tribunal of this description 
 was doubtless useful in the infancy of regular institu- 
 tions for the security of life and property, but its action 
 was arbitrary and capricious. It was regarded with a 
 natural jealousy by Parliament, and from the reign of 
 Edward III. to that of Henry VI. the Commons made 
 vigorous efforts, on repeated occasions, to prevent the 
 
 f Dicey, pp. 22, 23; Nicolas, Proc. v. 6, pp. 61, 81, &c. Stubbs, v. 3, 
 P. 0. v. 1, p. 73; v. 5, pp. 22, 33; p. 251.
 
 86 COUNCILS UNDER PEEROGATIVE GOVERNMENT. 
 
 council from interfering with matters which belonged to 
 the courts of law, and from illegally infringing upon the 
 property and liberties of the people. 8 
 
 The records of the Privy Council during the reigns 
 
 of Edward IV., Edward V., Eichard III., and Henry VII. 
 
 have not been preserved, so that nothing certain is known 
 
 of the constitution of the council under those monarchs. 
 
 A.D. H85. With the accession of the Tudor dynasty, the position 
 
 Depend- of the Privy Council towards the monarchy underwent 
 
 thTcoun- a noticeable change. After the Conquest, the power of 
 
 cii on the the barons had been exerted to curb the despotic will 
 
 kin or 
 
 of the sovereign. In later times, the prerogative was 
 exposed to assault from the rising power of the Com- 
 mons ; whilst the nobles, for the most part, loyally 
 supported the throne. The history of the council, from 
 the accession of Henry VII. to the sixteenth year of 
 Charles I., is the history of regal supremacy, potentially 
 exercised through a body of ministers, who had 
 ceased to be a check upon the royal will. This new 
 position of the council towards the crown was mainly 
 brought about by the introduction therein of a number 
 of commoners, who owed their position and influence 
 entirely to the king's favour. The new councillors 
 were doubtless men of mark and ability, but, unless 
 noble by station, they could not be independent of the 
 crown. And where hereditary offices were held by 
 peers, it frequently happened that a deputy was chosen 
 from amongst the commoners, to perform the duties 
 and exert the influence of the post. This gave ad- 
 ditional strength to the crown, and was the means of 
 rendering the government more efficient, but it greatly 
 undermined the independence of the council. 11 The 
 change in the composition of the Privy Council did not 
 escape the notice of the common people, by some of 
 
 Dicey, pp. 26-34. Nicolas, Proe. P. C., v. 1, p. ii. 
 Dicey, pp. .38-42.
 
 THE PRIVY COUNCIL. 87 
 
 whom it was regarded with much dissatisfaction. About 
 twenty-five years after the accession of Henry VIII. A - D l536 - 
 there was a rising in Yorkshire. The malcontents de- 
 manded of the king redress of grievances. One of their 
 complaints was that the Privy Council was then formed Com- 
 of too many persons of humble birth, whilst at the agaiLft 
 commencement of his majesty's reign it had been other- j^ ncil 
 wise. The king told them, in reply, that at his acces- 
 sion there were in the council ' of the temporality but two 
 worthy calling noble, the one treasurer of England, the 
 other high steward of our house ; others, as the Lords 
 Marney and Darcey, but scant wellborn gentlemen, and 
 yet of no great lands until they were promoted by us, 
 and so made knights and lords : the rest were lawyers 
 and priests, save two bishops, which were Canterbury 
 and Winchester.' Henry proceeded to show that there 
 were then ' many nobles indeed, both of birth and con- 
 dition,' in the council ; but, in conclusion, he informed 
 the rebels, very emphatically, ' that it appertaineth 
 nothing to any of our subjects to appoint us our 
 council, ne we will take it so at your hands. Wherefore, 
 henceforth, remember better the duties of subjects to 
 -your king and sovereign lord, and meddle no more of 
 those nor such-like things as ye have nothing to do in.' 1 
 The altered relations between Church and State at 
 this period, consequent upon the Eeformation, con- 
 tributed greatly to increase the authority of the crown. 
 No longer dependent on a foreign potentate, but on the 
 king himself, the dignitaries of the Church imparted a 
 new vigour to the monarchy, when they ceased to be 
 the representatives of a rival power. But, in propor- 
 tion as the personal authority of the sovereign in- 
 creased, the influence of the Privy Council was weakened. 
 The records of the time bear ample testimony to the 
 condition of servility and dependence upon the sove- 
 
 Sir H. Nicolas, Proc. P. 0. v. 7, pp. 3, 4.
 
 88 COUNCILS UNDER PEEEOGATIVE GOVERNMENT. 
 
 reign to which the council at this epoch had been re- 
 ducecU 
 
 Meanwhile, however, the power of the council as 
 an administrative body was in nowise diminished. On 
 the contrary, this was emphatically the age of ' govern- 
 Govern- ment by councils.' * Unconstitutional and arbitrary as 
 councils man y f tne ordinances of council in the fifteenth cen- 
 tury now appear, they almost seem mild when com- 
 pared with many of those of the Privy Council of 
 Henry VIII. Combining much of the legal authority 
 with the civil and political, it exerted a despotic con- 
 trol over the freedom and property of every man in 
 the realm, without regard to rank or station. Its vigi- 
 lance was as unremitting as its resentment was fatal ; 
 and its proceedings cannot be read without astonish- 
 ment, that the liberties and constitutional rights of 
 Englishmen should ever have recovered from the state 
 of subjugation in which they were then held by the 
 crown. ' k Chiefly concerning itself in securing the in- 
 ternal tranquillity of the kingdom, and in detecting and 
 punishing treason or sedition, the Privy Council also 
 directed its attention to ' nearly everything connected 
 with the conduct of individuals towards each other, and 
 in relation to the government.' It interposed in matters 
 of private concern, making itself the arbitrator of 
 quarrels between private individuals thereby encroach- 
 ing upon the province of the established courts of law. 
 It likewise interfered in ecclesiastical affairs, when its 
 proceedings were often of the most despotic character. 
 In all matters brought before it the council exercised a 
 very summary jurisdiction, usually punishing offenders 
 by committing them to the Tower, by fine, or imprison- 
 ment, or both. 1 Eeviewing the proceedings of the 
 Privy Council during this period, Sir Harris Nicolas 
 is of opinion, * that the arbitrary and unconstitutional 
 
 J Dicey, pp. 42, 43. k Sir H. Nicolas, Proc. P. C. v. 7, p. 24. 
 
 1 II. pp. 25, 26, 31, 45, 49.
 
 THE PRIVY COUNCIL. 89 
 
 powers which the government then exercised, arose less 
 from the personal character of the reigning monarch, 
 congenial as despotism was to his feelings, than from a 
 gradual encroachment on the liberties of the people, 
 and a corresponding extension of the prerogatives of 
 the crown, during the latter part of the fifteenth, and 
 continued until the middle of the sixteenth century. 
 This innovation may probably be traced to the usurpa- 
 tion of Eichard III., followed by the usurpation of 
 Henry VII. ; it being scarcely possible for the liberties 
 of a country to survive two revolutions, or for a suc- 
 cessful rebel not to become a tyrant. ' m 
 
 From the constitution of the Privy Council under Power of 
 the Tudor sovereigns, it might be supposed that every ^2^ 
 political measure, if it did not originate with the Henry 
 
 VIII. 
 
 Council, was at any rate deliberated upon by that body. 
 But such was not at all the case. ' Henry VIII. was in 
 the fullest sense of the word his own minister ; and all 
 the most important matters, particularly in relation to 
 foreign policy, proceeded immediately from his own 
 mind, and were conducted upon his own judgment.' 
 The modified form of ministerial responsibility which 
 -we have seen was established by command of Henry IV., 
 and which continued to be enforced in subsequent 
 reigns, was set at nought by Henry VIII., as appears 
 from transactions recorded in State Papers of the 
 period : ' As there were some occasions on which he 
 did not even consult his favourite minister, it may be 
 inferred that there were many more on which he acted 
 without the advice of his council.' 11 For a timeWolsey 
 was his favourite, and then Cromwell ; but after the 
 fall of Cromwell, no one minister bore even the slight 
 resemblance presented by these statesmen to a modern 
 premier. In fact, Henry issued his commands to any 
 
 m Sir H. Nicolas, Proc. P. C. v. 7, correspondence between the King and 
 p. 66. And see State Papers, pub- Cardinal Wolsey, v. 1. 
 lished by Commission, containing n Ib, pp. 11, 12.
 
 90 COUNCILS UNDER PREROGATIVE GOVERNMENT. 
 
 of his ministers, without regard to their peculiar duties; 
 but, ' as no responsibility to the country was incurred, 
 it mattered little whom the king selected to carry his 
 orders into effect. He was himself the centre from 
 which every measure emanated, and his ministers had 
 nothing more to do than to receive his commands 
 and obey them. But all communications between the 
 ministers and the king, relating to the affairs of govern- 
 ment, seem, even in that arbitrary period, to have been 
 made through a privy councillor ; so that the forms of 
 the Constitution were, in this important point at least, 
 strictly adhered to ; and, how r ever forgetful Parliament 
 might have been of its duties, means always existed of 
 fixing the responsibility for the acts of the crown upon 
 those to whom, according to the laws, it entirely and 
 exclusively attaches.' 
 
 During the reign of Henry VIII., the greater part 
 of the members of the Privy Council appear to have 
 been in regular attendance upon the king ; accompany- 
 ing him wherever he went, and giving their daily atten- 
 tion to the business of the state. These were usually 
 the great officers of the household, a bishop, and one of 
 the principal secretaries ; whilst other functionaries 
 such as the Lord Chancellor, the Archbishop of Canter- 
 bury, the other principal secretary, and a few minor 
 officials remained in London, to dispose of the ordinary 
 and routine affairs of government. Occasionally, how- 
 ever, the whole council assembled together, either for or- 
 dinary purposes, or at the special command of the king. p 
 
 By means of rules adopted for its internal improve- 
 ment, the Privy Council was brought to a high state of 
 Division efficiency for the discharge of the numerous and impor- 
 of council tant duties which devolved upon it at this period. In 
 
 into Com- -, r r o T7- T-I -\ -I TTT n J 1 
 
 mittees. looo, King Ldward VI. drew up a series oi regulations 
 
 Sir H. Nicolas, Proc. P. C. v. 7, pp. 14, 15. 
 Ib. pp. 9, 10, 16.
 
 THE PRIVY COUNCIL. 91 
 
 for his council, under which the whole body (which 
 then consisted of forty persons) was divided into five 
 commissions, or (as they would now be termed) com- 
 mittees, to each of which was assigned a distinct branch 
 of public business. Upon some of these committees 
 certain persons, mostly judges, were added. They 
 were styled ' ordinary councillors,' and were not con- 
 sulted on questions of general policy. This practice 
 has been adhered to to the present day. It was also 
 provided, by these new regulations, that every matter 
 should be brought under the royal notice, that ' if there 
 arise such matters of weight as it shall please the king's 
 majesty to be himself at the debating of, then warning 
 shall be given, whereby the more shall be at the de- 
 bating of it,' and that the secretaries should be the 
 channel of communication between the councillors and 
 their royal master . q 
 
 From a very early period it would seem to have been the prac- 
 tice for the Council to meet for the ordinary transaction of business 
 without the king being present. But the sovereign was evidently at 
 liberty to attend whenever he thought fit. r 
 
 The office of secretary, or king's clerk, it may be King's 
 ~here remarked, was originally held in small estimation. 
 The secretary possessed no political influence, unless, 
 as sometimes happened, he was a member of the coun- 
 cil. At length it became necessary to appoint two 
 secretaries, after which, by almost imperceptible degrees, 
 the dignity of the office was increased. During the 
 reign of Henry VII. persons of weight were selected to 
 fill the post. In the following reign we find the secre- 
 taryship held by Cromwell. Henceforth the secretaries 
 take rank with barons, are always members of the 
 council, and by the Act 31 Henry VHI. c. 10, become 
 entitled to this position ex-officio. But it was not until 
 
 i Dicey, pp. 39-43. pp. 25, 34, 58 ; v. 7, p. 13. Dicey, 
 
 r Sir H. Nicolas, Proc. P. C. v. 1, p. 15.
 
 92 COUNCILS UNDER PREROGATIVE GOVERNMENT. 
 
 the latter part of the reign of Elizabeth that we find 
 them designated Secretaries of State. 3 
 
 By the regulations of 1553, above mentioned, all 
 the business of the Privy Council was transacted through 
 committees which were variously modelled, as occasion 
 required. The same persons sat on different committees. 
 From this arrangement a body known in history as the 
 star Star Chamber came into existence, and acquired evil 
 fame from its arbitrary arid tyrannical proceedings. The 
 Star Chamber was, in effect, the council under another 
 name. It was frequently presided over by the king 
 himself, and even in his absence transacted business 
 with great dignity and solemnity ; hence it will be seen 
 that the council had abated none of its ancient preten- 
 sions to the plenary exercise of judicial power. Besides 
 asserting the right to act in almost every case where 
 a law-court had jurisdiction, the king and his council- 
 lors avowedly acted ' in cases not examinable in other 
 courts.' The secret tribunal of the Star Chamber con- 
 tinued in operation up to the reign of Charles I., when 
 the struggles of Parliament against the judicial autho- 
 rity of the Council, so long intermitted, were again 
 revived with accumulated vigour, until (by the statute 
 16 Car. I. c. 10) it was determined that ' neither his 
 majesty nor his Privy Council have, or ought to have, 
 any jurisdiction, power, or authority, by English bill, 
 petition, articles, libel, or any other arbitrary way 
 whatsoever, to examine or draw into question, deter- 
 mine or dispose of, the lands, tenements, hereditaments, 
 goods, or chattels of any of the subjects of this kingdom; 
 but that the same ought to be tried and determined in 
 the ordinary courts of justice, and by the ordinary 
 course of the law.' By the same statute, the power 
 ' that the Council Table hath of late times assumed 
 unto itself, to intermeddle in civil causes and matters 
 only of private interest between party and party,' is 
 
 Dicey, p. 41. Thomas, Notes on Pub. Dep. p. 27.
 
 THE PRIVY COUNCIL. 93 
 
 declared to be * contrary to the law of the land, and 
 the rights and privileges of the subject.' The Star 
 Chamber, with its cognate jurisdictions, was accord- 
 ingly by this Act swept away, and the most part of 
 those judicial powers which the state policy of former 
 generations had bestowed upon the council, were utterly 
 abolished.* 
 
 During this period of ' government by councils,' the Arrests by 
 privy councillors, in addition to their potent authority 
 as members of a board of such pre-eminence in the 
 state, assumed the right of arresting their fellow- citizens 
 at their own individual discretion. It may be thought 
 that such an act would have been justified by the use 
 of the king's name. But the councillors claimed the 
 
 o 
 
 authority as pertaining to themselves, and the judges 
 admitted the validity of their claim, so far at least 
 as commitments ' by order of the Council Board ' as 
 well as by royal command were concerned." 
 
 The government of Queen Elizabeth was conducted Queen 
 almost exclusively through the medium of her Privy 
 Council, individually or collectively ; Parliaments 
 (though regularly convened at intervals of from one 
 ~to four years) being regarded by her as mere instru- 
 ments of taxation, to whicli she abstained from resort- 
 ing except upon necessity. The practical disuse of 
 Parliaments during the Tudor dynasty naturally led to 
 a larger assumption of jurisdiction on the part of the 
 Privy Council, which retained much of the authority 
 thus unlawfully acquired, even after the recurrence by 
 later sovereigns to the constitutional services of Par- 
 liament/ 
 
 The powerful system so elaborately matured by the 
 Tudor sovereigns expired with them ; and the period 
 between the death of Elizabeth and the restoration of 
 
 * Sir H. Nicolas, Proc. P. C. v. 7, 110. Stephen, Hist, of Grim. Law of 
 
 p. 24. Dicey, pp, 45-57, which gives Eng. v. 1, c. vi. 
 
 a curious and minute account of the u Dicey, p. 56. 
 
 doings of the Star Chamber. See also T Macqueen, Privy Council, p. 680. 
 Palgrave, King's Council, pp. 38, 100,
 
 COUNCILS UNDER PREROGATIVE GOVERNMENT. 
 
 Queen 
 Elizabeth 
 and her 
 Parlia- 
 ments. 
 
 Parlia- 
 ment 
 under the 
 Stuart 
 kings. 
 
 the Stuarts may be considered as the time when ' go- 
 vernment by councils ' came to an end. w But mean- 
 while, the Parliaments of Elizabeth, unlike their timid 
 predecessors in previous reigns, were remarkably out- 
 spoken ; and the Commons did not hesitate to tender 
 their advice to the queen, not merely upon affairs of 
 Church and State, but even upon the more delicate 
 topics of a royal marriage and the succession to the 
 throne. True, they were repeatedly commanded not 
 to interfere in any matters touching her majesty's 
 person, estate, or church government, but such as 
 might be propounded to them by the queen herself ; 
 yet they made good their claims to a higher considera- 
 tion, by successfully asserting the necessity for redress- 
 ing various grievances affecting the commonwealth/ 
 And so there followed in due course, and as it were 
 by natural consequence, ' the mutinous Parliament of 
 James L, and the rebellious Parliament of Charles I.' y 
 And, concurrently with these proceedings, new require- 
 ments arose on the part of the crown, which could only 
 be met by the cordial assistance of the House of Com- 
 mons. The circumstances under which the power of 
 Parliament, in contradistinction to that of the monarchy, 
 gained strength and development under the Stuart kings, 
 belong to general history, and need not be here enlarged 
 upon. It will suffice to refer to two leading events, 
 which indicate the process whereby the House of Com- 
 mons attained the position, co-ordinate in power with 
 the crown itself, which it has occupied since the Bevo- 
 lution of 1688. 
 
 During the altercations between the Crown and Par- 
 liament which characterised the reign of Charles I., it 
 became necessary to provide for the maintenance of a 
 standing army. At first the troops were paid out of the 
 king's own revenues ; but James II. having increased 
 
 w Dicey, p. 69. Ilearn, Govt. of Eng. p. 132. 
 
 1 See Parry's Purlts. pp. 214-239. * Bagehot, Eng. Const, p. 311.
 
 THE LONG PARLIAMENT. 95 
 
 his army to 30,000 men, it began to be regarded with 
 great jealousy, as being calculated to strengthen the 
 power of the crown, to the detriment of the rights and 
 liberties of the subject. Accordingly, a provision was 
 inserted in the Bill of Eights, 2 forbidding the raising or 
 keeping a standing army within the kingdom, in time 
 of peace, without the consent of Parliament. The 
 practice of appropriating the supplies granted to the 
 crown by Parliament to separate and distinct services 
 was first introduced in the time of Charles II., a though 
 it did not become an established usage until the Eevo- 
 lution, when it was formally incorporated amongst the 
 maxims of the Constitution, that the grant of supply, 
 and the control of the public expenditure in conformity 
 therewith, belongs inalienably to Parliament, and pre- 
 eminently to the House of Commons. b By the recog- 
 nition of these two principles a salutary check was 
 provided against the exercise of arbitrary power, and 
 at the same time the constitutional influence of the 
 House of Commons, as the source of all aids and sup- D 0wn f a ii 
 plies, was asserted and guaranteed. From this epoch of P re - 
 we may date the downfall of prerogative government govern- 
 in England, and the rise of parliamentary government. 
 But this momentous change in our political system 
 was not effected at once, or without an effort on the 
 part of the crown to recover its ancient supremacy. 
 Irritated by the opposition lie systematically encoun- 
 tered from the House of Commons, Charles I. abstained 
 from convoking Parliament for a period of eleven years, 
 from March 1629 to April 1640 a longer interval than 
 had ever before elapsed without some meeting of the 
 national council.* 1 At length, in 1640, the famous Long 
 Parliament was assembled. 
 
 1 1 Will, and Mary, Sess. 2, c. 2. v. 34, p. 537. Clode, Mil. Forces of 
 
 See Hearn, Govt. of Eng. p. 342. the Crown, v. 1, p. 84. 
 b Hatsell, v. 3, p. 202. Park's d Macaulay, Hist, of Eng. v. 1, 
 
 Dogmas, lecture xiii. p. 85. 
 c Sir J. Mackintosh, Hans D.(O.S.),
 
 96 COUNCILS UNDER PREROGATIVE GOVERNMENT. 
 
 The first act of this Parliament, however, was, as we 
 have seen, 6 to abolish the Star Chamber, and to deprive 
 the Privy Council of most of its judicial power, leaving 
 its constitution and political functions unchanged. 
 Nevertheless, after its destruction and the subsequent 
 rise of the vast Colonial empire of Britain, the ancient 
 prerogative of the crown, as the fountain of justice, 
 was held to vest in it, the ultimate appeal in all cases, 
 civil and criminal, from all courts throughout the empire, 
 and a committee of the Privy Council, which is the 
 direct descendant of the old curia regis, is to this day 
 the organ by which that prerogative is administered/ 
 
 In all matters of government the will of the sove- 
 reign continued supreme ; and though ministers were 
 individually powerful, they had not, and were not ex- 
 pected to have, a mutual agreement in regard to public 
 affairs. They often differed amongst themselves on im- 
 Minis- portant questions ; but as each minister was responsible 
 teriai merely for the administration of his own department. 
 
 responsi- . J -IT 1111 A 
 
 biiity. it was not considered essential that they should be ot 
 one mind on matters of state policy. The responsibility 
 of ministers, moreover, for the ordinary fulfilment of 
 their official functions, was practically to the king, and 
 to him alone. 
 
 The course of events which ensued upon the acces- 
 sion of Charles L to the throne unmistakably proved 
 that a more intimate and cordial understanding between 
 the Crown and Parliament, in the conduct of public 
 Charles i. affairs, had become indispensable to the very existence 
 House of f monarchical government. For Charles I. 'had not 
 Commons, the power to guide, if he had had the chance ; [his] 
 theory of sovereign right was incompatible with the 
 constitutional theory which, rising as it were from 
 the dead, had found its exposition among the Com- 
 
 e Ante, p. 93. 
 ' Stepben, Hist. Grim. Law Eng. v. 1, p. 182. And see post, vol. 2.
 
 THE LONG PARLIAMENT. 97 
 
 mons.' g In the protracted contest that arose between 
 the King and the House of Commons, much mutual 
 misunderstanding might have been avoided if Charles 
 had had some confidential minister to espouse his cause 
 and defend his policy within the walls of Parliament. 
 The bitter antagonisms which arose between the king 
 and his people might have been reconciled if only the 
 king's ministers had not been so distasteful to the House 
 of Commons. As it was, the servants of the crown 
 were generally regarded by the commons with mistrust 
 or aversion ; and if their acts merited condemnation, 
 there was no alternative but to proceed against them 
 by way of impeachment a procedure which at the 
 best was a cumbrous process, fruitful of delay, uncertain 
 in its issue, and provocative, meanwhile, of further ill- 
 will against the crown itself. If only some method 
 could have been devised to enable the king's ministers 
 to commend themselves to the goodwill of Parliament, 
 these perpetual causes of irritation might have been 
 effectually removed. 
 
 Overtures, indeed, on the part of the Long Parlia- 
 ment, were not wanting to point out to the king terms 
 of agreement and reconciliation ; and although they 
 involved for the most part the surrender of more power 
 than the crown was willing to relinquish, it is remarkable 
 that upon one occasion the principle of ministerial 
 responsibility was distinctly adverted to, as a means 
 of conciliating the favour of Parliament, and of pro- 
 tecting the king from evil counsellors. In the Grand Grand 
 Eemonstrance addressed by the House of Commons to 
 Charles I., in 1641, reference is made to * those cases of 
 not infrequent occurrence, when the commons might 
 have just cause to take exceptions at particular men for 
 being selected to advise the king, and yet have no just 
 cause to charge them with crimes.' It is added that 
 
 Stubbs, Const. Hist. v. 3, p. .505. 
 VOL. I.
 
 98 COUNCILS UNDEE PREROGATIVE GOVERNMENT. 
 
 * the most cogent reasons might exist to be earnest with 
 the king not to put his great affairs into such hands, 
 though the commons might be unwilling to proceed 
 against them in any legal way of impeachment.' It is 
 then plainly stated, ' that supplies for support of the 
 king's own estate could not be given, nor such assistance 
 provided as the times required for the Protestant party 
 beyond the sea, unless such councillors, ambassadors, 
 and other ministers only were in future employed as 
 Parliament could give its confidence to.' h But the king 
 had already declared that he would neither separate 
 the obedience of his servants from his own acts, nor 
 permit them to be punished for executing his com- 
 mands. 1 Conciliation, therefore, was impossible ; the 
 time for moderate counsels to prevail had gone by, and 
 the downfall of the monarchy was the deplorable but 
 inevitable consequence. The circumstances which led 
 to this event belong to general history, and need not 
 Execution be dwelt upon in these pages. Suffice it to state that, 
 king 6 after a brief contest with the Long Parliament and its 
 adherents, Charles T. was taken prisoner, tried, and 
 executed on January 30, 164f . 
 
 Immediately afterwards Parliament proceeded to 
 take steps to provide for the future government of the 
 country. On February 7, they voted ' that the office of 
 a king in this nation was unnecessary, burthensome, and 
 dangerous,' and should be abolished ; and having on 
 the previous day decreed the abolition of the House of 
 Council of Peers, they ordered, ' that there be a Council of State 
 erected, to act and proceed according to such in- 
 structions as shall be given to them by the House of 
 Commons. ' j In the composition of this council, the 
 parliamentary majority were in a position jto carry out 
 
 b Foreter, Debates on the Grand Chanc. v. 2, p. 532. 
 
 Remonstrance, pp. 272, 273. J Parl. Hist. v. 3, pp. 1285, 1292. 
 
 1 See Gardiner's Hist, of Eng. Com. Journ. Feb. 7, 1641. 
 1624-1628, v. 1, c . via. Campbell's
 
 THE COUNCIL OF STATE. 99 
 
 their own ideas as to the sort of persons who ought to 
 be entrusted with supreme authority, and to ensure 
 that the administration of public affairs should be in 
 direct conformity with their own opinions. For a time 
 the experiment proved successful, and, thanks to the 
 energy, learning, and political experience of the leading 
 men in the Council of State, the government of the 
 country, so long as it remained in their hands, was con- 
 ducted with much wisdom and ability. k 
 
 The Council of State consisted of -forty-one persons, 
 lords and commoners, who were chosen by the House of 
 Commons in the name of ' the Parliament of England,' 
 and of whom nine were a quorum for the dispatch of 
 business. A majority of the councillors were also 
 members of the House of Commons ; and as the average 
 number of members attending that House did not then 
 exceed fifty, the Council naturally became the more 
 powerful body ; and having all the public business of 
 the nation under review, they left but little for the 
 House to do, except to confirm, by Act, such matters 
 as the Council thought fit to submit for their sanction. 1 
 But, in point of fact, it was usual for the Council to refer 
 ull matters of special importance to the consideration 
 of the House, who were thus enabled to exercise a con- 
 trolling influence over their proceedings. 111 
 
 The Council of State was eminently a deliberative 
 body, and the rules which they framed for their own guid- 
 ance were calculated to ensure the most attentive and 
 careful consideration of every subject before them, by 
 the members present at any particular meeting. 11 Either 
 directly, or through their committees, the Council also 
 
 k Bisset, Commonwealth of Eng. until its overthrow by Cromwell, are 
 
 v. 1, pp. 49, 1 18-123. preserved in the State Paper Office, in 
 
 1 Parl. Hist. v. 3, p. 1291. Bisset, excellent condition. (Ib. p. 39.) 
 Commonwealth of Eng. Y. 1, pp. 24, m Bisset, v. 1, p. 43; v. 2, pp. 55, 
 
 36. The original minutes of all the 67. 
 proceedings of the Council of State, n Ib. v. 2, pp. 293-296. 
 
 H 2
 
 100 COUNCILS UNDER PREROGATIVE GOVERNMENT. 
 
 transacted the business which is now apportioned 
 amongst various departments of state. Besides affairs 
 belonging to the Treasury, and to the different branches 
 of the secretariat, they were charged with the trust 
 heretofore exercised by the Lord High Admiral and by 
 the Master of the Ordnance. The creditable and suc- 
 cessful manner in which their multifarious labours were 
 accomplished is the more remarkable when it is con- 
 sidered that on an average eighteen or twenty members 
 attended at sittings of the Council, and that frequently 
 the number present was much larger. p 
 
 The Council was chosen for a period of one year 
 only, at the expiration of which term all the members 
 were re-elected except three. Two were added to 
 supply vacancies by death, so that there were in all but 
 five new members. But at the end of the second year 
 Parliament resolved to adopt a different principle. 
 Accordingly, on February 5, 165^, they decided that 
 the Council of State for the ensuing year should again 
 consist of forty-one members, but that only twenty-one 
 of the existing councillors should be capable of re-elec- 
 tion. The same rule was followed upon the election of 
 the Council for the fourth time. q In November 1652, 
 anticipating the regular period by nearly three months, 
 the Council was again re-elected upon a similar principle 
 for the fifth and last time/ 
 
 But on April 20, 1653, Oliver Cromwell, who had 
 always been one of the Council of State, from its first 
 institution, having forcibly put an end to the Eump 
 Parliament, and established himself as military dictator, 
 went to the Council of State, who were assembled at 
 their customary place of meeting at Whitehall, and in- 
 formed the assembled members that their official exist- 
 ence had terminated, inasmuch as the Parliament from 
 
 Bisset, v. 1, p. 116 ; v. 2, p. 72. * Ib. v. 2, pp. 146, 234. 
 Ib. v. 1, pp. 118-123 ; v. 2, pp. r 76. p. 369. 
 77, 293, 377, 386.
 
 COUNCIL OF STATE UNDEK CROMWELL. 101 
 
 whence their authority had been derived was defunct. 8 
 Thus ignominiously expired the famous Council of State, 
 which had ruled England with singular vigilance and 
 success for about four years and a quarter. Lacking 
 the stability which the authority and influence of a 
 constitutional monarchy can alone convey, the states- 
 manship and fidelity to the trust committed to them 
 displayed by these eminent men failed to preserve them 
 from overthrow, and they became the easy prey of an 
 unscrupulous usurper. 
 
 In lieu of this able and influential body, that had Crom- 
 steadily refused to co-operate with Cromwell in his am- ^ e un ci 
 bitious designs,* a phantom council was set up, consisting 
 of seven members, six of whom were military men, to act 
 as Cromwell's nominal advisers. But this was a mere 
 ' barrack-room council,' entirely dependent upon Crom- 
 well himself." Subsequently the dictator convened a 
 Council of State, which included eight officers of high 
 rank and four civilians ; but the latter served merely as 
 a convenient screen, and the body continued to be, to 
 all intents and purposes, a military council/ When, in 
 December 1653, Cromwell accepted the office of Pro- 
 tector of the Commonwealth, he consented to receive 
 from Parliament a council of fifteen persons, to be 
 appointed by statute, with power, by advice of the 
 Council, to increase their number to twenty-one. But he 
 only waited until he was firmly seated upon the presi- 
 dential chair, to proceed to act, in most important 
 matters, without an order of council, and without, as it 
 would seem, even consulting his legal advisers. w The 
 several Parliaments convened by Cromwell during his 
 protectorate proved for the most part refractory and 
 unmanageable ; and it was entirely owing to his own 
 
 8 Bisset, v. 2, p. 467. T Forster, British Statesmen (Crom- 
 
 * Ib. p. 452. well), v. 7, p. 129. 
 
 u Ib. pp. 475, 476. w Ib. p 25' ; , n.
 
 102 COUNCILS UNDER PREROGATIVE GOVERNMENT. 
 
 extraordinary vigour and administrative skill that his 
 
 government achieved the measure of success which, 
 
 especially in the foreign relations of England, has been 
 
 generally and deservedly associated with his name/ 
 
 Cromwell's dictatorship lasted for five years, when it 
 
 was ended by his death, which occurred on September 
 
 Restora- 3, 1658. After a brief period of anarchy, the nation, 
 
 monarchy, tired of intestine strife, gladly welcomed the restoration 
 
 of the monarchy. 
 
 With the accession of Charles II. a new and transi- 
 tion period began, during which the Parliament con- 
 tinued to increase in strength and influence, while the 
 old antagonisms between the ministers of the Crown and 
 the House of Commons were revived with all their 
 former bitterness. The inveterate misgovernment of the 
 restored line of Stuarts y finally brought about the Ee- 
 volution of 1688, an event which not only produced a 
 change of dynasty, but was the means of confirming our 
 national liberties, and placing them upon a more secure 
 foundation. By the introduction of the king's ministers 
 into Parliament at this epoch harmonious relations were 
 at length established between the crown and the legis- 
 lative bodies, and the old abuses of prerogative govern - 
 ment were abolished for ever. 
 
 In reviewing the history of the English Constitution 
 from the Norman Conquest until the accession of 
 William of Orange, certain points appear deserving of 
 especial mention. Firstly, that the seeds of the present 
 political system of Great Britain were sown in the 
 earliest days of our national existence, begetting fruit 
 which has since continuously matured. Secondly, that 
 the responsibility of advising the crown in all affairs of 
 state belonged originally to the Privy Council, an insti- 
 
 * See Goldwin Smith's lecture on y Cox's Walpole (Pownall's Pap.), 
 Cromwell in his < Three Eng. States- v. 3, p. 616. 
 men' (London, 1867).
 
 FKOM THE CONQUEST TO THE REVOLUTION. 103 
 
 tution which is as old as the monarchy itself. Thirdly, 
 that the reigning sovereign has always, and especially 
 when the Privy Council was a numerous body, selected, 
 and by his prerogative had a right to select, certain per- 
 sons of that council, in whom he could especially con- 
 fide, and by whose advice he more particularly acted. 
 So that it may be said that at no period has the king of 
 England been without sworn advisers who could be held 
 responsible for all his public acts. Fourthly, that the 
 authority and jurisdiction of the Privy Council have been 
 made from time to time the subject of parliamentary 
 regulation ; but that, nevertheless, under prerogative 
 government, such was the difficulty of enforcing the re- 
 sponsibility of ministers to Parliament that, except in 
 case of high crimes and misdemeanours, which could be 
 punished by impeachment, it was virtually inoperative ; 
 and therefore the principle of responsibility could only 
 be applied to the ordinary conduct of public affairs by 
 a resort to the extreme measure of withholding the sup- 
 plies. Fifthly, that the want of a cordial understanding 
 between the sovereign and the legislative assemblies was 
 the fruitful source of dissension and misgovernment, 
 which led, in 1649, to the overthrow of the monarchy, 
 and in 1688 to the transference of the crown to a prince 
 of the House of Orange, who was ' called in to vindicate 
 practically those maxims of liberty for which, in good and 
 evil days, England had contended through so many 
 centuries. 2 And, lastly, that the attempt under the 
 Commonwealth to establish a Council of State which 
 should reflect the opinions of the House of Commons, 
 and be composed of the most prominent and influential 
 members of that body, however promising at the outset, 
 speedily and entirely failed, from the lack of that element 
 of stability which the authority and influence of a con- 
 stitutional monarch can alone supply. 
 
 Taylor, Book of Rights, p. 211.
 
 104 
 
 COUNCILS UNDER PREROGATIVE GOVERNMENT. 
 
 Growth of 
 constitu- 
 tional go- 
 vernment. 
 
 The Cabi- 
 net made 
 responsi- 
 ble to Par- 
 liament. 
 
 It is also noticeable, that even during the reign of 
 the Tudor sovereigns, when the power of the crown 
 was predominant over everything, and Parliament was 
 weak and subservient, principles were at work which 
 ultimately tended to the further advancement of con- 
 stitutional government. It was then that the great 
 offices of state began first to assume form and method, 
 and the complex machinery of administration to settle 
 into something like its modern aspect. The Secretaries 
 of State, originally mere clerks appointed to do the king's 
 bidding, became by degrees potent functionaries, with 
 certain defined powers and responsibilities. The office 
 of Chancellor, too, was at this period brought nearly 
 to its present shape. That of Lord High Treasurer, or 
 First Commissioner of the Treasury, and that of Lord 
 High Admiral, or First Commissioner of the Admiralty, 
 came to be then of fixed appointment and establish- 
 ment. Thus, instead of the arbitrary and irregular 
 selection of early times, the principal officers of state 
 were duly appointed to discharge the functions of 
 administration, and to advise the sovereign in the 
 government of the realm. The persons appointed by 
 the king to fill these posts, if not already of the Privy 
 Council, were invariably added to that dignified as- 
 sembly ; and as the most trusted servants and advisers 
 of the crown, they formed the nucleus of the con- 
 fidential council, which was afterwards known as ' the 
 Cabinet.' This powerful governing body, heretofore a 
 pliant instrument in the hands of the reigning monarch, 
 was made responsible to Parliament by the Devolution 
 of 1688. The Bill of Eights, while it left unimpaired 
 the just rights and privileges of the crown, rebuked the 
 excessive claims of prerogative, redressed the grievances 
 of the people, gave vigour and certainty to the efforts 
 of Parliament, secured its independence, and recognised 
 its inquisitorial functions, so that henceforth it was free
 
 FROM THE CONQUEST TO THE REVOLUTION. 105 
 
 to assume that watchful oversight and control over 
 the administration of public affairs, which is now 
 acknowledged to be its peculiar and most important 
 vocation.* 
 
 * See Mr. Adam's speech, Parl. Deb. v. 16, pp. 2
 
 106 ORIGIN OF PARLIAMENTARY GOVERNMENT. 
 
 CHAPTER nr. 
 
 THE ORIGIN AND PROGRESS OF PARLIAMENTARY 
 GOVERNMENT. 
 
 IN the endeavour to enforce the principle of ministerial 
 responsibility for all acts of government, it speedily 
 became apparent that some constitutional provision was 
 necessary to require that the advisers of the crown, 
 through whose agency all affairs of state are conducted, 
 should be publicly known in order that they might be 
 held accountable to Parliament for the advice they had 
 given to the sovereign, and for the consequences of acts 
 which had been brought about through their own 
 Caseofthe instrumentality. This was strikingly exemplified in the 
 Partition case o f the Partition Treaties, which occurred in 1698. 
 
 Treaties. . . . 1 
 
 Ine House of Commons were 01 opinion that these 
 treaties were highly injurious to the public interests, 
 and it was proposed to impeach Lord Somers, who, as 
 Chancellor, had affixed to them the great seal. Somers, 
 in his defence, alleged that he had opposed the treaties, 
 but that he had put the great seal to one of them by 
 the king's command, considering that he was bound to 
 do so. Dissatisfied with this explanation, the Commons 
 resolved upon his impeachment. They also determined 
 to impeach the Earl of Portland, Lord Orford, and 
 Lord Halifax, who, as prominent members of the 
 administration, were held responsible for advising this 
 objectionable measure. But it proved that these noble- 
 men had had nothing to do with the matter, and that 
 the treaties had been negotiated bv the king himself. 
 
 O J O 
 
 Lord Somers was acquitted by the House of Lords, not-
 
 ACT OF SETTLEMENT. 107 
 
 withstanding the unwarrantable nature of his defence, 
 in trusting for the justification of his conduct to the 
 king's command ; an excuse which was entirely at 
 variance with the true principles of responsible govern- 
 ment, and which, if recognised as sufficient, would 
 deprive Parliament of all control over the executive 
 administration. 
 
 Contrast the conduct of Lord Somers in this particular with that 
 of his successor in the chancellorship, Lord Hardwicke, who, on two 
 occasions when required by George II. to put the great seal to con- 
 ventions concluded by the sovereign himself, positively refused to do 
 so, solely because he deemed the treaties in question to be injurious 
 to the interests of England.* 
 
 The proceedings against the other members of the 
 ministry were equally unsuccessful, it being impossible 
 to prove that they had been parties to the obnoxious 
 treaty . b Foiled in their attempt to bring home to any- 
 one responsibility for this act of arbitrary power, the 
 House of Commons set about the adoption of measures 
 to prevent a repetition of the offence. This they 
 endeavoured to effect by the introduction of a clause 
 into the Act of Settlement which provided, that after 
 -the accession of the House of Hanover, ' all matters 
 relating to the well-governing of this kingdom, which 
 are properly cognisable in the Privy Council by the Response 
 laws and customs of this realm, shall be transacted ^ ityof 
 there, and all resolutions taken thereupon shall be Coun- 
 signed by such of the Privy Council as shall advise or 
 consent to the same.' c This provision was meant to 
 compel the discussion of all state affairs in full Privy 
 Council, and to discriminate between the responsibility 
 of those who promoted and those who opposed each 
 resolution, by requiring all who voted for it to sign 
 their names thereto. It was, however, 'soon perceived 
 
 * Harris's Life of Hardwicke, v. 2, 253; Campbell's Chanc. v. 4, pp. 156- 
 pp. 59,369; v. 3, p. 539. 158. 
 
 Hallam's Const. Hist. v. 3, p. c 12 & 13 Will. III. c. 2, 4.
 
 108 
 
 ORIGIN OF PARLIAMENTARY GOVERNMENT. 
 
 Impeach- 
 ment of 
 ministers. 
 
 William 
 III. 
 
 that such a system would cause infinite delay and 
 embarrassment in governing the kingdom ; while doubt- 
 less it was also obnoxious to the ministry, who were 
 not as yet prepared to assume such a definite responsi- 
 bility, involving with it prospective anticipations of 
 impeachment and disgrace.* 1 Accordingly, in the fol- 
 lowing reign, before the time when it was to have come 
 into operation, it was formally repealed. 6 
 
 According to modern usage, but one kind of public document 
 is signed by all the members of the Cabinet, as Privy Councillors, and 
 that is, the order for general reprisals which constitutes a declara- 
 tion of war. Such an order was issued against Russia in 1854, and 
 was signed by all the members of Lord Aberdeen's Cabinet/ 
 
 Another clause in the Act of Settlement, which 
 appears to have been framed in connection with the 
 foregoing, declared that no pardon under the great 
 seal should be pleadable to an impeachment by the 
 Commons. This salutary provision still remains in 
 force, and is calculated to increase the sense of indi- 
 vidual responsibility of ministers. It has been inter- 
 preted by Blackstone as designed to prevent the royal 
 pardon from being available pending an impeachment, 
 and in bar to its progress ; but not to restrain a pardon 
 after the conclusion of the trial. g 
 
 Although the Act of Settlement proved abortive 
 to ensure the direct accountability of the advisers of 
 the crown to Parliament, yet that result was gradually 
 brought about by the course of events, in a way that 
 was quite unforeseen by the politicians and statesmen 
 who effected the Eevolution. 
 
 William III. had been summoned to the throne of 
 England by the two Houses of Parliament, in order that 
 he might rule as a constitutional sovereign. The rights 
 
 d Creasy, Enpr. Const, p. 332. Parl. 
 Hist. v. 6, p. 474. 
 e 4 & 6 Anne, c. 8. 
 
 f H. Reeve, in Ency. Brit. 9th edit, 
 p. 620. 
 
 ' Step. Com. Ed. 1874, v. 4, p. 471.
 
 KEIGN OF WILLIAM III. 109 
 
 and liberties of the subject, for infringing which King 
 James had forfeited his crown, had been declared by 
 Parliament in a document which was presented to the 
 Prince of Orange upon his assumption of the government. 
 They had afterwards been embodied in the Bill of Rights, 
 as part of the fundamental laws of the kingdom, and the 
 motive and condition of the revolution-settlement. The 
 king, on his own part, was sincere in his resolve and 
 endeavour to discharge his sacred obligations with 
 fidelity. But owing to the natural reserve of his dis- 
 position, and his large capacity for administration, he 
 relied much less upon the advice of his ministers than 
 would now be expected of a constitutional king. In 
 fact, according to the testimony of Hallam, William was 
 eminently his own minister, and was better fitted for 
 that office than any of those who served him. h In all 
 domestic matters, as a general rule, he was wont to 
 consult his ministers, 1 and to govern through their 
 instrumentality ; but he still preserved in his own hands 
 the supreme control. 
 
 In 1701, when the reign of William III. was drawing to a close, 
 it was made the subject of complaint by Lord Sunderland, in a 
 letter of advice addressed to Lord Somers, that his majesty evinced 
 too much neglect and distrust of his cabinet ; the remonstrance was 
 summed up in these significant words : ' It would be much for the 
 king's service if he brought his affairs to be debated at that 
 council.' J 
 
 Questions of war and diplomacy, however, the king 
 reserved to himself; and his advisers, conscious that 
 they were less versed in military and foreign affairs 
 than their royal master, were content to leave with him 
 the command of the army, and to know only what he 
 thought fit to communicate about the instructions which 
 he gave to his own ambassadors, or concerning the 
 conferences which he held with the ambassadors of 
 
 h Hallara, Const. Hist. v.3,pp. 252, ' Macaulay, v. 3, p. 538. 
 388. j Pict. Hist, of Eng. v. 4, p. 134.
 
 110 ORIGIN OP PARLIAMENTARY GOVERNMENT. 
 
 foreign princes. k We have seen the consequences of 
 this policy in diplomatic affairs in the matter of the 
 Partition Treaties ; but so deep-seated was the con- 
 viction that military affairs were a branch of the pre- 
 rogative that belonged exclusively to the king himself, 
 that it was not until the year 1806 that it was fully 
 conceded that the management of the army, in common 
 with all other prerogatives, was subject to the super- 
 vision of ministers. 1 
 
 His first To William III., however, is due the credit of the 
 
 mentary formation of the first administration avowedly con- 
 admini- structed upon the basis of partv, in order that it might 
 
 stration. f , . , . . . , 
 
 carry on the king s government in conformity with the 
 general political views of the majority of the House of 
 Commons. This ministry was composed of statesmen 
 who had seats in one or other of the Houses of 
 Parliament ; thereby supplying a defect in the scheme 
 of government, the want of which in the plan pro- 
 pounded in the Act of Settlement was sufficient to 
 account for the failure of that projected reform. The 
 history of this remarkable transaction, which constitutes 
 such a memorable epoch in our political annals, is 
 reserved for another chapter, in which it is proposed to 
 treat, with more detail, of the origin and development 
 of the cabinet council. Suffice it here to state, that 
 during this reign the distinction between the cabinet 
 and the privy council, and the exclusion of the latter 
 from deliberation upon all affairs of state, except of the 
 most formal description, was fully established, and 
 that the king's ministers in Parliament became the 
 authorised representatives of the crown, for the pur- 
 pose of introducing, explaining, and defending the 
 measures of government ; thereby practically assert- 
 ing a constitutional principle, which it was reserved for 
 another generation to bring to maturity, that ministers 
 
 k Macaulay, v. 5, p. 123. l See post, p. 121.
 
 FIRST PARTY ADMINISTRATION. Ill 
 
 are responsible to Parliament for every act of the crown 
 in the conduct of public affairs. 
 
 Henceforward (to use the words of May) a succession of Hano- 
 monarchs arose, less capable than William, and of ministers gifted verian dy. 
 with extraordinary ability and force of character, who rapidly nastv> 
 reduced to practice the" theory of ministerial responsibility. Under 
 the sovereigns of the House of Hanover, the government of the state 
 was conducted throughout all its departments by ministers respon- 
 sible to Parliament for every act of their administration, without 
 whose advice no act could be done, who could be dismissed for 
 incapacity or failure, and impeached for political crimes ; and who 
 resigned when their advice was disregarded by the crown or their 
 policy disapproved by Parliament. With ministers thus respon- 
 sible, ' the king could do no wrong.' The Stuarts had strained 
 prerogative so far that it had twice snapped asunder in their hands. 
 They had exercised it personally, and were held personally respon- 
 sible for its exercise. One had paid the penalty with his head ; 
 another with his crown ; and their family had been proscribed for 
 ever. But now, if the prerogative was strained, the ministers were 
 condemned, and not the king. If the people cried out against the 
 government, instead of a revolution there was merely a change of 
 ministry. Instead of dangerous conflicts between the crown and 
 the Parliament, there succeeded struggles between rival parties for 
 parliamentary majorities ; and the successful party wielded all the 
 power of the state. Upon ministers, therefore, devolved the entire 
 burthen of public affairs ; they relieved the crown of its cares and 
 - perils, but, at the same time, they appropriated nearly all its 
 authority. The king reigned, but his ministers governed. 111 
 
 Making use of their undoubted prerogative of select- origin of 
 ing their own ministers, it had been customary for the 
 sovereigns of England, anterior to the Ee volution, to 
 choose men to fill the high offices of state upon personal 
 grounds, without regard to their general agreement 
 upon political questions. Party as well as parliamentary 
 government originated with William DX, who, in 1696, 
 constructed his first parliamentary ministry upon an 
 exclusively Whig basis, But the idea was unhappily 
 abandoned by the king in his subsequent adminis- 
 trations, and it was not until the House of Hanover 
 
 May, Const. Hist. v. 1, pp. 5, 6,
 
 112 ORIGIN OF PARLIAMENTARY GOVERNMENT. 
 
 ascended the throne that ministers were, as a general 
 rule, exclusively selected from amongst those who were 
 of the same political creed, or who were willing to fight 
 under the same political banner. Queen Anne was 
 inclined to favour the Tories, and in 1710 she autho- 
 rised the appointment of a decidedly Tory ministry : 
 influence upon the accession of George I., however, the Whig 
 great 6 P ar ty obtained possession of the government, and con- 
 Whi .g t tinued for a long time to maintain the upper hand, 
 compelling the king to sacrifice his personal inclinations 
 in favour of their party leaders. 11 
 
 The reigns of the first three Georges were charac- 
 terised by the strife of rival factions to obtain possession 
 of office, and to coerce the sovereign, by the united 
 influence of the great families, to choose his ministers 
 exclusively from amongst themselves. George I. and 
 his successor succumbed to the necessity of conciliating 
 the aristocracy, who by their wealth and territorial 
 possessions had obtained supremacy in the councils of 
 Parliament. But subjection to Whig control in any 
 shape was peculiarly irksome to George III., who being 
 naturally fond of power, determined when he became 
 king to use his prerogative to the fullest possible extent. 
 George Accordingly, when he succeeded to the throne he im- 
 mediately endeavoured * to loosen the ties of party, and 
 to break down the confederacy of the great Whig 
 families. His desire was to undertake personally the 
 chief administration of public affairs, to direct the 
 policy of his ministers, and himself to distribute the 
 patronage of the crown. He was ambitious not only 
 to reign, but to govern. His will was strong and 
 resolute, his courage high, and his talent for intrigue 
 considerable. He came to the throne determined to 
 exalt the kingly office ; and throughout his long reign 
 he never lost sight of that object.' The constant aim of 
 
 May, Const. Hist. v. 1, p. 7. Ib. v. 1, p. 10.
 
 CHARACTER OF GEORGE 111. 113 
 
 the king was to be, in effect, his own minister. ' When 
 ministers not of his own choice were in office, he 
 plotted against them and overthrew them ; and when 
 he had succeeded in establishing his friends in office, 
 he enforced upon them the adoption of his own policy.' 
 The king's tactics were frequently at variance with the 
 principles of constitutional government, but credit is due 
 to him for his conscientious and intelligent activity in 
 the promotion of the public weal. ' That he was too 
 fond of power for a constitutional monarch, none will 
 now be found to deny ; that he sometimes resorted to 
 crafty expedients, unworthy of a king, even his admirers 
 must admit. With a narrow understanding and obsti- 
 nate prejudices, he was yet patriotic in his feelings, and 
 laboured earnestly and honestly for the good govern- 
 ment of his country. If he loved power, he did not 
 shrink from its cares and toil. If he delighted in being 
 the active ruler of his people, he devoted himself to 
 affairs of state even more laboriously than his ministers. 
 If he was jealous of the authority of the crown, he was 
 not less jealous of the honour and greatness of his 
 people. A just recognition of the personal merits of 
 the king himself enables us to judge more freely of the 
 constitutional tendency and results of his policy.' p 
 
 The foregoing description of George III. is taken 
 from the first chapter of May's ' Constitutional History.' 
 It vividly portrays the chief points in the character of 
 that monarch, upon whom such various judgments have 
 been passed. By some he is regarded as the model of 
 a ' patriot king,' whilst others point him out as a 
 bigoted, selfish monarch, obstinate, and wholly regard- 
 less of constitutional rights when opposed to his own 
 policy or prejudices. But whatever opinion we may 
 entertain of his personal character, we have no right to 
 judge his proceedings by the strict rule of parliamentary 
 
 ' May, Const. Hist. pp. 13, 14. 
 VOL I.
 
 114 ORIGIN OF PARLIAMENTARY GOVERNMENT. 
 
 government, as it is now interpreted ; for that system 
 was still in its infancy when George III. was king, and 
 the usages of the constitution in that day warranted a 
 more direct and extended interference in the details of 
 government by the occupant of the throne than would 
 now be deemed justifiable or expedient. Further con- 
 sideration, however, will be bestowed on this subject 
 when treating of the office of sovereign in relation to 
 parliamentary government. We must now proceed to 
 notice certain particulars of the king's public conduct, 
 which claim particular attention on account of their 
 bearing upon the history and development of ministe- 
 rial responsibility. 
 
 The George III., during at least the earlier part of his 
 
 friemis* re ig n > was m tne frequent habit of conferring secretly 
 upon public affairs with noblemen and others who were 
 not members of the Cabinet, but who were personally 
 devoted to the king, and willing to aid him in carrying 
 out his own peculiar views. His object in this was evi- 
 dently to create a new party, faithful to himself, and 
 dependent entirely upon his will. He succeeded ; and 
 the party came to be known as ' the king's men,' or ' the 
 king's friends.' Instead of relying upon the advice of 
 his responsible ministers, the king often took counsel 
 with those whom Burke describes (in his ' Thoughts on 
 the Cause of the Present Discontents ') with some oratori- 
 cal exaggeration as his 'double' or 'interior cabinet.' 
 His first speech to Parliament was not even submitted 
 for the approval of his ministers, but was drawn up, by 
 the king's command, by ex-Chancellor Hardwicke, who, 
 when in office, had had much experience in the prepara- 
 tion of royal speeches, and in whose skill and judgment 
 his Majesty had peculiar confidence. One important 
 paragraph is known to have been written by the king 
 himself, and the whole speech was forced upon the 
 ministry, who consented very reluctantly to adopt it as
 
 THE KING AND HIS ADVISERS. " 115 
 
 their own. q i This " influence behind the throne " was 
 denounced by all the leading statesmen of the day by 
 Mr. Grenville, Lord Chatham, the Marquis of Kocking- 
 liam, the Duke of Bedford, and Mr. Burke. Occasionally 
 denied, its existence was yet so notorious, and its agency 
 so palpable, that historical writers of all parties, though 
 taking different views of its character, have not failed 
 to acknowledge it. The bitterness with which it was 
 assailed at the time was due, in great measure, to poli- 
 tical jealousies, and to the king's selection of his friends 
 from an unpopular party ; but on constitutional grounds 
 it could not be defend ed.' r For at least five years after 
 his accession to the throne it has been generally sup- 
 posed that George III. was more or less guided by Lord 
 Bute, whether in or out of office, as his chief adviser. 8 
 After the retirement of Lord Bute from his secret 
 counsels, his Majesty was still surrounded by a numerous 
 party of friends, some of whom held office in the govern- 
 ment or household, but who severally ' looked to the 
 king for instructions instead of to the ministers.' ' But 
 the greater part of the king's friends were independent 
 members of Parliament, whom various motives had 
 attracted to the personal support of the king. They 
 formed a distinct party, but their principles and position 
 were inconsistent with constitutional government. Their 
 services to the king were not even confined to council or 
 political intrigue, but were made use of so as to influence 
 the deliberations of Parliament. The existence of this 
 party, and their interference between the king and his 
 responsible advisers, may be traced, with more or less 
 distinctness, throughout the whole of this reign. By 
 their means the king caballed against his ministers, 
 
 i Harris, Life of Hardwicke, v. 3, ' Ib. pp. 22, 27, 30 ; Parl. Deb 
 
 p. 231. v. 16, p. 9. See Ed. Rev. v. 126, 
 
 ' May's Hist. v. 1, pp. 11, 12. p. 14; Greville Memoirs, v. 1, p. 84! 
 
 I 2
 
 116 
 
 ORIGIN OF PARLIAMENTARY GOVERNMENT. 
 
 thwarted their measures in Parliament, and on more 
 than one occasion effected their overthrow.' 4 
 
 By the encouragement which he afforded to these 
 irregular practices, it is undeniable that George III. 
 violated a foundation principle of the constitution, and 
 hindered the progress of parliamentary government, 
 which, when faithfully carried out, should foster and 
 promote reciprocal confidence between the sovereign and 
 his responsible advisers. We are not prepared to assert, 
 however, that under no circumstances whatever is the 
 sovereign justified in seeking advice from others than 
 those who form part of his recognised administration, 
 who may Every peer of the realm is an hereditary councillor of 
 king. the crown, and is entitled to offer advice to the reigning 
 monarch. The king, moreover, is at liberty to summon 
 whom he will to his Privy Council ; and every privy 
 councillor has in the eye of the law an equal right to 
 confer with the sovereign upon matters of public policy. 
 The position and privileges of cabinet ministers are, in 
 fact, derived from their being sworn members of the 
 Privy Council. It is true that by the usages of the con- 
 stitution cabinet ministers are alone empowered to 
 advise upon affairs of state, and that they alone are 
 ordinarily held responsible to their sovereign and to 
 Parliament for the government of the country. Yet it 
 is quite conceivable that circumstances might arise 
 which would render it expedient for the king, in the 
 interests of the constitution itself, to seek for aid and 
 counsel apart from his cabinet. Such an occasion, it may 
 be urged, was found in the events which led to the dis- 
 missal of the Coalition ministry of Fox and North in 
 1788. It will be remembered that the Bill for the 
 
 Dismissal 
 
 Coalition government of India, which had been drawn up by Mr. 
 
 ministry 
 in 1783. 
 
 Fox, had been formally sanctioned by his Majesty, and 
 
 * May, Const. Hist. v. 1, pp. 31, 47, 67, 70, 84, 88, 98; Master, 
 Geo. III. v. 1, pp. 67, 144,242.
 
 THE KING AND THE CABINET. 117 
 
 passed triumphantly by the influence of the ministry 
 through the House of Commons, before the true charac- 
 
 c 
 
 ter of the measure was understood, either by the sove- 
 reign or by the country at large. The eyes of the king 
 were opened to the real scope and tendency of the Bill 
 by ex- Chancellor Thurlow, who availed himself of his 
 privilege as a peer to obtain access to the king, and to 
 advise him what course he should pursue at this junc- 
 ture. As soon as the Bill reached the Upper House, 
 George III. authorised Lord Temple, one of his ' friends,' 
 to oppose it, and even to use his name to defeat it in that 
 chamber. Succeeding in this, the king then dismissed 
 his ministers, and empowered Mr. Pitt to form a new 
 administration. In taking office, Mr. Pitt, as he was 
 constitutionally bound to do, justified to the country the 
 removal of his predecessors, and assumed entire respon- 
 sibility for the same. Only by such a course, indeed, 
 was it possible that the conduct of the king could be 
 condoned, in a constitutional point of view. Even so, it 
 must be admitted that the course he pursued in this 
 emergency was unusual, extreme, and most undesirable 
 to establish as a precedent ; more especially in regard 
 "to the mode in which he brought about the rejection of 
 the India Bill namely, by the use of his own name to 
 influence the proceedings of the legislature. For the 
 crown cannot take notice of business actually depending 
 in Parliament without a breach of privilege, and an in- 
 fringement of the independence which belongs to both 
 branches of the legislature, as component parts of the 
 supreme power of the state/ But the question is, not 
 whether the king chose the best course that was open 
 to him to thwart the designs of the unscrupulous men 
 who had obtained control, both in the ministry and in 
 Parliament, but whether we are warranted in so far 
 
 r Bowyer's Const. Law, pp. 135, See further, on thia subject, post. 
 136 ; Hats. Free. v. 2, pp. 352-356. v. 2.
 
 118 ORIGIN OF PARLIAMENTARY GOVERNMENT. 
 
 limiting the exercise of personal authority on the part 
 of the sovereign as to deny him the right to interfere 
 when his ministry are about to consummate an act 
 which, in his opinion, is fraught with danger to the 
 state, and is injurious to the common weal. It may be 
 urged that, having lost confidence in his ministers, the 
 king should have immediately dismissed them ; but 
 events were scarcely ripe enough for such a step. For, 
 while the right of the sovereign to dismiss his ministers 
 is unquestionable, constitutional usage prescribes that it 
 should be exercised on grounds which can be justified 
 by Parliament ; w and as the king had agreed to the 
 introduction of the India Bill, although in ignorance of 
 its true character, and it had already passed the House 
 of Commons, he could scarcely venture to dismiss his 
 ministry on that account until he had succeeded in un- 
 masking their designs, and in bringing about their 
 defeat on the measure in the House of Lords. To assist 
 his judgment and afford him substantial help at this 
 crisis, the king naturally had recourse to the advice of 
 trusty friends, on whose fidelity he could rely. There is 
 no question that, in a constitutional point of view, any 
 Advice peer or privy councillor who may advise the crown 
 sporai- becomes himself responsible to Parliament for such 
 biiity advice, x and should be prepared to admit and assume 
 togetSr. the same, in order that, in the words of Lord North/ 
 ' advice and responsibility might go hand-in-hand.' The 
 king, however, having succeeded, with the assistance of 
 his friends, in arresting the further progress of the ob- 
 noxious Bill, immediately entrusted the reins of govern- 
 ment to Mr. Pitt, who, while he could not vindicate in 
 every particular the means made use of in bringing 
 about the change of ministry, nevertheless assumed the 
 
 w See May's Hist. v. 1, p. 126. Ld. Palmeraton's note. Martin, Pr. 
 
 x Ld. Lansdowne and Ld. J. Rus- Consort, v. 5, p. 261. 
 
 sell, Hans. D. v. 130, p. 387. And * Parl. Hist. v. 24, p. 291 ; and see 
 
 see Welln. Desp. 3rd ser. v. 4, p. 225, Ib, v. 23, p. 67.
 
 THE KINGS ACTION SUPPORTED BY THE COUNTRY. 119 
 
 responsibility of that change before Parliament and the 
 country.' 2 Thus the authority of the sovereign was 
 rescued from the meshes of political intrigue in which it 
 had become involved ; partly by the machinations of the 
 ambitious men who had then the upper hand, and partly 
 by reason of the king's own irregular acts ; and the 
 chariot of the state proceeded once more along the 
 beaten tracks, duly subjected to constitutional control. 
 
 The position of Mr. Pitt, on accepting office, w r as Mr. Pitt s 
 one of peculiar difficulty. He had to contend almost ministr*. 
 single-handed against an overwhelming majority of the tion - 
 House of Commons, marshalled by Fox, North, Sheri- 
 dan, and other able politicians, who were indefatigable 
 and unscrupulous in their endeavours to effect his over- 
 throw. But he resolutely determined to maintain his 
 ground as the king's minister, and to abstain from a 
 dissolution of Parliament, though this was repeatedly 
 urged upon him by his Majesty, until he could be satis- 
 fied that there was a decided reaction in the country in 
 his favour, indications of the commencement of which 
 began to be speedily manifested. He therefore boldly 
 continued the struggle from December 22 to March 24, 
 notwithstanding reiterated votes of want of confidence 
 and every hindrance (short of an actual refusing of the 
 supplies, from which even the factious Opposition 
 shrank) that the ingenuity of his opponents could 
 devise. 
 
 Meanwhile, ' the loyalty of the people was aroused, 
 and they soon ranged themselves on the side of the king 
 and his ministers. Addresses and other demonstrations 
 of popular sympathy were received from all parts of 
 the country ; and the king was thus encouraged to 
 maintain a firm attitude in front of his opponents. The 
 
 * See Stanhope's Life of Pitt, v. 1, Lives of the Chanc. v. 5, p. 565. This 
 
 pp. 153-155. Massey's George III. sound constitutional lawyer does not 
 
 v. 3, p. 224 See also Ld. Campbell's hesitate to express his approval of the 
 
 account of these transactions, in his king's conduct in this emergency.'
 
 120 ORIGIN OF PARLIAMENTARY GOVERNMENT. 
 
 tactics of the two parties in Parliament, and the con- 
 duct of their leaders, were also calculated to convert 
 public opinion to the king's side. Too much exaspe- 
 rated to act with caution, the Opposition ruined their 
 cause by factious extravagance and precipitancy. They 
 were resolved to take the king's cabinet by storm, and 
 without pause or parley struck incessantly at the door. 
 Their very dread of a dissolution, which they so loudly 
 condemned, showed little confidence in public support. 
 Instead of making common cause with the people, they 
 lowered their contention to a party struggle. Consti- 
 tutionally, the king had a right to dismiss his ministers, 
 and to appeal to the people to support his new adminis- 
 tration. The Opposition endeavoured to restrain him 
 in the exercise of this right, and to coerce him by 
 a majority of the existing House of Commons. They 
 had overstretched the legitimate limits of their power, 
 and the assaults directed against prerogative recoiled 
 upon themselves.'* 
 
 The The private letters of the king to Mr. Pitt, at this 
 
 views 8 of period, show us the light in which his Majesty regarded 
 hi ? . the conduct of the House of Commons towards the 
 17 minister of his choice. Writing to Mr. Pitt shortly 
 before the dissolution of Parliament, the king says, ' he 
 [Mr. Pitt] will ever be able to reflect with satisfaction, 
 that in having supported me, he has saved the constitu- 
 tion, the most perfect of human formation.' b And, on 
 another occasion, the king refers to his own course as 
 ' calculated to prevent one branch of the legislature 
 from annihilating the other two, and seizing also the 
 executive power.' c While it is necessary that the king's 
 government should be carried on in harmony with the 
 House of Commons, a due regard to the royal preroga- 
 tive certainly requires that, in the first instance, the 
 
 May's Hist. v. 1, pp. 71, 72. e Ib. p. 293. 
 
 May's Hist. v. 1, pp. 71, Y2. 
 Tomline's Life of Pitt, v. 1, p. 321.
 
 MINISTERIAL CONTEOL OF THE ARMY. 121 
 
 choice of the crown, in selecting the ministers of state, 
 should be respected, and no hasty or factious opposition 
 be directed against them, until they have given proof 
 of incapacity or unfitness for the duties they have been 
 selected by the crown to discharge. This the Parlia- 
 ment of 1784 were unwilling to allow ; and accordingly 
 when, at the fitting moment, the king and his minister 
 appealed to the people, the result of the dissolution was 
 the return of a large majority in favour of the new 
 minister, who thus commenced a long lease of power, 
 secure alike in the good will of the people and of the 
 crown. In Mr. Pitt, George III. found a minister after 
 his own heart, of high ability, unswerving integrity, 
 and firmness of purpose. Nevertheless, the king never 
 surrendered, even to his favourite minister, the unre- 
 stricted exercise of the prerogative, but himself shaped 
 the general policy of his government, and personally 
 influenced the distribution of patronage, both in Church 
 and State, d 
 
 After the death of Mr. Pitt, in 1806, the king was FOX and 
 obliged to accept of an administration taken chiefly m^Jtry! 
 from the Whig party, in whom he had no confidence. 
 -The ministry of c All the Talents,' under the presidency 
 of Lord Grenville and Mr. Fox, was forced, by political 
 considerations, upon the king. Before the arrangements 
 were completed, a difficulty arose on a point of prero- 
 gative. During the negotiations, ' Lord Grenville pro- 
 posed to his Majesty some changes in the adminis- 
 tration of the army ; by which the question was raised 
 whether the army should be under the immediate 
 control of the crown, through the commander-in-chief, ontro1 o 
 
 . ' the army 
 
 or be subject to the supervision of ministers, The king by minis- 
 at once contended that the management of the army 
 rested with the crown alone ; and that he could not 
 permit his ministers to interfere with it, beyond the 
 
 May, v. 1, pp. 75, 85.
 
 122 
 
 ORIGIN OF PARLIAMENTARY GOVERNMENT. 
 
 Office of 
 comman- 
 der- in- 
 chief of 
 the army. 
 
 levying of the troops, their pay and clothing. Lord 
 Grenville was startled at such a doctrine, which he 
 conceived to be entirely unconstitutional, and to which 
 he would have refused to submit. For some time it 
 was believed that the pending ministerial arrangements 
 would be broken off; but on the following day Lord 
 Grenville presented a minute to his Majesty, stating 
 that no changes in the management of the army should 
 be effected without his Majesty's approbation.' With 
 this proviso the king assented to the ministerial claims ; 
 and thus the sole remaining branch of the public service, 
 heretofore considered as to a certain extent exempted 
 from such interference, was brought under ministerial 
 control. 6 
 
 So recently as 1743, it was claimed that the king, as comrnander- 
 in-chief, had an absolute power of appointing and cashiering officers 
 of the army, and was not bound by the advice of a responsible 
 minister ; who, nevertheless, was responsible to Parliament for a 
 wrong use of the prerogative/ 
 
 George III., for the first thirty years of his reign, claimed and 
 exercised an irresponsible authority over the management and 
 patronage of the army. The secretary-at-war, though nominally 
 responsible to Parliament in military affairs, was actually limited in 
 his powers to financial control.^ 
 
 In 1789, the secretary-at-war admitted ' that he was in some 
 sort officially responsible for every measure taken in the military 
 department,' which Mr. Fox said ' he was glad to hear, and that they 
 had for \hefirst time learnt, that they actually had such a person 
 as a responsible military minister.' h 
 
 In 1793, the king insisted upon appointing the general who 
 should command the expedition to Flanders. He chose the Duke of 
 York, who proved to be so incapable, that Mr. Pitt demanded that 
 he should be brought before a court-martial. The king would not 
 agree to this, and Pitt at last yielded, on condition that the appoint 
 ment of general and all other arrangements of the foreign expedi- 
 tions should be made in future by ministers, and not by the king. 
 George III. assented to this condition, in order to save his son from 
 
 May's Hist. v. 1, p. 87, quoting Military Forces, v. 2, pp. 73, 337. 
 
 Ann. Reg. 1800, p. 20 ; Lewis, Ad- Fonblanque, Life of Burgoyne, 
 
 min. p. 287. p. 460. 
 
 1 Parl. Hist. v. 12, p. 560. Clode, b Parl. Hist. v. 27, pp. 1312, 1318.
 
 ROMAN CATHOLIC QUESTION. 123 
 
 exposure. Accordingly, the appointments for the Egyptian expedi- 
 tions were made by Pitt himself and Lord Grenville, without the 
 interference of the king. 1 But it was not until 1810 that, incon- 
 sequence of further disclosures, showing the evil of such inter- 
 ferences with ministerial responsibility, that the ' personal rule ' of 
 the sovereign in military matters was entirely done away with.J 
 
 After the death of the Duke of York (December 9, 1826) 
 George IV. attempted to become commander-in-chief in his own 
 person, proposing to manage the army through a board of general 
 officers and the secretary-at-war. But the objections to this plan 
 were too serious to be overcome, and his Majesty gave way. The 
 Duke of Wellington was then appointed to the command of the 
 army ; k nevertheless, in 1829, King George IV. filled up vacancies 
 in the constableship of Windsor Castle, and in the colonelcy of the 
 1st Life Guards, without even informing his minister of these 
 arrangements. 1 
 
 In 1850, the Duke of Wellington himself urged Prince Albert 
 to consent to succeed him as commander-in-chief, but the Prince's 
 constitutional knowledge induced him to withhold his consent from 
 this tempting offer, and the command was afterwards conferred 
 upon Lord Hardinge. 
 
 Lord Grenville's ministry was then completed, but Quarrel 
 
 between 
 
 it was of very brief duration. The death of Mr. Fox, the king 
 
 and his 
 ministers. 
 
 which speedily followed that of his great rival, led to and hls 
 
 several changes in the cabinet, and the following year a 
 difficulty occurred between the king and his ministry, 
 which led to their dismissal. 111 
 
 The point at issue arose out of an attempt on the 
 part of ministers to induce the king to agree to a Bill 
 to remove certain disabilities from Eoman Catholics 
 and dissenters. But the king resisted the proposal, 
 and ministers withdrew their Bill. Whereupon the king 
 demanded of them a pledge that they would not again 
 propose any similar measure. This they refused to 
 give, and were accordingly dismissed from office. 11 This 
 question will hereafter engage our attention, when the 
 
 1 Sir G. C. Lewis' Letters, p. 394. ' D. of Welln. Civ. Desp. v. 6, pp. 
 
 J Kinglake, Crimea, v. 6, p. 78. 153, 162-166, 181. 
 
 k Quar. Rev. v. 133, p. 310. D. - Hans. D. March 26, 1807. 
 
 of Welln. Civ. Desp. v. 4, p. 222. n National Rev. v. 14, p. 388.
 
 124 
 
 ORIGIN OF PARLIAMENTARY GOVERNMENT. 
 
 Personal 
 influence 
 of George 
 III. 
 
 Strength 
 of minis- 
 ters in 
 Parlia- 
 ment. 
 
 relations between a constitutional sovereign and his 
 responsible advisers are discussed. Meanwhile it is 
 worthy of remark, that May, in reviewing this trans- 
 action, condemns alike the conduct of ministers in their 
 hasty and unauthorised minute, and the conduct of the 
 king in endeavouring to exact a pledge from his cabinet 
 that they would never again obtrude their advice upon 
 him in regard to the Eoman Catholic claims. He also 
 distinctly asserts that the incoming ministers were 
 responsible for the conduct of the king concerning the 
 pledge, as though they had themselves advised it. 
 
 From this time until the close of the reign of George 
 III. no further question arose which affects the history 
 of ministerial responsibility. The king's ' own power, 
 confided to the Tory ministers who were henceforth 
 admitted to his councils, was supreme. Though there 
 was still a party of " the king's friends," his Majesty 
 agreed too well with his ministers, in principles and 
 policy, to require the aid of irresponsible advisers.' p The 
 personal influence of the king was, indeed, very con- 
 siderable throughout the whole of his reign, and was a 
 great source of strength to such ministers as enjoyed 
 his favour. Tt was, on the contrary, a continual cause 
 of difficulty to ministers who were so unfortunate as 
 to incur his disapprobation." 1 
 
 In reviewing the history of this reign, we cannot fail 
 to notice the ease with which the successive administra- 
 tions who held office were able to control the House 
 of Commons, and to carry on the government in con- 
 nection therewith. This was mainly attributable, no 
 doubt, to the number of seats in that House which 
 were virtually in the nomination of the crown, or in 
 in the hands of the leading aristocratic families, from 
 
 May, Const. Hist. v. 1, pp. 96. > Sir G. C. Lewis, Adoainis. of Qt. 
 97. Brit. p. 420. 
 
 P Ib. p. 98.
 
 GREAT GOVERNING FAMILIES. 125 
 
 amongst whom the members of the cabinet were, at 
 that time, exclusively chosen/ 
 
 The great governing families of England have always influence 
 been divided in their political opinions. Had they been 
 of one mind, their influence would have been irresistible. 
 As it was, the Whigs and Tories were continually strug- 
 gling for the mastery. Sometimes the heart of the 
 nation would incline to favour the traditions of the 
 monarchy, embodied in the Tory creed ; again, the ideas 
 of progress which were the battle-cry of the Whigs 
 would be in the ascendant. George III., as we have 
 seen, was strongly biassed on behalf of the Tory party; 
 and no wonder, for the ' great Tory peers and patrons 
 of -boroughs, who, by their influence in counties and 
 their direct power of nomination, commanded the votes 
 of a large section of the House of Commons, were 
 willing, in general, to support any ministry which the 
 king appointed, and to permit all the influence of 
 the crown to be exercised in its favour, provided that 
 their own personal wishes respecting the distribution 
 of patronage received due attention. They contented 
 themselves, as politicians, with a barter of power for 
 patronage ; they gave the former and received the 
 latter. The great Whig lords, however, made a harder 
 bargain with the crown. They insisted upon selecting 
 the king's ministers before they consented to support 
 them. They required that an administration should be 
 formed of- members of their own party, whose names 
 should be proposed by their own leaders.' s 
 
 Between the oligarchies of the two great parties, 
 says Sir G. C. Lewis, ' there was this great difference, 
 that whereas the Tories submitted themselves abso- 
 lutely to the will of the king, the Whigs gave him only 
 a conditional support ; they insisted on his government 
 
 See ante, p. 10. p. 88. Fitzmaurice, Life of Ld. Shel- 
 
 Lewis, Adminis. of Gt. Brit, burne, v. 3, pp. 223, 238, 501.
 
 126 ORIGIN OF PARLIAMENTARY GOVERNMENT. 
 
 acting upon their political principles, and being formed 
 
 of persons who would carry those principles into effect, 
 
 though they might be unpalatable to the crown.' The 
 
 king ' chafed at the oligarchy of the Whig houses, 
 
 because the Whigs put a bit in his mouth ; whereas 
 
 the Tory party was a quiet beast of burden, which he 
 
 could ride or drive as he pleased. The real contest in 
 
 those days was, not between aristocracy and democracy, 
 
 but between aristocracy and monarchy ' The plan of 
 
 Mr. Pitt's Eeform advocated by Mr. Pitt, in 1780, was mainly 
 
 pa^Ha- directed to emancipate Parliament from the influence 
 
 mentary o f ^he crown, exercised through the nomination 
 
 reform. 9 
 
 boroughs, and to prevent the king irom bartering 
 patronage for seats. He sought thus to diminish the 
 influence of the crown in the House of Commons, 
 which, in the words of Dunning's famous resolution of 
 April 6, 1780, ' had increased, is increasing, and ought 
 to be diminished.' But ere long this desirable object 
 was attained by other means. The labours of Edmund 
 Burke in the cause of economic reform, the abolition of 
 sinecure offices, and the reduction of the pension list 
 within reasonable limits, sufficed to curtail the excessive 
 and unwarrantable abuse of crown patronage. For 
 this reason, principally, Mr. Pitt refrained from any 
 further advocacy of parliamentary reform. When the 
 question was revived by Lord John Bussell, after the 
 Peace, and made a ministerial question by the Grey 
 administration, it had entirely changed its aspect. 
 ' The influence of the crown was no longer formidable ; 
 and the measure of 1831 was aimed at the diminution 
 of the power of the aristocratic proprietors of close 
 boroughs, by the same means which Pitt proposed to 
 employ to diminish the power of the crown.' t 
 character George IV., when Prince of Wales, had been the 
 of^George | 3OSOm friend of Fox and Sheridan, and it was supposed 
 
 * Lewis, Adiuinis. pp. 01-99.
 
 REIGN OF GEOEGE IV. 127 
 
 that upon his accession to the throne he would promote 
 the Whigs to place and power. But when, in 1811, 
 during the incapacity of his father, he became prince 
 regent, he evinced a remarkable and increasing in- 
 difference to the principles and persons of the Whig 
 leaders. After the death of the old king on January 
 29, 1820 he made no change in his policy, but con- 
 tinued to repose confidence in the ministers of whom 
 his father had approved. So that, during the whole of 
 his reign (1820-1830), the Tories maintained their 
 ascendency in the cabinet and in the legislature. In- 
 different to the exercise of political power, and chiefly 
 concerned in gratifying his taste for pomp and luxury, 
 George IV. rarely attempted to interfere with his 
 ministers, except in matters personally affecting himself, 
 or some of the royal family, when he could be very 
 resolute and determined. 11 So far as general politics 
 were concerned, he usually acquiesced in the views of 
 his constitutional advisers, and co-operated with them 
 in their measures for the public good. In fact, he 
 appears to have taken a lively interest in the pro- 
 gress of state affairs, judging from the active corre- 
 spondence he kept up with his ministers/ From defects 
 of personal character, the regal influence of George IV. 
 was limited to the strict exercise of the prerogative ; 
 and his personal influence was so small, that it was even 
 difficult for his ministers to bear the weight of his 
 unpopularity, and to uphold the respect due to the 
 crown, when it encircled the head of such an unworthy 
 sovereign^ On one point of public policy, however, 
 he attempted to make a stand, in behalf of his own 
 sense of right, namely, upon the question of further 
 concession to the Eoman Catholic claims, but ministers 
 
 u Campbell's Chanc. v. 7, pp. 345, Times, pp. 416, 437, 445. Welln. 
 
 346. See Welln. Desp. 3rd ser. v. 4, Desp. 3rd ser. passim. 
 p. 665, and v. 6, p. 293. w Lewis, Adminis. p. 421 
 
 T See Stapletou's Canning and his
 
 128 ORIGIN OF PARLIAMENTARY GOVERNMENT. 
 
 were firm, and obliged him to give way. For George IV. 
 had not his father's spirit, and could not persevere in 
 opposing an act which he nevertheless considered to be 
 contrary to his coronation oath, and a dereliction of his 
 duty as a Protestant king. x 
 
 Case of The domestic relations of George IV. were, it is 
 
 Caroline, well known, extremely unhappy ; and they led, in 
 1820, to serious difficulties between the king and his 
 ministers, which threatened to terminate in an open 
 rupture, a catastrophe which was only averted by the 
 patience and good sense of ministers themselves. Some 
 account of these events will afford a valuable illustra- 
 tion of the ministerial status during this reign. The 
 queen having, when Princess of Wales, disgraced her- 
 self by levity of conduct, and exposed herself to the 
 charge of adulterous practices, the king desired the 
 premier to prepare, without delay, a bill of divorce 
 against her. He also determined if possible to proceed 
 against his guilty consort for high treason. The cabinet, 
 however, were not in favour of such severe measures. 
 In a minute dated February 10, 1820, ministers com- 
 municated to the king their opinion, individually as 
 well as collectively, that a proceeding against the queen 
 for high treason was out of the question ; and that to 
 attempt to procure a divorce might seriously prejudice 
 the interests of the crown and of the monarchy, inas- 
 much as, bearing in mind the king's own conduct, it 
 would be impossible to establish a case sufficient to 
 justify the grant of a divorce by Act of Parliament. 
 They agreed, however, to propose certain measures to 
 prevent personal annoyance to his Majesty by the 
 return of the queen to England, and were willing to 
 justify the king in omitting her name from the Liturgy, 
 and refusing to allow her to be crowned. The king 
 replied to this memorandum at considerable length, 
 reiterating his objections. On February 14, the cabinet 
 
 * See post, p. 1 85.
 
 PROCEEDINGS AGAINST THE QUEEN. 129 
 
 re-stated to the king their unanimous opinion that, Queen 
 whatever other measures they might agree to propose, Carolme - 
 they could not recommend the introduction of a Bill of 
 Divorce. The king was angry, and peremptorily reite- 
 rated his commands. Whereupon his ministers, finding 
 expostulation fruitless, threatened to resign. No other 
 men could be found to take their place, on condition of 
 performing what they had refused to do ; accordingly 
 the king, sorely against his will, yielded, being ' ready, 
 for the sake of decorum and the public interest, to 
 make this great and this painful sacrifice of his personal 
 feelings.' 7 
 
 A few weeks afterwards we learn, through a private 
 letter from Lord Chancellor Eldon to his daughter, that 
 the king ' has been pretty well disposed to part with 
 us all, because we would not make additions to his 
 revenue.' 2 Upon which transactions a recent historian 
 justly remarks, ' These minor troubles have a happy 
 capacity for adjustment in a constitutional monarchy, 
 when responsible ministers possess the requisite degree 
 of firmness.' a The king was well aware that he could 
 not ask his advisers to advocate any measures affecting 
 himself individually, but such as they could properly 
 submit for the sanction of Parliament, upon their own 
 personal responsibility ; and that, had he taken upon 
 himself, under such circumstances, to dismiss his 
 ministry for refusing to be subservient to his wishes, 
 he would have found it difficult, if not impossible, to 
 induce any one to take their places, and assume the 
 responsibility of his act. Notwithstanding the crimina- 
 tory evidence obtained against the princess in 1806, 
 and again in 1819, ministers determined to take no 
 
 y See the correspondence between Life of Melbourne, v. 1, p. 145. 
 the king and his ministers on this * Twiss, Life of Eldon, v. 2, p. 362. 
 subject, in Yonge, Life of Ld. Liver- a Knight's Hist, of Eng. v. 8, 
 
 pool, v. 3, cc. xxiv., xxv. Lewis, p. 165. 
 Adminis. pp. 356-411. Torrens, 
 
 VOL. I. K
 
 130 ORIGIN OF PARLIAMENTARY GOVERNMENT. 
 
 Queen active measures against her unless she should obtrude 
 Caroline, herself upon public notice by demanding to be regarded 
 as Queen of England. She imprudently decided upon 
 this course, and in the summer of 1820 left the con- 
 tinent, where she had been residing for several years, 
 and made her appearance in London, for the purpose 
 of prosecuting her claims. On the day of her arrival 
 in London, a message from the king was presented to 
 both Houses, communicating certain papers respecting 
 the conduct of her Majesty since her departure from the 
 kingdom, and recommending them to the immediate and 
 serious attention of Parliament. In the House of Lords, 
 on the motion of Lord Liverpool (the prime minister), 
 these papers were referred to a committee of secrecy, 
 upon whose report a Bill of Pains and Penalties for the 
 degradation of the queen, and for her divorce from her 
 husband, was introduced by his lordship. After evi- 
 dence taken at the bar, the second reading of this Bill 
 was carried by a majority of 28. In committee a motion 
 was made to expunge the divorce clause, which, though 
 unsuccessful, was voted for by all the ministers present, 
 nine in number. By this proceeding they preserved 
 their consistency, and maintained their independence of 
 the personal influence of the king. On November 10, 
 the third reading of the Bill was carried by a majority 
 of nine only ; whereupon Lord Liverpool arose, and 
 announced that the measure would be abandoned. In 
 the state of excitement which prevailed throughout the 
 country on the question, and the feeling which existed 
 against the king, the attempt to carry the Bill through 
 the House of Commons, after such a close division in 
 the Lords, would have been most disastrous, and would 
 probably have resulted in the overthrow of the adminis- 
 tration, whose popularity had been already diminished 
 by the degree of assistance they had rendered to the 
 king on this occasion. 
 
 The reign of William IV. has been rendered mernor-
 
 PASSING OF THE REFORM BILL. 131 
 
 able by the passing of the Eeform Bill ; a measure to 1330-1837. 
 which the king was at first opposed, but which was Jy 11 ^ 
 ultimately carried through Parliament with a high the Re- 
 hand by his own personal exertions. Impressed with 
 the necessity for Eeform, to save the country from 
 revolution, and to avert the perils anticipated by the 
 defeat of the Bill in the House of Lords, the ministry 
 extorted from the king a pledge to create a sufficient 
 number of peers to turn the scale in favour of Eeform ; 
 but a dread of the consequences of such an arbitrary 
 proceeding induced the king, with the knowledge and 
 consent of his ministers, to cause a circular letter to be 
 addressed to the Opposition peers, urging upon them 
 to drop all further resistance to the Bill, so that it 
 might pass without delay, and as nearly as possible 
 without alteration. b This direct interference with the 
 independent deliberations of the House of Lords, how- 
 ever objectionable it may appear, was not unprece- 
 dented under the peculiar circumstances of a conflict 
 between the two Houses. At any rate, it was a less 
 obvious evil than the creation of additional peers, and 
 it had the desired effect. 
 
 The Eeform Bill became law, through the active Effects of 
 interposition of the crown, and with the reluctant f p m cm. 
 assent of the House of Lords. It has effected an 
 important revolution in the English political system. 
 Professedly based upon a ' careful adherence to the 
 acknowledged principles of the constitution, by which 
 the prerogatives of the crown, the authority of both 
 Houses of Parliament, and the rights and liberties of 
 the people, are equally secured,' d it has contributed, 
 in its consequences, to increase the power of the House 
 of Commons, not only by lessening the aristocratic 
 
 b Roebuck's Hist, of the Whig a The king's speech at the opening 
 
 Ministry, v. 2, pp. 331, 334. of Parliament, in June 1831. And 
 
 c See post, p. 191. For a fuller dis- see Earl Russell's comments thereon, 
 
 cussion of this point, see post, v. 2. in his Eng. Const, p. 52.
 
 132 ORIGIN OF PARLIAMENTARY GOVERNMENT. 
 
 influence of the proprietors of close boroughs, but also 
 by diminishing the strength of the crown in that 
 assembly. The disfranchisement of constituencies, in 
 England alone, which formerly returned 143 members, 
 the distribution of seats to various localities hitherto un- 
 represented, and the general extension of the franchise, 
 have been the means of emancipating a large propor- 
 tion of voters from the direct influence of the landed 
 gentry, and of introducing into the House of Commons 
 a body of independent members, who cannot be relied 
 upon as the staunch supporters of any political party, 
 but who think and act for themselves. 6 This has 
 brought about a silent but material change in the rela- 
 tions between Parliament and the ministers of the crown. 
 The stable administrations of former days have passed 
 . away, and no government can now expect to continue 
 increas- in office by dint of mere party strength. The House 
 difficult to of Commons has become more difficult to control, from 
 control the lack of a sufficient number of members upon whose 
 of Com- support an existing ministry could generally depend, 
 and from the necessity of conciliating the goodwill of 
 divers important and independent interests, which are 
 now represented therein/ Nevertheless, as we have 
 already remarked/ the influence of ' the great govern- 
 ing families of England,' though materially reduced, is 
 still powerful over many constituencies. And while 
 the representation of the people has been made more 
 direct and efficient, rank and hereditary property have 
 been permitted to retain a fair proportion of legitimate 
 influence in that chamber which has become the source 
 and centre of political authority. 11 To this we owe it 
 that the complex machinery of parliamentary govern- 
 ment has continued in successful operation, and that 
 
 c See mite. h See May, Const. Hist. v. 1, p. 
 
 1 See Ed. Rev. v. 95, p. iL'5. 355 ; v. 2, p.' 84. 
 
 Ante.
 
 WIILLTAM IV. AND HIS MINISTERS. 133 
 
 the House of Commons has been hitherto preserved 
 from the evil effects of democratic ascendency. 
 
 Two years after the passing of the Reform Bill, the 
 prerogatives of the crown were again called into activity, 
 in a manner which seemed to revive the political history 
 of 1784. Lord Grey's government had lost the confi- 
 dence of the king. The retirement of several members 
 of the cabinet on the question of the appropriation of 
 the surplus revenues of the Church of Ireland excited 
 the apprehension of the king as to the safety of the 
 Irish Church, and, without consulting his ministers, he 
 gave public expression to his alarm, in replying to an 
 address of the prelates and clergy of Ireland. 1 ' The 
 ministry, enfeebled by the loss of their colleagues, by 
 disunion and other embarrassments, soon afterwards re- 
 signed ; notwithstanding that they continued to com- 
 mand a large majority in the House of Commons. They 
 were succeeded by Lord Melbourne's administration, 
 which differed little in material politics and parliament- 
 ary strength. But this administration was distasteful to 
 the king, who had meantime become a convert to the 
 political opinions of the Opposition.' 3 
 
 Taking advantage of the removal of Lord Althorp Dismissal 
 from the leadership of the House of Commons, and from ministers 
 the office of Chancellor of the Exchequer, owing to his ^mTv 
 accession to a peerage by the death of his father, the ^ 1834 - 
 king suddenly dismissed his ministers, and consulted the 
 Duke of Wellington upon the formation of a govern- 
 ment from the Tory party, who were in a decided 
 minority in the House of Commons. k The propriety 
 of this act has been questioned by May, for the reason 
 that ' all the usual grounds for dismissing a ministry 
 were wanting. There was no immediate difference of 
 opinion between them and the king upon any measure or 
 
 1 See post, p. 286. J May, Const. Hist. v. 1, p. 120. 
 
 k See post , p. 104.
 
 134 ORIGIN OF PARLIAMENTARY GOVERNMENT. 
 
 question of public policy ; there was no disunion among 
 themselves, nor were there any indications that they had 
 lost the confidence of Parliament. But the accidental 
 removal of a single minister not necessarily even from 
 the government, but only from one House of Parliament 
 to the other was made the occasion for dismissing the 
 entire administration. It is true that the king viewed 
 with apprehension the policy of his ministers in regard 
 to the Irish Church ; but his assent was not then re- 
 quired to any specific measure of which he disapproved, 
 nor was this the ground assigned for their dismissal. 
 The right of the king to dismiss his ministers was un- 
 questionable ; but constitutional usage has prescribed 
 certain conditions under which this right should be 
 exercised. It should be exercised solely in the interests 
 of the state, and on grounds which can be justified to 
 Parliament to whom, as well as to the king, the minis- 
 ters are responsible. But here it was not directly alleged 
 that the ministers had lost the confidence of the king : 
 and so little could it be affirmed that they had lost the 
 confidence of Parliament that an immediate dissolution 
 was counselled by the new administration. The act of 
 the king bore too much the impress of his personal will 
 and too little of those reasons of state policy by which 
 it should have been prompted ; but its impolicy was so 
 signal as to throw into the shade its unconstitutional 
 character.' 1 
 
 The Duke of Wellington advised that the formation 
 of the new administration should be entrusted to Sir 
 Kobert Peel ; and as that statesman was abroad at the 
 time, he himself accepted the office of First Lord of the 
 Treasury, together with the seals of office as Secretary 
 of State, which, there being no other secretary, consti- 
 tuted his grace Secretary for the Home, Foreign, and 
 Colonial Departments. 
 
 ' May, Const. Hist, v, 1, pp. 122, 123. And see Trevelyan, Life of 
 Macaulay, v. 2, p. 64.
 
 SIR R. PEELS ADMINISTRATION. 135 
 
 Upon the arrival of Sir R. Peel, he immediately 
 waited upon the king, and accepted the proffered charge. 
 And ' so completely had the theory of ministerial re- 
 sponsibility been now established that, though Sir E. 
 Peel was out of the realm when the late ministers were 
 dismissed though he could have had no cognisance of 
 the causes which induced the king to dismiss them 
 though the Duke of Wellington had been invested with 
 the sole government of the country without his know- 
 ledge, he yet boldly avowed that, by accepting office 
 after these events, he became constitutionally responsible 
 for them all, as if he had himself advised them. m He 
 did not attempt, like the ministers of 1807, to absolve 
 himself from censure for the acts of the crown, and at 
 the same time to denounce the criticism of Parliament, 
 as an arraignment of the personal conduct of the king, 
 but manfully accepted the full responsibility which had 
 devolved upon him.' n 
 
 A dissolution of Parliament was at once determined 
 upon ; its result proved, upon the whole, unfavourable 
 to Sir Robert Peel, for, although his own supporters 
 were largely increased, yet a majority against his minis- 
 try was returned. For a while he endeavoured, with 
 great tact and consummate ability, to carry on the 
 government, but he was confronted at every turn by a 
 hostile and enraged majority in the House of Commons, 
 and compelled to succumb. After several previous dis- 
 comfitures he was defeated on a resolution affirming that 
 no measure on the subject of tithes in Ireland could be 
 satisfactory that did not provide for the appropriation 
 of the surplus revenues of the Irish Church. He then Replaced 
 resigned, and Lord Melbourne's administration, with whig 6 
 some alterations, was reinstated. But it is remarkable ministr y- 
 that the appropriation of Irish Church property to other 
 
 m Hans. D. 3rd ser. v. 26, pp. 216, n May, v. 1, p. 125. And see 
 223. post, p. 196.
 
 136 
 
 ORIGIX OP PARLIAMENTARY GOVERNMEXT. 
 
 Waning 
 authority 
 of the 
 crown. 
 
 Reign of 
 
 Queen 
 
 Victoria 
 
 uses, which was a favourite project of the Whigs at this 
 time, and the immediate occasion of the change of 
 ministry, was afterwards abandoned, and the resolution 
 of the House of Commons, upon which Sir Eobert Peel 
 resigned, remained a dead letter on the Commons' 
 Journals. 
 
 The failure of the efforts of William IV. in favour of 
 the Tory party was complete, and it affords an instruc- 
 tive illustration of the effects of the Eeform Act, in 
 diminishing the ascendant influence of the crown. In 
 George III.'s time the dismissal of a ministry by the 
 king, and the transfer of his confidence to their oppo- 
 nents followed by an appeal to the country would 
 certainly have secured a majority for the new ministers. 
 Such had been the effect of the dissolutions in 1784 and 
 1807. But the failure of this attempt to convert Parlia- 
 ment from one policy to another by royal prerogative 
 and influence proved that, with the abolition of the 
 nomination boroughs, and the extension of the franchise, 
 the House of Commons had emancipated itself from the 
 control of the crown ; and ' that the opinion of the 
 people must now be changed before ministers can reckon 
 upon a conversion of the Parliament.' 15 
 
 Lord Melbourne's ministry continued in office during 
 the rest of the king's reign, and on the accession of our 
 present gracious queen, in 1837, she confirmed them in 
 their places, arid gave them her entire confidence. q In 
 1839, however, they were obliged to resign office, on 
 account of their inability to carry on the government 
 with success. Sir Eobert Peel was then charged with the 
 formation of a new ministry. Acting upon the advice 
 of Lord Melbourne, her Majesty was induced, on this 
 occasion, to insist upon retaining the ladies of her house- 
 hold, notwithstanding the change of ministry. This 
 
 See post, p. 200. " May, v. 1, p. 127. See alao Ed. Rev. v. 115, p. 211. 
 "> See post, v. 2.
 
 INFLUENCE OF THE CROWN. 137 
 
 decision of the Queen compelled Sir Robert Peel to relin- 
 quish the task entrusted to him, and the Melbourne ad- 
 ministration were reinstated. But being defeated upon 
 a vote of want of confidence in the House of Commons 
 in ] 841 they again resigned, when Sir E. Peel was sent 
 for, and fully empowered to make such alterations as he 
 thought fit in the composition of the royal household. 
 More particulars in regard to this transaction will be 
 found in a subsequent chapter.' 
 
 ' From this time,' says May, ' no question has arisen 
 concerning the exercise of the prerogatives or influence 
 of the crown which calls for notice. Both have been 
 exercised wisely, justly, and in the true spirit of the con- 
 stitution. Ministers enjoying the confidence of Parlia- 
 ment have never claimed in vain the confidence of the 
 crown. Their measures have not been thwarted by 
 secret influence and irresponsible advice. Their policy 
 has been directed by Parliament and public opinion, and 
 not by the will of the sovereign, or the intrigues of the 
 court. Vast as is the power of the crown, it has been 
 exercised through the present reign by the advice of 
 responsible ministers, in a constitutional manner, and 
 "for legitimate objects. It has been held in trust, as it 
 were, for the benefit of the people. Hence it has ceased 
 to excite either the jealousy of rival parties or popular 
 discontents.' 8 
 
 r See post, p. 290. parties are now designated, instead of 
 
 5 May, Const. Hist. v. 1, p. 155. being styled Whigs and Tories, as of 
 
 For the origin of the terms ' Con- yore, see Speeches, &c., of Edward, 
 
 servative ' (which has been errone- Lord Lytton, edited by his son, v. 1 , 
 
 ously attributed to Sir R. Peel) and p. Ixxix. 
 
 ' Liberal,' by which the rival political
 
 138 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 CHAPTER IV. 
 
 ANNALS OF THE ADMINISTRATIONS OF ENGLAND, FROM 
 1782 TO 1873. 
 
 IT is proposed in the following chapter to give a brief 
 account of the circumstances attending the appointment, 
 resignation, or dismissal, of the several administrations 
 of England, from 1782 to 1873 ; together with a men- 
 tion of the various constitutional questions, illustrative 
 of ministerial responsibility, which arose during their 
 term of office, and which have not been specially 
 noticed in other parts of this treatise. 
 
 The year In selecting the year 1782 as our starting-point, we 
 
 constitu- do so because it is the date of an important epoch in 
 tionai constitutional history. It marks the first introduction 
 
 epoch. / i IT -TCI 
 
 oi the practice, since universally recognised, of the 
 simultaneous change of the whole ministry upon the 
 enforced retirement of the cabinet . a Prior to that time, 
 there had been frequent instances of partial alterations 
 in the cabinet, with a view to conciliate the favour of 
 Parliament, but it was not until the downfall of Lord 
 North's administration, in 1782, in consequence of its 
 having lost the confidence of the House of Commons, 
 that the necessity for a complete change in the ministry, 
 under such circumstances, was freely acknowledged. 
 Moreover, previous to this occasion, there had been 
 but one example that of Sir Robert Walpole, in 1741 
 of the retirement of a prime minister on account of 
 a defeat in the House of Commons. 15 
 
 , v. 2. b ib.
 
 ROCKINGHAM ADMINISTRATION. 130 
 
 1. Roekingham Administration. March 1782. 
 
 In March 1782, upon the resignation of the North 1782 - 
 administration, the Marquis of Eockingham was ap- 
 pointed First Lord of the Treasury. The history of the 
 formation of this ministry is remarkable. The North 
 administration, after a successful career of twelve years, 
 came to an end in consequence of its growing unpopu- 
 larity in the House of Commons. The House had passed 
 resolutions denouncing the great and increasing influence 
 of the crown, and in favour of peace with the revolted 
 American colonies. George III. was strongly averse to 
 the recognition of American independence ; and Lord 
 North, though personally inclined towards conciliation, 
 is said to have remained in office ' to carry into effect 
 the personal wishes of the sovereign, which he preferred 
 to the welfare of the state.' d But the House of Com- 
 mons had become impatient at the continuance of the 
 war, and it was evident that the war ministry were losing 
 ground. A direct vote of want of confidence had indeed 
 been negatived by a bare majority of nine ; but Lord 
 Surrey had given notice of a similar motion, for March 
 20, 1782, which it was anticipated would pass. With 
 some difficulty Lord North induced the king to forestall 
 this defeat, by accepting the resignation of ministers ; 
 an event which was communicated to the House on the 
 day the debate was to have begun. 6 The king made 
 several attempts to induce the Whig party to take office 
 upon his own terms, but without success. He was at 
 length obliged to authorise Lord Roekingham to form 
 an administration upon the basis of the independence 
 of America, and a curtailment of the influence of 
 the crown. The list of the new cabinet, before being 
 
 c See Lewis, Adminis. p. 25. d Russell's Mem. of Fox, v. 1, 
 Fitzmaurice, Life of Ld. Shelburne, p. 247. 
 v. 3, p. 129. e See po3t, v. 2.
 
 140 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 1782. submitted to the king, received the approval of the lead- 
 ing Whigs. The king refused to see his new premier until 
 he was actually in office, and conducted the ministerial 
 negotiations through Lord Shelburne, who was ap- 
 pointed Home Secretary, and at whose suggestion Mr. 
 Dunning (with the title of Lord Ash burton) was added 
 to the cabinet, without previous communication with 
 Lord Eockingham. The contest in which the North 
 administration had been overthrown was a struggle of 
 the king's personal will, backed by the influence of the 
 crown, against the independent portion of the House of 
 Commons. When the result was known, Fox openly 
 treated it as a victory of the Commons over the king ; 
 declaring in his place in Parliament that the new minis- 
 ters must remember that they owed their situations 
 to the House. The king, though fully sensible that he 
 had sustained defeat, was prudent enough to tolerate 
 for a time a ministry composed for the most part of 
 men whom he regarded as his personal enemies. The 
 only member of the late ministry who remained in 
 office was Lord Chancellor Thurlow, who retained his 
 place at the express desire of the king, and who showed 
 his independence of his new colleagues by opposing 
 them in council.* But the new ministry were very 
 short-lived ; within four months of their appointment 
 they were dissolved, by the death, on July 1, of the 
 premier, Lord Eockingham. g 
 
 . 2. Shelburne Administration. July 1782. 
 
 Two days afterwards, Mr. Secretary Fox advised the 
 king to appoint some member of the Eockingham party 
 as premier ; but his Majesty refused, and gave the ap- 
 pointment to Lord Shelburne, whereupon Fox, Burke, 
 
 ' See posf, v. 2. * Lewis, Adminis. p. 20.
 
 SIIELBURNE ADMINISTRATION. 141 
 
 Sheridan, and others of their friends, resigned office. 1732. 
 Nevertheless the new ministry was decidedly Whig, and 
 professed the same principles as their predecessors. Mr. 
 Pitt, the new Chancellor of the Exchequer, and leader 
 of the House of Commons, was, at this time, accounted 
 a good Whig, Fox, after his resignation, continued in 
 opposition, and soon afterwards entered into his famou? 
 Coalition with Lord North, which immediately placed the 
 government in a very perilous position. The compara- 
 tive strength of parties in the House of Commons was 
 estimated to afford the ministry 140 votes, Lord North 
 120, Fox 90, and the residue uncertain. Preliminaries 
 of peace, which recognised the independence of the 
 American colonies, had been agreed upon by the govern- 
 ment, and presented to Parliament. It was decided that 1783 . 
 their acceptance should be a test question between 
 the new Coalition and the ministry. Accordingly, a 
 motion of censure upon the terms of the preliminaries 
 was proposed by Lord J. Cavendish, on February 21, 
 and agreed to by the House of Commons, by 207 to 
 190 votes. Three clays afterwards, the ministry re- 
 signed. Owing to the difficulties of the situation, there 
 - was a ministerial interregnum, which extended to the 
 beginning of April. In the interim, the king made an 
 unsuccessful attempt to induce Mr. Pitt to form a 
 government ; and the Commons, on March 24, passed 
 an address, praying his Majesty to form a strong and 
 united administration, which was graciously received, 
 and responded to through Earl Ludlow. 11 On March 31, 
 a motion was made for a further address upon the 
 subject ; but the House being of opinion that it was 
 premature to interpose again with their advice so soon 
 after his Majesty's gracious reply to their former address, 
 the motion was withdrawn. 1 
 
 11 Adolpbuf, Geo. III. v. 3, pp. Life of Ld. Shelburue, v. 3, cc. iv., v. 
 1 50, 464, 466. And see Fitzmaurice, ' Parl. Hist. v. 23, pp. 687-709.
 
 142 ANNALS OF THE ADMINISTEATIONS OF ENGLAND. 
 
 3. Duke of Portland's First Administration. 
 April 1783. 
 
 1783 At length, on April 2, 1783, the celebrated ' Coali- 
 
 tion Ministry' was formed, under the nominal presidency 
 of the Duke of Portland. It included Lord North and 
 Mr. Fox, heretofore such bitter and, as was supposed, 
 irreconcilable opponents. The other cabinet offices 
 were chiefly filled by followers of Fox, who was him- 
 self the virtual prime minister . j The Coalition was un- 
 popular with the nation on public grounds, and was 
 vehemently assailed both in and out of Parliament. 
 Lord North and his friends attempted to vindicate 
 their conduct by arguments of expediency. 1 " The king 
 himself resented the Coalition for personal reasons. He 
 had long entertained a great aversion to Fox, which 
 was aggravated by the friendship that -had sprung up 
 between Fox and the Prince of Wales. Lord North 
 was formerly a favourite with the king, but he now 
 looked upon him as a deserter to the enemy's camp. 
 He therefore resolved to take the earliest opportunity 
 of ridding himself of his obnoxious advisers. Nothing 
 remarkable occurred during the remainder of the ses- 
 sion in which the ministry was appointed. But, on the 
 reassembling of Parliament, in the autumn of 1783, the 
 king's speech announced that the treaties of peace had 
 been signed. Mr. Pitt, as leader of the Opposition, re- 
 minded ministers that these treaties were substantially 
 identical with the preliminary articles, upon which they 
 had turned out their predecessors in office. 1 Early in 
 the session, Mr. Secretary Fox introduced his famous 
 India Bill. Its principal feature was that it vested the 
 
 * Fitzmaurice, Life of Ld. Sbel- and against the Coalition, see Adol- 
 burne, v. 3, cc. vii., viii. Russell's phuv, v. 3, pp. 460-464 ; Lewis, Ad- 
 Mem, of Fox, v. 2, p. 95. minis, p. 60. 
 
 k For the principal arguments for l Parl. Hist. v. 23, p. 1140.
 
 MR. PITTS FIRST ADMINISTRATION. 143 
 
 government of India, for four years, in a commission of 
 seven persons, named in the Bill, and not removable by 
 the crown, except upon an address from the two Houses 
 of Parliament. Pitt denounced the plan as dangerous 
 to the constitution, and a violation of the chartered 
 rights of the East India Company. 
 
 A protest signed by Lord Buckingham, the Duke of Portland, 
 Lord Fitzwilliam, and other peers to a Bill for the management of 
 the East India Company's affairs, in 1773, contained the following 
 passage, which, from its striking applicability to Mr. Fox's Bill, was 
 much quoted at the time: 'The election of executive officers in 
 Parliament is plainly unconstitutional, and an example of the most 
 pernicious kind, productive of intrigue and faction, and calculated 
 for extending a corrupt influence in the crown. It frees ministers 
 from responsibility, while it leaves them all the effect of patronage.' m 
 
 But though the measure was unpopular in the country, 
 the Coalition were sufficiently strong to carry it through 
 the House of Commons without difficulty. In the Lords 
 it obtained a different reception. Lord Temple, at the 
 instigation of the king himself, n brought about its 
 rejection, in that House, on December 17, by 95 to 76 
 votes. On the following day the king dismissed the 
 ministry, and again appealed to Pitt to assume the 
 ~ reins of government. 
 
 4. Mr. Pitt's First Administration. December 1783. 
 
 On December 19, 1783, Mr. Pitt's first administra- 
 tion was formed. Earl Temple, who had been ap- 
 pointed a Secretary of State, advocated an immediate 
 dissolution of Parliament. But Pitt would not agree to 
 this, being of opinion that the time had not yet come 
 when the country could be appealed to with success. 
 He ' wisely determined to give the public feeling time 
 
 m See Adolphus, v. 4, p. 59, n. ; n See ante, p. 117. 
 Lords' Journals, June 19, 1773. Ed. Fitzmaurice, Life of Ld. Shel- 
 Rev. v. 107, p. 578. burne, v. 3, p. 406.
 
 144 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 1783. to gather strength,' p whereupon Temple resigned, on 
 the 22nd instant, leaving the youthful premier to bear 
 the brunt of the severest contest ever waged in Parlia- 
 ment. For though Pitt possessed the unlimited confi- 
 dence of the king, and the support of the House of 
 Lords, yet a powerful majority of the House of Com- 
 mons was arrayed against him. His cabinet consisted 
 of seven persons, all of whom, save himself, were peers. q 
 His only assistant in the House of Commons was his 
 friend Dundas. He was assailed at once by every 
 imaginable device of a hostile Opposition votes of 
 want of confidence, censures upon the government, 
 obstructions and defeats in every shape. 1 ' But he stood 
 firm ; and though frequently urged by his supporters, 
 and even by the king himself, to dissolve Parliament, 
 he refrained from doing so until he considered that the 
 country was prepared to sustain him. It was not until 
 
 1784. March 24 that the prorogation took place, to be fol- 
 lowed by an immediate dissolution. But such was the 
 inveteracy of the Opposition that Pitt was obliged to 
 prorogue before the passing of an Appropriation Act. 
 Upon the reassembling of Parliament, however, it ap- 
 peared that the amount of unauthorised expenditure 
 had been very small, so that no objection was urged, 
 or indemnity sought for, in regard to the same. 8 The 
 sense of the country, in reference to the great issues 
 involved in the contest between Pitt and the Coalition, 
 had been expressed at the time by numerous addresses 
 .to the king. It was afterwards unmistakably pro- 
 nounced by the return of a House of Commons which 
 gave a triumphant support to .the new administration. 
 Above 1 60 members lost their seats at this election, nearly 
 
 P T. B. Macaulay, Life of Pitt, in office, in December 1783, to the dis- 
 
 Ency. Brit. solution of Parliament, in March 
 
 '' Stanhope's Pitt, v. 1, p. 165. 1784, see Mir. of Parl., 1841, pp. 
 
 ' See ante, p. 119. For a list of 1953, 195*4. 
 the defeats of Pitt, in the House of 3 TIats. Prec. 208. 
 Commons, from his acceptance of
 
 MR. PITT'S FIRST ADMINISTRATION. 145 
 
 all of whom were Oppositionists. Upon the meeting of ITS*. 
 Parliament, an amendment was moved to the address in 
 answer to the royal speech, to rescind the paragraph 
 which expressed approval of the late dissolution ; but it 
 was negatived by a majority of more than two to one.* 
 In the course of this session, Pitt introduced his India 
 Bill, which was carried by a majority of 271 to 60. It 
 created a Ministerial Board of Control for the affairs 
 of India, to act in concert with the Court of Directors 
 of the East India Company. This system of ' double 
 government ' continued in operation until after the 
 great mutiny of 1857, when, by the Act 21 and 22 
 Viet. c. 106, the government of India was assumed by 
 the queen herself, acting through a responsible Secre- 
 tary of State. Mr. Pitt's majority in the House of 
 Commons continued unshaken during the whole period 
 of his administration, which lasted upwards of seventeen 
 years. The unpatriotic conduct of Fox and his followers 
 in regard to the French Eevolution, and consequent war 
 between England and France, contributed largely to 
 the popularity of the government. 11 It so alarmed and 
 disgusted the aristocratic section of the Whig party as 
 to induce them in 1792 to desire a Coalition with the 
 government. For a time Fox himself was not unfavour- 
 able to union, but jealousy of Pitt would not suffer him 
 to take a subordinate place in a ministry headed by 
 his great rival. So he drifted off into more violent 
 opposition, and openly avuwed republican ideas. Where- 
 upon the Duke of Portland, with other eminent Whig 
 leaders, agreed, in the summer of 1794, to coalesce 
 with Pitt. This Coalition was publicly ratified by the 
 introduction of five new cabinet ministers from the 
 ranks of the Opposition to the Treasury Bench/ The 
 
 * Knight, r. 7, pp. 140-143; Adol- T Life and Letters of first Earl of 
 phus, v. 4, pp. 103, 117. Minto, v. 2, cc. i.-iv,,xi. Jesse, Life 
 
 u See Lewis, Adminis. pp. 137, of George III. v< 3, pp. 183-194. 
 
 VOL. 1.
 
 146 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 course pursued by Fox reduced his party so low that, 
 near the end of the century, it was jocularly estimated 
 that the entire Opposition could have been held in one 
 h ackney -coach . w 
 
 The retirement of Pitt's administration took place in 
 isoi. 1801. It was not purely voluntary, but was brought 
 about by differences with the king in regard to the 
 Eoman Catholic claims. Mr. Pitt, in order to facilitate 
 the passing of the legislative Union between Great 
 Britain and Ireland, had intimated his readiness to pro- 
 pose the removal of the Eoman Catholic disabilities 
 from office-holders and members of Parliament. A pro- 
 position to this effect was discussed in the cabinet for 
 about six months previous to its being communicated 
 to the king, notwithstanding the known repugnance 
 of his Majesty to any legislation upon the subject. 
 When the desire of his ministers to submit to Parlia- 
 ment some measure of relief became known to the king, 
 by a letter from Mr. Pitt, dated January 31, 1801, in- 
 forming him that, unless the royal sanction thereto was 
 granted, he must resign his office, the king at once 
 declined to discuss the proposition. He nevertheless 
 urged Mr. Pitt not to leave his service. But Pitt would 
 riot yield. So the king declared that he should form 
 a new administration. 35 Canning, who was in office at 
 the time, is said to have strongly advised Pitt not to 
 give way on this occasion ; for that, for three years 
 back, so many concessions, as he termed them, had 
 been made, and so many important measures overruled, 
 from the king's opposition to them, that government 
 had been weakened exceedingly ; and if in this instance 
 a stand was not made, Pitt would retain only a nominal 
 
 Campbell's Lives of the Clianc. by other motives. See Massev's 
 p. 614. George III. v. 4, pp. 537-559. 
 
 ee post, v. 2. It has been sur- Lewis, Adminis. pp. 144, 207, 270, 
 
 v. 5, p. 614. George III. v. 4, pp. 537-559. 
 
 * See post, v. 2. It has been sur- Lewis, Adminis. pp. 144, 207, 270, 
 raised that while the Catholic question 282. But see Life of Earl Minto, 
 
 was the ostensible ground for Pitt's v. 3, c. ix. 
 resignation, h<- was largely influenced
 
 ADDItfGTON ADMINISTRATION. 147 
 
 power, while the reality would pass into the hands of isoi. 
 those who influenced the king's mind and opinion out 
 of sight. 7 The causes of this change of ministry were 
 very briefly stated to Parliament ; and Mr. Pitt's ex- 
 planations were neither full nor satisfactory. 2 This 
 reticence was evidently resorted to in order to avoid 
 bringing the royal name too prominently forward in 
 connection with these events ; a but it naturally gave 
 rise to much misapprehension at the time, and it was 
 not until after the death of Pitt that the whole truth 
 transpired. 1 * 
 
 5. Addington Administration. 1801 . 
 
 Mr. Addington, who at that time was speaker of the isoi. 
 House of Commons, was empowered by the king to 
 form a cabinet as soon as the correspondence between 
 his Majesty and Mr. Pitt had terminated. But before 
 the outgoing ministers had their audiences to deliver 
 up their seals, the king, in consequence of the agita- 
 tion produced by the change of ministry, was seized 
 _with a return of his mental malady. He was unable to 
 attend to business until about March 10, when he was 
 sufficiently recovered to sign documents and give audi- 
 ences to some of his ministers. Pending the completion 
 of the new arrangements which were thus unavoid- 
 ably delayed, Mr. Pitt continued to conduct the public 
 business in the House of Commons, performing the 
 official duties of the Chancellor of the Exchequer, 
 although he had formally resigned that office on Feb- 
 ruary 5. c 
 
 But his resignation was not legally complete until the appoint- 
 
 y Malmesburv, Diaries, v. 4, p. 4. b Parl. Deb. v. 9, p. 232 : Quar 
 
 1 Parl. Hist.* v. 35, pp. 945, 967, Rev. v. 112, p. 369. 
 
 1112. c Parl. Hist. v. 35, p. 959. 
 Ib. p. 1121.
 
 1-18 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 1801 ment of his successor ; he was therefore competent to transact 
 official business." 1 
 
 The king did not receive the seals of office from Mr. Pitt until 
 March 14 ; and he gave them to Mr. Adclington on that day. In 
 order to facilitate the new arrangements, Mr. Addington vacated 
 his seat in Parliament, by accepting the Chiltern Hundreds, on 
 February 19 ; but owing to the king's illness it became impossible 
 to confer upon him his ministerial office previous to his re-election 
 for Devizes. Accordingly, on March 16, a new writ for Devizes was 
 again ordered, upon the acceptance by Mr. Addington of the offices 
 of First Lord of the Treasury and Chancellor of the Exchequer. The 
 result of these delays was that it was March 23 before Mr. Adding- 
 ton again took his seat in the House. 6 
 
 On February 16, he moved the House into Com- 
 mittee of Supply, for the purpose of enabling him to 
 open the budget. The motion was opposed on the 
 ground that ' the responsibility of the former ministers 
 was at an end,' and the incoming ministers were as yet 
 absent from their places ; and that therefore ' further 
 proceedings on the estimates should be delayed until the 
 new ministers, by taking their seats, have assumed re- 
 sponsibility.' This was resisted by Mr. Pitt, who said 
 that ' when there arises a change among his Majesty's 
 ministers, it must be left to his Majesty to determine when 
 the new arrangements shall be formed ; and it is contrary 
 to the spirit of the constitution for the House to assume 
 any right of determination on a subject of this kind.' 
 He also contended that the perilous state of the country, 
 in its foreign relations, demanded that there should be 
 no delay in granting the supplies, and ' that every de- 
 partment of the public service should be accelerated to 
 the greatest possible degree.' If the new ministers were 
 not responsible for framing the estimates (a responsi- 
 bility from which he himself would not shrink), they 
 would be undoubtedly responsible for expending the 
 
 d See Hula. Prec.v. 2,p.394 ; Parl. tice as to the competency of retiring 
 
 Deb. v. 16, p. 735. ministers to conduct the ordinary 
 
 Sidmouth's Life, by Pellew, v. 1 , business of the crown in Parliament, 
 
 pp. 204, 345. This wholesome prac- aee post, v. 2.
 
 ADDINCiTOX ADMIXISTKATIOX. 149 
 
 money. He claimed, moreover, that there was no isoi, 
 ground to ' call for the interference of the House, either 
 from a change of measures or of men.' Until the ap- 
 pointments of the new ministers ' were publicly noti- 
 fied, it was inconsistent with the constitution to come to 
 any determination. In no previous instance had it been 
 attempted to be denied, that, according to the constitu- 
 tion, his Majesty had the sole right of nominating his 
 ministers, and that the House had no right to form any 
 resolution till their conduct came to be judged of by 
 the acts of their administration. Even in 1784 this 
 general principle had never been attempted to be 
 denied in the abstract.' 1 Adverting to his having re- 
 frained from entering into explanations as to the cause 
 of his own resignation, Mr. Pitt observed that it appeared 
 to him to be a new and not very constitutional doctrine, 
 that ' a man must not, in compliance with the dictates 
 of his conscience, retire from office without being bound 
 to give to this House, and to the public, an account 
 of all the circumstances that weigh in his mind and 
 influence his conduct. Where this system of duty is 
 established, I know not.' g The motion for going into 
 Committee of Supply was then put and agreed to, with- 
 out a division. On February 18, Mr. Pitt introduced 
 the budget, which excited no opposition. The House 
 continued to sit, and to debate various public political 
 questions up to March 17, when the new administration 
 were formally inducted into office. But even then, 
 owing to the unsettled condition of the king's mind, a 
 further delay of several weeks took place before the 
 ministry was entirely completed. 1 ' 
 
 Mr. Addington's administration was constructed 
 
 f Parl. Hist. v. 35, pp. 960-962. impossible to afford full explanations 
 
 e 76. p. 969. See also p. 1121, for to Parliament of the causes which 
 
 further remarks from Mr. Pitt on this have led to the resignation or dis- 
 
 point, showing that the reciprocal missal of a ministry. 
 
 duty between a sovereign and his h Adolphus, v. 7, pp. 450, 468 ; 
 
 ministers may sometimes render it Lewis, Adminis. p. 210.
 
 150 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 1801 upon an avowedly ' anti-Catholic ' basis. It had been 
 formed, at the outset, ' with the concurrence of Mr. 
 Pitt, who wished all his private and personal friends to 
 remain in office.' 1 It began its career upon March 14, 
 1801, the day when the king transferred the seals of 
 office from the outgoing to the incoming premier. 
 Ministers had no sooner taken their seats in the House 
 of Commons when, on March 25, Mr. Grey moved for 
 a committee of the whole to consider the state of the 
 nation. His speech was an elaborate attack upon the 
 conduct and policy of the preceding ministry, and a 
 condemnation of the existing one, because of their pre- 
 sumed incompetency to fill their places properly ; and 
 because it had been avowed, on their behalf, that their 
 principles were similar to those of their predecessors in 
 office. Mr. Pitt defended himself and his late col- 
 leagues, and claimed for the new ministry, at the outset 
 of their career, 'a constitutional confidence ;' in other 
 words, ' that, unless some good reason were assigned to 
 the contrary, the House was bound, by the best prin- 
 ciples of policy, as well as by the true spirit of the 
 constitution of this country, to wait to see the conduct 
 of the ministers of the crown, before they should with- 
 hold their confidence. ' j The new premier expressed 
 himself to the same effect, saying, ' In what degree the 
 confidence of the House might be supposed to extend to 
 his Majesty's present ministers, it was not for him to 
 conjecture. They only asked, however, for that portion 
 of it which should be constitutionally reposed in persons 
 duly appointed by his Majesty, unless it was precluded 
 by their antecedent conduct and characters.' k The 
 House then divided on Mr. Grey's motion, which was 
 negatived by a large majority. A similar motion, pro- 
 posed to the House of Lords on March 20, met with a 
 
 ' Rose, Diary, v. 1, p. 292. J Parl. Hist. v. 35, pp. 962, 1115. 
 
 k Ib. p. 1160.
 
 ADDIXGTOX ADMINISTRATION". 151 
 
 similar fate. Nevertheless it was evident that the new 
 administration did not possess the confidence of either 
 House of Parliament to the same extent as their prede- 
 cessors. Conscious of this, Mr. Addington, in March 
 1803, made overtures to Mr. Pitt, offering him the isos. 
 selection of a new premier, if he would consent to serve 
 with himself in the capacity of Secretary of State. Pitt 
 would not listen to this arrangement. He was then 
 offered the premiership, on condition that there should 
 be no extensive changes in other offices. But neither 
 would he agree to this, although he and his friends were 
 tired of bolstering up a feeble government. 1 
 
 Commenting on these transactions, Sir G. C. Lewis pointedly re- 
 marks: 'It appears that the king's consent to the negotiation, 
 however necessary an element in the business, had never been pro- 
 cured by Addington ; so that, in fact, no distinct offer, by competent 
 authority, was made to Pitt. Addington assumed to act as plenipo- 
 tentiary, but had not full powers to treat. ... It is remarkable 
 that the latter should have ventured to make the offer, or that the 
 former should have been willing to entertain it, without the king's 
 express authority being previously obtained. It was not a mere 
 question of changing a cabinet office, as to which a prime minister 
 might properly make a preliminary arrangement, subject to the 
 king's confirmation. It was* practically a negotiation for a complete 
 alteration of the character of the government ; and the whole dis- 
 cussion proceeded on the assumption that Addington and Pitt were 
 between them to settle who was to be the new prime minister.' 
 After he had received Pitt's final answer, Addington took an oppor- 
 tunity to mention the matter to the king. But he represented 
 Pitt's conduct in such an unfavourable light, as to excite the king's 
 anger; and when, shortly afterwards, he gave the king copies of the 
 correspondence, his Majesty refused to read the letters, and re- 
 marked that ' it was foolish business, which was begun ill, conducted 
 ill, and terminated ill.' m 
 
 Accordingly, Addington continued at the helm for 
 another year, when it became notorious that he had 
 lost his hold upon both Houses. In the Commons, 
 ministerial majorities on important divisions were 
 
 1 See post, v. 2. And Lewis, Ad minis, pp. 223-229, 272 
 m Ib. pp. 229, 272.
 
 152 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 gradually reduced ; while in the minority were found 
 most of the leading men of all parties, including Pitt, Fox, 
 1804. and Sir Francis Burdett. On April 22, 1804, Mr. Pitt 
 wrote to the king, intimating that he could no longer 
 refrain from direct opposition to the ministerial mea- 
 sures ; a determination which he immediately carried 
 out, by opposing, on April 25, the government plan for 
 military defence, and developing a scheme of his own. 
 On a division, ministers were sustained by a small ma- 
 jority. But, taking into account the gradual decline of 
 his own numbers, and the increasing strength of his 
 opponents, Mr. Addington deemed it expedient to resign. 
 Upon his informing the king of this resolution, there 
 was an immediate resumption of intercourse between 
 his Majesty and Mr. Pitt. At first, communications 
 were conducted through Lord Eldon (the Lord Chan- 
 cellor); 11 but, on May 6, the king himself wrote to Mr. 
 Pitt, requiring of him, as a necessary preliminary to his 
 return to office, that he would never agitate or support 
 Eoman Catholic emancipation, or the repeal of the Test 
 Act ; and that in the new ministry (wherein the king 
 hoped Mr. Pitt would include as many of his Majesty's 
 present servants as possible) Mr. Fox should be ex- 
 cluded. Mr. Pitt had previously determined that he 
 would not again press the Catholic claims upon his royal 
 master, whether he should be in or out of office. This 
 resolution had been made known to the king so long 
 ago as March 1801 ; so that, while he contrived on this 
 occasion to evade giving the formal pledge which his 
 Majesty required, he was nevertheless able to satisfy 
 his sovereign as to the policy he would advocate in the 
 event of his return to power. Although yielding to 
 
 n Lord Eldon'a share in these Lewis, Aduiinis. pp. 243, 279; Quar. 
 
 transactions gave rise to an imputa- Rev, v. 112, p. 375. 
 
 tion that he intrigued for the return Knight, v. 7, p. 431 ; Parl. Deb. 
 
 of Pitt to power, and for his own re- v. 9, p. 254; Stanhope's Pitt, v. 3, 
 
 tention in office; but this has not p. 310; Lewis, Adminis. pp. 223- 
 
 been satisfactorily established. See 244.
 
 MR. PITTS SECOND ADMINISTRATION. 153 
 
 the necessity of the case, in recalling Mr. Pitt, the king 
 was reluctant to part with Mr. Addington. Before 
 taking the final step, he offered his faithful premier a 
 dissolution of Parliament, if he thought it would insure 
 the stability of his administration. But this was de- 
 clined ; for, while Mr. Addington did not doubt his 
 ability to restore and retain his ascendency in the House 
 of Commons, he felt that he could not command a ma- 
 jority in the Lords without resorting to the extreme 
 and dangerous measure of creating a batch of peers. p 
 He therefore resigned office on May 10. 1804. 
 
 6. Mr. Pitt's Second Administration. 1804. 
 
 Mr. Pitt, when invited to communicate with the 1804. 
 king in regard to the existing state of public affairs, 
 sent his Majesty a letter, on May 2, through Lord Eldon, 
 containing a plan for the formation of a new govern- 
 ment, which should comprehend the leaders of all 
 political parties. The king, who was greatly troubled 
 at this time by the resignation of his favourite Adding- 
 ton, and not at all willing to re-admit Pitt to office, 
 gave a discouraging reply. But on May 7, after Pitt 
 had satisfied the king that he would no longer agitate 
 him by renewing his advocacy of the Eoman Catholic 
 claims, he had an audience of his Majesty, and suc- 
 ceeded, with some difficulty, in obtaining leave to treat 
 with Lord Grenville and his friends, and with the friends 
 of Mr. Fox ; but the king positively refused to admit 
 Mr. Fox himself into the cabinet, though pressed to 
 receive him by Pitt. The Grenville party, however, 
 declined to accept office without Fox, and Pitt was com- 
 pelled to make other arrangements. The new cabinet 
 consisted principally of peers ; Lord Castlereagh being 
 the only one, besides Pitt, who was a member of the 
 
 Adolphus, v. 7, p. 768. Life of Earl of Minto, v. 3, c. liii.
 
 154 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 House of Commons. q Pitt took his seat, after his re- 
 election, on May 18, 1804. But he found himself less 
 strong in the confidence of the House than heretofore. 
 A severe and mortifying trial overtook him in the fol- 
 lowing session. His friend and colleague, Lord Melville 
 (First Lord of the Admiralty), was accused, in the Tenth 
 Keport of the Commissioners of Naval Inquiry, with a 
 misappropriation of public money when he held the 
 office of Treasurer of the Navy. A motion, inculpating 
 him of this offence, was carried in the House of Com- 
 mons by the Speaker's casting vote, notwithstanding the 
 opposition of Pitt. A few days afterwards, Mr. Pitt 
 informed the House that Lord Melville had resigned his 
 ministerial office ; and that he had advised the king to 
 erase his name from the list of the privy council. r 
 
 Articles of impeachment were exhibited against Lord Melville ; 
 and he was tried by the House of Lords, but pronounced not guilty. 
 He was then restored to his place in the Privy Council ; but never 
 afterwards held office, though invited to do so by the Portland 
 administration. 8 
 
 1805. j n the autumn of 1805, Pitt again endeavoured to 
 
 overcome the king's objections to Mr. Fox, but without 
 success ; and he was obliged to abandon the idea of 
 meeting Parliament with any accession of administra- 
 tive or parliamentary strength.* But it was fated that 
 he should never appear in the House of Commons again. 
 His health, which had been long failing, suddenly gave 
 way, and he died on January 23, 1806 being the 
 twenty-fifth anniversary of the day on which he first 
 took his seat in parliament at the early age of forty- 
 eight. After Mr. Pitt's decease, the junction of political 
 parties, which he had latterly striven to bring about, 
 though frustrated by the king's refusal to admit Mr. 
 Fox into the cabinet, was accomplished. The critical 
 
 Lewis, Adminis. p. 246. Ib. p. 297. 
 
 Ib. pp. 257, 278. Ib. p. 259.
 
 LORD GRENVILLES ADMINISTRATION. 105 
 
 state of our continental relations induced the leading 
 politicians to sink minor differences in a general union, 
 and to agree to the formation of a Coalition govern- 
 ment on a wide and comprehensive basis." 
 
 7. Lord Grenville's Administration. 1806. 
 
 After an ineffectual attempt on the part of the king 180fi - 
 to induce Lord Hawkesbury (the Home Secretary) to 
 form a new ministry, which should represent as nearly 
 as possible the principles of the late cabinet, his Majesty 
 was induced, by the retiring ministers, to send, on 
 January 26, for Lord Grenville, and empower him to 
 form a comprehensive administration, which, it was 
 understood, should include Mr. Fox. From the eminent 
 statesmen of which this ministry was composed, it 
 became known as ' All the Talents.' Fox was appointed 
 Foreign Secretary, and leader of the House of Com- 
 mons. The only terms which the new ministers made 
 with the king related to the management of the army, a 
 point which has already engaged our attention/ Upon 
 the question of the Eoman Catholic claims the ministry 
 were divided, and had no declared policy. With a 
 view to strengthen their political position, Lord Ellen- 
 borough, the Chief Justice of the King's Bench, had 
 been admitted to a seat in the cabinet. This arrange- 
 ment was open to grave constitutional objections, and 
 became the subject of animadversion in both Houses 
 of Parliament. Although the appointment was success- 
 fully defended at the time, it was generally condemned 
 by public opinion, and no similar appointment has since 
 been made. w On September 13, 1806, Mr. Fox died, an 
 event which weakened the ministry in Parliament very 
 
 u Lewis, Adininis. p. 267. w See a full discussion of this ques- 
 
 T Ib. p. 287. And see ante, p. 121. tion in v. 2.
 
 156 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 1806. materially. But the changes of office proposed by 
 Lord Grenville, and assented to by the king, preserved 
 the balance of power in the Coalition government.* In 
 the following month ministers suddenly determined upon 
 a dissolution of Parliament with a view to strengthen 
 their hands in the prosecution of the war with 
 France/ In the new House. of Commons they were able 
 to command a large majority. Nevertheless, their 
 downfall was near at hand. True to their avowed 
 principles when in opposition, they drafted a Bill to 
 remove certain civil disabilities of Roman Catholics 
 and Dissenters who held commissions in the army or 
 navy. They sought and obtained permission from his 
 Majesty to submit this measure to Parliament. But 
 the king's consent was given with great reluctance; and, 
 as it afterwards proved, under a misapprehension as to 
 the extent of relief proposed to be granted. This mis- 
 apprehension was shared in by some members of the 
 cabinet itself. When the ministerial intentions were 
 fully explained, one of their number (Lord Sidmouth) 
 tendered his resignation, and the king declared his 
 decided opposition to the Bill ; which, meanwhile, had 
 been introduced, and read a first time in the House of 
 Commons. The ministry anxiously disavowed any in- 
 tention to deceive their royal master, or to go beyond 
 the authority they presumed he had given them to 
 initiate legislation on this subject ; and the king himself 
 
 1807. fully acquitted them of any such design. In order to 
 satisfy his Majesty's scruples, the ministry, on March 15, 
 passed a cabinet minute, which they communicated to 
 the king, and in which they agreed to withdraw the 
 Bill, but claimed the right of publicly expressing their 
 individual sentiments on the subject, and of proposing 
 at any future time such measures for the relief of their 
 Roman Catholic fellow-subjects as they might deem to 
 
 * See Lewis, Adminis. p. 293. 
 Bulwer's Palmerston, v. 1, p. 52. Parl. Dtb. v. 8, p. 27,
 
 DUKE OF PORTLANDS SECOND ADMINISTRATION. 157 
 
 be called for by the condition of Ireland. The king 
 resented this declaration, and insisted that it should be 
 withdrawn. But, not content with this, he endeavoured 
 to exact from the ministry a pledge that they would 
 never, under any circumstances, propose in cabinet any 
 measure of concession to the Roman Catholics, or in 
 relation thereto. They very properly refused to give 
 any such assurance ; whereupon, on March 24, they 
 received their dismissal. 2 On the day previous, Lord 
 Howick (Foreign Secretary) informed the House of 
 Commons that, although ministers had not received the 
 royal commands to deliver up the seals of office, the 
 king had thought proper to send for persons not 
 employed as his servants, and was engaged in arrange- 
 ments for a new administration. a On the 25th instant, 
 after the dismissal, his lordship gave notice that as, on 
 the morrow, the House would be moved to adjourn for 
 several days, he would take the opportunity to give 
 explanations respecting the change of ministry. A 
 similar notice was given by the late premier in the 
 House of Lords. At the time appointed, the explana- 
 tions were made, and a short debate thereupon arose in 
 both Houses. In the course of the debate, notice was 
 given (in each House) of intended motions in regard to 
 the circumstances attending the dismissal of the minis- 
 try. 13 Parliament then adjourned until April 8. 
 
 8. Duke of Portland's Second Administration. 1807. 
 
 Meanwhile the Duke of Portland, who had been 
 charged by the king to form a new ministry, 'appears, 
 on March 25, 1807, to have succeeded in that under- 
 taking ; although no formal announcement of his suc- 
 cess seems to have been communicated to Parliament. 
 
 z Bulwer'sPalmerston,v. 1, pp.02- b Ib. pp. 260, 279. 
 
 76^ Walpole : s Perceval, v. 1, pp. 223- c Ib. p. 187. For au account of the 
 
 233. Parl. Deb. v. 9, pp. 266-276. new ministerial arrangements, see 
 
 * Parl. Deb. v. 9, p. 174. Lewis, Admiuis. p. 206.
 
 158 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 1807. But, on the following day, new writs were moved for in 
 the Commons, on behalf of the members of the incom- 
 ing administration who had seats in that House. On 
 April 9, the new ministers being present, Mr. Brand 
 moved to resolve, ' That it is contrary to the first duties 
 of the confidential servants of the crown to restrain 
 themselves by any pledge, expressed or implied, from 
 offering to the king any advice which the course of cir- 
 cumstances may render necessary for the welfare and 
 security of any part of the empire.' There was a general 
 acquiescence by members in this doctrine, but it was 
 objected to as being ' an abstract proposition,' and there- 
 fore inexpedient and inconvenient for the House directly 
 to affirm. Accordingly an amendment, that the other 
 orders of the day be read, was proposed on behalf of 
 ministers, and agreed to on division. During the debate, 
 Mr. Perceval (the Chancellor of the Exchequer) stated 
 that ' to the best of his knowledge and belief, the king 
 
 o f ^j 
 
 had no adviser on the point of requesting the pledge ; ' d 
 a remark which called forth emphatic declarations ' that 
 there was not a moment in the king's life, from his ac- 
 cession to his demise, when there was not a person con- 
 stitutionally responsible for his actions ; ' that it was ' of 
 the greatest importance to his Majesty that the doctrine 
 of responsible advisers should be strictly maintained ;' 
 and that, although the king, in dismissing a ministry, in 
 the exercise of his undoubted prerogative, might appear 
 to be acting without advice, yet that the incoming 
 ministry did themselves assume the responsibility of the 
 dismissal of their predecessors. The king being irre- 
 sponsible by law, if the ministers should also claim, for 
 whatever reason, to be absolved from responsibility, 
 
 d Parl. Deb. v. 9, p. 328. He ad- rence (p. 345). But a few days 
 
 mitted, however, that he ' approved afterwards Mr. Perceval reiterated 
 
 of what had been done, and was ready his denial of the doctrine, that minis- 
 
 to be responsible for it ' (p. 316) ; a ters who accepted office were legally 
 
 declaration in which Mr. Secretary responsible for the change of goveru- 
 
 Cauning expressed his full concur- ment (p. 473).
 
 DUKE OF PORTLANDS SECOND ADMINISTRATION. 159 
 
 there would be no security for the people against the iso:. 
 evils of bad government. 6 In the House of Lords, on 
 April 13, the Marquis of Stafford made a motion similar 
 in effect to that submitted to the House of Commons by 
 Mr. Brand, except that it was prefaced by a preamble, 
 expressive of regret at the changes which had taken 
 place in his Majesty's councils. It was met on behalf 
 of ministers by a motion to adjourn, which was carried. 
 On April 15 Mr. Lyttleton moved, in the House of 
 Commons, ' That this House, considering a firm and 
 efficient administration as indispensably necessary, in the 
 present important crisis of public affairs, has seen, with 
 the deepest regret, the late change in his Majesty's 
 councils.' The friends of the motion acknowledged the 
 right of the king to choose his own advisers, but insisted 
 that the House had the privilege of giving its opinion on 
 the fitness of the persons selected to fill the situations 
 to which they were appointed. But the House were not 
 prepared to limit the exercise of the prerogative so far 
 as to refuse a fair trial to the king's ministers. The 
 debate was in substance a repetition of the former dis- 
 cussion ; but it was signalised by an able speech from 
 Sir William Grant (the Master of the Eolls), in which he 
 commented severely on the attempt of the late ministers 
 to expose the king to odium because he had thought fit 
 to dismiss them. He remarked that many ministers had 
 been dismissed from office without any cause assigned, 
 but that never until now had any one come to Parlia- 
 ment to complain of his sovereign. ' Lord Soiners was 
 removed without a shadow of complaint ; did he demand 
 an investigation of the cause ? When Godolphin's ad- 
 ministration was removed by Queen Anne, did they 
 complain to Parliament? In 1757, the dismissal of Mr. 
 Pitt and Mr. Legge produced a great ferment ; but was 
 anything said about that dismissal in Parliament ? If a 
 
 Purl. Deb. v. 0, pp. 285, 320, 335, 362, 380.
 
 160 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 minister were to secure himself the right of enquiry into 
 the causes of his removal, he would approximate his 
 situation to that of a judge, or any other officer, for life. 
 Of a change in administration, Parliament had no con- 
 stitutional knowledge, and on such change could found 
 no enquiry.' An amendment, on behalf of ministers, to 
 pass to the orders of the day, was then put and car- 
 ried/ Notwithstanding that by these votes the new 
 government was fully sustained by majorities in Parlia- 
 ment, advantage was taken of the popular feeling in 
 favour of the king's act in dismissing his ministers upon 
 * Protestant grounds,' to dissolve Parliament at the end 
 of its first session. g The main issue raised by this 
 appeal to the country was the propriety of the conduct 
 of his Majesty in changing his advisers ; proceeding, as 
 it did, from a conscientious conviction that a due regard 
 for the maintenance of the principle of Protestantism 
 in the constitution demanded such a proceeding. This 
 was distinctly enunciated in the royal speech at the 
 prorogation of Parliament. 11 The elections went in 
 favour of ministers, and their majority was largely 
 increased in the new House of Commons. Upon the 
 meeting of Parliament, amendments to the address, in 
 answer to the speech from the throne, were proposed in 
 both Houses, condemning the dissolution, as having been 
 resorted to upon ' groundless and injurious pretences ; ' 
 but they were negatived by large majorities. 1 The Duke 
 of Portland, we have seen, was the nominal head of this 
 ministry ; but he rarely superintended anything, or 
 interfered with the arrangements of his colleagues, so 
 that for a time the administration became, once more, a 
 
 f Parl. Deb. v. 0, pp. 472-474. attack for sanctioning the ' No Popery ' 
 
 And see Speaker Abbott's remarks in cry on this occasion ; notwithstanding- 
 
 Colchester Diary, v. 2, p. 119. their own convictions in favour of 
 
 * Yonge, Life of Ld. Liverpool, Roman Catholic emancipation. See 
 
 v. 1 , p. 237. Lewis, Adminis. p. 302. 
 
 h Ib. p. 552. Mr. Canning and Ld. ' Parl. Deb. v. 0, pp. 583-658. 
 Ua.tlcrengh laid themselves open to
 
 MR. PERCEVAL'S ADMINISTRATION. 161 
 
 mere government by departments. 3 Its most influential 
 member was Mr. Spencer Perceval, the Chancellor of the 
 Exchequer. 
 
 9. Mr. Perceval's Administration. 1809. 
 
 On October 30, 1809, the Duke of Portland died. 
 After an ineffectual attempt to induce Lord Grenville to 
 form an extended and combined administration, he was 
 succeeded by Mr. Perceval as premier.* 
 
 Mr. Perceval held the two offices of First Lord of the Treasury and 
 Chancellor of the Exchequer in conjunction. The Chancellor of the 
 Exchequership had been offered to Mr. Vansittart, Mr. Rose, Mr. 
 Long, Mr. Milnes, and to Lord Palmerston, but declined by each. 1 
 
 The new cabinet consisted of ten persons, seven of whom 
 were peers. At first it was beset with difficulties, from 
 intrigue and a formidable opposition in the House of 
 Commons, but Perceval's dauntless courage, high per- 
 sonal character, and ready resources, soon turned the 
 scale in his favour, and won for him the admiration of 
 _his political opponents, and the favour of the prince 
 regent, who had previously regarded him as his bit- 
 terest enemy . m 
 
 Contrary to general expectation, the Prince of Wales, upon his 
 assumption of the regency, in February 1811, addressed a letter to 
 Mr. Perceval, stating that it was not his intention to remove the 
 existing ministers from office. This step, he added, was prompted 
 exclusively by filial duty and affection. 11 A year afterwards, when 
 the restrictions on the regent expired, he still continued Mr. Perce- 
 val as minister. He did, indeed, invite the co-operation of Lords 
 Grey and Grenville, but they could not consent to form a junction 
 with their political opponents. The death of George III., which 
 
 J Walpole, Life of Perceval, v. 1, m Ib. v. 2, cc. v., vi., vii. 
 
 P- 238. " Ib. v. 2, pp. 172, 184, 194. 
 
 k Ib. v. 2, c. i. Lewis, Adminis. Ib. p. 264. Lewis, Adminis 
 
 p. 316. pp. 329-334. 
 
 1 Ib. v. 2, pp. 47-51. 
 
 VOL. I. M
 
 162 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 took place on January 29, 1820, was not followed by any important 
 political consequence. 
 
 The Marquis Wellesley was appointed Foreign Secretary 
 in the new administration, and continued to hold this 
 isi2. office until February 19, 1812, when he resigned, be- 
 cause his ' general opinions for a long time past, on 
 various important questions, had not sufficient weight 
 in the cabinet to justify' his remaining in the govern- 
 ment. He had chiefly objected to the narrow and im- 
 perfect scale on which the war in Spain had been 
 conducted. His views on this head had been always 
 overborne in council by Mr. Perceval. In announcing his 
 intention to retire from office, he declared that he should 
 have no objection, in any future ministerial arrange- 
 ments that might be determined upon, to serve with Mr. 
 PercevaL provided the principles he contended for were 
 carried out ; but that ' he never again would serve under 
 Mr. Perceval in any circumstances.' p 
 
 Mr. Perceval was desirous of appointing Lord Sidmouth Foreign 
 Secretary, in place of Lord Wellesley ; but the prince regent, who 
 had at this time a personal repugnance to Lord Sidmouth, positively 
 refused his consents A year after, however, his lordship became a 
 member of the Cabinet. 1 " 
 
 A few weeks afterwards, this administration was de- 
 prived of its main-stay, by the assassination of the 
 premier, on May 11, in the lobby of the House of Com- 
 mons. Then came a struggle for power, which left the 
 country virtually without a government for about a 
 month. The prince regent, after the death of Mr. 
 Perceval, being desirous of continuing the administra- 
 tion upon its existing basis, authorised Lord Eldon (the 
 chancellor) to ascertain whether the cabinet were will- 
 ing, if called upon by his royal highness, to carry on the 
 
 P Parl. Deb. v. 23, pp. 367-370. > Lewis. Adininis. p. 329. 
 And see Walpole's Perceral, v. 2, ' Ib. p. 333. 
 pp. 234-271
 
 MINISTERIAL INTERREGNUM. 103 
 
 government under any one of their colleagues whom is 12. 
 his royal highness might select. The cabinet replied 
 that they would be perfectly willing to do so, but that 
 under the existing circumstances of the country they 
 considered that the result would be very doubtful. They 
 appeared to think that at any rate it was advisable to 
 invite the co-operation of the leading Whig statesmen 
 before venturing to act without them. 8 Accordingly, 
 the prince regent, who was anxious to strengthen, as 
 much as possible, his present ministry by the intro- 
 duction therein of public men who coincided with the 
 general principles on which the government of the 
 country had been hitherto conducted, authorised the 
 Earl of Liverpool (then Colonial Secretary) to negotiate 
 with Lord Wellesley and Mr. Canning with a view to 
 their joining the administration. A communication was 
 therefore addressed by Lord Liverpool, with the consent 
 of his colleagues, to these gentlemen, on May 17. But 
 it was declined by them upon the ground that they 
 could form part of no ministry that was not prepared 
 to adopt a less restrictive policy towards the Eoman 
 Catholics. Lord Wellesley furthermore objected to the 
 ^manner in which the war was carried on, as evincing 
 but little improvement since he withdrew from the 
 ministry on that account.* Notwithstanding this failure, 
 the remaining members of the existing administration 
 were unwilling to retire from office," being confident of 
 their ability to carry on the government, if only they 
 could succeed in replacing their able and popular chief, 
 and could agree together on a definite line of policy. 
 But their continuance in office was not satisfactory to 
 the House of Commons. Accordingly, on May 21, Mr. 
 Stuart Wortley moved the adoption of an address to 
 
 ' Twiss, Life of Eldon, v, l,p. 493. Chancellor of the Exchequer, aud a 
 
 * Parl. Deb. v. 23, Appx. p. i. new writ moved for in the House 
 
 u On May 20, Mr. Nicholas Van- of Commons. He took his seat on 
 
 sittart was appointed to the office of June 10. 
 
 M 2
 
 104 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 1812. the prince regent, praying him to take measures for the 
 formation of ' a strong and efficient administration.' 
 The motion was resisted on the ground that it was ' an 
 unconstitutional and unprecedented interference with 
 the prerogative of the crown.' ' The House had inter- 
 fered when an administration had been formed and 
 found inefficient ; but they never had come forward 
 with their previous advice. It was their duty to watch 
 over and control the crown ; but there was no doctrine 
 in the constitution better understood than that they had 
 
 no right to interfere with the crown in the nominatio n 
 o 
 
 of its servants.' v An amendment was moved, ' that the 
 other orders of the day be read.' Mr. Wilberforce ad- 
 verted to the case of 1784 w as deciding the question, 
 ' whether the House should have a previous negative on 
 the appointment of the ministers of the crown. It had 
 then been determined that it should not, and that it was 
 only when either or both of the Houses of Parliament 
 had had experience of some of the measures of ministers 
 that, if they could not confide in the administration, it be- 
 came their duty to address the throne, and express their 
 judgment '* But Mr. Canning drew a proper distinction 
 when he said that he perfectly concurred in the general 
 doctrine laid down, that it is the exclusive prerogative of 
 the crown to nominate its own ministers ; that the case 
 must be urgent indeed to authorise the interference of the 
 House ; but that he could not forget that Parliament had 
 a double character. ' The House of Commons is a Council 
 of Control, but it is likewise a Council of Advice ; ' and a 
 case of ' transcendent importance ' might arise, in which 
 it would be ' competent for the legislature, by the timely 
 interposition of advice, to prevent the necessity of con- 
 trol.' 3 " This distinction was agreed to by the Foreign 
 Secretary (Lord Castlereagh), who nevertheless con- 
 
 * Parl. Deb. v. 23, p. 253. Parl. Deb. v. 23, p. 258. 
 
 " See ante, p. 144. * Ib. p. 267.
 
 MINISTERIAL INTERREGNUM. 105 
 
 tended ' that the House was not by circumstances justi- 1812. 
 fied, at this moment, to interfere.' Mr. Wortley's motion, 
 however, was agreed to by a majority of four, and the 
 address was ordered to be presented to the prince regent 
 by the mover and seconder. It received a gracious 
 reply from his royal highness. Viewing the address as 
 tantamount to a declaration of their own inefficiency, 
 the remaining members of the ministry immediately 
 placed their offices at the prince regent's disposal, and 
 it was understood that they merely continued in office 
 until his royal highness should signify his pleasure as to 
 any future arrangement. z 
 
 During the whole of this ministerial interregnum, and until (on 
 June 8) he was formally commissioned by the prince regent to 
 form an administration, Lord Liverpool appears to have been re- 
 garded, on all sides, as the temporary head of the ministry. He 
 was its chief mouth-piece in Parliament, the recognised organ of his 
 colleagues, and the one whom, it was understood, they were desirous 
 should be appointed to the premiership.* 
 
 At this juncture the prince regent laid his commands 
 on the Marquis Wellesley to form a plan of adminis- 
 tration, and submit the same for his approval. Accord- 
 ingly, on May 23, the marquis requested Mr. Canning 
 to be the medium of communication between himself 
 and Lord Liverpool, for the purpose of inviting his 
 lordship, with such of his colleagues as might be willing, 
 to assist in the formation of a new ministry, on the 
 basis of an early adjustment of the Koman Catholic 
 claims, and the prosecution of the war with vigour. 
 This overture was also declined. Simultaneously with 
 his appeal to Lord Liverpool, Lord Wellesley addressed 
 himself to Lords Grey and Grenville to the same effect, 
 informing them, however, that he considered himself 
 on this occasion as being merely the instrument for 
 executing the prince regent's commands, and that he 
 
 * Ld. Liverpool. Parl. Deb. v. 23, Yonge, Life of Ld. Liverpool, v. 
 pp. 332, 357. 1, p. 385 ; y. 3, p. 459.
 
 1GG ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 1812. neither claimed nor desired for himself any station in 
 the projected administration. On May 26, while this 
 negotiation was still pending, the prince regent revoked 
 Lord Wellesley's general commission. But subsequently 
 his lordship received more precise and definite powers, 
 so that on June 1, he was able to inform Lord Grey 
 that he had been fully commissioned to become the 
 premier of an administration, to be formed on the basis 
 above mentioned, and that he had been specially autho- 
 rised to invite the co-operation of Lords Grey and Gren- 
 ville, with permission to those noble lords to recommend 
 four or five persons for seats in the cabinet, together with 
 Lords Moira and Erskine, and Mr. Canning, who, it had 
 been agreed, should form part of the same. In reply, 
 Lords Grey and Grenville declined to participate in a 
 government to be formed on the basis of ' the supposed 
 balance of contending interests.' They considered that 
 such a principle would ' establish within the cabinet itself 
 a system of counteraction inconsistent with the prosecu- 
 tion of any uniform and consistent course of policy ; ' 
 which could only be productive of weakness and disunion, 
 and would be utterly opposed to the object of the House 
 of Commons in recommending the formation of a strong 
 and efficient administration. They furthermore objected 
 to the nomination, on behalf of the prince regent, of 
 Lords Moira and Erskine. and Mr. Canning, to seats in 
 the cabinet, not on the plea that it was an unconstitu- 
 tional exercise of power on the part of his royal highness, 
 but because ' the first and vital principle of a cabinet 
 was the mutual confidence of its members, and the total 
 absence of everything like jealousy among them ; ' and 
 this could only be insured when the parties invited to 
 form a government were empowered ' to arrange the 
 cabinet among themselves. ' b On June 3, Lord Wellesley 
 acquainted the prince regent of his failure in this under- 
 
 Parl. Deb. v. 23, p. 428.
 
 MINISTERIAL INTERREGNUM. 167 
 
 taking, and \vas informed that the task would be en- is 12 
 trusted to other hands. On June 5, Lord Moira, as the 
 confidential friend of the prince regent, endeavoured to 
 bring about a political understanding with Lords Grey 
 and Grenville, but they refused to enter into ' unautho- 
 rised discussions.' Next day Lord Moira again addressed 
 their lordships, acquainting them that he had the prince 
 regent's instructions to take steps towards the formation 
 of a new ministry, with special authority to invite their 
 lordships' co-operation. On the following day, a meeting 
 took place between these noblemen, in the presence of 
 Lord Erskine, at which Lord Moira stated that he had 
 received his commission ' without any restriction or 
 limitation whatever being laid by the prince on their 
 considering any points which they judged useful for his 
 service,' or as to the filling up of any place in the cabinet. 
 This announcement was favourably received, but their 
 lordships desired to know, at the outset, whether the 
 liberty to be accorded to them in filling up offices in the 
 new ministry extended to the consideration of new ap- 
 pointments to those great offices in the household which 
 have been usually included in political arrangements 
 -made on a change of ministry. To this Lord Moira 
 replied that he had no commands from the prince regent 
 on this head ; but that, for his own part, he could not 
 concur in this exercise of power on the present occasion, 
 because he should deem it, on public grounds, peculiarly 
 objectionable. Their lordships answered that, on similar 
 grounds, ' it appeared to them indispensable that the 
 connection of the great offices of the court with the 
 political administration should be clearly established in 
 its first arrangements.' A decided difference of opinion 
 as to this point having been thus expressed on both sides, 
 the conversation ended here, with mutual declarations 
 of regret. In the subsequent explanations in Parliament 
 
 c Parl. Deb. v. 23, Appx. pp. xx. - trusted the sincerity of the regent, 
 xlii. Ld. Grenville, it seems, dis- and anticipated that a strong court
 
 1G8 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 on this point, it was admitted that a new administration 
 had a right to claim the removal of these officers of 
 the household ; but its exercise, under existing circum- 
 stances, was deemed inexpedient and impolitic. The 
 prince regent himself appears to have been quite willing 
 to part with all these functionaries ; but Lord Moira, 
 who was his adviser on this occasion, decidedly objected 
 to such a proceeding.* 1 After his unsatisfactory inter- 
 view with the Whig noblemen, Lord Moira relinquished 
 the task entrusted to him. and advised the prince regent 
 to have recourse once more to the assistance of his 
 former servants ; whereupon the old ministry was recon- 
 stituted under the premiership of Lord Liverpool. 6 
 
 10. Lord Liverpool's Administration. 1812. 
 
 1812. During the progress of these protracted negotiations 
 
 the House of Commons continued sitting, and frequent 
 attempts were made to invoke its interference, in the 
 shape of remonstrances and appeals, in respect to the 
 proposed ministerial arrangements, but without success. 
 On May 30, after the failure of Lord Wellesley's first 
 overtures to Lord Liverpool, and to Lords Grey and 
 Grenville, Mr. Martin, of Galway, gave notice that he 
 would, on June 3, move an address to the prince re- 
 gent beseeching him to carry into effect his gracious 
 declaration, in reply to the address of the House on 
 May 21, and proceed without delay to appoint a strong 
 ministry, 'possessing more of the confidence of the 
 people than that which had lately been in existence.' f 
 But on June 1, Mr. Canning informed the House that 
 the Marquis Wellesley had been empowered to form a 
 new administration. Mr. Wortley then proceeded to 
 
 influence would be exercised against 453. And see Lewis, Adminis. pp- 
 
 him if he took office. Buckingham, 329-340. 
 
 Mem. of Regency, v. 1, p. 224. Twiss, Life of Eldon, v. 1, p. 49(5. 
 
 d Parl. Deb. v. 2.% pp. 398-430, f Parl. Deb. v. 23, p. 312.
 
 LORD LIVERPOOL S ADMINISTRATION. 109 
 
 enquire of Mr. Ponsonby whether any proposal . had 1312. 
 been made to him, or to those who acted with him in 
 Parliament, to form part of the ministry ; what reply 
 had been given, and what conditions made. After some 
 altercation on the point of order, these questions were 
 permitted to be put, they being according to precedent, 
 and unobjectionable in principle, ' as tending to explain 
 the conduct and clear the characters of public men.' g It 
 was then proposed that the House should go into com- 
 mittee to sanction a contract for a loan of a million and 
 a half of money for the service of Ireland. This was 
 objected to, on the ground that there was no responsible 
 minister to answer for the same. But it was replied 
 that the contract had been approved by the late pre- 
 mier, and that ' the Irish Chancellor of the Exchequer 
 (the Right Hon. W. Fitzgerald) was before the House, 
 and in a responsible situation.' Whereupon the resolu- 
 tion was agreed to. h 
 
 A few days before, objection was taken to the regularity of the 
 House of Commons proceeding to vote a pecuniary provision for 
 the family of the late lamented premier, on the ground that, as he 
 united in his own person the offices of First Lord of the Treasury and 
 -Chancellor of the Exchequer, by his decease the country was left 
 1 without an administration.' To this it was replied that no objection 
 could be taken to the proceeding in point of form, inasmuch as the pro- 
 position 'had been regularly introduced to the House by a message from 
 the throne, brought by a minister of the crown,' and there was no rule 
 of the House requiring that such a proposition should be submitted 
 by a Chancellor of the Exchequer. The House then proceeded to 
 pass resolutions, based upon the prince regent's message on behalf 
 of the family of Mr. Spencer Perceval, and in their liberality and 
 respect for the memory of the murdered minister voted to increase 
 the amount of the provision recommended by the crown. 1 
 
 On June 2, Mr. Martin, on being questioned whether 
 he meant to proceed with the motion of which he had 
 given notice for the morrow, answered that, as he was 
 
 * Parl. Deb. v. 23, pp. 313-316. h Ib. pp. 317, 318. 
 
 1 Ib. pp. 199, 211,217.
 
 170 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 1812. satisfied with the commission given to Lord Wellesley, 
 it was highly improbable, though not impossible, that 
 he should bring forward his motion. j On June 3, the 
 Marquis Wellesley informed the House of Lords that 
 he had resigned the authority given him by the prince 
 regent to form a new ministry, and that he had received 
 permission to disclose all the circumstances attending 
 his endeavours in that behalf, and would be ready, 
 when called upon, to communicate them to the House. 
 But he advised their lordships not to press for such dis- 
 closures at present, as it would be highly detrimental 
 to the public interests. 1 " After some debate, the House 
 appeared in favour of delaying the explanations, and 
 adjourned for two days. In the Commons, on the same 
 day, Mr. Canning stated the fact of Lord Wellesley 's 
 non-success. Whereupon Mr. Martin began to question 
 Mr. Ponsonby on the subject ; but a member inter- 
 posed, and declared that, if the attempt were persisted 
 in, he would move to take the sense of the House upon 
 it. This induced Mr. Martin to forbear, and also to 
 abandon the motion of which he had given notice. 1 On 
 June 5, Lord Grey informed the House of Lords of the 
 failure of the negotiations entered into by Lord Welles- 
 ley with himself and Lord Grenville, attributing it to 
 the fact that the prince regent had intimated his plea- 
 sure that 4 four individuals expressly named should 
 occupy seats in the cabinet ; ' whilst Lord Grey and 
 his friends were merely invited to propose eight or nine 
 other persons for this position. In reply Lord Moira 
 stated that, ' with regard to the nomination of indivi- 
 duals, it was to be understood to be a mere statement 
 of a wish ' on the part of his royal highness, who pre- 
 sumed that the persons indicated would be generally 
 acceptable. On the same day, in the Commons, upon 
 
 J Parl. Deb. v. 23, p. 331. l Ib. p. 338. 
 
 k Ib. p. 333. Ib. pp. 343-346. See also his
 
 LORD LIVERPOOL S ADMINISTRATION. 171 
 
 the reception of the Eeport of the Committee of Ways 1312. 
 and Means, objection was taken that the House was 
 placed in the dilemma of either withholding the neces- 
 sary supplies, or of granting them without a responsible 
 minister. But the distinction was drawn that no oppo- 
 sition ought to be made on this ground ' till the last 
 stage of each financial measure, by which time it was 
 to be presumed an efficient administration would be 
 formed." General Gascoyne then gave notice that on 
 the next sitting day he would move an address to the 
 prince regent, expressing regret at the failure of the 
 efforts to form a government, and a wish that no further 
 delay should take place. It was then agreed, with 
 some reluctance, to adjourn the House (from Friday) 
 till Monday ; an opinion of Mr. Pitt having been quoted 
 that, in a crisis like the present, ' time should be mea- 
 sured not by days, but by hours,' and that ' the House 
 should sit as often as it possibly could, and exert its 
 vigilance over the proceedings of public men.' But 
 an end was about to be put to these protracted diffi- 
 culties. On Monday, June 8, the Earl of Liverpool 
 informed the House of Lords that he had been appointed 
 -First Lord of the Treasury, and had received authority 
 to complete an administration as soon as possible. Lord 
 Moira took this opportunity to state that the task con- 
 fided to him of endeavouring to ' conciliate the differ- 
 ences of public men, and to form an administration 
 which should possess the confidence of the country, 
 had been unsuccessful.' Lord Wellesley then proceeded 
 to give his hitherto deferred explanations as to the 
 causes of the failure of his attempts in the same direc- 
 tion ; and a discussion ensued between the various 
 noble lords interested therein. p On the same day, the 
 
 remarks at p. 380. A fuller explana- n Parl. Deb. v. 23, p. 352. 
 
 tion of the cause of the failure of this Ib. p. 354. 
 
 negotiation has been already given in p Ib. pp. 366-380. 
 this narrative ; ante, p. 166.
 
 172 ANNALS OF THE ADMINISTRATIONS OP ENGLAND. 
 
 1812. House of Commons was informed, by Lord Castlereagh, 
 of the commission given to Lord Liverpool ; and mem- 
 bers were urged to postpone the discussion of im- 
 portant questions until the new ministry was formed. 
 Strong objections were made to any further delay, but 
 ultimately the motions were put off, though the House 
 continued to sit every day. q 
 
 On June 8, 1812, as we have seen, the Earl of 
 Liverpool announced to Parliament that he had been 
 appointed First Lord of the Treasury, with authority to 
 complete the administration as soon as possible. The 
 new ministry was substantially the same as the previous 
 one, the principal difference being that although the 
 premier's own opinions were decidedly opposed to eman- 
 cipation it was agreed that the cabinet should consider 
 the Roman Catholic claims as an ' open question,' while 
 Mr. Perceval's administration, on the other hand, had 
 been distinctly ' anti-Catholic. ' r On this ground of simi- 
 larity to its predecessor which nevertheless had enjoyed 
 the confidence of Parliament the new administration 
 was immediately assailed in the House of Commons. On 
 June 11, Mr. Stuart Wortley, being of opinion that a 
 stronger government might have been formed, notwith- 
 standing the failure of the recent negotiations, proposed 
 an address to the prince regent, expressing regret that 
 the address of May 21, which had been so graciously 
 received by his royal highness, had not led to the ap- 
 pointment of an administration that was ' entitled to 
 the support of Parliament, and the confidence of the 
 nation ; ' and entreating that such a ministry might be 
 formed without delay. 8 To this an amendment was 
 moved by Lord Folkestone, representing that the new 
 administration was essentially the same as the one that 
 had already experienced the disapprobation of the coun- 
 
 " Parl. Deb. v. 23, pp. 381-387. 374 ; Ann. Reg. 1827, p. 91. 
 ' May, C'onst. Hist. v. 2, pp. 364, Parl. Deb. v. 23, p. 399.
 
 LORD LIVERPOOL S ADMINISTRATION. 173 
 
 try, and whose management of public affairs had been 1812. 
 so prejudicial to the national interests ; and imploring 
 the appointment of men of wisdom, firmness, and pru- 
 dence, in the present emergency of the state.* A second 
 amendment, of a similar purport, was also submitted by 
 Lord Milton. u After considerable debate, it became 
 apparent that the sense of the House was opposed to 
 these propositions, viewing them as attempts to dictate 
 to the head of the executive in regard to the choice of 
 his servants. It was urged, on behalf of the ministry, by 
 Lord Castlereagh, that an interference by the House, 
 under existing circumstances, would be unprecedented 
 and unwarrantable. He claimed for the new adminis- 
 tration ' the constitutional support of Parliament, till 
 their actions should show them to be unworthy of it.' 
 The several motions were then put and negatived ; two 
 of them without a division, and the third by a majority 
 of 125. v The administration, thus vehemently assailed 
 at the outset of its career, and presumed to be incapable 
 of weathering even the current session, proved to be one 
 of the most durable and successful cabinets ever known. 
 Lord Liverpool, though not a man of remarkable abili- 
 ties, was prudent, sagacious, and conciliatory ; well fitted 
 for the eminent position to which he had attained, and 
 admirably adapted to cope with the peculiar evils of the 
 times. w He was ably sustained by his colleagues in office, 
 some of whom were greatly his superiors in intellect, 
 but who, nevertheless, were willing to acknowledge his 
 supremacy in council. With these advantages Lord 
 Liverpool was enabled to continue at the helm of the 
 state for upwards of fourteen years. During the whole 
 of this period the cabinet continued without any material 
 change of policy, and without any important additions 
 
 1 Parl. Deb. v. 23, p. 403. (Lord Liverpool) performed the most 
 
 " Ib. p. 406. important function of a prime minis- 
 
 T Ib. pp. 397-464. ter, that of keeping his cabinet to- 
 
 w Sir G. C. Lewis says that 'he gether.' Lewis, Adminis. p. 432.
 
 17 1 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 of individual strength except the return of Mr. Canning 
 to office, in 1816,* and his promotion to the leadership 
 of the House of Commons, in September 1822 ; the 
 entrance of the Duke of Wellington into the ministry, 
 as Master-General of the Ordnance, in 1819 ; of Mr. Peel, 
 as Home Secretary, in 1822 ; and of Mr. Huskisson, as 
 President of the Board of Trade, in 1823. At length, 
 1827. on February 17, 1827, Lord Liverpool was seized with 
 an attack of paralysis, which, though not fatal at the 
 time, was of such severity as to render his retention of 
 office impossible/ Six weeks afterwards, as soon as 
 returning consciousness permitted, he tendered his re- 
 signation to the king ; and in his state of health the 
 sovereign had no alternative but to accept it. During 
 the long interval which elapsed between the seizure of 
 Lord Liverpool and his resignation of office, the admin- 
 istration was left virtually without a head. Nor did his 
 final retirement solve the difficulty. The men who had 
 been content to act in subordination to Lord Liverpool, 
 out of respect to his personal worth and integrity of 
 purpose, were by no means willing to yield the pre- 
 eminence to one of their own number. They were not 
 disposed themselves to retire from office ; but they re- 
 quired a chief, in whose political views they could 
 coincide, and, above all, one who should be able to form 
 a cabinet that would regard the Eoman Catholic claims 
 as an open question, upon a similar system of com- 
 promise to that which had been agreed upon by Lord 
 Liverpool's administration. Both Mr. Peel and Mr. 
 Canning were well qualified to fill the vacant post ; but 
 the former was the recognised leader of the anti-Catholic 
 party, and the latter had been equally conspicuous for 
 his advocacy of emancipation. Neither of these states- 
 men, moreover, could be expected to serve under the 
 
 * Yonge, Life of Ld. Liverpool, y He died on Dec. 4, 1828, aged 58 
 v. 2, p. 263. years.
 
 LORD LIVERPOOL S ADMINISTRATION. 175 
 
 other. Such were the difficulties wherein his Majesty 1827. 
 was involved. The king's first attempt was to consult 
 Mr. Canning (on March 27), in his capacity of a privy 
 councillor, upon the reconstruction of the ministry. 
 Mr. Canning recommended that a cabinet should be 
 formed whose members would unite in opposing Roman 
 Catholic emancipation, a policy which was in conformity 
 with the acknowledged sentiments of his Majesty, and 
 with the existing state of public opinion on the question. 
 In giving this disinterested advice, Mr. Canning expressed 
 his own readiness to retire from office rather than be 
 an obstacle to such an arrangement. But this offer was 
 rejected by the king, who desired to retain Mr. Canning 
 in his service, and to place a peer of anti-Catholic 
 opinions at the head of the ministry. Mr. Canning, 
 however, objected to the ' super-induction of an anti- 
 Catholic first minister over his head ; ' he was, in fact, 
 desirous of placing Mr. Robinson, whose views on the 
 Catholic question agreed with his own, at the head of 
 the Treasury, and of retaining his place as Foreign 
 Secretary, with the understanding that he should be the 
 virtual premier. But this scheme proved to be imprac- 
 ticable. Other plans were then devised, but it was 
 found impossible to agree upon anything which would 
 allow the prominent members of the Liverpool cabinet 
 to continue to act in concert. The latter part of Feb- 
 ruary, and the whole of March, were consumed in these 
 fruitless negotiations. All this time the old ministry 
 nominally continued in office, although it was under- 
 stood that they merely held their places until their suc- 
 cessors should be appointed. The Liverpool adminis- 
 tration was accordingly regarded as virtually defunct. 2 
 During this ministerial interregnum, on March 30 it 
 
 1 Ann. Reg. 1827, pp. 90-96 ; of Canning's Administration, first 
 Lewis, Adminis. p. 435. See R. published by Rev. H. Randolph in 
 Wilson's narrative of the formation 1872.
 
 170 AXXALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 1827. was moved in the House of Commons, by the Chancellor 
 of the Exchequer, that the report of the Committee of 
 Supply (being resolutions granting money which was 
 required in order to carry on the public service) be 
 brought up. Mr. Tierney opposed the motion, alleging 
 that there was no administration to be responsible for 
 such expenditure. Admitting the undoubted privilege 
 of the king to choose his own ministers, he claimed for 
 the House of Commons that it had a right to know to 
 whom the administration had been entrusted before it 
 separated for the Easter holidays. He therefore moved 
 to defer the consideration of the report until May 1. 
 Mr. Secretary Canning replied that the delay which had 
 arisen in filling up the office of premier had resulted 
 from a hope that Lord Liverpool's illness might prove 
 but transitory, and that ministers were ready to assume 
 as much responsibility for the same as for any other act 
 of their administration. But no further delay would 
 take place, inasmuch as the king, regarding the premier's 
 recovery as hopeless, had authorised the formation of a 
 new ministry. Under these circumstances, he claimed 
 that the necessary supplies should be granted, otherwise 
 the House would affix a stigma upon those who still 
 remained in office, which would be equivalent to a vote 
 of censure, and would strike at their existence as a 
 ministry. Mr. Tierney then asked for an assurance 
 that some definite arrangement with respect to the 
 administration would be entered into before the House 
 adjourned for the holidays. This Mr. Canning refused 
 to give ; whereupon Mr. Tierney declared that he must 
 persist in his amendment, and resist any further grant 
 of money until he knew in whose hands the govern- 
 ment of the country had been placed. The Chancellor 
 of the Exchequer reminded the House that they had 
 already been informed that the proposed grant was 
 merely sufficient to enable the government to be carried 
 on until after the recess. No more money would be
 
 MR. CANNING S ADMINISTRATION. 177 
 
 asked for until a new administration was formed ; 
 otherwise he admitted that 'it would have been the 
 imperative duty ' of the House to oppose the same. 
 The original motion was then put, and agreed to on 
 division.* The want of agreement amongst the great 
 party leaders with whom negotiations for a new ministry 
 had been entered into induced Sir Thomas Lethbridge 
 to give notice of a motion for an address to the king 
 that he would be pleased to take into consideration, in 
 the appointment of his ministry, ' the great importance 
 of unanimity in any cabinet on questions affecting the 
 vital interests of the empire.' On April 6, however, the 
 day on which this motion was to have been brought 
 forward, the king came to town, professedly in order to 
 take decisive steps to put an end to this protracted dis- 
 organisation of the cabinet, and Sir T. Lethbridge, by 
 the advice of his friends, determined not to press his 
 motion, although invited to proceed with it by Mr. 
 Secretary Canning. The king had now finally deter- 
 mined that the new ministry, like its predecessor, should 
 consider the Catholic claims as an ' open question,' and 
 also that Mr. Canning should be premier, notwithstand- 
 ing his previous prominence as the strenuous advocate 
 of emancipation. 11 
 
 11. Mr. Canning's Administration. April 1827. 
 
 It was on April 10, 1827, that Mr. Canning, who 1827 - 
 held at the time the office of Secretary of State for 
 Foreign Affairs, was commissioned by the king to 
 prepare a plan for the reconstruction of the adminis- 
 tration under his own presidency. The policy he in- 
 tended to pursue in reference to the Eoman Catholic 
 question is uncertain, and has been made the subject of 
 
 Parl. Deb. N.S. v. 17, pp. 157-171. b Ann. Reg. 1827, p. 99. 
 
 VOL. I. if
 
 178 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 1827. controversy between his friends and opponents. A new 
 writ was moved for, on behalf of Mr. Canning (upon his 
 appointment as First Lord of the Treasury and Chan- 
 cellor of the Exchequer), on April 12. At the same 
 time it was moved to adjourn the House for the Easter 
 holidays, until May 1. This motion was opposed by 
 Mr. Tierney, who desired that the House should know 
 of whom the new ministry would be composed before 
 it adjourned for so long a period. In reply, Mr. Wynn 
 stated that undoubtedly some difficulties had occurred 
 in the formation of a ministry, but that an arrange- 
 ment was now in progress, and would certainly be com- 
 pleted before the time of adjournment had expired. 
 The motions were then agreed to without a division. 
 As soon as he was in a position to do so, Mr. Canning 
 made overtures for assistance in the formation of a 
 ministry to his colleagues in office ; but for the most 
 part they were either civilly or contemptuously rejected. 
 Nearly the whole interval of the adjournment was spent 
 in further negotiations. Disappointed in the support of 
 his former associates, Mr. Canning was obliged to make 
 new alliances, and his administration was finally com- 
 pleted by a Coalition with the Whigs, between whom 
 and himself there had been heretofore a decided political 
 antagonism. Explanations were given in the House of 
 Commons by the retiring as well as by the incoming 
 ministers on May 1, and in the House of Lords on the 
 day following. The new premier was assailed by an 
 inveterate hostility in both Houses of Parliament ; and 
 attacks upon the new ministry were continued through- 
 out the session. The principles of the Coalition were 
 vehemently attacked, 3 and the Opposition made repeated 
 attempts, by enquiries of ministers, to elicit further par- 
 ticulars than had already been communicated in regard 
 
 ' Lewis, Admiuis. p. 440. Bui- pp. 648, 853, 1083, (Commons) pp. 
 wer's Life of Palmerston, v. 1, bk. iv 607, 553, 1028. 
 " Parl. Deb. N.S. v. 17, (Lord?)
 
 LORD GODERICHS ADMINISTRATION. 179 
 
 to the circumstances which had attended the formation 
 of the ministry ; and particularly whether certain ap- 
 pointments had been made provisionally, with the inten- 
 tion of a future rearrangement of ministerial offices. 
 But Mr. Canning refused to give any further explana- 
 tions, or ' to answer a single question relative to the 
 late transactions, unless it were brought forward as a 
 motion.' He considered it to be beneath the dignity of 
 the House to waste its time in irregular and extraneous 
 discussions. It should revert to the old usage of Par- 
 liament, and submit by formal motions such questions 
 as it might be desirable for the House to entertain. 6 
 This incessant exhibition of party spirit hindered 
 the progress of public business, and prevented the 
 passing of any important measures. The principal 
 events of the fragment of the session which succeeded 
 the formation of Mr. Canning's ministry were, the per- 
 sonal alienation of Mr. Peel from the government, and 
 the insertion of a hostile amendment in the Corn Law 
 Bill, upon motion of the Duke of Wellington, which led 
 to the abandonment of the Bill by the Government. f 
 At length, on July 2, Parliament was prorogued ; but 
 within six weeks of that period the great and gifted 
 minister was no more. The labours and anxieties of 
 office had brought him to an untimely grave, g 
 
 12. Lord Goderictis Administration, August 1827. 
 
 The death of Mr. Canning led to the placing of Lord 1S27. 
 Goderich, early in August, at the head of the adminis- 
 tration ; otherwise the composition of the cabinet was 
 but slightly altered. Mr. Herrieswas introduced into it 
 as Chancellor of the Exchequer, in the room of Mr. 
 Canning ; but this appointment was so distasteful to 
 the Whig section of the Cabinet, that the Marquis of 
 
 e lb. pp. 932-934. ' Lewis, Adrninis. p. 442. 
 
 Knight, v. 8, p. 208.
 
 180 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 1827. Lansdowne waited upon the king to resign the seals of 
 the Home Department. Mr. Herries was objected to on 
 political grounds, and also because he was understood to 
 be a nominee of the king. In point of fact Lord Gode- 
 rich had selected Lord Palmerston for that office, but 
 yielded to the wishes of the king, who had a strong dis- 
 like to Palmerston, and was very decided in his prefer- 
 ence for Mr. Herries. h The new premier lacked the 
 energy and decision of character that had enabled Mr. 
 Canning to reconcile the discordant materials of which 
 his cabinet was composed ; accordingly, the dissensions 
 which were unavoidable amongst such ill-assorted com- 
 panions became more virulent, and rendered the 
 ministry weaker and more helpless the nearer they 
 approached to the meeting of Parliament. The Whigs, 
 though seemingly reconciled to the presence of Mr. 
 Herries, only tolerated him, and strove to diminish the 
 just influence of his office by assuming the control of 
 matters that were clearly within the jurisdiction of the 
 finance minister. In so doing, they overthrew the 
 government. The occasion which led to this result ap- 
 peared trivial and unimportant, but it truly indicated 
 the hostility which prevailed between the rival parties 
 in the cabinet. Mr. Canning, on opening the budget in 
 1827, had avowed the necessity for a thorough scrutiny 
 into the financial condition and resources of the country, 
 and had pledged himself to propose to the House, in the 
 ensuing session, the appointment of a finance committee. 
 Desirous of carrying out this engagement, the new 
 cabinet began, towards the middle of November, to turn 
 their attention to the formation of this committee. Mr. 
 Tierney (the Master of the Mint), and his Whig friends 
 
 h Compare Bulwer's Life of Pal- sented to remain in office on condition 
 
 merston, v. 1, pp. 183, 196, 377, with that he might have the royal authority 
 
 Mr. Herries' own account of these for stating that he did so in submission 
 
 transactions in his memoirs, by his to the express desire of his Majesty, 
 
 son, v. 1, c. v. And see Ed. Rev. Lewis, Adminis. p. 446, n. 
 T. 153, p. 390. Ld. Lansdowne con-
 
 LORD GODERICHS ADMINISTRATION. 181 
 
 in the cabinet, forthwith intrigued to get Lord Althorp 1827. 
 fixed upon as the government nominee for the chair- 
 manship of this committee. They succeeded in obtain- 
 ing the premier's consent to his appointment, Lord Gode- 
 rich being under the impression that the Chancellor of 
 the Exchequer was a consenting party thereto. When 
 he learnt that the proposition had not been communi- 
 cated to Mr. Herries, he desired that he should be con- 
 sulted upon it immediately. When Mr. Herries became 
 aware that a matter so intimately connected with his 
 own department had been arranged without his know- 
 ledge, he was naturally indignant. He was also of 
 opinion that the appointment was objectionable on its 
 own merits. Accordingly, he sought an interview with 
 the premier on November 29, at which he made 
 known to his lordship the strong objections he enter- 
 tained, both on public and personal grounds, to Lord 
 Althorp's nomination, and to the proceedings of his col- 
 leagues in reference thereto. Lord Goderich received 
 the communication with considerable agitation ; ad- 
 mitted the wrong that had been done ; and agreed that 
 no time should be lost in removing the objections which 
 had been stated. 1 Mr. Herries subsequently made a 
 protest, in writing, against the nomination of Lord 
 Althorp ; after which the matter seems to have remained 
 in abeyance for about a month, during which interval 
 the government was in the agonies of dissolution from 
 other causes. The premier, in fact, tendered his re- 
 signation to the king. But about December 19, the 
 ministerial difficulties were tided over for a while. 
 Whereupon Mr. Herries again addressed the premier 
 respecting the chairmanship of the Finance Committee, 
 and offered to resign his office, so as to enable the 
 government to appoint their own nominee. Hearing of 
 this, Mr. Secretary Huskisson informed the premier that, 
 
 1 Ann. Reg. 1828, p. 7.
 
 182 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 unless Lord Althorp's appointment were persisted in he 
 would himself resign. Some further correspondence 
 took place between the parties concerned, but without 
 leading to any better understanding. Accordingly the 
 premier, being unable to restore harmony in the cabinet, 
 waited upon the king on January 8, informed his 
 Majesty of the irreconcilable differences amongst his 
 colleagues, and by desire of the king retired from office. 3 
 Thus perished the Canning Coalition ' before it had been 
 able to acquire a character, or gain that hold on public 
 confidence which had been forfeited by the sudden 
 reconciliation of the ancient enemies of whom it was 
 composed.' k The dispute between Mr. Herries and Mr. 
 Huskisson may have been the last straw that broke the 
 camel's back ; but, if so, it must have been already 
 sinking under the pressure of accumulated burdens. 
 The new ministry had scarcely been in existence more 
 than five months, and was dissolved without ever having 
 met Parliament ; a circumstance wholly unprecedented 
 in our political annals. 
 
 13. The Duke of Wellington's Administration. 1828. 
 
 1828. On January 8, 1828, the king sent for Lord Lynd- 
 
 hurst (the Lord Chancellor) and the Duke of Welling- 
 ton, who was Conimander-in-Chief, and entrusted the 
 formation of a new ministry to the latter. Whereupon 
 his grace resigned the office of Commander- in-Chief, 
 and took that of First Lord of the Treasury. 1 
 
 It appears, however, that at first the Duke of Wellington saw no 
 objection to his retaining the command of the Army, in conjunction 
 with the office of premier ; and only gave way at the remonstrance 
 
 J Bulwer's Life of Palmerston, v. 1, public life of Mr. Herries, 2 v., 1880 ; 
 
 pp. 208-212. For accounts of the Welln. Desp. 3rd s. v. 4, pp. 73-180. 
 
 transactions which led to the down- k Ann. Reg. 1828, p. 11. 
 
 fall of this ministry, see Ann. Reg. ' Hans. D. N.S. v. 18, p. 63. 
 1828, cc. i., ii. ; Memoir of the
 
 DUKE OP WELLINGTONS ADMINISTRATION. 183 
 
 of Sir Robert Peel, who told him that the country would not 
 tolerate such an unconstitutional arrangement." 1 
 
 There was no difficulty or delay in the construction 
 of this government. It consisted, as nearly as possible, 
 of men who had formed part of Lord Liverpool's ad- 
 ministration, with the exception of certain Whigs 
 brought in by Mr. Canning, who were excluded upon 
 this occasion. Parliament was not in session when 
 these events took place. It met on January 29, and 
 new writs were immediately issued for the re-election of 
 such members of the new ministry as had seats in the 
 House of Commons. The only representative of govern- 
 ment remaining in the House during this interval was 
 the Secretary-at-War (Lord Palmerston), who had un- 
 interruptedly continued in office, during successive 
 administrations, since 1807 ; and who had been re- 
 appointed, with a seat in the cabinet, by the Duke of 
 Wellington. 11 Notwithstanding the absence of the other 
 cabinet ministers, and of their colleagues in office, the 
 House proceeded with the debate upon the Address in 
 answer to the speech from the throne, on the principle 
 that the absence of ministers ' by no means takes from 
 the House the right, or abridges the right, of free dis- 
 cussion.' But at the same time it was generally admitted 
 that ' it would be inconvenient and unsatisfactory to 
 attempt to enter upon questions intimately connected 
 with disputable measures, in the absence of those whose 
 duty it is to sustain those measures.' Lord John 
 Eussell went further, and said that while ' he certainly 
 saw symptoms of danger in the formation of the govern- 
 ment, he would not make up his mind definitely until 
 he saw it act ; ' for that ' it was but fair to wait for the 
 measures of a new ministry before the House decided 
 
 m Martin's Pr. Consort, v. 2, p. 262. n See post, v. 2. 
 Ton-ens' Life of Melbourne, v. 1, p. Hans. D. N.S. v. 18, pp. 44, 49, 
 301. 61.
 
 184 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 1828. upon its character.' p Ministerial explanations were not 
 given to the House of Commons until February 18, 
 although the principal cabinet ministers had taken their 
 seats several days previously. The delay, however, 
 appears to have arisen from accidental causes.* 1 This 
 ministry, like its immediate predecessors, was composed 
 of a combination of men of different political opinions, 
 especially in regard to the Eoman Catholic claims, 
 which it had been expressly stipulated by the king 
 should be treated as an open question/ Ere long, how- 
 ever, the followers of Mr. Canning (viz. Mr. Huskisson, 
 Lords Dudley and Palmerston, and Messrs. Lamb and 
 C. Grant) seceded from the cabinet, and the Duke of 
 Wellington embraced the opportunity to replace them 
 by men whose political principles were more akin to his 
 own. 8 Early in the session the new ministry were de- 
 feated, in the House of Commons, upon the question of 
 the repeal of the Corporation and Test Acts, but after 
 feeling their way in the House of Lords, they agreed to 
 abandon these restrictive laws in favour of the principle 
 of religious liberty.* This triumph of the dissenting 
 interest was speedily followed by another ministerial 
 defeat through the adoption, in the House of Commons, 
 of a resolution in favour of the Roman Catholic claims. 
 Sir E. Peel, who was then Home Secretary, afterwards 
 declared that it had been his intention to decline to re- 
 main in office as minister for the Home Department and 
 leader of the House of Commons, ' being in a minority 
 on the most important of domestic questions.' But the 
 threatened danger to the ministry, from the retirement 
 upon totally distinct grounds, of the Canningites, 
 
 P Hans. D. N.S. v. 18, p. 67. present.' Mir. of Parl. 1828, p. 21. 
 
 o Ib. pp. 450, 403, 638. Lord ' Peel's Mem. v. 1, p. 12. 
 
 Palmerston having been requested, in Bulwer's Palmerston, v. 1, bk. v. 
 
 the debate on the Address, to give Welln. Deep. 3rd a. v. 4, pp. 465-472. 
 
 some account of the recent cabinet ' May, Const. Hist. v. 2, p. 389. 
 
 changes, declined doing so, ' until the Torrens, Life of Melbourne, v. 1, p. 
 
 parties principally concerned shall be 310.
 
 DUKE OF WELLINGTON S ADMINISTRATION. 185 
 
 * and the real difficulty of constructing, from any com- 
 bination of parties, any other government at that time,' 
 induced him not to insist upon his own resignation at 
 this mornent. u In the interval between the close of the 
 session, and the next meeting of Parliament, it became 
 apparent, from events which transpired in Ireland, that 
 the repeal of the Eoman Catholic disabilities could no 
 longer be delayed, consistently with the preservation 
 of the public peace. Accordingly the ministry deter- 
 mined to give way, and on November 16, 1828, the 
 Duke of Wellington submitted to the king a memo- 
 randum (prepared three months before) embodying a 
 plan for the settlement of the Eoman Catholic question ; 
 which his Majesty reluctantly consented should be laid 
 before the heads of the established Church for their 
 consideration. On January 12, 1829, Mr. Peel addressed 1329. 
 to the premier a memorandum, setting forth in much 
 detail his reasons for believing that the Eoman Catholic 
 claims could no longer be treated as an open question ; 
 and that the consent of the king should be sought to a 
 consideration of the question by a united cabinet. In 
 this memorandum his colleagues concurred. A copy 
 of it was communicated to the king by the Duke of 
 Wellington ; and on the following day his grace, Sir 
 E. Peel, and the four other ministers who had hitherto 
 opposed these claims, had each a separate interview 
 with his Majesty, at which they succeeded, after much 
 difficulty, in obtaining his consent to a re-consideration 
 of the question, in connection with the existing state of 
 Ireland. But it was understood that the king was not 
 bound to adopt the conclusions of his advisers, what- 
 ever they might agree upon. The draft of the royal 
 speech at the opening of Parliament contained a para- 
 graph which implied an intention on the part of govern- 
 ment to adjust this question. When it was submitted 
 
 u Peel's Mem. v. l,p. 103.
 
 186 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 to the king he gave an unwilling consent to this passage. 
 Afterwards, upon notice being given to the House of 
 Commons of the introduction of the Bill itself, the king 
 sent for the premier, the Lord Chancellor, and Mr. 
 Peel, and insisted that it should contain no alteration 
 in the terms of the oath of supremacy. The ministers 
 declared that it must necessarily do so. Much unavail- 
 ing argument ensued, which ended in ministers tender- 
 ing their resignation, and in the king accepting the 
 same. But in a few hours the king changed his mind, 
 and wrote to the Duke of Wellington that he anticipated 
 so much difficulty in the attempt to form a new admi- 
 nistration, that he had decided to recall his late advisers, 
 and authorise them to proceed with the measure they 
 were about to submit to Parliament/ This impediment 
 being removed, the Bill was introduced and speedily 
 became law/' 
 
 No further ministerial difficulties occurred until after 
 the death of King George IV., which took place on 
 June 26, 1830. His Majesty William IV. intimated 
 his pleasure that there should be no change of ministry; 
 but the Duke of Wellington, in reviewing the situation, 
 and with a view to concentrate the power of the govern- 
 ment in the hands of the leader of the House of Com- 
 mons, expressed a desire to take this opportunity to retire 
 from office, and he earnestly entreated Sir E. Peel to 
 undertake the government, as First Lord of the Treasury 
 and Chancellor of the Exchequer. Sir E. Peel, how- 
 ever, was averse to this change, and the duke continued 
 to serve as prime minister/ The breaking out in France 
 
 T Peel's Mem. v. 1, pp. 284-350 ; at all events have been submitted to 
 
 Lewis, Adminis, pp. 456-463. Welln. Parliament by a Whig and not a Tory 
 
 Desp. 3rd s. vv. 4 & 6. administration. See May's Const. 
 
 w This abandonment of their former Hist. v. 2, p. 56. See also the case 
 
 political convictions on the part of of Sir R. Peel and the Corn Laws, in 
 
 ministers gave great offence to the 1846. Ib. p. 74. 
 Tory party, who contended that x Welln. Desp. 3rd s. v. 7, pp. 102- 
 
 emancipation, if unavoidable, should 108.
 
 DUKE OF WELLINGTONS ADMINISTRATION. 187 
 
 of the three days' Ee volution of July 1830 gave an im- 1330. 
 petus to the advocates of parliamentary reform in Eng- 
 land. At this juncture the dissolution of Parliament 
 (consequent upon the demise of the crown) took place ; 
 and the elections were held under the sympathetic ex- 
 citement caused by the ' three glorious days of July/ 
 which naturally produced a House of Commons unfa- 
 vourable to the Wellington ministry, and prepared to 
 adopt measures of reform. In the month of September 
 the country sustained an unexpected loss in the melan- 
 choly death of Mr. Huskisson, which occurred at the 
 opening of the Liverpool and Manchester railway. Soon 
 after this event, the Duke of Wellington invited Lord 
 Palmerston to enter the cabinet, promising also a seat 
 to two of his political friends. But his lordship declined 
 office, unless Lords Grey and Lansdowne were included 
 in the arrangement. This put an end to the matter, 
 as it involved a complete remodelling of the cabinet, 
 which the duke did not contemplate/ Upon the assem- 
 bling of Parliament, in the following October, it speedily 
 became apparent that a crisis was at hand. The down- 
 fall of the ministry was precipitated by a declaration 
 from the Duke of Wellington that no reform was 
 necessary. Great excitement arose in the public mind 
 upon this question. On November 15, the ministry 
 were defeated in the House of Commons on a motion 
 to refer the civil list estimates to a select committee. 
 The next morning they resigned. 2 It was afterwards 
 admitted, both by the Duke of Wellington and Sir 
 Robert Peel, that their retirement on this question was 
 only a pretext, and that the real reason was a wish not 
 to ' expose his Majesty and the country to the con- 
 sequences that might result from the government going 
 
 y Lewis, Adminis. p. 471. Bui- resignation, see Welln. Desp. 3rd s. 
 wer's Palmerston, v. 1, p. 362. v. 7, pp. 360, 383, 460. 
 
 1 For the alleged causes of their
 
 188 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 out on the success of the question of parliamentary 
 reform.' a 
 
 14. Earl Grey's Administration. 1830. 
 
 On November 16. 1830, the king sent for Earl Grey 
 and entrusted him with the formation of a ministry. 
 This ministry was intended to be comprehensive, or, in 
 other words, a coalition, with parliamentary reform as 
 its basis. b On the 22nd instant, his lordship informed the 
 House of Lords that he had succeeded in the undertak- 
 ing, and briefly explained the principles upon which his 
 administration would be conducted. As soon as the 
 state of the public business would permit, Parliament 
 was adjourned until February 3. A committee of four 
 members of government, two of whom were of the 
 cabinet, was directed to prepare the details of a Eeform 
 Bill, upon principles laid down by the premier. Their 
 report was adopted by the cabinet, and submitted for 
 the approval of the king, on January 30, a day already 
 memorable in English history as being the anniversary 
 of the execution of Charles I. The king gave a reluc- 
 tant consent to the measure, explaining, in a letter to 
 the premier, his grave apprehensions on the subject. 
 
 The Bill was introduced into the House of Commons 
 on March 1, by Lord John Eussell (notwithstanding 
 that he only filled a subordinate place in the ministry 
 and had no seat in the cabinet), as an acknowledgment 
 of his former efforts in the cause of parliamentary 
 reform. Its second reading was carried on March 21, 
 by a majority of one only, in a remarkably full House. 
 This was a forerunner of defeat, which speedily followed. 
 
 Knight, v. 8, p. 265. In other see Lewis, Adminis. p. 473. 
 
 words, the retirement of this ministry b See Le Marchant, Life of Earl 
 
 arose from its weakness and want of Spencer, p. 261. 
 
 public confidence. See Le Marchant, c Corresp. with Earl Grey, v. 1, 
 
 Life of Earl Spencer, pp. 253-257 ; pp. 91, 94. And see Le Marchaiit, 
 
 Mir. of Parl. 1841, pp. 2095-96; and Life of Earl Spencer, c. xv.
 
 EARL GREY'S ADMINISTRATION. 189 
 
 On April 19, upon a motion that the number of mem- 1831. 
 bers for England and Wales ought not to be diminished, 
 the ministry were beaten by a majority of eight. On 
 April 21, they were again defeated, in the House of 
 Commons, on a question of adjournment which pre- 
 vented certain votes that had been agreed to in com- 
 mittee of supply from being reported for concurrence. 
 Ministers had meanwhile waited upon the king, with an 
 iirgent request that he would grant them a dissolution 
 of Parliament. The king was not easily persuaded to 
 this step, but they represented to him that the continu- 
 ance of the existing House of Commons was incompa- 
 tible with the peace and safety of the kingdom, and that 
 after this last defeat, which prevented money already 
 voted from being made use of for the public service, 
 the dissolution ought to be immediate. Accordingly, 
 at three o'clock on April 22, the king came down and 
 prorogued Parliament, ' with a view to its immediate 
 dissolution.' Meanwhile, rumours of his Majesty's in- 
 tentions had gone abroad, and a motion was actually 
 under discussion in the House of Lords for an address 
 to the king, praying that he would be pleased to refrain 
 "from this exercise of his undoubted prerogative. Had 
 the prorogation been deferred for another day, it is 
 probable that both Houses would have agreed to ad- 
 dress the king against the dissolution a circumstance 
 which, while it could not have prevented the exercise of 
 the royal prerogative, might have operated injuriously 
 upon public opinion.* 1 The new Parliament was assem- 
 bled on June 14, and it was soon apparent that the 
 appeal to the people had been successful. The Eeform 
 Bill was again introduced, and it passed the Commons 
 on September 21, by upwards of 100 majority. In the 
 Lords a different fate awaited it. On the morning of 
 
 d Corresp. Earl Grey and Will. IV. v. 1, pp. 224-239. May, Const. Hist, 
 v. l,p. 118.
 
 190 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 1831. Saturday, October 8, the motion for the second reading 
 of the Bill was negatived by a majority of 41. 
 
 But when the second reading of the Reform Bill was negatived 
 in the House of Lords, by a majority of 41, on the morning of 
 October 8, 1831, it appears that the propriety of resigning was 
 seriously discussed by the administration, and that they were only 
 deterred from that step by the anxiety of the king that they should 
 retain office, and by a resolution of the House of Commons, passed 
 on October 10, declaring their unabated confidence in ministers, and 
 their adherence to the principles of the Reform Bill. 6 A second 
 defeat on the Bill, in the House of Lords, in the following session, 
 actually produced a resignation of the ministry, but being sustained 
 by the Commons, no other administration could be formed, and they 
 were speedily recalled to office. 
 
 On the following Monday, the House of Commons re- 
 solved that they adhered to the principle and leading 
 provisions of the Eeform Bill, notwithstanding its rejec- 
 tion by the other House, and that they had unabated 
 confidence in the ministry by whom it had been pro- 
 moted^ On October 20, Parliament was prorogued, 
 with a speech from the throne stating that its attention 
 must necessarily be directed, at the opening of the 
 ensuing session, to the important question of parlia- 
 'mentary reform. Parliament re-assembled on Decem- 
 ber 6, and a Eeform Bill was again submitted, which 
 passed the Commons by a large majority. This time 
 the second reading was carried in the Lords, by a 
 
 1832. majority of nine ; but a defeat in committee showed the 
 impossibility of success in. the present temper and con- 
 dition of the House. The creation of a new batch of 
 peers for the express purpose of carrying the Bill was 
 openly advocated out of doors ; but the ministry shrank, 
 at first, from having recourse to such an extreme pro- 
 ceeding. But when it became clear that a direct and 
 apparently insurmountable obstacle to the passing of a 
 
 ' Roebuck, Hist, of Whig Ministry, ' See Grey, Cor. with Will. IV. 
 v. 2, p. 217 ; Mir. of Parl. 1831, pp. v. 1, p. 375; Le Marchant, Life of 
 2880, 2910. Spencer, c. xvii.
 
 EARL GREY S ADMINISTRATION. 191 
 
 Reform Bill was to be found in the existing condition of 1832, 
 the House of Lords, they at length determined upon 
 this step. In a cabinet minute, dated January 13, 1832, 
 ministers tendered to the king their advice that in the 
 event of their inability to carry the Bill in the Lords, 
 he should exercise his prerogative to create a sufficient 
 number of peers to insure its safety. Again on May 8, 
 after their defeat on Lord Lyndhurst's motion, in com- 
 mittee on the bill, ministers reiterated their request. 
 But his Majesty refused to comply with it. At the 
 outset, the king reluctantly consented to a limited 
 addition to the peerage, which should not exceed 
 twenty-one (though he afterwards agreed to leave the 
 number indefinite) ; and which should be effected, 
 mainly, by calling up heirs to existing peerages. But he 
 positively declined to sanction an ' unlimited ' addition 
 to the House of Lords ; or that there should be more 
 than three new creations, for the purpose of carrying 
 Reform. 8 Thereupon the ministry resigned. Their 
 resignation was announced to both Houses on the fol- 
 lowing evening. Next day, the House of Commons 
 passed an address to the king, expressing their deep 
 " regret at this event, and imploring him ' to call to his 
 councils such persons only as will carry into effect, 
 unimpaired in all its essential provisions,' the Reform 
 Bill recently agreed to by the House. Meanwhile, the 
 Duke of Wellington had been authorised to form a 
 new administration ; but, after conferring with Lord 
 Lyndhurst and Sir Robert Peel, he abandoned the task ; 
 it being evident that such an arrangement would not be 
 acceptable to the House of Commons. 11 The king then 
 recalled his late advisers, and most reluctantly gave 
 them a written permission ' to create such a number of 
 peers as will be sufficient to insure the passing of the 
 
 Grey, v. 2, pp. 311-333. Ed. 304-330. Mem. of J. 0. Herries 
 Rev. v. 133, p. 306. v. 2, p. 158. 
 
 ">. WeUn. Desp. 3rd s. v. 8, pp.
 
 102 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 1832. Eeform Bill ; first calling up peers' eldest sons. (Signed) 
 William E. Windsor, May 17, 1832.' The authenticity 
 of this document, which was first made public in Eoe- 
 buck's ' History of the Whig Ministry of 1830' (v. 2, 
 p. 331), has been disputed upon very plausible grounds. 1 
 It is certainly remarkable that, while it correctly states 
 the terms of the agreement between the king and his 
 ministers at this crisis, no mention is made of it in the 
 official ' Correspondence between Earl Grey and King 
 William IV.,' which was published in 1867, and which 
 includes many letters on this subject. 3 The editor of 
 the correspondence justifies the king in delaying, to 
 the last extremity, his consent to the proposed creation 
 of peers. k But at the eleventh hour, the necessity for 
 this extreme proceeding was avoided by the temporary 
 withdrawal from the House of a sufficient number of 
 the Tory peers to give the ministry a decided majority 
 upon the Bill, during its further progress through Par- 
 liament. The Opposition were induced to take this 
 course by a personal communication from his Majesty, 
 through his Private Secretary ; an interference which, 
 however irregular it may appear, undoubtedly tended 
 to avert the difficulties of an alarming crisis. 1 After 
 this, the Eeform Bills for England, Scotland, and Ireland 
 became law without further impediment. Parliament 
 was then dissolved, in order that the new represen- 
 tative system might be put into immediate operation. 
 1834. The new Parliament, though composed of various 
 
 discordant elements, fully sustained the ministerial 
 policy. But on May 27, 1834, a resolution was pro- 
 posed in the House of Commons in favour of the re- 
 
 1 See Ed. Rev. v. 125, pp. 539-546. Tory peers was not the result of con- 
 
 J V. 2, pp. 68-139, 223-234, certed plan, for the Duke of Welling- 
 
 254, 299-34G, 394-444. ton, though he decided, individually, 
 
 k Preface, p. ix. to follow the course, declined to advise 
 
 1 Le Marchant, Life of Spencer, it, with authority, upon his usual sup- 
 
 c. xx. Torrens' Life of Melbourne, porters. See Welln. Desp. 3rd s. v. 8, 
 
 v. ], c. xix. The course taken by the pp. 341, 356. See also post, v. 2.
 
 .K LORD MELBOURNE S FIRST ADMINISTRATION. 103 
 
 duction of the temporalities of the Irish Established 
 Church. This led to the secession of four members of 
 the cabinet (Stanley, Graham, Richmond, and Eipon), 
 who were unable to agree with their colleagues upon 
 the manner in which this question should be met. The 
 vacancies in the ministry were filled up ; but very soon 
 another difficulty arose. Lord Althorp, the Chancellor 
 of the Exchequer, determined to retire from the cabinet, 
 on account of a disagreement arising out of the form 
 in which the Irish Coercion Bill should be framed and 
 submitted to Parliament. He had himself authorised 
 the Chief Secretary for Ireland to acquaint Mr. 
 O'Connell that certain objectionable clauses would not 
 be included therein. Nevertheless a majority of the 
 cabinet, including the premier, had insisted upon their 
 insertion. This occasioned much angry debate, and 
 personal recrimination, in Parliament. The conflicting 
 opinions expressed by ministers on this question were 
 of so grave a character that a compromise was deemed 
 to be incompatible with personal honour, or a sense 
 of public duty. m The ministry had been considerably 
 weakened by the former resignations, and the loss of 
 Lord Althorp was the finishing stroke. Accordingly, on 
 July 8, Lords Grey and Althorp together waited upon 
 the king, and formally tendered their resignations. On 
 the following day, Earl Grey informed the House of 
 Lords of the break-up of his administration. 11 
 
 15. Lord Melbourne's First Administration. July 1834. 
 
 On July 14, 1834, Viscount Melbourne announced to 1334. 
 the House of Lords that he had been entrusted with 
 
 m See Le Marchant, Life of Earl n Ib. p. 1 ; Knight, v. 8, p. 345. 
 
 Spencer, c. xxii. Ld. Broughton's This ministry, before its retirement, 
 
 Recollections, in Ed. Rev. v. 133, had lost the confidence of the king, 
 
 p. 311. Ld. Hatherton's Memoir and on account of their known views with 
 
 Correspondence on the political occur- respect to the Irish Church. See 
 
 rences in 1834, pub. by H. Reeve in ante, p. 133. 
 1872. Peel's Mem. v. 2, p. 10. 
 
 VOL. I.
 
 194 ANNALS OF THE ADMINISTRATIONS OF ENGLAND.. 
 
 the formation of a new ministry. He was instructed 
 by the king, in the first instance, to endeavour to ob- 
 tain the services ' of all those who stand at the head 
 of the respective parties in the country,' and for that 
 purpose was directed by his Majesty to enter into com- 
 munication with the Duke of Wellington, Sir E. Peel, 
 Mr. Stanley, and other parliamentary leaders. But these 
 negotiations proved abortive, and the king was obliged 
 to consent to the formation of another Whig ministry, 
 which was, in fact, a reconstruction of the previous 
 one under another chief. On July 17, Lord Althorp 
 informed the House of Commons that he had resumed 
 his former office, and that the new administration was 
 complete. The Irish Coercion Bill, then before the 
 House of Lords, was dropped, and a new and less 
 restrictive measure was brought forward by Lord 
 Althorp, and became law. p But the duration of this 
 ministry was very brief. By the death of his father, 
 Lord Althorp inherited a seat in the House of Peers. 
 This necessitated the appointment of a new Chancellor 
 of the Exchequer and leader of the House of Commons. 
 Whereupon Lord Melbourne, both verbally and by 
 letter of November 12, 1834, made known to the king 
 the posture of affairs, and sought his commands as to 
 the filling up of the vacant offices ; indicating, at the 
 same time, his desire that the lead of the House of 
 Commons should be conferred upon Lord John Eussell. 
 The king, however, had by this time become a convert 
 to the principles of the Opposition ; he accordingly 
 informed the premier that in his opinion the loss of 
 Lord Althorp from the Commons had so materially 
 weakened the government in that House as to render it 
 impossible for them to continue to conduct the public 
 affairs ; particularly when it was remembered that they 
 
 Peel's Mem. v. 2, pt). 1-13. Bui- p Le Marchant, Life of Spencer, 
 wer's Life of Palmerston, v. 2, p, 203. p. 618. 
 Torrens, Life of Melbourne, v. 2, c. 1.
 
 SIR ROBERT PEELS FIRST ADMINISTRATION. 195 
 
 were in a minority in the other House. Under these 
 circumstances, his Majesty determined to consider the 
 administration at an end, and stated that he should send 
 
 for the Duke of Wellington. q 
 
 16. Sir Robert Peel's First Administration. Nov. 1834. 
 
 Immediately after the dismissal of the Melbourne 
 administration the king sent for the Duke of Wellington, 
 and requested him to undertake to form a government. 
 The duke earnestly recommended that his Majesty's 
 choice might fall upon Sir Eobert Peel, on account of 
 the peculiar difficulties presented by the existing state 
 of the House of Commons. The king consented, but 
 remarked that he had given the preference to the duke 
 because of the absence of Sir E. Peel from England. 
 It was then agreed to summon Sir E. Peel home at once. 
 In the interim, as it was necessary to take possession 
 of the government, the Duke of Wellington assumed 
 the temporary charge of the seals of the secretariat, and 
 of the office of First Lord of the Treasury, being of 
 opinion that ' nothing would be more unfair than to call 
 upon Sir E. Peel to put himself at the head of a govern- 
 ment which another individual should have formed.' 1 
 Anxious to place his services at his sovereign's disposal 
 in this difficult crisis, Sir E. Peel unhesitatingly agreed 
 to accept the proffered task, although he ' greatly 
 doubted the policy ' which had led to the breaking up 
 of Lord Melbourne's government, and ' entertained little 
 hope that the ministry about to replace it would be a 
 stable one would command such a majority in the 
 House of Commons as would enable it to transact the 
 public business.' He was well aware that by his accept- 
 ance of office he became ' technically, if not morally, 
 
 q Le Marchant, Life of Spencer, v. 1, p. 307. 
 
 p. 523. Torrens, Life of Melbourne, r Peel's Mem. v. 2, p. 20. For 
 
 v. 2, c. ii. Bulwer's Life of Palmer- observations upon this act of the Duke 
 
 ston, v. 2, p. 208. Stockmar's Mem. of Wellington, see^os^, v. 2. 
 
 o 2
 
 196 ANNALS OF THE ADMINISTRATIONS OP ENGLAND. 
 
 1834. responsible for the dissolution of the preceding govern- 
 ment, although he had not the remotest concern in it.' 3 
 
 It is noticeable, in proof of the superior correctness of Sir 
 R. Peel's views of his constitutional obligations, that the Duke of 
 Wellington had previously written to him to say that he did not 
 think the new ministers were ' at all responsible ' for the king's 
 quarrel with their predecessors ; it being ' an affair quite settled ' 
 when his Majesty sent for the Duke.* 
 
 He was also fully sensible of the hazard he incurred in 
 meeting a House of Commons wherein his personal fol- 
 lowers were in a large minority, with but a doubtful 
 prospect of improving his position by a dissolution of 
 Parliament. Nevertheless he did not shrink from the 
 endeavour to respond to his sovereign's appeal, being 
 persuaded that Parliament would ' so far maintain the 
 prerogative of the king as to give to the ministers of 
 his choice, not an implicit confidence, but a fair trial.' n 
 After weighing the counterbalancing advantages of an 
 immediate dissolution of Parliament, or of an attempt 
 to carry on the government, in the first instance, with 
 the existing House of Commons, Sir Robert decided in 
 favour of a dissolution, upon grounds of public policy, 
 which are explained in his memoirs/ A new Parlia- 
 ment was accordingly convened for February 19, 1835, 
 but the result of the elections, while it largely increased 
 the number of Conservative members, failed to confer 
 upon the new ministry sufficient strength to enable 
 them to carry on the government. At the outset of 
 the session the ministry were defeated in the Commons 
 on the choice of a Speaker, and upon an amendment to 
 the Address. w 
 
 In the debate upon the Address in the Lords, Lord 
 Chancellor Eldon defended the change of ministry, and 
 
 ' Peels Mem. v. 2, p. 31. Mem. v. 2, p. (J7. 
 1 lb. p. 23. v Ib. pp. 43-48. 
 
 u Tamworth Manifesto, Torreus, w Knight, v. 8, p. 355. Torrens, 
 
 Life of Melbourne, v. 2, p. 99. Peel's Life of Melbourne, v. 2, c. iii.
 
 SIR ROBERT PEELS FIRST ADMINISTRATION. 107 
 
 consequent dissolution of Parliament, on the ground 1835. 
 that the previous secession of four cabinet ministers 
 (see ante, p. 193) had so weakened the government, that 
 when Lord Althorp was obliged to vacate his seat and 
 office in the Commons, it became probable that any re- 
 construction ' was not likely to be permanent, but would 
 be liable to be broken up, at a time when it might be 
 productive of much more mischief than the breaking 
 of it up at that moment was calculated to occasion. ' x 
 
 In the Commons, Lord John Eussell argued the 
 question against the change of ministry with great force 
 and ability, contending that there had been no sufficient 
 cause to justify the exercise of the prerogative in dis- 
 missing the late ministry and in dissolving Parliament. 
 He also complained of the new cabinet for not having 
 met Parliament before its dissolution, in order to ascer- 
 tain whether they would be allowed a fair trial, or be 
 met with a factious Opposition against the opinion of 
 the country ; in which case a dissolution might have 
 been properly advised. y It was furthermore contended, 
 by Lords Morpeth and Stanley, that ' it is the right and 
 privilege of the House of Commons to express its opinion 
 and judgment, and even to offer advice to the sovereign, 
 as to the circumstances under which, and the mode in 
 which, he may have been advised to exercise his un- 
 doubted prerogative of choosing the ministers of the 
 crown.' 2 The Opposition, however, confined themselves 
 to moving an amendment to the Address in answer to 
 the speech, to represent the regret of the House that 
 the progress of certain important reforms, which had 
 engaged the attention of the late Parliament, should 
 have been interrupted and endangered by the unnecessary 
 dissolution of a Parliament earnestly intent upon the 
 rigorous prosecution of such measures. This amend- 
 ment was carried against ministers. It elicited a reply 
 
 * Mir. of Parl. 1835, p. 36. ? Ib. p. 85. Ib. p. 74
 
 198 ANNALS OF THE ADMINISTRATIONS OP ENGLAND. 
 
 1835. from the king, expressing regret that the House did not 
 concur with him as to the policy of the appeal he had 
 recently made to the sense of his people, and expressing 
 a confident trust that the success of no good measures 
 would be injuriously affected thereby. Shortly after 
 this reply was communicated, Sir Eobert Peel took an 
 opportunity of informing the House that he did not 
 intend to resign on account of his defeat upon the 
 Address, but should persevere, and submit to the con- 
 sideration and approval of Parliament the measures 
 contemplated in the speech from the throne. a But 
 further defeats awaited him. He was obliged to pro- 
 pose Mr. Bernal for the chair of the Committee of Ways 
 and Means, from inability to secure the election of any 
 one in the confidence of the government. The first 
 diplomatic appointment made by the new ministry, that 
 of the Marquis of Londonderry, as ambassador to the 
 court of St. Petersburg, ' could not have been persisted 
 in,' and was resigned, in consequence of the interference 
 of the House of Commons. In fact, they met with con- 
 tinual hindrance in the conduct of public business, and 
 had not ' the weight and authority to check, through 
 the opinion and voice of a majority, the vexatious 
 opposition of individual members. ' b At length, after 
 several minor defeats, they were left in a minority upon 
 a motion of Lord John Russell, in regard to the appro- 
 priation of the temporalities of the Irish Church, and 
 the adjustment of the Irish tithe question." Anticipat- 
 ing defeat upon this important motion, Sir Eobert Peel 
 wrote to the king on March 29, intimating that the 
 pending debate would necessarily assume the ground of 
 want of confidence in the administration. Following 
 upon a succession of votes adverse to the views of min- 
 isters, there was a ' great public evil in permitting the 
 House of Commons to exhibit itself to the country free 
 
 Mir. of Parl. 1835, pp. 146, 148. b Peel, Mem. v. 2, pp. 87, 88. 
 
 c Com. Journ. v. 00, p. 208.
 
 SIR ROBERT PEEL'S FIRST ADMINISTRATION. 100 
 
 from any control on the part of the executive govern- isss. 
 ment, and usurping, in consequence of the absence of 
 that control, many of the functions of the government.' 
 This state of things ' might be tolerated so long as there 
 was a rational hope of converting a ministerial minority 
 into a majority, or of making an appeal to the people 
 with a prospect of decided success.' But Sir Eobert 
 Peel entertained the apprehension that ' from continued 
 perseverance in the attempt to govern by a minority, it 
 would be difficult for an administration, however com- 
 posed, to recover a control over the House of Commons; 
 that the House of Commons, having been habituated to 
 the exercise of functions not properly belonging to 
 them, will be unwilling to relinquish it ; and that the 
 royal prerogatives and royal authority will inevitably 
 suffer from continued manifestation of weakness on the 
 part of the executive government.' 4 On April 7, Lord 
 John Eussell's motion was decided against ministers by 
 a majority of 27. Next day, Sir Eobert Peel informed 
 the House that he and his colleagues had resigned office, 
 in consequence of that vote, regarding it as tantamount 
 to a declaration by the House of want of confidence in 
 the government ; and believing that, ' in conformity 
 with the constitution, a government ought not to per- 
 sist in carrying on public affairs, after a fair trial, 
 against the decided opinion of a majority of the House 
 of Commons;' 6 notwithstanding that it may enjoy, as 
 upon this occasion, the confidence and favour of the 
 crown, and possess a working majority in the House of 
 Lords. f Although Sir E. Peel resigned on Wednesday, 
 April 8, it was not until the following Saturday that 
 the king made up his mind to entrust the formation of 
 a government to Lord Melbourne. 8 
 
 d Peel, v. 2, pp. 91-93. For further e Mir. of Parl. 1835, pp. 817, 818. 
 
 explanations by Sir R. Peel of his f Ib. 1841, p. 2032. 
 
 position at this time, see Mir. of Parl. g See Ed. Rev. v. 133, p. 315. 
 
 1841, sess. 2, pp. 158, 159, 211. Torrens, Life of Melbourne, v. 2, c. iv .
 
 200 ANNALS OF THE ADMINISTEATIONS OF ENGLAND. 
 
 17. Lord Melbourne's Second Administration. 1835. 
 
 1835. On April 18, Viscount Melbourne announced in the 
 House of Lords that, by command of the king, he had 
 formed a new administration. Both Houses adjourned 
 until May 12, to enable the ministers in the Commons 
 to go for re-election. No event occurred to affect the 
 stability of this administration until after the death of 
 King William IV., and the accession of Queen Victoria 
 
 1837. in 1837. Eeposing entire confidence in the men whose 
 opinions harmonised with those in which she had been 
 educated, her Majesty continued the Melbourne ministry 
 in office as her constitutional advisers. But on May 
 
 1839. 6, 1839, the ministry sustained a moral defeat upon 
 their Bill to suspend the constitution of the Island of 
 Jamaica, the second reading of which was made an occa- 
 sion for a trial of party strength. It was carried by a 
 majority of five only, in a full House. Upon the follow- 
 ing day, Lord John Russell informed the House of the 
 resignation of ministers ; alleging that it had taken place 
 on account of their not possessing such support in the 
 House of Commons as would enable them efficiently to 
 carry on the public business. 11 Internal weakness, how- 
 ever, was the true ground of their fall. Having attained 
 to power through a combination of parties of the most 
 diverse political aims and aspirations, they were unable 
 to act with vigour and determination. In their attempts 
 to carry out the principle in respect to the Irish Church, 
 by the assertion of which they had driven Sir E. Peel from 
 power, they signally failed. The Whigs had pledged 
 themselves to connect the settlement of the tithe ques- 
 tion with the appropriation of the surplus revenues of the 
 Established Church in -Ireland. But the Conservatives 
 were determined to resist that principle, and having a 
 
 h Mir. of Parl. 1839, p. 2301 ; and Ib. 1841, p. 2126. And Torrens, Life 
 see Ld. John Russell's remarks, in of Melbourne, v. 2, p. 299.
 
 LOED MELBOURNE S SECOND ADMINISTRATION. 201 
 
 large majority in the House of Lords, their resistance 1839. 
 was effectual. After several attempts to induce the 
 Lords to give way, the victory gained in 1835 was 
 abandoned in 1838 by the surrender of the appropria- 
 tion scheme by ministers themselves. This was a moral 
 defeat to the Whig ministry, which largely contributed 
 to turn the scale of popular favour against them. 1 
 
 On June 24, 1867, Earl Russell persuaded the House of Lords 
 to re-open the Irish Church question, by moving for the issue of a 
 Royal Commission thereupon. The motion was agreed to, with an 
 amendment restricting the inquiry to the obtaining of full and accu- 
 rate information on the subject.J In 1868, the Irish Church was dis- 
 established, but liberal provision was made for the disposal of the 
 Church property. 
 
 Their inability to control legislation in Parliament in 
 conformity with their avowed convictions was notorious. 
 Hence arose the necessity for their resignation at this 
 juncture. 
 
 At the suggestion of the Duke of Wellington, to 
 whom her Majesty applied for counsel upon this occa- 
 sion, Sir Eobert Peel was entrusted with the formation 
 of a new ministry. 11 The next day he submitted to the 
 -queen a list of the persons whom he proposed to asso- 
 ciate with himself in office, which was approved of by 
 her Majesty. But a difficulty occurred in reference to 
 the ladies of the bedchamber. Sir Eobert Peel was of 
 opinion that the continuance in attendance upon the 
 person of the sovereign of ladies who had been originally 
 appointed upon the recommendation of the Whig 
 ministry, and who were nearly all related to the leaders 
 of the opposite political party, was likely to prove pre- 
 judicial to the interests of his government. His objection 
 appears to have chiefly applied to the wife of the Lord 
 Lieutenant of Ireland, and to the sister of the Secretary 
 
 1 May, Const. Hist. v. 2, pp. 485- k Duke of Buckingham's Courts 
 487. and Cabinets of William IV. &c. 
 
 J Hans. D. v. 188, pp. 354-423. v. 2, p. 384.
 
 202 ANNALS OP THE ADMINISTRATIONS OF ENGLAND. 
 
 1839. for Ireland, on account of the widely different views of 
 policy towards that country which were entertained by 
 himself and by his predecessors in office. He accord- 
 ingly respectfully urged upon the queen the propriety 
 of making some change in the appointment of ladies to 
 fill the great offices of her household. Her Majesty re- 
 plied that it was repugnant to her feelings to make any 
 such change, and that she considered such a course to 
 be contrary to usage, and one that she could not adopt. 
 Whereupon Sir Eobert immediately relinquished the 
 trust which had been committed to him. Her Majesty 
 then reinstated her former ministers. 1 Although the 
 ' bedchamber question ' brought back Lord Melbourne's 
 ministry, it was only for a few months. 
 
 The restored administration made strenuous efforts 
 to justify their new lease of life. m But they were unable 
 to conduct the government with credit or success in the 
 face of a vigorous and united Opposition, through whom 
 they were subjected to frequent defeats in both Houses 
 of Parliament. 
 
 Abstract of defeats sustained by the Melbourne administration 
 in the two Houses of Parliament, from its formation in April 1835 to 
 March 1840. Read to the House of Lords by the Marquis of 
 Londonderry, who ' pledged his honour for its accuracy.' n 
 
 Ministers in a minority In Commons In Lords 
 
 In Session of 1835 . . 4 . 11 
 
 1836 11 . 18 
 
 1837 ..9.5 
 
 1838 . 21 4 
 
 1839 8 . 11 
 1840 (up to Mar.) 5 
 
 58 49 
 
 58 
 
 Total defeats . 107 
 
 1 For fuller account of these trans- m Torrens,Life ofMelb.,v.2,p.307. 
 actions see post, p. 292. n Mir. of Tarl. 1840, p. 2310.
 
 LORD MELBOURNE S SECOND ADMINISTRATION. 203 
 
 Number of Bills introduced by this ministry, and not passed 1841. 
 through Parliament: 
 
 In Session 1836 ... 29 
 
 1837 . . -. 21 
 
 1838 ... 34 
 
 1839 ... 28 
 
 Total . . 112 
 
 At length, on May 27, 1841, after the ministry had 
 sustained a defeat upon the important question of the 
 sugar duties, and had still declared their intention of 
 proceeding with the business of the country, Sir Eobert 
 Peel moved a vote of want of confidence, which embraced 
 two propositions : (1) that ' her Majesty's ministers do 
 not sufficiently possess the confidence of the House of 
 Commons to enable them to carry through the House 
 measures which they deem of essential importance to 
 the public welfare ;' (2) that ' their continuance in office 
 under such circumstances is at variance with the spirit 
 of the constitution.' He based his first proposition upon 
 their repeated defeats and obstructions in the attempt 
 to carry on the public business. He defined the ' spirit 
 of the constitution ' to mean the system of parliament- 
 ary government which has prevailed since the accession 
 of the house of Hanover, which implies that the minis- 
 ters of the crown should have the confidence of the 
 House of Commons, and which has placed ' the centre 
 of gravity in the state ' in that House. He defended 
 his second proposition by reviewing the history of the 
 principal prime ministers from the days of Sir Eobert 
 Walpole to recent times, showing that they had invari- 
 ably yielded to the necessity implied by a withdrawal of 
 the confidence of the House of Commons, and abdicated 
 their functions as servants of the crown. The seeming 
 exception in the case of Mr. Pitt, in 1783, he met by 
 
 They would have resigned at this Parliament. Martin's Pr. Consort, 
 time, but that a majority of the Cabi- v. 1, p. 107. And see Mir. of Parl. 
 net were in favour of a dissolution of 1841, pp. 1843, 2129, 2137.
 
 204 ANNALS OF THE ADMINISTRATIONS OP ENGLAND. 
 
 18U. showing that the protracted hostility of the House of 
 Commons against that minister (and which he resisted 
 until he could take the sense of the people by a dissolu- 
 tion of Parliament) did not arise from want of confidence 
 in his measures, having commenced before he took his 
 seat on the Treasury benches, but from a suspicion that 
 he owed his appointment to an unconstitutional pro- 
 ceeding that is to say, to secret influence, by whose 
 agency the previous administration had been overthrown. 
 Mr. Pitt, however, resisted the attempt of the majority 
 of the House of Commons, on the ground that it was 
 irregular to endeavour to control the prerogative of the 
 crown in the choice of its ministers, by denouncing them 
 without waiting to see their acts. p 
 
 In reply, Lord John Eussell acquiesced in the general 
 principle that ministers ought to possess the confidence 
 of the House of Commons, and admitted that, if the 
 House should 'continue to refuse its confidence' to them, 
 it would be ' impossible for them to continue in office,' 
 provided there is ' a ministry capable of being formed 
 to succeed them.' q His lordship contended, however, 
 that isolated defeats of a government possessing the 
 general confidence of the crown and of Parliament, 
 although they be upon questions of great importance, do 
 not involve the necessity for resignation. For example : 
 Lord Sunderland was defeated upon the Peerage Bill, a 
 measure recommended by royal message, and did not 
 resign, neither did Lord North when Dunning carried 
 against him his famous resolution against the influence 
 of the crown. Mr. Pitt was defeated, on different occa- 
 sions, on the Westminster scrutiny, on parliamentary 
 reform, on his proposition for a general fortification 
 of the coasts, on his French commercial treaty, on his 
 proposition concerning the trade of Ireland, on the im- 
 
 Mir. of Parl. 1841, pp. 1933-1945, 2119. 
 o Ib. pp. 2119, 2120.
 
 LORD MELBOURNE S SECOND ADMINISTRATION. 205 
 
 peachment of his friend and colleague, Lord Melville, 
 and also his India Bill, which was one of the principal 
 measures of his administration ; and yet, in none of 
 these cases, did he feel called upon to resign/ 
 
 Upon the rejection of the India Bill, Mr. Fox said, ' I readily 
 agree that the failure of any Bill proposed by a minister afforded 
 no ground for that minister's dismissal from office : this is a sound 
 doctrine.' This remark was quoted, with approval, by Lord John 
 Russell. s 
 
 Again, Lord Liverpool was defeated upon the Bill 
 of Pains and Penalties against Queen Caroline, and, in 
 1816, on the question of the renewal of the property- 
 tax, the loss of which occasioned a deficiency of twelve 
 millions of revenue.* And the Duke of Wellington was 
 defeated upon a motion for the repeal of the Test and 
 Corporation Acts, which was carried against ministers 
 in the House of Commons. 11 In none of these instances 
 did a resignation ensue. 
 
 The friends of the ministry, however, pressed this 
 point too far when they proceeded to state that it 
 mattered little whether government were able to carry 
 their legislative measures, so long as they were not 
 censured by Parliament for the exercise of their ad- 
 ministrative functions. Lord Stanley and Sir R. Peel 
 concurred in declaring this to be a most unconstitutional 
 and dangerous doctrine/ Lord John Russell's views on 
 this subject were more cautiously and correctly ex- 
 pressed. He called attention to the fact that in recent 
 times, and especially since the passing of the Reform 
 Bill, the country and the constitution, in its practical 
 development, have demanded more at the hands of 
 ministers than formerly. Up to the time of Mr. Pitt, 
 his lordship observed, ' the usages of the constitution 
 did not require that those at the head of the govern- 
 
 r Mir. of Parl. 1841, pp. 1970, * Ib. pp. 2030, 2095. 
 1971, 2030, 2095. Ib. p. 2121. 
 
 5 Ib. p. 2119. v Ib. pp. 2110, 2134.
 
 206 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 1841. ment should bring forward legislative measures, and, 
 indeed, for the greater part of the last century, did not 
 even require them to take a uniform and consistent part 
 either in supporting or opposing measures submitted to 
 Parliament.' Nowadays, ' what with the necessity for 
 legislation, the difficulty which individual members ex- 
 perience in carrying through Bills, the great changes so 
 long delayed, and which (after the passing of the Eeform 
 Bill) it became indispensable to make, suddenly, and on 
 various subjects from all these causes an expectation 
 has arisen that the government should bring forward 
 measures on matters which excite public attention, and 
 do their best to carry them through the House.' ' In 
 this case,' he added. ' I think it is unreasonable to expect 
 that a government should possess the same uniform and 
 general support, on the part of the House of Commons, 
 which was required when ministries had merely acts of 
 administration to perform.' ' If, on the one hand, new 
 duties have been imposed on ministers, and you require 
 them to carry through Parliament measures which they 
 deem of essential importance, so, on the other hand, you 
 must make a fair allowance for the effect of discussion 
 and the expression of the deliberate opinions first, of 
 members of this House, and, secondly, of our con- 
 stituents which will inevitably occasion the alteration 
 of some measures and the rejection of others.' As a 
 case in point, he instanced an alteration, suggested by 
 Sir K. Peel, when at the head of only a small minority, 
 in an important government measure, and to which the 
 government, after due consideration, acceded. w 
 
 Adverting to the probability of a dissolution of Par- 
 liament, Lord John Eussell remarked that the ministry 
 had uttered no threats or menaces on the subject. He 
 considered that ' a dissolution, like other prerogatives 
 of the crown, is one in which the House has a right, in 
 
 w Mir. of Parl. 1841, pp. 2120-2122.
 
 LORD MELBOURNE S SECOND ADMINISTRATION. 207 
 
 certain cases, to interfere. But I think the only ground i84i. 
 upon which it can properly interfere is when this House 
 can say that the course of legislation and administration 
 is proceeding harmoniously, and likely to continue to 
 lead to beneficial results, .... and that a dissolution 
 would be a needless and wanton interference with the 
 course of business. Such was the ground taken by Mr. 
 Fox, in 1784, when an Address was moved against the 
 dissolution of Parliament.' * Such was the ground that 
 we took, when, in 1835, we moved and carried a vote 
 of censure against Sir E. Peel for the advice he gave to 
 the crown for the dissolution of that Parliament.' He 
 then added that it had been asserted by no one that the 
 present Parliament, if not sooner dissolved, was likely 
 to continue to its natural term with benefit to the 
 country, or with improvement to its legislation/ 
 
 Upon the whole, Lord John Russell resisted the mo- 
 tion, as ' not rightly founded in precedent, and, above 
 all, ill-suited to the present condition and state of our 
 constitution.' If it meant that the ministry were not 
 entitled to advise a dissolution of Parliament, it was an 
 unjustifiable interference with the royal prerogative. 
 ~If not so intended, he was prepared to admit that 
 ministers would not think it right, after the decision of 
 the House on the sugar question, to continue in office 
 with the existing Parliament any longer than would 
 suffice to prepare for the speedy assembling of a ' new 
 Parliament to decide upon the whole question at issue.' 
 With this admission, ' where is the necessity and where 
 the justification of the resolution ? ' y 
 
 In reply, Sir R. Peel acknowledged that no minister 
 who is obstructed by a powerful Opposition, upon the 
 first formation of his government, is bound to resign 
 after his first defeat. He did not consider it the duty 
 of a minister, having met with obstructions upon his 
 
 * Mir. of Parl. 1841, pp. 2127-2129. * Ib. pp. 2129, 2J30.
 
 I 
 
 208 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 financial propositions, at once to resign. He should 
 not feel himself bound to resign on any single defeat, 
 being of opinion that ' the propriety of resignation de- 
 pends on a combination of circumstances.' 2 He also 
 admitted the existence of an alternative, in the case of 
 a ministry who had lost the confidence of the House of 
 Commons, between resignation and dissolution, saying, 
 ' if there be a clear intention forthwith to dissolve Par- 
 liament, that may be a vindication of the government, 
 but the dissolution ought to be immediate. The House 
 of Commons has no other mode of marking its sense of 
 the unconstitutional tenure of power than by passing 
 some such resolution as that which I have proposed, 
 and which I most properly submitted because I could 
 not, and did not, know the intentions of government 
 with respect to a dissolution.' In conclusion, Sir Robert 
 Peel said that he had selected this course ' less with a 
 view to any party advantage than to the vindication of 
 the just authorit)?- of the House of Commons, and to 
 uphold the great principles of the constitution. ' a 
 
 On division, upon June 4, Sir B. Peel's resolution 
 was agreed to by a majority of one. At the next meet- 
 ing of the House, Lord John Eussell announced the 
 intention of ministers to advise a dissolution of Parlia- 
 ment as soon as practicable. He also declared that, 
 under existing circumstances, he should not introduce 
 an important motion, of which he had given notice, 
 respecting the Corn Laws. He added that it could not 
 be denied that the only method of solving the doubt 
 implied by the adoption of the aforesaid resolution was 
 k to let the country itself decide the question thus 
 gravely submitted to them. Until this decision shall 
 be given, I think it would not be proper that any 
 further party struggle should take place.' b Whereupon 
 
 z Mir. of Parl. 1841, p. 2133. a Ib. pp. 2137, 2142. 
 b Ib. pp. 2162-2164.
 
 LORD MELBOURNE S SECOND ADMINISTRATION. 209 
 
 Sir R. Peel said that, a dissolution having been deter- 
 mined upon, he would throw no impediment in the way 
 of completing the public business, provided it should 
 take place with the least possible delay, and no measure 
 be proposed meanwhile that was not imperatively 
 required. It was also necessary, and -according to 
 precedent, that ' the new Parliament should be called 
 together without delay.' He apprehended that there 
 could be no constitutional objection to giving the House 
 an assurance to this effect, inasmuch as in 1807, in 
 1820, and in 1831, the crown, in proroguing Parlia- 
 ment, intimated that ' a new Parliament ' should be 
 convoked ' forthwith,' or ' without delay.' Lord John 
 Russell, under the peculiar circumstances of the case, 
 gave these assurances ; but he ' did not think, on 
 ordinary occasions, any guarantee should be called 
 for from, or given by, the advisers of the crown,' in 
 respect to the exercise of this prerogative. 
 
 Agreeably to promise, the ministry postponed the 
 consideration of the Corn Law and Poor Law Bills ; 
 but they pressed forward a Bill for the improvement of 
 the administration of justice in the Court of Chancery 
 on the ground that all parties were agreed upon its 
 principle. This Bill, however, proposed to create two 
 new judicial offices, the patronage of which would be 
 in the hands of the Lord Chancellor. Sir R. Peel, 
 although favourable to the passing of the Bill, was un- 
 willing that it should go into operation at this juncture. 
 Accordingly, on motion of Sir E. B. Sugden, a clause 
 was added to the Bill, postponing its operation for four 
 months. Whereupon Lord John Russell refused to 
 proceed with the Bill, declaring that this decision 
 affixed a stigma on the Lord Chancellor, ' as unfit to 
 advise the disposition of offices relating to the adminis- 
 tration of justice ; ' that it was ' a violent infringement of 
 
 Mir. of Parl. 1841, pp. 2165, 2166. 
 VOL. I.
 
 210 ANNALS OF THE ADMINISTEATIONS OF ENGLAND. 
 
 the prerogative of the crown, and an unfair interference 
 with the executive government.' d Sir E. Peel repudiated 
 the idea that the action of the House in this matter was 
 any infringement of the royal prerogative. He said that, 
 in the present position of ministers, there was no other 
 alternative than ' resignation or immediate dissolution ; ' 
 in other words, a dissolution as soon as the exigencies of 
 the public service would allow ; and that ministers had 
 no right to bring forward any contested motion what- 
 ever, or to ask of the House any act implying confidence 
 in themselves, such as would be implied by the devolu- 
 tion of any new authority ; that for the House to ac- 
 quiesce in any such demand would be inconsistent with 
 its former declaration of want of confidence in ministers ; 
 and that they, in preferring the same, did not ' do 
 homage to the principles of representative government.' 
 Lord John Eussell's motion, to give the Chancery Bill 
 a ' three months' hoist,' was then agreed to without a 
 division. 6 
 
 After completing the necessary business, Parliament 
 was prorogued on June 22, and dissolved upon the fol- 
 lowing day. The ' cry ' with which ministers went to 
 the hustings was not that of confidence in themselves, 
 but in favour of ' cheap bread,' and the modification of 
 the Corn Laws. f This roused the agricultural interests, 
 and a large majority against ministers was returned to 
 the new House of Commons ; they nevertheless deter- 
 mined to meet Parliament, upon the ground that they 
 could not constitutionally infer the opinions of members 
 from anything save their voices in Parliament. This 
 determination, although undoubtedly a correct one, 
 
 d Mir. of Parl. 1841, pp. 2227, that all opposed measures, not being of 
 
 urgent necessity, should be dropped. 
 
 e Ih. p. 2231. Subsequently, in re- See Ib. pp. 2258, 2282. 
 card to the Bribery at Elections Bill, f Ib. p. 2142 ; Ann. Reg. 1841, pp. 
 I A. John Russell showed his willing- 143-140. 
 ness to carry out the understanding
 
 LORD MELBOURNE S SECOND ADMINISTRATION. 211 
 
 placed them in the disagreeable position of advising 1841. 
 a royal speech which could not fail to give dissatisfac- 
 tion. 
 
 Upon the meeting of the new Parliament, which 
 took place on August 19, amendments were proposed 
 to the Address in both Houses, asserting a want of con- 
 fidence in the advisers of the crown. In the Lords, the 
 constitutionality of this course was defended by the 
 Duke of Wellington. In the Commons, attention was 
 drawn to the fact that, since the elections, Lord John 
 Eussell had informed his constituents that the ministry 
 would ' take the first opportunity of asking for a clear 
 and decided judgment upon their policy.' This inten- 
 tion, however, was forestalled by the proposed amend- 
 ment. Sir E. Peel, in commenting upon the result of 
 the elections, observed that it was ' a great constitu- 
 tional principle, that the favour and support of the 
 crown ought not to maintain, for a long and indefinite 
 period, a government in existence against the will of the 
 representatives of the people. It compromises the prero- 
 gatives of the monarchy so to retain power, because it 
 exhibits those prerogatives without their just influence, 
 it exhibits the House of Commons as wanting in its just 
 influence, when it can thwart the measures and censure 
 the acts, but cannot decide the fate of a ministry.' In 
 reply, Lord John Eussell complained of the insufficient 
 reasons assigned on behalf of the motion, but had no 
 fault to find with the motion itself. The proposed 
 amendment was carried by large majorities in both 
 Houses. The royal answer was as follows : ' Ever 
 anxious to listen to the advice of the Parliament, I will 
 take immediate measures for the formation of a new 
 administration.' In communicating the same to the 
 House of Commons upon August 30, Lord John Eussell 
 announced the resignation of ministers, adding the 
 assurance that their duty to the sovereign and to the 
 country had, in their conviction, rendered it incumbent 
 
 p 2
 
 212 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 upon them ' to continue the struggle to the present 
 moment.' g 
 
 18. Sir Robert Peel's Second Administration. 1841. 
 
 1841. Immediately upon the resignation of the Melbourne 
 ministry, her Majesty sent for Sir Robert Peel, and 
 charged him with the formation of a new administra- 
 tion. On September 8, the arrangements were complete, 
 and the new writs were moved for in the House of Com- 
 mons. On September 16, the prime minister made a 
 statement to the House of his general policy. But it 
 was very brief and reserved, and afforded no indication 
 of the course he intended to pursue upon the great 
 questions of commercial and financial policy that were 
 agitating the public mind. He claimed for his ministry 
 that time should be afforded to them to consider those 
 measures which they might deem it expedient to submit 
 to Parliament on these important subjects. 11 Sir Robert 
 Peel had, in fact, undertaken a most difficult task. ' He 
 was obliged to be at once a Conservative and a Reformer, 
 and to carry along with him, in this double course, a 
 majority incoherent in itself, and swayed, in reality, by 
 immovable and untractable interests, prejudices, and 
 passions.' ' Elected as the champion of agricultural 
 Protection, one of his first acts was to obtain the con- 
 sent of his colleagues to a material change in the Corn 
 Laws, and to the removal of the prohibition which ex- 
 isted against the importation of foreign cattle and meat. 
 But this, while it failed to conciliate the advocates of 
 free trade, was not effected without occasioning serious 
 dissatisfaction amongst his own supporters. In fact the 
 Duke of Buckingham resigned his seat in the cabinet 
 rather than become a party to these measures ; and it 
 
 * Mir. of Parl. 1841, sess. ii. pp. h Knight, Hist, of Eng. v. 8, p. 
 
 29-62, 68, 74, 164, 211, 222, 236. 492; Mir. of Parl. 1841, sess. ii. 
 
 iSee Trevelyan's Life of Macaulay, p. 272. 
 
 v. 2, p. 89. * Guizot, Peel, p. 89.
 
 SIR ROBERT PEEL'S SECOND ADMINISTRATION. 213 
 
 was no easy matter to induce the remaining members 
 of the government to accede to them. 1 
 
 Twice, during the session of 1844, and before the 
 complete development of his intended policy in respect 
 to the Corn Laws, the existence of Sir Eobert Peel's 
 administration was seriously jeopardised by votes of 
 the House of Commons. First, upon the question of 
 the hours of labour in factories, and afterwards, upon 
 the question of the sugar duties, a majority of the House 
 affirmed certain propositions which were regarded by 
 the ministry as injurious to the commercial prosperity 
 of the country, and opposed to the principles of public 
 policy which they were resolved to maintain. Upon 
 each of these defeats, Sir Robert informed the House 
 that, unless its decision were reconsidered and reversed, 
 he should feel it to be his duty to resign office. This 
 appeal was successful upon both occasions ; and the 
 government were sustained by the adoption of resolu- 
 tions in accordance with their views. k 
 
 At length, in October 1845, a more alarming peril 1845 
 arose. The Irish potato crop had failed, and it became 
 necessary to adopt measures to supply the immense de- 
 ficiency thereby occasioned in the ordinary food of the 
 people. On October 31, Sir Robert Peel laid before the 
 cabinet a memorandum containing various suggestions 
 calculated to meet this emergency. In the discussions 
 which ensued upon this communication, it became evi- 
 dent, however, that grave differences of opinion existed, 
 both as to the necessity for adopting any extraordinary 
 measures, and as to the shape which such measures 
 should assume. 1 The cabinet separated, to meet again 
 in a week. Upon their reassembling, it appeared that 
 a considerable majority of his colleagues differed from 
 the premier, three only being willing to give him their 
 support. Sir Robert, however, decided not to resign 
 
 * Peel's Mem. v. 2, p, 100. k See post, v. 2. 
 
 1 Peel's Mem. v. 2, p. 148.
 
 214 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 1845. n i s office^ an( j thereby dissolve the government, but to 
 afford his colleagues an opportunity of reconsidering the 
 whole subject." 1 The discussions in the cabinet were 
 accordingly resumed ; and, upon December 2, Sir Robert 
 Peel submitted to them a project for the settlement of 
 the Corn Law question, but which failed to obtain their 
 concurrence. He then, on December 5, waited upon 
 the queen, and tendered his resignation." 
 
 Whereupon her Majesty sent for Lord John Russell, 
 and commissioned him to form a government. With a 
 view to facilitate a just and comprehensive settlement 
 of this momentous question, Sir Robert Peel conveyed, 
 through her Majesty, an offer of his support, and that 
 of those of his late cabinet who agreed with him, to any 
 ministry that might be formed for the purpose of settling 
 the question ; provided their measure should be founded 
 upon certain defined principles, and be framed in a 
 cautious and conciliatory spirit, Lord John Russell 
 acknowledged the liberality of this offer, but pressed 
 for a further assurance that Sir Robert and his friends 
 would pledge themselves to concur in a certain plan of 
 adjustment, the outlines of which he offered to com- 
 municate. This Sir Robert Peel declined to do ; object- 
 ing to ' concert, and to preliminary pledges, as calcu- 
 lated to dissatisfy the House of Commons, to embarrass 
 all parties, and to diminish his ability to render efficient 
 service.' While proffering a general support on the 
 particular question, he would not ' relinquish his power 
 of free and independent action.' In these conclusions, 
 Lord John Russell expressed his concurrence. But 
 the Whig party were in a large minority in the Commons ; 
 and after several days spent in negotiations, it became 
 evident that Lord John could not succeed. He failed, 
 
 m Peel's Mem. v. 2, p. 158. undertake to form a government upon 
 n Ib. p. 222. Ld. Stanley, with the principle of Protection. He there- 
 others of his colleagues who differed fore did not advise the queen to send 
 from Sir Robert Peel, had authorised for any of them. Ib. pp. 229-234. 
 him to state that they would not Ib. pp. 241, 242.
 
 SIR ROBERT PEEL S SECOND ADMINISTRATION. 215 
 
 moreover, to obtain an agreement amongst his own 
 friends in respect to the composition of his ministry, 
 Lord Grey having decidedly opposed an appointment 
 which Lord John Eussell was desirous of making. p 
 Accordingly, on December 20, he wrote to the queen, 
 relinquishing the task. 
 
 Sir Eobert Peel was then recalled to power. He 
 agreed to resume the office of first minister without 
 previous concert with any one, a course which he had 
 formerly taken in 1834. He met the cabinet the same 
 evening, and told them that, whether supported or not, 
 he was firmly resolved to meet Parliament as her 
 Majesty's minister, and to propose such measures as the 
 public exigencies required. This determined conduct 
 had the effect of bringing the waverers back to their 
 party allegiance, and, with the exception of Lord Stanley, 
 all his former colleagues consented to support the prime 
 minister. q Immediately upon the assembling of Parlia- 
 ment, ministerial explanations of these transactions were 
 given ; and Sir Eobert Peel boldly announced his inten- 
 tion to stand free from the trammels of party, declaring 
 that he would not remain at the helm unless the ship of 
 -the state were allowed to pursue the course he thought 
 she ought to take. He reserved to himself the marking 
 out of that course, and claimed for himself the unfettered 
 power of judging of those measures which he conceived 
 it to be for the good of the country to propose/ 
 
 Sir R. Peel's conduct on this occasion, like that of the Duke of 
 Wellington in regard to Roman Catholic emancipation, gave great 
 offence to his party, who contended that it was a violation of one of the 
 first principles of political morality. 8 The position occupied by the 
 Duke of Wellington upon the question was still more emphatically 
 impeached, as, while credit was given to Sir R. Peel for being an 
 honest convert to free trade, his grace appears to have based his 
 acceptance of the doctrine upon considerations of a different descrip- 
 
 P Peel's Mem. v. 2, p. 247. And r Hans. D. v. 83, p. 94. 
 
 see Trevelyan, Life of Macaulay, v. s May's Const. Hist. v. 2, p. 74. 
 
 2, pp. 160-169. For his own defence, see Peel's Mem. 
 
 i Ib. pp. 249, 250. v. 2, pp. 163, 229, 311-325.
 
 216 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 tion, namely, upon the assumed convenience of the crown in this 
 emergency.* 
 
 By this speech he asserted his independence, not merely 
 of his colleagues in office, but of the great party of 
 which he was the acknowledged chief. 
 
 In due course, Sir E. Peel communicated to Parlia- 
 ment his plan of financial and commercial reform. It 
 excited strong opposition from his quondam supporters, 
 but, nevertheless, it received the sanction of a majority 
 in both Houses. But the Nemesis was at hand. During 
 the progress of the Corn Law Repeal Bill, another 
 measure for the Protection of Life in Ireland, which, at 
 an early period of the session, had received the assent 
 of the Lords, was brought under discussion in the Com- 
 mons, and, by a combination of parties hostile either to 
 the ministry or to the Bill itself, was defeated. Fore- 
 seeing that this Bill, so essential to the maintenance of the 
 public peace in Ireland, would be rejected by the hos- 
 tility of a factious Opposition, Sir Robert Peel, on June 
 1846. 21, transmitted a memorandum to the cabinet upon the 
 position of the government. He elaborately discussed 
 therein the alternatives of resignation or dissolution of 
 Parliament, and, if the latter course were taken, the 
 proper ground upon which to appeal to the country. 
 He summed up by expressing a strong opinion in favour 
 of immediate resignation, as being the most desirable 
 step for the interests of his party, of the crown, and of 
 the whole community ; and as being more creditable 
 than the retention of office without power, or the ad- 
 vising of a dissolution with little prospect of securing a 
 majority of members honestly and cordially concurring 
 with the government in great political principles." This 
 memorandum Sir Robert Peel addressed, in the first in- 
 stance, to the Duke of Wellington, and upon receiving 
 his grace's reply which, while coinciding, in the main, 
 
 ' See Amos, Fifty Years of the u Peel's Mem. v. 2, pp. 288-297. 
 Enjar. Const, pp. 847-368.
 
 LORD JOHN RUSSELL S FIRST ADMINISTRATION. 217 
 
 with his own views, differed somewhat as to the proper me. 
 grounds for dissolving Parliament, should it be neces- 
 sary to take that step he circulated both papers 
 amongst the cabinet ministers/ Sir E. Peel's sugges- 
 tions met with unanimous approval. 
 
 On June 25, owing to a concerted union between 
 the Whig and Protectionist parties for the purpose of 
 displacing the government, the Irish Coercion Bill was 
 rejected, on its second reading, by a majority of 73. 
 Next day the ministry resigned. w In communicating the 
 fact of his retirement from office to the House of Com- 
 mons, Sir E. Peel stated that, had he failed to carry his 
 measures of commercial policy, he would have advised 
 the crown to dissolve Parliament, but, having succeeded 
 in passing them, he could not consent to advise a disso- 
 lution for the mere continuance of his own administra- 
 tion in office, unless he could reasonably anticipate that 
 it would insure him the support of a powerful party, 
 united to him by a general concurrence of views on all 
 great questions, a result which, at this juncture, he did 
 not consider probable. Moreover, he thought that the 
 country, after its recent excitement, stood in need of 
 -repose. 
 
 19. Lord John Russell's First Administration. 1846. 
 
 On July 6, 1846, Lord John Eussell was sworn in as 
 First Lord of the Treasury. His cabinet consisted of 
 the then unusual number of 16 persons. ' He took office 
 with a majority of 100, sitting opposite to him ; and 
 carried on the government with a minority during the 
 remainder of the Parliament, which completed its seventh 
 session in July 1847 ; but he did it for the advantage of 
 the country, and with the full approbation and moral 
 
 v Peel's Mem. v. 2, pp. 298-308. a Coercion Bill, which, with the 
 
 w In the following year the new friendly assistance of Sir R. Peel, 
 
 ministry were themselves compelled, they passed into a law. See Martin's 
 
 by the state of Ireland, to introduce Pr. Consort, v. 1, p. 461.
 
 218 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 support of a majority in Parliament, ' x including Sir 
 E, Peel and his friends/ 
 
 i860. In February 1850, he narrowly escaped defeat upon 
 the question of agricultural distress, being sustained by 
 a majority of 21 only, in a House of 530 members. 
 On this occasion a change of ministry was anticipated, 
 but did not occur. On June 17, 1850, a resolution, 
 proposed by Lord Stanley in the House of Lords, con- 
 demnatory of the foreign policy of ministers, in relation 
 to the affairs of Greece, was carried, by a majority of 
 37. This was met by a counter-resolution, proposed by 
 Mr. Roebuck, in the Commons, approving of the whole 
 foreign policy of government, which was carried, on 
 June 28, by a majority of 46. However, on February 
 13. 1851, upon another Protectionist motion, proposed 
 by Mr. Disraeli, they obtained a bare majority of 11, in 
 a House of 548 members, and, on the 20th, were 
 defeated, upon a motion of Mr. Locke King, on a ques- 
 tion of the extension of the franchise. On February 22, 
 Lord John Russell resigned. But after ineffectual at- 
 tempts on the part of Lords Stanley and Aberdeen, and 
 of Lord John Russell, in connection with Lord Aberdeen 
 and Sir James Graham, to form a ministry, her Majesty 
 sent for the Duke of Wellington, to take counsel from 
 him in regard to this political emergency ; and * paused 
 for a while before she again commenced the task of 
 forming an administration.' At length, upon the advice 
 of the Duke of Wellington, the Whig ministry were re- 
 called to office. 2 On December 22 following, the minis- 
 try were weakened by the loss of Lord Palmerston, 
 under circumstances which will be specially noticed in 
 another chapter.* Explanations were given to the 
 House of Commons, of this event, by Lord John Russell, 
 
 Mr. Disraeli, Hans. D. v. 191, 344-354 Hans. D.v. 114, pp. 1033, 
 
 p. 1704; and see p. 1720. 1076. The popular cry at this juncture 
 
 y Earl Russell's Recollections, p. \vasinfavourofaCoalitionMinistry. 
 
 See Stockmar's Mem. v. 2, p. 446. 
 1 Martin's Pr. Consort, v. 2, pp. See post, v. 2.
 
 LORD DERBY S FIRST ADMINISTRATION. 219 
 
 in the debate upon the Address, at the commencement 1352. 
 of the session, on February 3, 1852. A few days after- 
 wards, the ministry were defeated upon an amendment, 
 proposed by Lord Palmerston, to the motion for leave 
 to bring in a Bill to regulate the ' local militia.' The 
 amendment consisted in the substitution of the word 
 ' general ' for ' local.' b It was carried, on February 20, 
 by 136 votes to 125. On February 23, their resignation 
 was announced to both Houses. Her Majesty had offered 
 them the alternative of a dissolution of Parliament, but 
 the cabinet were unanimous in the opinion that it was 
 not advisable to have recourse thereto. 
 
 20. Lord Derby's First Administration. Feb. 1852. 
 
 Instead of sending for Lord Palmerston, as might 1852 - 
 have been anticipated, her Majesty commissioned the 
 Earl of Derby to form a ministry. He was very re- 
 luctant to take office ; d but nevertheless succeeded in 
 the undertaking, and on February 27 the new premier 
 explained the intended policy of his cabinet in the 
 House of Lords. This administration was confessedly 
 in a minority, in the House of Commons, upon the great 
 party questions. 6 But they struggled through the 
 session in which they had taken office, with the intention 
 (which, for constitutional reasons, was hinted, rather 
 than expressed) of dissolving Parliament in the ensuing 
 autumn, and of then shaping their course of policy on 
 the question of Free Trade, and the Corn Laws, accord- 
 ing to the general sentiment of the country, as it might 
 be expressed in the new Parliament. But they were 
 not permitted to take this course without encountering 
 strenuous opposition. On March 15, Lord John Eussell 
 
 b See Ashley, Life of Palmerston, p. 1076. 
 
 v. 1, p. 333. Martin's Pr. Consort, d See Hans. D. v. 214, p. 1939. 
 
 v. 2, p. 433. e Martin, Pr. Consort, v. 2, p. 441. 
 
 c Ib. v. 2, p. 441. Hans. D. v. 150, Hans. D. v. 119, p. 914.
 
 220 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 1852. warmly contended that the proposed delay in dissolving 
 Parliament, and the attempt to conduct public business 
 by Lord Derby's ministry, whilst in an admitted minority 
 in the House of Commons, was unconstitutional and 
 unprecedented/ He was followed, at greater length, 
 and to the same effect, by Sir James Graham. After- 
 wards, Mr. Gladstone and Lord Palmerston urged 
 that, constitutionally, the new ministry were bound to 
 give a distinct assurance that, as soon as the necessary 
 business before Parliament could be despatched, the 
 crown should be advised to appeal to the country . g In 
 the House of Lords, similar views were expressed by the 
 Duke of Newcastle. 11 Lord Derby, in reply, said that he 
 did not rely on the conduct of Mr. Pitt, in 1784, as a 
 precedent, not regarding it as a very analogous case ; 
 but he defended his position by referring to the course 
 adopted by Sir R. Peel, in 1835, when he was in a 
 minority, in the House of Commons, upon his assump- 
 tion of the reins of government, and failed to obtain a 
 majority upon a dissolution of Parliament. He sus- 
 tained several serious defeats in the new House, yet he 
 would not resign, saying, ' I hold there is nothing 
 unconstitutional, in the post I fill, arid in the fulfilment 
 of my duty, to persevere in the discharge of those 
 duties to which my sovereign has called me, in defiance 
 of the majority that is against me upon any abstract 
 question, and in defiance of any declaration on the part 
 of the House of Commons that I ought to bring forward 
 a particular question, and settle it in a particular 
 manner. I will perform my duty until the House shall, 
 by its vote, refuse its sanction to some measure of 
 importance which I think necessary to submit to its 
 consideration.' Upon this constitutional doctrine, laid 
 down in 1835, Lord Derby declared that he was pre- 
 pared to abide in 1852. He could not consent to 
 
 f Hans. D. v. 119, p. 1067. Ib. pp. 1090, 1106, 1111. h Ib. p. 1267.
 
 LORD DERBY S FIRST ADMINISTRATION. 221 
 
 resign, as he and his party had not sought office, or 1852. 
 brought about his accession to it ; neither would he 
 give any distinct pledge as to the time when he would 
 advise a dissolution. He expressed, however, an anxious 
 desire that an appeal to the country should be made at 
 the earliest period possible, consistently with the public 
 welfare. Furthermore, he said that he thought the 
 new Parliament should be assembled before the close 
 of the coming autumn, to ' pronounce its definitive 
 and final decision.' * With this explanation, the leading 
 statesmen in the House of Lords declared themselves to 
 be satisfied. A similar announcement was made in the 
 House of Commons, on the same clay, by Mr. Disraeli, 
 in reply to an enquiry by Lord John Russell. On 
 March 22, Lord John Russell professed himself content 
 with these explanations, and expressed his willingness to 
 aid the government in completing the necessary busi- 
 ness without delay. j The prorogation took place on 
 July 1, and the dissolution of Parliament upon the 
 same day. At the close of the session, Lord Derby 
 ' gratefully acknowledged ' that his ministry had met 
 ' with no factious opposition,' and had ' encountered 
 nothing but a fair, legitimate, and constitutional oppo- 
 sition in the other House of Parliament.' 1 " The new 
 Parliament assembled on November 4. The returns to 
 the new House of Commons left the balance of parties 
 very much as before, with no decisive working majority 
 on either side. 1 But they indicated the opinion of the 
 country to be in favour of a continuance of the new 
 commercial policy, and opposed to any return to the 
 principle of Protection. Accordingly, on November 11, 
 in the debate upon the Address, in answer to the 
 speech from the throne, Lord Derby stated that he 
 should bow to the decision of the country, thus unmis- 
 
 1 Ld. Derby's speech, Hans. D. v. k Ib. v. 122, p. 1408. 
 1 19, p. 1274. ' Martin's Pr. Consort, v. 2, pp. 453, 
 
 J Hans. D. v. 119, p. 1409. 479.
 
 222 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 1852 takably expressed, and should give his unequivocal 
 adhesion to that policy . m Notwithstanding this frank 
 avowal, the combination of parties proved too strong 
 for the administration, and upon the introduction of 
 the budget by the Chancellor of the Exchequer (Mr. 
 Disraeli), a debate ensued upon the whole financial 
 policy of the government, which resulted in a defeat of 
 the ministry, on December 16, by a majority of 19. 
 Ministers were strongly urged, on this occasion, to 
 remain in office. They were assured, even by leading 
 opponents, that this vote being on a question of 
 finance did not authorise their resignation ; but, being 
 in a minority in a Parliament elected under their own 
 auspices, and having no assurance of support from the 
 majority of the House of Commons upon their general 
 policy, they deemed it right to retire. 11 Next day their 
 resignation of office was announced to both Houses of 
 Parliament. 
 
 21. Lord Aberdeen's Administration. December 1852. 
 
 In hopes of obtaining a strong and durable adminis- 
 tration, which should be at once conservative and 
 reforming, the queen sent for Lord Aberdeen, and also 
 wrote to Lord John Russell, expressing her reliance 
 upon his patriotism, and his willingness to co-operate in 
 the formation of a coalition government. In this her 
 Majesty was not disappointed. On December 27, 1852, 
 Lord Aberdeen informed the House of Lords that he 
 had succeeded, in conjunction with Lord John Russell, 
 in forming a Coalition Ministry, of Conservatives and 
 Liberals, who would agree in ' the maintenance and 
 prudent extension of Free Trade and the commercial 
 and financial system established by the late Sir Robert 
 Peel.' And he proceeded to state the outlines of the 
 
 Hans. D. v. 123, p. 53. Trevelyan,Lifeof Macaulay,v. 2, 
 
 n Mr. Disraeli, Hans. D. v. 191, p. 3,,2. Martin's Pr. Consort, v. 2, 
 p. 1702. Ib. v. 205, p. 1659. p. 482.
 
 LORD ABERDEEN S ADMINISTRATION. 223 
 
 policy intended to be pursued by the new administra- 
 tion. Both Houses were then adjourned until Feb- 
 ruary 10. On that day, Lord John Eussell, as leader 
 of the government in the House of Commons, explained 
 the measures intended to be submitted to Parliament. 
 These measures were received, by both Houses, in a 
 fair and candid spirit. The result was that a mass of 
 legislation, unusual in amount as well as in value, was 
 initiated and successfully carried through by this 
 government. 1 " 
 
 The Aberdeen ministry remained in office until 1855. 
 For a considerable period before their final overthrow, 1855 
 discontent had prevailed in the cabinet ; they had been 
 bereft of genuine parliamentary support, and had been 
 subjected to frequent defeat, in the House of Commons, 
 ' upon cross motions of every description.' This greatly 
 impaired their strength and efficiency. 9 Their downfall 
 was ultimately occasioned by internal dissensions and 
 notorious incompetency to meet the crisis of the war 
 with Russia. It was preceded by the unexpected seces- 
 sion of Lord John Russell himself, who resigned on 
 January 23, 1855, on account of his inability to concur 
 -with his colleagues in resisting a pending motion of Mr. 
 Roebuck, for the appointment of a committee to enquire 
 into the conduct of the war in the Crimea/ This mo- 
 tion was carried, on January 29, by a large majority. 
 It was regarded as a declaration of want of confidence 
 in the government. Accordingly, on February 1, the 
 resignation of ministers was announced to both Houses. 
 
 The announcement was made in the Commons by Lord Palmer- 
 ston, the Home Secretary. The resignations had actually taken 
 place before the meeting of the House on the previous sitting 
 (January 30), and would have been formally made known upon the 
 moving of the adjournment on that day, on account of ' the present 
 
 P Martin's Pr. Consort, v. 2, pp. 487, 136, p. 1000. Martin's Pr. Consort, 
 503. v. 3, p. 90. 
 
 * Mr. Sidney Herbert, Hans. D. v. r See post, \. 2.
 
 224 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 1855. state of public affairs/ but for the accidental circumstance of the 
 Lords having adjourned over that day. The premier having a seat 
 in the Lords, it was necessary that the formal announcement of re- 
 signation should proceed first from him. 8 
 
 After the premier had communicated this intelli- 
 gence to the Lords, the Duke of Newcastle took the 
 unusual course of explaining to the House his personal 
 motives for his conduct in office, and for his resignation. 
 On February 5, Lord John Eussell (in the Commons) 
 entered into similar explanations, in answer to certain 
 remarks from the Duke of Newcastle on the aforesaid 
 occasion. Meanwhile, ineffectual attempts had been 
 made, both by Lord Derby and by Lord John Eussell, 
 at the command of the queen, to form a new administra- 
 tion ; * and Lord John Eussell took this opportunity to 
 explain the causes of his failure. This elicited some 
 observations from the Chancellor of the Exchequer ; but 
 no debate arose upon either occasion. 
 
 22. Lord Palmerstons First Administration. 18^5. 
 
 On February 6, 1855, both Houses were informed 
 that her Majesty had empowered Lord Palmerston to 
 form a ministry. In the Commons (upon the motion to 
 adjourn), a short debate took place, in which dissatis- 
 faction was expressed at the delay in the formation of 
 a new ministry, and hints were thrown out that, if 
 further delay occurred, it might become expedient to 
 address the crown on the subject. On the 8th, Lord 
 Granville informed the House of Lords that Lord Pal- 
 merston had succeeded in the task entrusted to him. His 
 lordship briefly explained that no change of policy was 
 intended by the incoming administration, which was, in 
 fact, a reconstruction of the preceding one, with some 
 partial changes, and re- distribution of offices." And 
 
 * Hans. D. v. 136, pp. 1233, 1201. u Hans. D. v. 136, p. 1330. Ashley, 
 
 * See Martin's Pr. Consort, v. 3, p. Life of Palmerston, v. 2, c. iii. Mar- 
 202. tin's Pr. Consort, v. 3, p. 208.
 
 LORD PALMERSTON S FIRST ADMINISTRATION. 225 
 
 then Lord Derby entered into explanations in regard to 1355. 
 his own failure to construct a cabinet, which gave rise 
 to a short debate. But the ordinary ministerial expla- 
 nations were deferred until the appearance of Lord 
 Palmerston in the House of Commons, after his re elec- 
 tion. Until this took place, with the partial exceptions 
 above noted, there was no political discussion in either 
 House, although the House of Commons sat, for the 
 transaction of ordinary and unopposed business, on 
 January 30, February 2, 5, 6, 7, 8, and 9, when they 
 adjourned until the 16th. Meanwhile, the Chancellor 
 of the Exchequer (Mr. Gladstone), the Commissioner 
 of Public Works (Sir W. Molesworth), and the Presi- 
 dent of the Board of Control (Sir C. Wood) resumed 
 their offices as members of the new administration. 
 Nevertheless, while taking part in the debates, they re- 
 frained from asserting their official position during this 
 interregnum, and in the absence of their chief. In pro- 
 posing a vote on .account in supply, on behalf of the 
 Army, upon February 7, the Chancellor of the Ex- 
 chequer said : ' I presume the government are of opinion 
 that it would be the wish of the House that we should 
 not proceed with any business, except such as is of 
 absolute necessity, in order that those who have accepted 
 office, or who have changed their offices, in her Majesty's 
 government at least the principal members of it may 
 have an opportunity of submitting themselves to their 
 constituents for their re-election. ' v Upon the re-assem- 
 bling of the House, on February 16, Lord Palmerston 
 was present, and entered into the ordinary ministerial 
 explanations, He endeavoured to persuade the House 
 to forego their determination to enquire, by a commit- 
 tee of their own, into the condition of the Army before 
 Sebastopol, but he was compelled to yield, upon this 
 point, to the determination of the House ; although this 
 
 r Hans. P, v. 136, p. 1809. 
 VOL. I. Q
 
 226 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 concession led to further changes in the composition of 
 the ministry. 
 
 On February 22, it was announced that Mr. Gladstone, Mr. 
 Sidney Herbert, Sir J. Graham, and (afterwards) Mr. Cardwell, had 
 retired from the new cabinet ; they were speedily replaced, however, 
 by Sir G. C. Lewis, Lord John Russell, Mr. Vernon Smith, and Lord 
 Stanley of Alderley. The ex-ministers made their explanations on 
 the following day, alleging their strong objections to the proposed 
 committee of enquiry into the state of the Army before Sebastopol 
 as the ground of their retirement. With the consent of the premier, 
 and his new colleagues, the committee was appointed. w On July 16, 
 Lord John Russell resigned office, on account of animadversions in 
 Parliament, and out of doors, upon his conduct as minister plenipo- 
 tentiary at Vienna, Sir E. Bulwer-Lytton having given notice of 
 motion for a vote of censure upon him.* 
 
 By a resolution of the House of Commons, on 
 1857 March 3, 1857, the Palmerston ministry were censured 
 for the ' violent measures resorted to at Canton in the 
 late affair of the Arrow.' The House of Lords, how- 
 ever, approved of their conduct and policy upon the 
 Chinese question, and upon other questions the House 
 of Commons gave them a general support. They there- 
 fore resolved to appeal to the country by a dissolution 
 of Parliament. They were influenced in this determina- 
 tion by the probability that it would be difficult to form 
 a strong government to work with the existing House 
 of Commons, which had already lasted five years, within 
 which period there had been three different administra- 
 tions/ The Chinese question excited very little interest 
 at the hustings, but the name of ' Palmerston ' was the 
 rallying cry in almost every constituency. The result 
 of the elections was the return of an increased majority 
 of members to support the administration of that popular 
 nobleman. 2 
 
 But ere long a still more difficult bone of contention 
 
 - 
 
 w Hans. D. v. 130, pp. 1733, 1865, See post, v. 2. 
 
 and see further as to enuiiry and y Hans. D. v. 144, pp. 1885, 1894. 
 
 results, post, Chapter on Army and z Ashley, Life of Palmerston, v. 2, 
 
 Navy. p. 136.
 
 LORD PALMERSTON S FIRST ADMINISTRATION. 227 
 
 arose. At the commencement of the year 1858, there 
 was much excitement in England and France in con- 
 sequence of the discovery of a nefarious plot, against 
 the life of the Emperor of the French, by one Orsini, a 
 foreign refugee resident in London. This occasioned a 
 diplomatic correspondence between the two govern- 
 ments, and led to the introduction, by Lord Palmerston, 
 of a Bill into Parliament to amend the law in relation to 
 the crime of conspiracy to commit murder. But certain 
 expressions in a despatch from the French minister for 
 Foreign Affairs, impugning the sacred right of asylum, 
 and the adequacy of the existing law applicable to the 
 case, gave offence to the House of Commons. While 
 they were willing to agree to any amendment that 
 might be required to satisfy the ends of justice, they 
 disclaimed the right of the French government to dic- 
 tate upon a matter of internal legislation ; and they 
 considered that the objectionable portions of the des- 
 patch in question should have been formally answered 
 by the Foreign Secretary before the initiation of further 
 legislation upon the subject. These opinions were em- 
 bodied by Mr. Milner Gibson in an amendment which, on 
 February 19, he proposed to the second reading of the 
 Bill, and which was carried by a majority of 19 (234 to 
 215) against the government.* 1 On this occasion it was 
 clear that the feeling of the country concurred with the 
 majority of the House of Commons ; and notwithstand- 
 ing the general support afforded by the House to the 
 ministry, and the fact that the only party in Parliament 
 which was capable of assuming office was neither strong 
 in numbers nor high in popular favour, it was evident 
 that a vote of censure so emphatic left the ministry no 
 alternative but to resign ? b Accordingly, at the next 
 
 a Ashley, Life of Palmerston, later its provisions were silently ad- 
 
 v. 2, p. 142. ' To the measure itself, mitted to a place in our revised 
 
 apart from the circumstances under criminal laws.' May, Const. Hist, 
 
 which it was offered, no valid objec- v. 2, p, 304 : 24 & 25 Viet. c. 100, 4. 
 
 tion could he raised ; and three years b Ann. Reg, 1858, p, 50, But while
 
 228 ANNALS OP THE ADMINISTRATIONS OF ENGLAND. 
 
 meeting of the House, Lord Palmerston announced their 
 retirement from office. 
 
 23. Lord Derby's Second Administration. 1858. 
 
 1858. On February 22, 1858, it was intimated that the 
 Earl of Derby had been sent for and commissioned to 
 form a new administration. Although unable to com- 
 mand a majority in the House of Commons, the noble 
 earl consented to take office, and succeeded in con- 
 structing an efficient cabinet. On March 1, he made 
 his ministerial statement in the House of Lords, and 
 both Houses then adjourned for eleven days, to admit, 
 of the new ministers, in the Commons, going for re- 
 election. Shortly after this recess (on March 15), Lord 
 Malmesbury (the Foreign Secretary) laid on the table 
 of the House of Lords a correspondence that had taken 
 place between her Majesty's ministers, since their acces- 
 sion to office, and the French government, which corre- 
 spondence, he stated, had terminated in all honour and 
 good feeling on both sides. 
 
 On May 11, a breach was made in the ministerial 
 ranks by the resignation of Lord Ellenborough (the 
 President of the Board of Control), on account of com- 
 plaints in Parliament that he had unwisely and precipi- 
 tately published a secret dispatch to the Governor- 
 General of India, animadverting upon a proclamation 
 about to be issued in India. 
 
 On March 1, 1859, Mr. Walpole (the Home Secre- 
 tary) and Mr. Henley (the President of the Board of 
 Trade) informed the House of Commons that they had 
 retired from the ministry, on account of their objec- 
 tions to some of the provisions of the government 
 Reform Bill. 
 
 the vote of censure was the ostensible Reform Bill.' Lewis's Letters, p. 426. 
 cause, Sir G. C. Lewis, who was c See Hans. L>. v. 154, p. 111. In 
 
 Chancellor of the Exchequer at the fact, only one-third of the members of 
 
 time, says ' there is no doubt that Ld. the existing H. of Commons were sup- 
 
 Palmerston resigned on account of the porters of the government. Ib. p. 123.
 
 LORD DERBY'S SECOND ADMINISTRATION. 229 
 
 Owing in part to the forbearance of their political 1859. 
 opponents, and also to a general disposition, both in 
 and out of Parliament, to give the Conservative ministry 
 a fair trial, they were permitted to carry on the govern- 
 ment without obstruction, or factious opposition, until 
 the introduction of this measure. The scheme of 
 Eeform propounded on the part of the Conservatives 
 excited, however, great hostility for various and widely 
 different reasons. Lord John Eussell skilfully availed 
 himself of the prevalent dissatisfaction to forestall the 
 committal of the Bill at which stage the ministry ex- 
 pressed their readiness 'to consider any proposed amend- 
 ments of detail, and to endeavour to make their measure 
 generally acceptable by moving an amendment upon 
 the second reading, condemnatory, in general terms, of 
 its principle. On March 31, this amendment was car- 
 ried against the government. 
 
 On April 4, ministers announced their intention of 
 appealing to the country by a dissolution of Parliament. 
 In communicating this intention to the House of Lords, 
 the premier adverted to some remarks which had fallen 
 from Lord Palmer ston, on March 25, in the other 
 "House, to the effect that the ministry, notwithstanding 
 this defeat, ' should be permitted neither to retire, nor 
 to dissolve, nor to withdraw the Bill,' but should re- 
 main in their places, c to do our bidding.' d Eepudiating 
 the idea that he could consent to occupy such an igno- 
 minious and unconstitutional position, his lordship pro- 
 ceeded to enquire where any authority could be found 
 to justify any restriction upon the prerogative of the 
 crown to dissolve Parliament at any time and upon any 
 occasion. He asserted that ever since the memorable 
 case of 1784 ' which recoiled upon the heads of its 
 authors there has been no attempt to interfere with 
 
 d Hans. D. v. 153, p. 882. Ashley, claimed this construction of his re- 
 Life of Palmerstou, v. 2, p. 151. marks. See post, p. 231. And see 
 Afterwards Lord Paliuerston dis- Hans. D. v. 191 , p. 1703.
 
 230 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 1859. the prerogative of the crown to dissolve Parliament 
 when and for what reason it thought fit.' He then 
 declared that, with the unanimous consent of his col- 
 leagues, he had assumed the responsibility of advising 
 the queen, unless she preferred to accept their resigna- 
 tion of office, to dissolve the present Parliament, ' so 
 soon as it could be done consistently with the discharge 
 of those duties, and the performance of that amount of 
 business which is indispensable before a dissolution can 
 take place ; ' and that her Majesty had been pleased to 
 sanction this appeal to the judgment and decision of 
 the people. But in regard to the issue upon which the 
 ministry would go to the country, Lord Derby distinctly 
 stated that it should be wholly irrespective of the merits 
 of their Eeform Bill, or of the general question of Par- 
 liamentary Eeform. The appeal would be made ' on a 
 much larger and broader question,' as to whether the 
 country would support the ministry in whom the 
 sovereign had bestowed her confidence, and who had 
 endeavoured, by their public conduct, to deserve the 
 confidence which the House of Commons had withheld. 6 
 In reply, Lord Granville, as leader of the Opposition, 
 complained of Lord Derby for not stating ' exactly the 
 policy upon which the appeal ' to the country was to 
 be made.* On the same day, a similar statement was 
 made to the House of Commons by the Chancellor of 
 the Exchequer (Mr. Disraeli). He remarked that, ' ever 
 since the commencement of the session, the government 
 had found itself frequently in minorities, and that, too, 
 in many instances, on subjects of no mean importance.' 
 But, while regarding their position as a painful one, they 
 had hitherto refrained from making it the subject of 
 a communication to the House, for various reasons, 
 arising out of the state of parties, of the foreign rela- 
 tions of the crown, and of their desire to fulfil their 
 
 f Hans. I), v. 153, pp. 1280-1291. f Ib. p. 1298.
 
 LORD DERBY S SECOND ADMINISTRATION. 231 
 
 pledge to introduce a Reform Bill. But they considered 1859. 
 the vote on the second reading of that measure to be a 
 censure upon the government, which virtually deprived 
 them of all authority. They had accordingly advised 
 the queen to dissolve Parliament, in hopes that, by 
 ' recurring to the sense of her people, a state of affairs 
 might be brought about which might be more con- 
 ducive to the public interest.' He characterised the 
 intended dissolution as an ' appeal to the country on 
 our personal position. ' g In reply, Lord Palmerston 
 acknowledged the right of the government to advise 
 the dissolution, saying, ' we recognise the right of the 
 crown upon any occasion to appeal from the House of 
 Commons to the country. We may think it more or 
 less advisable to make that appeal, but when such an 
 intention is announced, I am persuaded that this House 
 will concur with government in accelerating as much as 
 possible the moment for dissolving,' with the understand- 
 ing ' that Parliament must meet at the earliest moment at 
 which the writs are returnable.' He also admitted that 
 ' the government may say that the question put to the 
 country is whether it has entire confidence in them, or 
 whether it prefers any other combination of men ; although 
 he contended that practically the question of Reform 
 would be the issue that the country would decide. 11 
 
 On April 6, Lord Palmerston entered into personal 
 explanations in reply to what fell from Lord Derby on 
 the 4th instant. He denied the construction put by the 
 premier upon his remarks on a former occasion, and 
 declared that no one who knew anything of the British 
 constitution could question the prerogative of the crown, 
 upon the advice of responsible ministers, ' to dissolve 
 Parliament at any period of the year, or in any state 
 whatever of the public business that they may think a 
 fit opportunity of so doing.' Nevertheless, ' it is obvious 
 that the advisers of the crown cannot, without great 
 
 * Hans. D. v. 153, pp. 1302-1307. h Ib. pp. 1310, 1311.
 
 232 ANNALS OP THE ADMINISTRATIONS OP ENGLAND. 
 
 i85s. inconvenience to the public service, recommend the 
 sovereign to dissolve Parliament, and carry that recom- 
 mendation into effect, unless the House of Commons 
 makes itself a party to the transaction, accelerates its 
 proceedings, and concurs in the temporary expedients 
 which are necessary in order to place the public busi- 
 ness in a position in which a dissolution would not be 
 attended with inconvenience.' For it would have been 
 perfectly constitutional for the House, under existing 
 circumstances, to refuse to be a party to the abrupt and 
 premature termination of the session, and to interpose 
 their advice between that tendered to her Majesty by 
 her responsible ministers and the act of dissolution, by 
 an ' address to the crown, praying that it would neither 
 dissolve nor prorogue Parliament until the House had 
 had the opportunity of considering another Eeform Bill, 
 to be presented by the Government ; ' or ' to address 
 the crown to dismiss the present ministers.' 1 His lord- 
 ship, however, would not advise the House to adopt 
 either of these courses, but thought it far better to 
 ' accept the challenge of her Majesty's ministers, and 
 appeal to the sense of the people ' without delay. 
 
 Some further discussion ensued as to the issue upon 
 which the government intended to go to the hustings. 
 The Opposition persisted in asserting that- the issue for 
 the country to decide was the propriety of their Reform 
 policy ; but the Home Secretary (Mr. Sotheran-Estcourt) 
 maintained that ' the real question at issue for the 
 country to consider was whether the government should 
 be carried on by the present ministers, or whether 
 power should be transferred to other hands.' 3 The 
 prorogation of Parliament took place on April 19, 1859, 
 and the dissolution on the 23rd. The new Parliament 
 assembled on May 31. On the motion for an Address 
 
 1 Hans. D. v. 153, p. 1415. And issue which the Derby Government 
 see Sir G. Grey's remarks on this put to the people, and which was de- 
 point, p. 1419. cided against them. See Ib. v. 154, 
 
 J Ib. p. 1429. This was in fact the pp. ] 11, 147.
 
 LORD DERBY S SECOND ADMINISTRATION. 233 
 
 in answer to the speech from the throne, an amendment 1859. 
 was proposed, in the House of Commons, on June 7, 
 representing that the present advisers of her Majesty 
 did not possess the confidence of this House, or of the 
 country. After three nights' debate, the amendment 
 was carried, by a majority of 13. The division upon 
 this, question was the largest on record. There were 
 638 members present out of 654. k 
 
 At the division on April 27, 1866, on the second reading of the 
 Reform Bill, there were present 636 members, including the Tellers 
 and the Speaker. The increased attention of members to their 
 parliamentary duties within the present century, may be inferred 
 from the fact that, at a great party division, in 1804, when 493 
 members were present, including the Speaker, it was said to have 
 been ' the fullest House that was ever known,' l which was not 
 strictly correct, as on one occasion, in 1742, 508 were present. Mr. 
 Speaker Abbot refers to a division on April 24, 1812, when the ayes 
 were 300 and the noes 215, as 'probably the largest number that 
 ever attended on any division.' m The largest division in the House 
 of Lords is said to have included about 310 Peers. 11 
 
 The ministry thereupon immediately resigned office ; 
 but their resignation was not formally announced to 
 both Houses until June 17. At this juncture the 
 queen first commissioned Earl Granville to form a 
 ministry, but as soon as that nobleman found that a 
 better and a stronger arrangement might be made, he 
 at once requested her Majesty to absolve him from the 
 task. In fact, before the new Parliament met, and in 
 anticipation of the speedy downfall of the Derby min- 
 istry, the two rival chiefs of the Whig party, Lords 
 John Russell and Palmerston, had come to an agreement 
 that whichever of the two was charged with the for- 
 mation of a government, should receive the co-operation 
 of the other. Her Majesty knew nothing of this un- 
 
 k Hans. D. v. 154, p. 416. Ann. n Hans. D. v. 188, p. 654. Yonge, 
 
 Reg. 1859. Chronicle, p. 81. Life of Ld. Liverpool, v. 1, p. 236. 
 
 1 Life of Earl Minto, v. 3, p. 348. Hans. D. v. 154, pp. 422, 423, 
 
 m Colchester Diaries, v. 2, pp. 123, 431. 
 377.
 
 234 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 derstanding, and had supposed either of these noblemen 
 would have been willing to serve under Lord Granville. 
 Lord Palmerston at once agreed to do so. But Lord 
 John Eussell was not so tractable. This led to Lord 
 Granville's failure. Whereupon the queen transferred 
 her commission to Lord Palmerston. p 
 
 24. Lord Palmerstoris Second Administration. 1859. 
 1859. On June 17, the Houses were informed that Lord 
 Palmerston had been empowered to form an adminis- 
 tration. On June 22, the new writs were ordered ; and 
 an adjournment took place until the 30th, on which 
 day the new premier made his ministerial statement to 
 the House of Commons. 
 
 This ministry lasted for upwards of six years, and 
 was finally broken up by the death of Palmerston, which 
 occurred on October 18, 1865, being within two days 
 of the completion of his eighty-first year. During this 
 period his lordship's conduct of public affairs in the 
 lead of the House of Commons was admirable, and 
 wholly free from a certain brusque and dictatorial 
 manner which characterised his former leadership^ 
 
 25. Earl Russell's Second Administration. 1865. 
 
 1865. A few days after the decease of the veteran Lord 
 Palmerston, Earl Eussell, the Secretary of State for 
 Foreign Affairs, and the most experienced and promi- 
 nent member of the administration, who had already 
 once before filled the office of premier, was called upon 
 by the queen to assume that position. The lead of the 
 House of Commons was assigned to Mr. Gladstone, the 
 Chancellor of the Exchequer. A few minor alterations 
 were made in the personnel of the government, and two 
 new members introduced therein, namely, Mr. Forster, 
 
 p Hans. D. v. 154, p. 457. Ashley, Martin's Pr. Consort, v. 4, pp. 443, 452. 
 Life of Palmerston, v. 2, p. 154. Ib. v. 2, pp. 147, 203.
 
 EARL RUSSELL S SECOND ADMINISTRATION. 285 
 
 as Under-Secret ary of the Colonies, and Mr. Goschen, 
 first as Vice-President of the Board of Trade, and, after 
 a few weeks, as Chancellor of the Duchy of Lancaster, 
 with a seat in the cabinet/ Otherwise, the political 
 character of the new ministry resembled that of Lord 
 Palmerston, although in the loss of that gifted and 
 popular statesman it failed to acquire the same amount 
 of confidence and respect from the various parties into 
 which the House of Commons was divided. Three 
 months before Lord Palmerston's death, a general elec- 
 tion had taken place, and the returns to the new Parlia- 
 ment appeared to have somewhat added to the strength 
 of ministers, and to have given them a majority of about 
 seventy over their political opponents. 
 
 A Eeibrm Bill was promised in the speech from the 1866. 
 throne, at the opening of Parliament. Some delay oc- 
 curred in the production of this measure, and when at 
 length it was brought in, it consisted of a part only of 
 the government scheme, in the shape of a Bill for the 
 reduction of the franchise. It was stated that the 
 necessary complement, of a Bill for the re-distribution 
 of seats, would not be introduced until the following 
 session. This arrangement produced great dissatisfac- 
 tion in the House, and ministers were at length obliged 
 to bring in their Seats Bill without further delay, in 
 order that the complete scheme of Eeform might be 
 discussed in committee of the whole House. After 
 several minor discomfitures on the question of Eeform, 
 ministers were defeated on May 28, on a motion, which 
 was carried against them, for an instruction to the com- 
 mittee on the Bill to provide therein for the better .pre- 
 vention of bribery and corruption at elections. 8 They 
 were again defeated, in committee, on June 18, by a 
 resolution to amend the 5th clause (concerning the oc- 
 cupation franchise for borough voters) by striking out 
 
 1 Ann. Reg. 1865, p. 159. Hans. D. v. 183, p. 1S44.
 
 236 ANNALS OP THE ADMINISTRATIONS OF ENGLAND. 
 
 the words ' clear yearly,' with a view to the insertion of 
 ' rateable ' instead thereof.* Eegarding this decision as 
 equivalent to a vote of want of confidence, ministers 
 immediately tendered their resignations. The queen 
 was, at the time, at Balmoral Castle, in Scotland, a 
 circumstance which occasioned some delay. But, on 
 learning the intentions of ministers, her Majesty expressed 
 her desire that they would not persist in retiring from 
 office in the existing state of public affairs, especially 
 upon the Continent where a war between Austria, 
 Italy, and Prussia was on the eve of taking place and 
 declared her opinion that a mere defeat upon a question 
 of detail, which was capable of adjustment, did not call 
 for such serious consequences. In deference to this 
 opinion the matter remained in abeyance until the 
 queen, on her return from Scotland, should be able to 
 confer personally with her ministers. On June 26, the 
 premier and the chancellor of the exchequer had an 
 audience with the queen, at Windsor Castle, at which 
 her Majesty was informed that ministers persevered in 
 tendering their resignations. 11 They were accordingly 
 accepted ; and full explanations of the grounds of their 
 retirement from office were given, on that day, to both 
 Houses of Parliament. Earl Russell's statement, in the 
 House of Lords, led to speeches from Earls Derby, 
 Granville, and Grey, upon the ministerial crisis. Mr. 
 Gladstone's statement, in the House of Commons, elicited 
 no remarks from any other member. 
 
 26. Earl of Derby's Third Administration. 1866. 
 
 On June 28, the House of Commons was informed 
 that the Earl of Derby had received the queen's com- 
 
 * Hans. D. v. 184, p. 639. from Earl Russell announcing his 
 
 u A vote of confidence was about resignation. May, Const. Hist. ed. 
 
 to be moved in the House of Commons, 1871, v. 3, p. 433. See Earl Russell's 
 
 with a view to re-establish the minis- llecoll. p. 259. 
 
 try, when the mover received a letter
 
 EARL OF DERBY'S THIRD ADMINISTRATION. 237 
 
 mands to form an administration/ Adjournments of 
 both Houses took place from time to time, until July 6, 
 when new writs were moved for in the House of Com- 
 mons on behalf of the incoming administration. But no 
 observations were made upon this occasion. On Monday, 
 July 9, however, the new premier, the Earl of Derby, 
 made his ministerial statement to the House of Lords. 
 He said it had been the wish of the queen, and his own 
 endeavour, that he should be able ' to form a govern- 
 ment composed, no doubt, in the main, from the Con- 
 servative party, but formed on an enlarged basis, capable 
 of including within it some persons either opposed to us, 
 or who had been supporters, or even members, of the 
 late government.' By ' enlarged basis ' his lordship 
 meant, ' enlarged, not as to principles, but as to per- 
 sons,' and not ' a government of coalition ; ' by which he 
 understood ' a government of men of different parties, 
 in which each, to a greater or less extent, sacrifices his 
 individual opinions for the purpose of obtaining united 
 political strength.' Being unsuccessful in his attempt 
 to obtain any such ' extraneous aid,' Earl Derby pro- 
 ceeded to form a ministry from the ranks of the Con- 
 servative party, which was accepted by the queen. His 
 lordship then explained the general principles upon 
 which he proposed to carry on the government. He 
 was followed by Earl Eussell, who commented upon one 
 or two topics of the premier's speech ; but no further 
 discussion took place. w After the return of the new 
 ministers, who had vacated their seats in the House of 
 Commons by accepting office, the business of the session 
 was brought to a speedy termination, and Parliament 
 was prorogued upon August 10. Although the Con- 
 servative party was in an acknowledged minority in 
 the House of Commons, ministers met with no factious 
 
 T But it was on Tuesday, June 26, form a ministry. Hans, D, v. 184, 
 that the queen intimated her desire p. 734. 
 to the Earl of Derby that he should w Ib. pp. 726-750.
 
 238 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 or ungenerous opposition in winding up the public 
 business. Early in the ensuing session, ministers were 
 thwarted in an endeavour to induce the House of Com- 
 mons to approve of an ingenious expedient for settling 
 the basis of a new Eeform Bill, by adopting a series of 
 resolutions, upon which an acceptable scheme of reform 
 might be framed. But this proposal was regarded as 
 inconsistent with the true doctrine of ministerial respon- 
 sibility for all measures to be submitted to Parliament, 
 and they were compelled to abandon it ; they then intro- 
 duced a Eeform Bill, the fate of which is recorded in a 
 subsequent chapter/ 
 
 27. Mr. Disraeli's First Administration. 1868. 
 
 1868. In the Session of 1868, the newly appointed ministry 
 of Mr. Disraeli after sustaining a minor defeat upon 
 a Government Bill to transfer certain fines and fees in 
 Ireland to the Consolidated Fund y were defeated, on 
 April 3 and 30, upon a vital question raised by Mr. 
 Gladstone in regard to the disestablishment of the Irish 
 Church. On the ground that this vote had ' altered 
 the relations between her Majesty's government and the 
 present House of Commons,' and required that ministers 
 should consider their position, Mr. Disraeli obtained an 
 adjournment of the House from Thursday to Monday. 2 
 On Monday (May 4) both Houses were informed that 
 ministers had advised the queen to dissolve Parliament, 
 ' and take the opinion of the country as to the conduct 
 of her ministers, and the question of the Irish Church ; ' 
 but had also stated, ' that if her Majesty were of opinion 
 that the question at issue could be more satisfactorily 
 settled, or the just interests of the country more studied, 
 by the immediate retirement' of ministers, 1 they would 
 resign at once. ' Her Majesty was pleased to express 
 
 Sue post, v. 2. y Hans. D. v. 190, pp. 1227-1234. 
 
 Ib. v. 101, p. 1679.
 
 MR. DISRAELIS FIRST ADMINISTRATION. 239 
 
 her pleasure not to accept the resignation of her ministry, 
 and her readiness to dissolve this Parliament as soon as Pariia- 
 the state of public business would permit.' Whereupon 
 Mr. Disraeli ' advised her Majesty that, although the 
 present constituency was no doubt as morally compe- 
 tent to decide upon the question of the disestablishment 
 of the Church as the representatives of the constituency 
 in this House, still it was the opinion of ministers that 
 every effort should be made with a view that the appeal, 
 if possible, should be directed to the new constituency 
 which the wisdom of Parliament created last year ; ' 
 adding, that if ministers had the cordial co-operation 
 of Parliament, the dissolution might take place in the 
 autumn. a 
 
 In the House of Lords, Earl Grey denied the right 
 of ministers, on being defeated in the Commons, to ask 
 the crown for a dissolution of Parliament, unless there 
 was strong reason to believe that the House of Commons 
 had misrepresented the feeling of the country. In reply, 
 it was contended by Lord Chancellor Cairns, that the 
 present Parliament, having been elected under a prime 
 minister whose opinions in regard to the Irish Church 
 were known to have been adverse to those recently 
 expressed by a majority of the House of Commons, the 
 vote of the House on that question presented exactly 
 one of those occasions on which ministers might fairly 
 advise a dissolution. b 
 
 In the House of Commons, Mr. Disraeli asserted that 
 ' practically it had been held to be the constitutional 
 right of a minister, upon taking office, to advise the 
 crown to dissolve a Parliament elected under the in- 
 fluence of his political opponents ; ' that the Earl of 
 Derby had waived that right upon his appointment, in 
 1866, because ' the Parliament itself was then but re- 
 cently elected, and there were other reasons of gravity 
 
 Hans. D. v. 194, pp. 1686, 1705, 1794. " Ib. pp. 1687-1689.
 
 240 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 1868. and principle which induced him to hope that he might 
 be able to carry on affairs with the present Parliament.' 
 At the close of 1867, Earl Derby, having succeeded in 
 passing the Reform Act, might have claimed the right 
 ' to take the opinion of the country upon the conduct of 
 ministers in carrying this measure.' But he was de- 
 terred from doing so because there were certain supple- 
 mentary measures connected with the settlement of the 
 Reform question which still remained to be enacted. 
 In the present session, Lord Derby resigned, and was 
 replaced in the premiership by Mr. Disraeli, the policy 
 of ministers continuing unchanged. Under these cir- 
 cumstances, Mr. Disraeli claimed that the original right 
 to advise a dissolution of Parliament had devolved upon 
 him. He added, that the approval generally accorded 
 to the administration of public affairs by the new minis- 
 try was such, that they felt free to appeal to the country, 
 and had no fear of the result. He had accordingly ad- 
 vised a dissolution upon the question whether or not 
 the Church in Ireland should be disestablished, having 
 ' a profound conviction that the opinion of the nation 
 does not agree on this subject with the vote of the 
 House of Commons.' c 
 
 In reply, Mr. Gladstone denied the right of a minis- 
 try to ' inflict ' a ' penal ' dissolution upon the country, 
 for no other cause than its ' sitting in a Parliament that 
 was called into existence before the ministry itself.' He 
 argued that there were two conditions necessary to 
 justify an appeal to the country by a government whose 
 existence is menaced by an adverse vx>te in the Com- 
 mons. ' The first of them is, that there should be an 
 adequate cause of public policy ; and the second of 
 them is, that there should be a rational prospect of a 
 reversal of the vote of the House.' He denied the pro- 
 priety of a dissolution merely to determine the question 
 
 c Hans. P. v. 191, pp. 1695-1702.
 
 ME. DISRAELI'S FIRST ADMINISTRATION. 241 
 
 whether an administration should continue in office, ises. 
 Admitting the right to dissolve where it was doubtful 
 whether the country would ratify the vote of the House, 
 he contended that the large majorities (of 60 and 65) 
 against ministers on the Irish Church question were ' a 
 sufficient evidence of the judgment of the country. ' d 
 
 Mr. Gladstone, moreover, protested against a post- 
 ponement of the dissolution which, according to prece- 
 dent, should be immediate to ' the autumn ; ' ministers 
 meanwhile proposing to submit to the House questions 
 of great constitutional importance. He also declared 
 his intention of following up his resolutions upon the 
 Irish Church with a Bill to suspend appointments therein 
 until after the meeting of the new Parliament. 6 
 
 Other leading members took part in the debate, and 
 vehemently opposed the contemplated delay in the dis- 
 solution of Parliament, and the continuance of ministers 
 in office for eight or nine months, until a new Parlia- 
 ment could pass judgment upon them. 
 
 Mr. Disraeli, in reply, stated that ministers were 
 willing to abstain from all unavoidable legislation, and 
 to limit themselves to passing the Scotch and Irish Ee- 
 form Bills, and the Boundary Bills, which would permit 
 of a dissolution in November, with an appeal to ' the 
 new constituencies.' But he repudiated the notion that 
 the adverse vote on the Irish Church question which 
 he believed to have been a conscientious vote on a sub- 
 ject of great importance was to be regarded as meant 
 ' in any way whatever to imply a general want of confi- 
 dence in the government.' On such a matter there ought 
 to be no mistake or misunderstanding. ' If you wish to 
 pass a vote of want of confidence, propose one. Let the 
 case be fairly argued, let the House give a deliberate 
 opinion, and let the country judge.' If the Opposition 
 
 d Hans. D. v. 191, pp. 1708-1713. proceedings upon this Bill, see post 
 f Ib. pp. 1714-1717. For the v. 2. 
 
 VOL. I. R
 
 242 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 1868. objected to the course proposed "by ministers, it would 
 be their duty to propose a vote of this description, 
 which, if carried, would lead to an immediate dissolution. 
 The reason why an immediate dissolution had not 
 been already determined upon was, as everyone knew, 
 because ministers were 'placed, in reference to that 
 point, in circumstances of a peculiar and unprecedented 
 character,' wherein they would ' endeavour to arrive at 
 some understanding with the House which, while it 
 would facilitate the progress of public business, would 
 be of the greatest advantage to the country. ' f Next 
 day, a discussion arose as to an apparent discrepancy 
 between the terms of the ministerial statement in the 
 House of Commons and that given in the House of 
 Lords, a point which will be noticed in a subsequent 
 page. g But upon this, as upon later occasions, the 
 House showed an evident disinclination to favour the 
 introduction of a vote of want of confidence, and no 
 attempt was made, in either House, during the re- 
 mainder of the session, to force the ministers out of 
 office by such a method. h 
 
 Meanwhile, the Scotch and Irish Eeform Bills, and 
 the Boundary Bills, were proceeded with, and ministers 
 were obliged to permit very extensive and important 
 amendments to be made in these measures. Upon 
 one occasion, however, they stood firm, and refused to 
 be responsible for certain amendments which had been 
 carried against them in committee on the Scotch Eeform 
 Bill. A compromise was afterwards agreed upon, and 
 the Bill allowed to proceed. 1 
 
 On May 29, Mr. Disraeli repeated that the Govern- 
 ment were of opinion that they should expedite the 
 dissolution as much as possible, and confine their legis- 
 
 ' Hans. D. v. 191, pp. 1742-1745, p. 1809. 
 
 1815. ' Ib. v. 192, pp. 435, 473, 485, 
 
 * See post, v. 2. 622, 841. See also the summary of 
 
 11 See Hans. D. v. 191, p. 1902 ; v. proceedings on these Bills, in the Ann. 
 
 192, pp. 648, 797, 1035, 1224 ; v. 193. Reg. for 1868.
 
 MR. DISRAELI S FIRST ADMINISTRATION. 243 
 
 lation, ' generally speaking, to that which was neces- 
 sary ; ' in other words, ' to the supplementary Eeform 
 Bills and the Estimates.' Various government measures 
 would accordingly be dropped. But it was urged that 
 there were ' special reasons ' why the Bribery and Cor- 
 ruption Bill, the Telegraphs Bill, and the Foreign Cattle 
 Importation Bill, should be allowed to proceed, either 
 wholly or partially ; although it was admitted that it 
 would be ' for the House to express an opinion ' on this 
 subject. Mr. Gladstone concurred in these arrange- 
 ments^ and finally all the aforesaid Bills were passed 
 through both Houses, except the Foreign Cattle Bill, 
 which encountered great opposition, and was with- 
 drawn. 1 ' Some difficulty arose on account of ministers 
 proposing to take the Votes in Supply for the whole year, 
 instead of for a limited period, and until the meeting 
 of the new Parliament, agreeably to precedent in similar 
 cases ; but it being shown that the course proposed 
 was advisable on the score of public convenience, the 
 Opposition consented to it, 1 and the session closed with- 
 out further strife. The dissolution of Parliament took 
 place on November 11, 1868, and on December 10 the 
 new Parliament assembled. 
 
 Eeviewing the relations of ministers towards the 
 House of Commons during the whole of this session, it 
 is evident that they were most unsatisfactory and ob- 
 jectionable. It would, however, be unfair to impute 
 blame, indiscriminately, to any party or person, for 
 what was really owing to a combination of circum- 
 stances, which prevented ministers from making that 
 immediate appeal to the country from the adverse vote 
 of the House of Commons which is ordinarily required 
 by constitutional usage. By mutual consent, the minis- 
 ters and the House of Commons agreed, that the disso- 
 lution should be deferred until the new constituencies 
 
 Hans. D. v. 192, pp. 1066-1068. k Ib. v. 193, p. 1775. 
 
 Ib. v. 192, pp. 1126, 1223, 1602. 
 
 R2
 
 244 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 1868. were organised. This prolonged, for several months, 
 the unseemly and unconstitutional spectacle of a 
 ministry holding office by sufferance, and unable to 
 exercise any effectual control over the proceedings of 
 the House of Commons ; a condition of things which, 
 it need scarcely be said, was palpably at variance with 
 the first principles of parliamentary government. 111 
 
 The Disraeli Administration having appealed from 
 the decision of the House of Commons, in favour of 
 disestablishing the Irish Church, to the constituent 
 body, Parliament was dissolved, by royal proclamation, 
 on November 11, 1868, and a new one summoned to 
 meet on December 10. In order to effect this an Act 
 was passed to accelerate the registration of voters en- 
 franchised by the new Eeform Acts (31 & 32 Viet, 
 c. 58). The elections resulted in an important accession 
 of strength to the Liberal party, 11 and in the return of 
 an almost unprecedented number of new members. As 
 soon as he was assured that the decision of the con- 
 stituencies was fatal to his continuance in power, Mr. 
 Disraeli resolved not to await the meeting of Parlia- 
 ment, but immediately to retire from office. Accord- 
 ingly he at once placed his own resignation and that of 
 his colleagues in the hands of her Majesty. His reasons 
 for adopting this ' unusual course ' p were communicated 
 to the Conservative party in both Houses on December 2 
 by a circular from Downing Street. In this paper Mr. 
 Disraeli vindicated the course taken by ministers in 
 appealing to the verdict of the enlarged electoral body, 
 justified his conduct in relinquishing office without 
 awaiting the assembling of Parliament, and announced 
 his steadfast adherence to his former policy in resisting 
 
 m See ante, p. 3. Ed. Rev. v. 128, ment of the Irish Church. Hans. D. 
 
 p. 572. v. 198, p. 669. 
 
 " Pledged to support Mr. Gladstone Ann. Reg. 1868, pp. 171-174. 
 in his measure for the disestablish- p Hans. D. v. 194, pp. 414, 415.
 
 MR. DISRAELIS FIRST ADMINISTRATION. 245 
 
 the disestablishment and disendowment of the Irish i868. 
 Church." 
 
 No doubt the general current of precedent is in favour of a 
 beaten minister accepting his defeat only at the hands of Parlia- 
 ment, and the custom is grounded on the salutary doctrine, that it is 
 only through Parliament that the nation can speak. r Incidentally 
 referring to his resignation of office, several months afterwards, Mr. 
 Disraeli told the House of Commons that, feeling the result of the 
 general election to be so different from that which they had counted 
 upon and predicted, his colleagues unanimously agreed with him in 
 thinking that it would be most painful to remain in the possession of 
 power and patronage a moment longer than was necessary. ' We 
 felt that this course was due to our own honour ; to the personal 
 convenience of the sovereign, and the progress of public business ; 
 and lastly, due to the incoming minister, that he should not be 
 thrust into office without time to prepare his measures.' 8 
 
 The same course was followed by Mr. Gladstone, in resigning office 
 after the defeat of his ministry at the hustings, in February 1874. 
 And Mr. Freeman regards these precedents as introducing a new 
 principle into the unwritten Constitution of England, of the direct 
 action of the electors at their polling booths to effect a change of 
 ministers without the intervention of the House of Commons. 
 While deprecating this change, he regards these precedents as point- 
 ing out a course which, hereafter, will be followed by future 
 ministers. 1 
 
 Mr. Gladstone having been the leader in whose 
 name the Liberal party had gained the victory at the 
 elections, he was the one to whom her Majesty natu- 
 rally entrusted the formation of a new ministry. He 
 was summoned to Windsor Castle for this purpose on 
 December 5, and in a few days succeeded in forming a 
 powerful cabinet, which included Mr. Bright. 
 
 Upon the meeting of Parliament on December 10 
 the ministerial benches were necessarily unoccupied, the 
 new ministers having vacated their seats by the accept- 
 ance of office. Under these circumstances, after the 
 election of a speaker, and the issue of the new writs, an 
 adjournment took place to admit of the re-election of 
 
 Ann. Reg. 1868, p. 174. Hans. D. v. 196, p. 739. 
 
 r Fort. Rev. N.8. v. 24, p. 205. Int. Rev. v. 2, p. 374.
 
 2iG ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 ministers, and of some preparation on their part for 
 their ministerial duties. Parliament re-assembled on 
 February 16, when the queen's speech was delivered 
 (by commission), and business commenced. It is worthy 
 of note that with the exception of Mr. Disraeli's circular 
 above mentioned and of the ministerial explanations 
 which Avere given at the hustings no official explana- 
 tion was made to Parliament or to the country of the 
 causes which had led to the change of government. 
 The new ministers quietly took their places in both 
 Houses, and no explanations were given or sought for 
 upon either side. u 
 
 28. Defeat and Resignation of the Gladstone Ministry 
 
 in 1873. 
 
 1873. On March 3, 1873, on motion for the second reading 
 of the Irish University Education Bill, an amendment 
 was proposed to substitute a resolution, expressing 
 regret that ministers, previously to this motion, had not 
 felt it to be their duty to state to the House the names 
 of the 28 persons intended to be submitted to the House 
 as members of the Governing Council under this Bill. 
 Mr. Gladstone showed that the practice of Parliament 
 admitted of these names being communicated to the 
 House at any time before the close of the Committee 
 on the Bill, and that it was ' not merely difficult but 
 impossible for ministers, consistently with due respect 
 to Parliament, to present this list ' . . . ' before they 
 knew what form the Bill would finally assume.' v Never- 
 theless, after four nights' debate, the amendment was 
 agreed to. It is evident, from the debate, that this 
 vote of censure was carried, not upon the validity of 
 the objection embodied in the amendment itself, but 
 upon the broader ground of combined opposition to the 
 government scheme for the reform of University Educa- 
 
 u Hans. D. v. 104, pp. 50, 217. T Ib. v. 214, p. 1104.
 
 MR. GLADSTONE'S FIRST ADMINISTRATION. 247 
 
 tion in Ireland. w Immediately after the vote was taken, 
 the House, on motion of Mr. Gladstone, adjourned for 
 two days.:* On March 13 both Houses were informed 
 that, in consequence of this vote, ministers had resigned 
 office, and her Majesty had accepted their resignations. 
 Whereupon the House of Commons adjourned until 
 March 17. But the House of Lords although it was 
 admitted that, ' as a rule, it is not convenient to pro- 
 ceed with legislation when there is no executive govern- 
 ment ' agreed to proceed with the second reading of 
 the Marriage with a Deceased Wife's Sister Bill, that 
 being a measure ' entirely apart from party politics,' 
 which had been debated by the House of Lords, under 
 analogous circumstances, in 1851. y 
 
 After making his announcement to the House of 
 Commons, Mr. Gladstone was questioned as to whom he 
 recommended to the queen to entrust with the forma- 
 tion of a new government. But he declined to answer. 
 As the forty days contemplated by the Act for an 
 address by either House of Parliament against schemes 
 of the Endowed Schools Commissioners were on the eve 
 of expiring, and notice had been given for addresses in 
 reference to certain schemes, the retiring vice-president 
 of the Education Board gave notice of a Bill to enlarge 
 the forty days to four months, so that such intended 
 addresses should not be prejudiced by the delay occa- 
 sioned by this political exigency. 1 
 
 On March 17 both Houses were informed that the 
 queen had sent for Mr. Disraeli, who was ready to 
 undertake, but had been obliged to relinquish his 
 attempt, to form an administration, and that Mr. 
 Gladstone had been invited to resume office. Under 
 these circumstances a further adjournment took place 
 until March 20. On that day fuller explanations were 
 
 Hans. D. v. 214, p. 1421. y Ib. p. 1869. 
 
 Ib. p. 1868. * Ib. pp. 1909-1912.
 
 248 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 1873. given by and on behalf of Mr. Gladstone and Mr. 
 Disraeli, from which it appeared that, while Mr. Dis- 
 raeli was confident of his ability to form an efficient 
 administration, he could not undertake the conduct of 
 public business in the present House of Commons. He 
 stated, in justification of this conclusion, that the 
 adverse vote on the Irish University Bill had been 
 decided against the ministry by the unexpected com- 
 bination of Irish Eoman Catholic members (who it had 
 been anticipated would support the Government) with 
 the Conservative party, who themselves opposed the 
 Bill on the ground that it sacrificed the educational 
 interests of Ireland to the claims of the Eoman Catholic 
 hierarchy. That a large section of the Liberal party 
 had also opposed the Bill on the same grounds. The 
 general unpopularity of this Bill, and the discordant 
 elements that had combined to reject it, scarcely 
 seemed to justify (in Mr. Disraeli's opinion) the course 
 pursued by the ministry in resigning upon its defeat. 
 There being no common bond of union between Mr. 
 Disraeli and the majority of the House who rejected 
 this Bill, he could not expect to be able to carry on the 
 public business with the existing House of Commons. 
 Neither was he prepared at once to advise a dissolu- 
 tion of Parliament, although her Majesty freely offered 
 him this alternative. For he did not think it at all 
 desirable to dissolve on the Irish University Bill, and 
 he was not at present prepared with ' a matured policy 
 to present to the people ' in case of a dissolution. So 
 much indispensable business remained to be disposed 
 of, that if the Conservative party had accepted office 
 they would have had to conduct the affairs of Govern- 
 ment in the House of Commons for the duration of a 
 session of no ordinary length, with a large majority 
 arrayed against them, and liable (if not to wholesale 
 censure in the shape of a vote of want of confidence) 
 to daily humiliations and obstructions. They would
 
 MR. GLADSTONE S FIRST ADMINISTRATION. 249 
 
 have been obliged (in view of a dissolution at the 1373. 
 earliest possible period) to accept the estimates of 
 their predecessors, which, as a general rule, was highly 
 objectionable. ' Nothing but a political exigency, 
 nothing but the existence of a question on which the 
 country is passionately determined to have an instant 
 decision, can justify a minister in taking that course.' 
 For ' expenditure depends upon policy,' and a policy 
 must be first agreed upon before the required expendi- 
 ture can be determined. Under these circumstances 
 Mr. Disraeli and his friends were unanimously agreed 
 that it would be prejudicial to the interests of the 
 country for a Conservative ministry to take office at 
 this juncture, and that Mr. Gladstone, having vindicated 
 his honour (which he had pledged by the assurance 
 that the fate of the ministry was involved in the success 
 of this Bill) by the act of resignation, might return to 
 office without the slightest difficulty. 
 
 After these explanations the House proceeded with 
 the Orders of the Day. a The Gladstone ministry re- 
 sumed office without making any changes in ihepersonnel 
 of the government, but obviously weaker for what had 
 occurred. During the remainder of the session they 
 were obliged to refrain from much attempt at legisla- 
 tion beyond one or two measures of special importance 
 which had been previously introduced. Some painful 
 exhibitions of dissensions between ministers took place 
 on the floor of the House of Commons, which helped 
 to discredit the government, and towards the end of 
 the session they sustained a series of minor but vexa- 
 tious defeats, a proof that they were able to exercise 
 but little control over the proceedings of Parliament. 
 Commencing in August, shortly after the close of the 
 session, the ministry was gradually reconstructed, Mr. 
 Gladstone assuming the office of chancellor of the 
 
 Hans. D. v. 214, pp. 1914-1945.
 
 250 ANNALS OF THE ADMINISTRATIONS OP ENGLAND. 
 
 1873. exchequer in addition to that of first lord of the 
 treasury, two or three able men were introduced 
 into political service for the first time, and other 
 changes made, with a view to increase of strength and 
 efficiency. Lord Eipon, Mr. Guilders, Mr. Monsell, and 
 Mr. Baxter retired from office. Mr. Bright re-entered 
 the cabinet, and Mr. Lowe and Mr. Ayrton left offices 
 wherein they had become personally unpopular, and 
 accepted other places in the government. b These 
 changes, however, did not suffice to restore public 
 confidence in the government, as was apparent by the 
 continued losses sustained by the ministerial party at 
 occasional elections in the autumn and winter of 1873. 
 Accordingly, on January 24, 1874, Mr. Gladstone sud- 
 denly and unexpectedly determined upon a dissolution 
 of Parliament. Never in England did so large a number 
 of electors record their votes as upon this occasion. 
 Never was there less bribery, intimidation, or electoral 
 manoeuvring. For the first time, all the recent legisla- 
 tive provisions designed to secure the utmost freedom, 
 purity, and independence of election, were in full opera- 
 tion. So that the verdict of the constituencies against 
 the Gladstone ministry was decisive. 
 
 A remarkable, although not altogether unprece- 
 dented, circumstance attended this dissolution of Par- 
 liament. Parliament had already been convened to 
 assemble for despatch of business on February 5, when 
 (as in 1806) an appeal to the constituencies was sud- 
 denly determined upon. Although possessed of a 
 nominal majority of 65 in the House of Commons, Mr. 
 Gladstone, in view of the dispirited state of his party, 
 and the adverse result of so many casual elections, con- 
 sidered that the administration were not strong enough 
 to carry on the government with credit and dignity. 
 His ministry were unable to resign, because the occur- 
 
 b Ann. Reg. 1873, p. 83. c Ed. Rev. v. 139, p. 644.
 
 MR. GLADSTONES FIRST ADMINISTRATION. 251 
 
 rences in the spring of 1873, above-mentioned, showed 1874. 
 that the Parliament contained no party ' ready to take 
 their place.' Being desirous, moreover, to propose 
 certain important and beneficial financial questions (viz. 
 the abolition of the income tax and the readjustment 
 of taxation), which would require a strong and united 
 following to submit to the House of Commons, a disso- 
 lution at the eleventh hour was resolved upon. The 
 proclamation dissolving Parliament was issued on 
 January 26, and the elections held early in February. 
 The result being unmistakably adverse to ministers, they 
 resigned office on February 17 in order to give imme- 
 diate effect to the wishes of the electors, and to avoid 
 the inconvenience to public business which would have 
 resulted from delay. This course was afterwards ob- 
 jected to by experienced members of the House of 
 Commons, on the ground that it was an evasion of the 
 direct responsibility of ministers to Parliament. Mr. 
 Gladstone admitted the correctness of this doctrine, as 
 a general rule, but justified his present course for 
 certain practical reasons, akin to those expressed by 
 Mr. Disraeli when, in 1868, he resigned office under 
 similar circumstances.* 1 
 
 However, upon the meeting of Parliament, a private 
 member (Mr. Smollett) undertook to propose a vote of 
 censure upon Mr. Gladstone, in the following terms : 
 
 That, in the opinion of this House, the advice given to the 
 crown by her Majesty's late ministers, to dismiss the last Parlia- 
 ment upon January 26 last, in an abrupt manner, and without any 
 previous warning, at a time when both Houses had been summoned 
 to meet for the dispatch of public business, and when no emergency 
 had arisen for such a step, is censurable ; and, further, that the pre- 
 cipitate appeal to the constituencies consequent on such dissolution 
 is opposed to the spirit of the constitution. 
 
 Whereupon Mr. Gladstone recapitulated the circum- 
 stances of the case, which he contended afforded a 
 
 d Hans. IX v. 218, pp. 82, 127.
 
 252 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 1874. complete justification of his conduct, and then withdrew. 
 After a few words from Sir G. Bowyer the motion was 
 negatived, without a division. 6 
 
 Upon Mr. Gladstone's resignation, her Majesty sent 
 for Mr. Disraeli, and empowered him to form a ministry. 
 Being able to rely upon a majority of fifty in the new 
 House of Commons, Mr. Disraeli had no difficulty in this 
 task. By February 21 the new cabinet was complete. 
 It consisted of twelve members only, of whom six had 
 seats in the House of Lords. 
 
 And here it may be remarked that the opening of 
 this Parliament wherein the Conservative party had 
 an undoubted majority gave occasion for the distinct 
 recognition of the admitted expediency of treating the 
 speakership of the House of Commons as no longer the 
 prize of the party in power. Mr. Brand, formerly the 
 ' whip ' of the Liberal party, who had been first chosen 
 as speaker under the Liberal administration, was rein- 
 stated in office by the votes of a Conservative majority 
 on the accession of Mr. Disraeli to power in 1874.' 
 
 e Hans. D. v. 218, pp. 1101-1129. 
 r Ib. p. 6. Amos, Fifty Years' Eng. Const, p. 358.
 
 ANNALS OF THE ADMINISTRATION OF ENGLAND. 
 
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 254 
 
 ANNALS OF THE ADMINISTJRATIONS OF ENGLAND. 
 
 Reasons for which Parliament 
 was dissolved 
 
 n account of the near ap- 
 proach of its natural term 
 of existence. [The krng 
 offered Mr. Addington a 
 dissolution cf Parliament 
 before his resignation of 
 office, but the offer was 
 declined.] 
 
 n account of the failure of 
 the negotiations for peace 
 with France, and in order 
 to strengthen the hands 
 of the government in the 
 prosecution of the war. 
 (Parl. D. v. 8, p. 27.) 
 hough the new ministry 
 were fully sustained in 
 the House of Commons, 
 yet Parliament was dis- 
 
 solved, in order to take 
 the sense of the country 
 upon the conduct of the 
 king in changing his ad- 
 visers. The ministerial 
 
 majority was thereby 
 largely increased. 
 
 or no consideration affect- 
 ing the state of parties, 
 n account of the near ap- 
 
 
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 14
 
 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
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 The death of the premier 
 
 Internal dissensions in the cabinet 
 
 Ministerial defeat in House of 
 Commons on November 15, 1830, 
 on the Civil List 
 
 Internal dissensions in the cabinet 
 
 ministry resigned on May 8, 1832, 
 the king would not consent to create 
 
 of peers, in order to carry the Reform 
 the House of Lords. The Duke of 
 ton was empowered to form a new 
 , but failed in the attempt. On 
 the king recalled the Grey ministry, 
 e them written authority to create 
 peers as might be necessary to en- 
 passing of the Reform Bill 
 
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 256 
 
 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
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 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
 257 
 
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 o o43 
 
 n account of the vote 
 censure by the House 
 Commons on March 
 1857, upon the conducl 
 affairs in China. 
 
 he ministerial Reform ] 
 having been rejected 
 the House of Comm 
 on March 31, 1859, mil 
 ters resolved to apr 
 
 to the country. But 
 issue they raised at 
 hustings was upon 
 general policy of 
 government, irrespect 
 of their views on 
 question of reform. 
 
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 258 
 
 ANNALS OF THE ADMINISTRATIONS OF ENGLAND. 
 
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 lasons for which Parliament 
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 n account of the termi 
 tion of the seventh sess 
 of this Parliament. 
 
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 Defeated on proposal 
 increase of spirit dut 
 and taxation on land. 
 
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 Name of Prime Minist 
 j 
 
 VISCOUNT PALMER- 
 
 STON . . . 
 (His second admi 
 
 istration) 
 EARL RUSSELL . 
 (His second adm 
 
 istration) 
 
 EARL OP DERBY . 
 (His third admin: 
 tration) 
 BENJAMIN DISRAE 
 (His first admin: 
 tration) 
 
 W. E. GLADSTONE 
 (His first admini 
 tration) 
 
 
 
 
 BENJAMIN DISRAE 
 (afterwards Earl 
 Beaconsfield) (E 
 second administi 
 
 tion) 
 W. E. GLADSTONE 
 (His second admi 
 istration) 
 
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 SUPREMACY OF THE SOVEREIGN. 259 
 
 CHAPTEE V. 
 
 THE SOVEREIGN. 
 
 THE supreme executive authority of the state in all Supre- 
 matters, civil and military, together with jurisdiction the 
 and supremacy over all causes and persons ecclesiastical soverei e n - 
 in the realm, belongs to the sovereign of the British 
 Empire, by virtue of his kingly office ; for he is the 
 fountain of all state authority, dignity, and honour, and 
 the source of all political jurisdiction therein. 
 
 ' This realm of England is an Empire, and so hath been accepted in 
 the world, governed by one Supreme Head and King, having the dig- 
 nity and Royal Estate of the Imperial Crown of the same.' a Prior to 
 the union with Ireland, the style and title of the reigning sovereign 
 was determined by the royal prerogative ; but upon that occasion 
 Parliament prescribed a change therein. It has accordingly been 
 necessary for legislation to sanction any further alteration in the 
 same. b This was done in 1876, by the Royal Titles Act, under which, 
 by proclamation, the queen is also styled Empress of India. This 
 title is, as a general rule, to be used only in India. The self-govern- 
 ing colonies will be permitted to use their own option in the matter. 
 
 He is also the head of the Imperial Legislature, which 
 derives its existence from the crown, and a component 
 part of every local legislature throughout his dominions. 
 In all that concerns the outward life of the empire, and 
 
 24 Henry VIII. c. 12. And see Ib. p. 461. The Colony of South 
 
 39 & 40 Geo. III. c. 67. Australia has intimated, unofficially, 
 
 b Ld. Selborne, Hans. D. v. 228, an objection to the use of the new 
 
 p. 1388. And see Amos, Fifty Years title. S. A. Assn. Votes, 1876, p. 30. 
 
 of Eng. Const, p. 215. For a list of official documents 
 
 c Secretary Hardy, Hans. D. v. wherein the full statutory style and 
 
 229, p. 399. But see Mr. Childera's title of the sovereign is customarily 
 
 objections to this, Ib. p. 410. And used, see Com. Pap. 1876, v. 60, p. 
 
 Mr. Disraeli's admission, that ' that is 625. 
 a point involved in much difficulty.' 
 
 s 2
 
 260 THE SOVEREIGN. 
 
 its relations with other countries or provinces, the 
 
 sovereign is the visible representative of the state. It 
 
 is his especial prerogative to declare war and to make 
 
 peace, and also to contract alliances with foreign nations. 
 
 Perpetuity Pre-eminence, perfection, and perpetuity are acknow- 
 
 kin th i e ledged attributes of the Crown of England in its political 
 
 office. capacity. The crown is hereditary, but in the eye of 
 
 the law ' the king never dies.' The decease of a reigning 
 
 monarch is usually termed his demise ; which signifies 
 
 that, in consequence of the disunion of the king's natural 
 
 body from his body -politic, the kingdom is transferred 
 
 or demised to his successor, and so the royal dignity 
 
 remains perpetual. 4 
 
 After their accession to the throne in the natural order, 
 the sovereigns of England are consecrated to their high 
 Corona- office in the solemnity of a royal coronation at West- 
 minster Abbey. This rite is performed by the Arch- 
 bishop of Canterbury, assisted by other prelates of the 
 English Church, in the presence of the nobility. 6 A 
 formal coronation is not necessary to the perfection of 
 the king's title to the throne ; f but by this solemn act 
 the Divine sanction is imparted to the English monarchy, 
 and the whole fabric of our political and social order is 
 strengthened and confirmed : g and by the oath taken at 
 their coronation the sovereigns of the United Kingdom 
 acknowledge the supremacy of Parliament, and their 
 obligations to govern according to the laws and customs 
 of the kingdom. 
 
 The oath taken by the sovereign at his coronation is not pre- 
 
 d Broom's Leg. Max. 4th ed. pp. Life of Ld. Liverpool, v. 1, p. 44. 
 
 48, 51. Sir R. Peel's opinion, Hans. D. v. 
 
 See Stubbs, Const. Hist. v. 1, p. 192, p. 734. And Earl Derby's, Ib. 
 
 144. For the ceremonial itself, see v. 197, p. 24. For the present form 
 
 Chapters on Coronations (Lond. 1838) of the sovereign's oath see Com. Pap. 
 
 c. ix. [See also Ld. Redesdale's ob- 1867-8, v. 57, p. 17. 
 
 servations, Hans. D. v. 193, p. 1345; f Petersdorff, New Abridg. v. 6, 
 
 v. 197, p. 71.1 The opinions given p. 214. 
 
 by the law officers of the crown to * See Bagehot, Eng. Const, pp. 64, 
 
 George III . on this point, see Yonge, 69.
 
 SUBJECT TO THE LAW. 2G1 
 
 scribed by Act of Parliament, but is regulated from time to time Corona- 
 by an order in council, as the altered circumstances of the nation 1 ^ on oath, 
 may require. This circumstance warrants the conclusion that the 
 coronation oath is imposed on the sovereign in his executive, and 
 not in his legislative capacity. 11 
 
 From the supreme dignity and pre-eminence of the Personal 
 crown, it naturally follows that the king is personally JSityo? 1 " 
 amenable to no earthly tribunal whatsoever, because all the 
 
 * sovereign. 
 
 tribunals in the realm are presumed to derive their 
 authority from him, and none are empowered to exer- 
 cise authority or jurisdiction over him. The royal 
 person, moreover, is by law sacred and inviolable, and 
 the sovereign is personally irresponsible for all acts of 
 Government. 1 
 
 But while the power of the sovereign is supreme in His sub- 
 point of jurisdiction, it is neither absolute nor unlimited th^iaw* 
 in extent ; for it is a maxim of the common law, that 
 although the king is under no man, yet he is in subjec- 
 tion to God and the law, for the law makes the king. j 
 And though the monarch is not personally responsible 
 to any human tribunal for the exercise of the functions 
 of royalty, yet these functions appertain to him in his 
 political capacity, are regulated by law or by constitu- 
 tional precept, and must be discharged for the public 
 welfare, and not merely to gratify his personal inclina- 
 tions. For the king is bound to govern his people, not ac- 
 cording to his arbitrary will, but according to law. k l The 
 law,' in fact, ' is the only rule and measure of the power 
 of the crown, and of the obedience of the people.' 1 
 
 Succession to the crown of England has always been 
 
 h Hans. D. v. 195, p. 1067. Ib. v. manner in which the several preroga- 
 
 198, pp. 894, 906. tives of the crown are limited and 
 
 1 Broom's Leg. Max. 4th ed. p. 54 ; restrained by law, and their exercise 
 
 Bowyer, Const. Law, pp. 134-140 ; subjected to the general control of 
 
 Atkinson's Papinian, p. 33. Parliament. 
 
 J Broom's Leg. Max. p. 48. Hal- ' Robert Walpole, on the impeach- 
 
 lam, Const, v. 3, p. 90. ment of Dr. Sacheverell. State Trials, 
 
 k Broom, Const. Law, p. 63. And v. 15, p. 115. 
 see in De Loltne, bk. i. c. viii., the
 
 262 THE SOVEREIGN. 
 
 Succession hereditary ; but even this right is held subject to limi- 
 
 Jj^ tation and control by the High Court of Parliament. 
 
 Formerly the crown went to the next heir ; but since 
 
 the Act of Settlement the inheritance is conditional, 
 
 being limited to heirs of the body of the Princess Sophia 
 
 of Hanover, being Protestant members of the Church of 
 
 England, and married only to Protestants. 
 
 Personal The sovereigns of England, before the Eevolution of 
 
 Slerei^ 6 1688 > ruled b J virtue of their prerogative, and with the 
 aid of ministers chosen by themselves. These ministers 
 had no necessary connection with Parliament ; although, 
 if peers of the realm, they were entitled to seats therein. 
 The monarch was the originator of his own policy, and 
 was not bound to take advice before he should decide 
 upon affairs of state. Moreover he was usually suffi- 
 ciently conversant with the details of administration to 
 be able to act independently. His ministers were only 
 amenable to Parliament for high crimes and misdemea- 
 nours, which were directly attributable to themselves." 
 This method of government gave rise to frequent alter- 
 cations and struggles between the crown and Parliament, 
 which sometimes could only be decided by an appeal to 
 the sword. Although, in the main, the people were 
 contented and prosperous, and the great principles of 
 constitutional liberty continued to advance, yet the 
 security for the public welfare depended too much upon 
 the personal character of the monarch, and his ability 
 to rule with foresight and beneficence. Herein consisted 
 the peculiar defect of government by prerogative. 
 When the exercise of the royal authority fell into bad 
 hands, or irreconcilable differences arose between the 
 crown and the Parliament, there was no adequate secur- 
 ity against misrule, and no remedy to prevent national 
 discontent from fermenting into open rebellion. Two 
 
 m 12 & 13 Will. III. c. 2. Mar- n Hallam, Const. Hist, pastim. 
 tin's Pr. Consort, v. 1, p. 57; and Park's Dogmas, p. 41. 
 post, v. 2.
 
 IN HIS RELATION TO THE LAW. 203 
 
 revolutions within the space of half a century, and a 
 dynasty of kings sent into permanent exile for the con- 
 tinued infraction of popular rights, proved the necessity 
 for a vital change in the practice, if not in the theory, 
 of the constitution. 
 
 Upon the occurrence of the Ee volution of 1688, the Revoiu- 
 attention of the most eminent statesmen was directed J 1 ^^ 
 to the endeavour to bring the executive and legislative 
 powers into more harmonious action. This was mainly 
 effected by a more distinct recognition than heretofore 
 of the doctrine of ministerial responsibility to Parliament. 
 But it was only by slow degrees, and as the result of 
 political experience painfully acquired on all sides, that 
 this doctrine became fully accepted. 
 
 It has always been a leading maxim of the British Meaning 
 constitution that ' the king can do no wrong.' He is maxim 
 to be accounted as responsible to God alone for the <thekin ? 
 
 * . . can do no 
 
 righteous exercise of authority over the people of his wrong.' 
 realm. It is not meant by this doctrine that the king is 
 above the laws, and that all his acts are necessarily just 
 and right. As an individual he is independent of, and 
 not amenable to, any earthly power or jurisdiction ; but 
 all his acts are, nevertheless, controlled by the law ; 
 and ' the body politic is reared upon the basis, that the 
 law is above the head of the state, and not the head of 
 the state above the law.' p The maxim that ' the king 
 can do no wrong,' while it sounds like a moral paradox, 
 is, in fact, but the form of expressing a great constitu- 
 tional principle, that no mismanagement in government 
 is imputable to the sovereign personally ; whilst, on the 
 other hand, it is equally true that no wrong can be done 
 to the people for which the constitution does not provide 
 a remedy. These seeming anomalies are reconciled by 
 
 See Bowyer, Const. Law, p. 136; Priests and People, 2nd series, p. 35. 
 
 Broom's Leg. Max. p. 40. And P See Smith 'sParl. Rememb. 1861, 
 
 Maurice's paper, Do Kings reign by pp. 197-200. And ante, p. 261. 
 
 the grace of God ? in Tracts for q See Amos, Eng. Const, in the
 
 264 THE SOVEREIGN. 
 
 the fundamental doctrine that the king can perform no 
 act of government of himself, but that all acts of the 
 crown must be presumed to have been done by some 
 minister responsible to Parliament. This principle, now 
 so well understood, was not recognised in its entirety 
 until a comparatively recent period : for while it is a 
 necessary corollary from the principles of government 
 established by the Kevolution of 1688, we find it first 
 insisted upon, without exception or qualification, in the 
 reign of Queen Anne. 
 
 The Earl of Rochester, in the House of Lords, in 1711, protested 
 against the doctrine ' that the queen was to answer for everything,' 
 whereas, ' according to the fundamental constitution of this king- 
 dom, the ministers are accountable for all.' r A similar statement 
 was made by the Duke of Argyle, in the House of Lords, in 1739." 
 And in a debate in the House of Commons, on February 13, 1741, 
 Sir John Barnard thus expressed himself: 'The king may, it is 
 true, exercise some of the prerogatives of the crown without asking 
 the advice of any minister ; but if he does make a wrong use of any 
 of his prerogatives, his ministers must answer for it, if they con- 
 tinue to be his ministers.'* 
 
 At the same time, it has always been acknowledged, with 
 
 sterial re- J . . . & 
 
 sponsi- more or less distinctness, that the king s ministers were 
 re!j?- fully answerable for all acts of government that could in any 
 wa y be traced to their advice or co-operation. Either 
 by parliamentary censure, or impeachment, or by or- 
 dinary process of law, unworthy ministers have, from 
 a very early period, been called to account for complicity 
 in acts of misgovernment. But this mode of redress 
 was invariably doubtful and uncertain. In the days 
 when the collective responsibility of the administration 
 for the acts of each individual minister formed no part 
 of the theory of government, it was not easy to ascertain 
 upon whom to affix the responsibility for any particular 
 
 Reign of Charles II. pp. 11-19; Govt. of Eng. p. 135. 
 
 Cox, Eng. Govt. p. 416. Case of Parl. Hist, v. 10, p. 1138. 
 
 Vt. Canterbury v. the Atty.-Genl. * Ib. v. 11, p. 1268. And see Ib. 
 
 1 Phillips, 30G. v. 12, p. 660. 
 ' Parl. Hist. v. 6, p. 972. Hearn,
 
 RESPONSIBILITY OP HIS MINISTERS. 205 
 
 offence. So long as a minister of state retained the 
 favour of his sovereign, it was difficult, if not impossible, 
 to convict him of misconduct, or make him amenable for 
 misdeeds agreed upon in secret, and which were perhaps 
 commanded by the king himself ; so that opposition to 
 a suspected favourite commonly took the shape of in- 
 trigues to displace him from power, or gave rise to open 
 resistance to the crown itself. 
 
 As a pledge and security for the rightful exercise 
 
 p f ^ -j. -,. j -u ^ bilit y 
 
 01 every act of royal authority, it is required by the ministers 
 
 constitution that the ministers of state for the time f? r acts of 
 
 the crown. 
 
 being shall be held responsible to Parliament and to the 
 law of the land for all public acts of the crown. This 
 responsibility, moreover, is not merely for affairs of 
 state which have been transacted by ministers in the 
 name and on the behalf of the crown, or by the king 
 himself upon the advice of ministers, but it extends to 
 measures that might possibly be known to have emanated 
 directly from the sovereign. If, then, the sovereign 
 command an unlawful act to be done, the offence of the 
 instrument is not thereby indemnified ; for though the 
 king is not personally subject to the coercive power of 
 the law, yet in many cases his commands are under its 
 directive power, which makes the act itself invalid if it 
 be unlawful, and so renders the instrument of its execu- 
 tion obnoxious to punishment. 11 And if the rights of 
 any subject should have been infringed by a wrongful 
 act committed by command of the sovereign, the ordi- 
 nary courts of justice will grant a remedy. 
 
 A king, however limited his powers may be, is in all modern 
 constitutions personally irresponsible. His command is no justifi- 
 cation of any illegal act done by another, but no constitutional 
 monarchy seems to supply any ordinary means of punishing an 
 illegal act done by the king's own hands. w 
 
 11 1 Hale, pp. 43, 44. 408-416. Hearn, Govt. of Eng. pp. 
 
 w E. A. Freeman in Nat. Rev. 1864, 99-104. 
 p. 0. See Cox, Eng. Const, pp. 30,
 
 200 
 
 THE SOVEREIGN. 
 
 The personal command of the king is no excuse for a 
 wrong administration of power. Lord Danby was im- 
 peached for a letter which contained a postscript in the 
 king's own hand, declaring that it had been written by 
 his order. And although the king is the fountain of 
 justice, a commitment by his own direction has been 
 held to be void, because there was no minister respon- 
 sible for it. x In a constitutional point of view, so 
 universal is the operation of this rule, that there is not 
 a moment in the king's life, from his accession to his 
 demise, during which there is not some one responsible 
 to Parliament for his public conduct ; and ' there can 
 be no exercise of the crown's authority for which it 
 must not find some minister willing to make himself 
 responsible. 'y ' The king, being a body politique, cannot 
 command but by matter of record.' z Therefore, when- 
 ever the royal sign- manual is used, it is necessary that 
 it should be countersigned by a responsible minister, for 
 the purpose of rendering it constitutionally valid and 
 authoritative. 8 
 
 If a peer of the realm desires to avail himself of his 
 privilege of peerage to solicit an audience of the sove- 
 reign, 11 to make any representations on public affairs, it 
 is necessary that he should apply for an interview 
 through an officer of the royal household, or through 
 the secretary of state for the Home Department. But 
 
 Public 
 audience 
 must be 
 through 
 
 x Russell, Eng. Const, p. 159. See 
 Broom, Const. Law, pp. 244, 240, 015. 
 Pollock in Fort, Rev. N.S. v. 30, p. 
 480. 
 
 y See Lds. Erskine and Holland's 
 speeches, in Hans. D. v. 9, pp. 303, 
 414 ; Mr. Adam's speech, Ib. v. 10, p. 
 8 * * ' * ; Sir H. Nicolas, Pro. Privy 
 Coun. v. 0, p. 200, and Grey's Parl. 
 Govt. new ed. p. 320 n. The resolu- 
 tion of Queen Victoria to bestow the 
 hand of the Princess Louise upon a 
 British subject was not taken 'without 
 the advice of responsible ministers.' 
 Mr. Gladstone, Hans. D. v. 204, pp. 
 173, 370. 
 
 1 2 Inst. (Coke), 180. Hearn, Govt. 
 of Eng. p. 94. 
 
 a Park, Lectures on the Dogmas of 
 the Const, p. 33 ; Lewis, in Hans. D. 
 v. 105, p. 1480. The sovereign's sig- 
 nature is first appended, afterwards 
 that of the Secretary of State. Rep. 
 Com e . on Pub. Accounts, 1805, v. 10, 
 Ev. 2080, 2186. 
 
 b See Stubbs, Const. Hist. v. 3, p. 
 498. 
 
 c Colchester Diary, v. 3, pp. 003- 
 014. Hans. D. v. 180, p. 340. See 
 Welln. Desp. 3rd S. v. 5, pp. 557-500, 
 604, 507, 578. Ib. v. 8, pp. 108, 
 448.
 
 COMMUNICATION OF DESPATCHES TO THE KING. 267 
 
 the exercise of this privilege -of the peerage should 
 be limited by prudential considerations. One of these 
 ought to be the utility of the course to be pursued ; 
 and the propriety of avoiding anything calculated to 
 embarrass the relations between the sovereign and his 
 ministers. 3 And no peer should take advantage of an 
 audience with the sovereign to become the medium for 
 presenting petitions or addresses from the people. Such 
 documents can only be suitably presented through a 
 secretary of state, or at a levee or public audience, in 
 the presence of the king's ministers. A secretary of 
 state is the constitutional channel for conveying the 
 royal reply to such addresses. All letters or reports on 
 public affairs intended for the government of Great 
 Britain must be addressed to the king's minister, not to powers 
 
 &c 
 
 the sovereign personally ; that is to say, to the secretary through 
 of state to whose department their subject-matter would mmlstere - 
 probably belong. 6 
 
 When Napoleon Bonaparte was First Consul of France, he dis- 
 regarded this constitutional rule, and addressed a letter containing 
 proposals of peace between France and England to the king himself; 
 but it was acknowledged and answered by the foreign secretary. 
 If it were fitting that the sovereign should receive such a commu- 
 nication without the interposition of a minister, there would be 
 no reason why he should not deal with it on his own authority. 1 " 
 
 In 1810, a violation of this rule was made the subject of parlia- Official re- 
 mentary enquiry. Lord Chatham, being at the time a privy coun- ports to be 
 cillor and a cabinet' minister, accepted the post of commander of ^oue-h 
 
 the expedition to the Scheldt. On his return to England, he minister. 
 presented to the king, at a private interview, a narrative, drawn up 
 
 d See Welln. Desp. 3rd S. v. 7, p. private letter to Queen Victoria re- 
 
 424 ; v. 8, p. 1G8. lating to a political question of Euro- 
 
 e Ld. John Russell, Ib. v. 130, p. pean affairs, which he requested his 
 
 190. ambassador to deliver to her Majesty 
 
 f Canning and his Times, by Staple- at a private audience. But, by the 
 
 ton, p. 47. See also the case of the interposition of Prince Albert, this 
 
 autograph letter addressed by the unintentional irregularity was cor- 
 
 Emperors of Austria and Russia, and rected, the letter was read in the 
 
 the King of Prussia, to the Prince presence of the foreign secretary, 
 
 Regent, in 1815. Yonge, Life of and the reply discussed with and ap- 
 
 Ld. Liverpool, v. 2, pp. 226-234. proved of by him. See Bunsen's Mem. 
 
 In 1847 the King of Prussia wrote a v. 2, pp. 149-151.
 
 268 THE SOVEKEIGN. 
 
 l>y himself, of the conduct of the expedition, in which he criminated 
 one of his colleagues in the ministry, and brought serious charges 
 against an admiral who had been employed conjointly with himself 
 in the expedition. He did this, unknown to any other cabinet 
 minister, and requested the king not to communicate the paper to 
 anyone, at least for a time. The document remained in the king's 
 possession for nearly a month, when Lord Chatham asked to have 
 it returned to him, in order that he might make some alterations in 
 it. Upon receipt of the paper, Lord Chatham expunged a para- 
 graph therein, and returned it to his Majesty. When the narrative 
 again reached his hands, the king directed that it should be for- 
 warded to the secretary of state, for the purpose of making it an 
 official paper. It was afterwards transmitted to the House of 
 Commons, when its peculiar history transpired, The House called 
 for the attendance of Lord Chatham at the bar, and questioned him 
 as to whether he had, on any other occasion, made such a communi- 
 cation to the king ; but he refused to answer, and, being a peer, 
 could not be compelled to do so. Whereupon, on February 23, on 
 motion of Mr. Whitbread, the House agreed to an address to the 
 king (on division, against ministers), praying for copies of all reports 
 or papers at any time submitted to his Majesty by Lord Chatham 
 relative to the expedition to the Scheldt. During the debate Lord 
 Chatham's conduct was strongly reprobated by Mr. Canning and 
 other constitutional authorities, who contended that whilst his lord- 
 ship, as a member of the cabinet, was equally responsible with the 
 rest of his colleagues for the wisdom or policy of the said expedition, 
 yet that in his capacity of commander he was responsible to the 
 king, through the secretary of state ; and that he was bound to 
 present his report through the regular constitutional channel 
 namely, the secretary of state, or the commander-in-chief of the 
 army. His position was compared with that of a minister at a 
 foreign court, who, on being appointed to office under the royal 
 sign-manual, is always formally instructed to conform to the orders 
 and correspond with the secretary of state through whom he has 
 received his appointment. Lord Chatham's instructions had been 
 similarly prepared, and there was nothing in his peculiar position of 
 privy councillor and cabinet minister to justify his passing by the 
 secretary of state, in communicating with his Majesty upon a public 
 matter. 11 In reply to their address, the king made known to the 
 House of Commons the circumstances under which he had received 
 Lord Chatham's communication, and stated that no other reports or 
 papers concerning the Scheldt expedition had been presented to him 
 by that nobleman. 1 On March 2, Mr. Whitbread submitted to the 
 
 Tarl. D. v. 15, p. 482. h Ib. p. 681. ' Ib. p. 602.
 
 AND HIS MINISTERS. 269 
 
 House resolutions of censure upon Lord Chatham for his uncon- 
 stitutional conduct. The previous question was proposed thereupon, 
 on the part of the administration, and negatived. But an amend- 
 ment, proposed by Mr. Canning, in modified terms of censure, was 
 accepted by Mr. Whitbread, and agreed to by the House. It was 
 then moved that the resolutions be communicated to the king ; 
 but the opinion being generally entertained that the sense of the 
 House in regard to this transaction had been sufficiently expressed 
 by the recording of the resolutions upon the journals, and that it 
 would not be consistent with the dignity of the House to proceed 
 any further in the matter, this motion was withdrawn.J In conse- 
 quence of this vote of the House, Lord Chatham retired from the 
 ministry, and was succeeded as master-general of the Ordnance by 
 Lord Mulgrave. A month elapsed after the formal resignation of 
 Lord Chatham before his successor was appointed, during which 
 interval, as is customary in respect to patent offices, his lordship 
 continued to discharge the duties of the situation ; abstaining, how- 
 ever, from advising in the cabinet, and from attending upon his 
 Majesty with official reports, &c. Nevertheless, his continuing to 
 perform official duty, under the peculiar circumstances of his position, 
 gave rise to remarks in the House of Commons. k But the constitu- 
 tional law which he had infringed had been sufficiently vindicated by 
 his enforced retirement from office, and any further proceedings 
 would have been unnecessary. 1 
 
 In 1830, a Mr. Comyn was sentenced to death, in Ireland, for Wrongful 
 TT- k MMMi^HHM*M- , , -i I'-iiin i . exercise of 
 
 arson. King Ueorge I V . was petitioned on his behalf, and was in- Dreroea . 
 
 duced to write himself to the lord-lieutenant, signifying his tive of 
 pleasure that the sentence should be mitigated. Meanwhile, the merc y- 
 lord-lieutenant, upon advice of the law officers, had decided that 
 the law should take its course ; and the prime minister (the Duke of 
 Wellington) and home secretary (Mr. Peel) approved of this deter- 
 mination. Mr. Peel, indignant that the king should have exercised 
 the prerogative of mercy without taking the advice or opinion of 
 himself, or of any other responsible minister, addressed a strong 
 remonstrance to his Majesty ; ultimately, through the interposition 
 of the prime minister, the king withdrew his order, and the original 
 sentence was carried out. m 
 
 The constitutional channel of approach to the per- Secretary 
 son of the sovereign is by means of a secretary of 
 state, and it is through such an officer that the royal 
 pleasure is communicated in regard to acts of govern- 
 
 J Parl. D. v. 16, p. 12 *. pole, Life of Perceval, v. 2, p. 72. 
 
 k Ib. p. 735. m Welln. Desp. Civil S. v. 6. pp. 
 
 1 Lewis, Adminis. p. 321. Wai- 653-577.
 
 270 THE SOVEREIGN. 
 
 inent. Whenever the sovereign is temporarily absent 
 from his usual places of residence, it is necessary that a 
 secretary of state or other responsible minister should 
 be in attendance upon him. n 
 
 At every interview between the sovereign and the 
 minister of any foreign court, it is the duty of the 
 secretary of state for foreign affairs to be present. 
 Private communication between a king of England and 
 foreign ministers is contrary to the spirit and practice 
 of the British constitution. George III. invariably 
 respected this rule. During the reign of his successor 
 it was not so strictly adhered to ; but upon the appoint- 
 ment of Mr. Canning as foreign secretary, he restored 
 and maintained the constitutional usage. 
 
 The king * It is quite unusual that a foreign sovereign should 
 
 ways afct write to the sovereign of England on politics,' p or affairs 
 through a o f state ; for as the British monarch can be no party to 
 
 minister. ,, ni IT i -i 
 
 an act 01 state personally, but only through the instru- 
 mentality of others, who are responsible for the act, so 
 he can neither sign a treaty nor accede to the terms of a 
 treaty personally, in the first instance. He negotiates, 
 concludes, and signs by plenipotentiaries, whom he em- 
 powers to do those acts. He afterwards ratines what 
 they have done, if he approves of it; but to this ratifica- 
 tion the Great Seal must be attached . q 
 
 Moreover, it is not usual for the king of England to 
 receive from other sovereigns letters upon public ques- 
 tions which do not pass through the hands of his minis- 
 ters ; and sometimes such letters have been returned, 
 because copies were not sent (with the sealed letter) for 
 the information of the minister. It is still more un- 
 
 n Macaulay, Hist, of Eng. v. 4, Freeman, Inter. Rev. v. 2, p. 375. 
 
 p. 9. The duty of constant attend- Stapleton, Canning and his Times, 
 
 ance on the sovereign used to be p. 433. 
 
 taken by the secretaries of state in P Ld. Palmerston" in Bunsen's 
 
 turn ; but within the last few years Mem. v. 2, p. 150. 
 
 this duty haa been taken by all the q Yonge's Life of Ld. Liverpool, 
 
 cabinet ministers in turn. E. A. v. 2, p. 232.
 
 ACTS THROUGH HIS MINISTERS AND JUSTICIARY. 271 
 
 usual and improper for the king to answer a letter from 
 another sovereign without the advice of his minister, 
 who, whether he advises or does not, is responsible if he 
 knows of the letter being written/ 
 
 While the sovereign, as the fountain of justice and Does not 
 the source of all political authority and jurisdiction in personal 
 the realm, is presumed to be personally present in every 
 court of law, and especially in the High Court of Parlia- 
 ment, justice must be dispensed and laws enacted in the 
 king's name, in strict conformity to the laws, usages, 
 and customs of the constitution. And by the common 
 law itself, and more especially since the formal recogni- 
 tion of the doctrine of ministerial responsibility, the 
 sovereign of England is constitutionally debarred from 
 the public or personal exercise of any functions of 
 royalty, except such as are necessary to express the 
 royal pleasure in regard to acts of state which have 
 been advised or concurred in by constitutional ministers. 
 For example, although in the eye of the law the king is 
 always present in all his courts, he is not above the law, 
 and cannot personally assume to decide any case, civil 
 or criminal, but must do so by his judges. 8 And when 
 any judicial act is by any Act of Parliament referred to 
 the king, it is understood to be done in some court of 
 justice according to the law.' Even the prerogative of 
 mercy cannot now be exercised, except under the direc- 
 tion of ministers." Neither can the sovereign consti- 
 tutionally make any appointments to office without 
 previously communicating with the prime minister, and 
 
 ' Welln. Desp. Civil S., v. 6, pp. pp. 66-74. 
 
 313, 319. Martin, Pr. Consort, v. 3, * Stephen's Blackstone, v. 2, p. 483 ; 
 pp. 39, 45. ' All letters received by 2 Co. Inst. p. 186 ; and see Fischel, 
 the Queen and Prince Consort from Eng. Const, p. 238 ; and Ld. Cam- 
 foreign potentates, and all answers to den's Judgment in Shipley's case, 
 them, were shown to the Foreign wherein the king had been appealed 
 Secretary or to the Prime Minister.' to, as visitor of a college which was a 
 76. v. 4, p. 329. See Amos, Fifty royal foundation. 
 Years' Eng. Const, p. 328. u See Colchester Diary, v. 3, p. 297. 
 
 ' Broom's Const. Law, pp. 145- Martin, Pr. Consort, v. 1, p. 141. 
 
 148. And see Hearn, Govt. of Eng. Ante, p. 269.
 
 272 THE SOVEKEIGNV 
 
 acting with his sanction and consent/ And though the 
 sovereign be present in the House of Lords at any time 
 during the deliberations of that House, seated upon the 
 throne, yet his presence would now be considered a 
 departure from constitutional usage, which forbids the 
 sovereign to interfere or take part in any of the pro- 
 ceedings of Parliament, except when he comes in state 
 for the exercise of the royal prerogatives. w Up to the 
 reign of Queen Anne it was .customary for the sovereign 
 to attend debates in the House of Lords as a spectator, 
 and his presence was duly recorded in the journals; but 
 since the accession of George I. this questionable prac- 
 tice, which might be used to overawe the assembly and 
 influence their debates, has been wisely discontinued/ 
 
 Upon the solitary occasion of H.R.H. Prince Albert attending a 
 debate in the House of Commons, in 1846, so 'many moderate men 
 on both sides ' were disquieted by the incident of his presence that 
 he never went again.? 
 
 And although the king is the acknowledged head of the 
 military forces of the empire, no English monarch has 
 taken the field in person since the siege of Dettingen by 
 George II. ' A contrary practice,' says a recent writer 
 on the English Constitution, ' would not accord with 
 modern parliamentary usage.' z 
 
 The king Upon the death of H.R.H. the Duke of York, in January 1827, 
 
 anxious to his Majesty King George IV. expressed an intention of personally 
 assuming the command of the British army. But the premier 
 der-in- " (Lord Liverpool) said that such a thing ' was preposterous, and that 
 chief. he would never consent to it.' Sir R. Peel also spoke of it as 
 ' almost incredible,' and ' as pregnant with unceasing embarrassment 
 to the government.' Accordingly, upon the advice of Lord Liver- 
 pool, the office was conferred upon the Duke of Wellington.* But 
 upon the break up of this administration, and the nomination of 
 
 r Welln. Desp. Civil S. v. 6, p. 181 . z Fischel, Eng. Const, p. 139. And 
 
 w Hearn, Govt. of Eng. pp. 58, 59. see Macaulay, Hist, of Eng. v. 4, p. 
 
 * May, Parl. Prac. ed. 1883, p. 503. 10. 
 
 Disraeli, Life of Ld. G. Bentinck, Welln. Desp. 3rd S. v. 3, pp.531- 
 
 4th ed. pp. 65, 106, Martin's Pr. 535. 
 Consort, v. 1, p. 321.
 
 PKINCIPLE OF MINISTERIAL RESPONSIBILITY. 273 
 
 Mr. Canning to be prime minister, in April 1827, the Duke of 
 Wellington resigned. Whereupon the king again declared that he 
 should take the command of the army into his own hands. The 
 reason he alleged for such a proceeding was ' the impossibility of 
 selecting any member of the royal family or any other general 
 officer of sufficient rank ' for the place. Mr. Canning appears to 
 have refrained from openly opposing the king's proposal, although 
 he urged his Majesty to adopt some other arrangement. Anyhow, 
 the office remained vacant until the following August, when, upon 
 another change of ministry occurring, the Duke of Wellington 
 agreed to resume the post. b 
 
 The great principle of ministerial responsibility for 
 
 . r -,.,.. L / mentof 
 
 every act 01 sovereignty, and its legitimate result, in minis- 
 limiting the personal action of the sovereign in state responsi 
 affairs to formal and representative occasions, is a natural bilit y- 
 consequence of the system of parliamentary government 
 which was introduced by the Revolution of 1688. It is 
 based upon the fundamental doctrine that the king him- 
 self ' can do no wrong,' a maxim the true meaning of 
 which has been already considered. The doctrine of 
 ministerial responsibility has been contended for, more 
 or less emphatically,- from an early period ; although we 
 do not find it distinctly asserted, as it is now understood, 
 until the reign of Queen Anne. d During the earlier part 
 of the reign of George III. this doctrine continued in an 
 unsettled state. Thus, in 1770, we find Dr. Johnson, 
 who was a professed Tory, arguing that ' a prince of 
 ability might and should be the directing soul and spirit 
 of his own administration in short, his own minister, 
 and not the mere head of a party ; and then, and not 
 till then, would the royal dignity be sincerely respected.' 6 
 This passage seems to claim for the king that he should 
 govern as well as reign. In Russell's ' Memorials of 
 Fox,' under the date of 1778, it is stated that about 
 this time Lord George Germaine asserted in the House 
 of Commons ' that the king was his own minister, which 
 
 b Welln. Desp. 3rd S. v. 3, pp. d Ib. p. 264. 
 
 645, 646, 661 ; v. 4, pp. 66, 96. e Boswell's Johnson, v. 3, p. 131. 
 
 c See ante, p. 263. 
 
 VOL. I. T
 
 274 THE SOVEREIGN. 
 
 Charles Fox took up admirably, lamenting that his 
 
 Majesty was his own unadvised minister.' 1 But, as we 
 
 have already pointed out, the Whigs and Tories at this 
 
 time differed radically in their ideas upon this subject, 
 
 and neither party held what is now considered to be 
 
 M . sound doctrine on the subject. The Whigs arrogated 
 
 ception of to themselves the right of nominating all the king's 
 
 prmSpies ministers, not excepting the prime minister ; whilst the 
 
 of govern- Tories, going to the other extreme, claimed for the king, 
 
 merit. 
 
 on his own personal responsibility, the right to select all 
 the persons who should govern the state. g With these 
 discordant ideas and rival claims, which are now ad- 
 mitted by all parties to be equally untenable, it is no 
 wonder that the true principles of government should 
 have been so frequently disregarded on every side. Ere 
 long, however, they were amply vindicated. During 
 the memorable debates of 1807, when the king dis- 
 missed his ministers because they refused to sign a 
 pledge which he had no right to exact of them, more 
 intelligent and enlightened opinions as to the relative 
 position of the king and his ministers were expressed by 
 all the leading statesmen in Parliament, of every creed. 
 On this occasion we find it distinctly enunciated as in- 
 controvertible maxims: '1. That the king has no power, 
 The king by the constitution, to do any public act of government, 
 constitu- either in his executive or legislative capacity, but through 
 tion. the medium of some minister, who is held responsible for 
 the act ; 2. That the personal actions of the king, not 
 being acts of government, are not under the cognisance 
 of law.' 11 This is now universally accepted as sound 
 doctrine. 
 
 But if the exercise of personal power by the sovereign 
 be thus limited and circumscribed, it may be thought 
 
 ' Russell's Fox, v. 1, p. 203. h Ld. Selkirk, Parl. D. v. 9, p. 381 ; 
 
 Ante, p. 125 ; and see Ed. Rev. v. and Mr. Adam, Ib. v. 16, p. 2 * * * ; 
 
 18, p. 46. Mr. Allen, on Royal and see Maley's William IV. v. 2, 
 
 Prerogative. p. 134.
 
 THE PRINCIPLE OF ROYAL IMPERSONALITY. 275 
 
 that the monarchy of England exists only in name, and 
 that the authority of the king is a mere legal fiction, to 
 express the dominion exercised by certain public func- 
 tionaries who have obtained possession of supreme 
 power. Such an idea is very erroneous ; for while the 
 usages of the constitution have imposed numerous re- 
 strictions upon the crown in the conduct of state affairs, 
 these restrictions have been established to secure good 
 government and to protect the liberty of the subject, 
 and not with a view to reduce the authority of the 
 crown to a nullity. 
 
 Before attempting to define the nature and limit of Personal 
 the authority which rightfully appertains to a reigning govem- 
 monarch, 1 it may be profitable to point to a few examples m ent ^ inc 
 indicative of the extent of interference in affairs of state Anne's 
 which has been claimed and exercised by English sove- reign ' 
 reigns since the accession of the House of Hanover. Our 
 illustrations upon a subject so delicate, and upon which 
 so little is recorded, will necessarily be very few. Never- 
 theless, they may serve to mark the growth of political 
 opinion on the subject, and to show how much, in this 
 as in other matters, depends upon the force of individual 
 character. 
 
 The dogma of the impersonality of the sovereign is imperso 
 the offspring of the Revolution of 1688, although, as we of 1 the 
 have already seen, j it found no favour, either in theory 
 or practice, in the eyes of William III. It began to 
 be asserted as a constitutional principle in the reign of 
 Queen Anne, who, unlike the great Elizabeth, had no 
 special administrative capacity, although she clung to 
 the exercise of power with great tenacity. The weak- 
 ness and inexperience of a female sovereign, combined 
 with the acknowledged necessity for governing by means 
 of a ministry acceptable to Parliament, gave increased 
 weight to the advocates of this doctrine. Though her 
 
 1 For which definition, see post, p. 805. J Ante, p 108. 
 
 T 2
 
 276 THE SOVEREIGN. 
 
 personal predilections were in favour of the Tories, 
 Queen Q, ue en Anne was compelled, for a great part of her 
 reign, to accept a Whig ministry. Distrusting her own 
 judgment, she surrendered herself far too implicitly to 
 the counsels of the leading spirit whom for the time she 
 admitted as her guide. And yet, like all her predeces- 
 sors, she kept in her own hands the reins of government, 
 jealous, as such feeble characters usually are, of those 
 in whom she was forced to trust. Obstinate in her 
 judgment, from the very consciousness of its weakness, 
 she took a share in all business, frequently presided in 
 meetings of the cabinet, and sometimes gave directions 
 without their advice. k In the impeachment of Lord 
 Oxford by the Commons, for alleged treasonable acts, 
 he alleged in his defence that he had acted under the 
 immediate commands of the queen, in the matter spe- 
 cially complained of, using these words : ' My lords, if 
 ministers of state, acting by the immediate commands of 
 their sovereign, are afterwards to be made accountable 
 for their proceedings, it may one day or other be the 
 case of all the members of this august assembly n a 
 species of defence similar to that urged by Lord Somers 
 in the case of the Partition Treaty, but which was un- 
 doubtedly irregular and insufficient. 
 
 George I. Throughout the reigns of the first two Georges, the 
 and ii. principle of the royal impersonality continued to make 
 progress, but rather through the incapacity for the 
 details of administration arising from the foreign educa- 
 tion of both these monarchs, and the force of circum- 
 stances which compelled them to entrust to the leaders 
 of the dominant Whig party authority which they felt 
 incompetent to exercise, than because either the nation 
 or the political philosophers of the day were prepared to 
 accept it in theory." 1 
 
 k Hallaru, Const. Hist. v. 3, pp. Parl. Hist. v. 7, p. 105. 
 314, 315. Stanhope, Queen Anne m See Q.uar. Rev. v. 105. Art, 6. 
 pp 38, 542,
 
 GEORGE I. AND II. AS SOVEREIGNS. 277 
 
 It is a fact that would be hardly credible, were it not George i. 
 so well attested, that George I., being incapable of con- 
 versing in English, as his chief minister, Sir Eobert Wai- 
 pole, was of conferring with him in French, they were 
 compelled to hold communication with each other in the 
 Latin language." It is impossible that, under such cir- 
 cumstances, the king could have obtained much insight 
 into the domestic affairs of England, or become fami- 
 liarised with the character of the people over whom he 
 had been called to rule. * We know, indeed, that he 
 nearly abandoned the consideration of both, and trusted 
 his ministers with the entire management of the kingdom, 
 content to employ its great name for the promotion of his 
 Electoral interests. This continued, in a less degree, to 
 be the case with his son, who, though better acquainted 
 with the language and circumstances of Great Britain, 
 and more jealous of his prerogative, was conscious of his 
 incapacity to determine in matters of domestic govern- 
 ment, and reserved almost his whole attention for the 
 politics of Germany.' 
 
 In describing the character and conduct of the first 
 two Georges, Hallam intimates of both of them that they 
 forced upon their ministers the adoption of a foreign 
 policy adverse to the interests of England and directed 
 to the aggrandisement of Hanover : but that, so far as 
 domestic politics were concerned, they surrendered 
 almost everything into the hands of their ministers, so 
 that during their reigns ' the personal authority of the 
 sovereign seems to have been at the lowest point it has 
 ever reached. 5p But, so far as regards George II., this George n 
 conclusion is contradicted by the researches of later 
 writers. Although this monarch, equally with his pre- 
 decessor, rendered the interests of his British dominions 
 subservient to those of his German principality, he was, 
 
 " Coxe's Walpole, v. 1, p. 266; H. Hallam, v. 3, pp. 389, 390. 
 Walpole's Works, v. 4, p. 476 ; and p Ib. p. 393. 
 see Campbell's Chanc. v. 4, p. 340.
 
 278 THE SOVEREIGN. 
 
 George ir. nevertheless, fond of the exercise of arbitrary power, 
 and unwilling to yield his prerogative into the hands of 
 ministers. By the publication of the Life of Lord Hard- 
 wicke, for many years one of the principal advisers of 
 George II., great light has been thrown upon the political 
 history of this reign. 
 
 On the occasion of certain ministerial changes, which 
 had been brought about by the leading members of the 
 cabinet in order to strengthen their position in Parlia- 
 ment, a curious conversation is reported to have taken 
 place between Lord Chancellor Hardwicke and the king, 
 in which his Majesty declared his aversion to the new 
 men who had been introduced into the ministry, and 
 asserted that he had been ' forced ' and ' threatened ' into 
 receiving them. The chancellor deprecated the use of 
 such language, saying that ' no means had been used but 
 what have been used at all times the humble advice of 
 your servants, supported by such reasons as convinced 
 them that the measure was necessary for your service.' 
 After some further explanations, the chancellor observed, 
 ' Your ministers, sire, are only your instruments of 
 government ; ' to which the king replied, with a smile, 
 ' Ministers are the king in this country.' q But while 
 the force of circumstances compelled the king to give way 
 on this occasion, the ' Hardwicke papers ' afford frequent 
 examples of his active and successful interference in the 
 government of the country. The interests of Hanover, it 
 is true, were ever uppermost in his thoughts ; but he 
 seems to have possessed great discernment of character, 
 both in regard to the abilities of the men whom he 
 selected for his ministers, and the degree of confidence 
 he could safely repose in them. * To a large extent,' 
 says the biographer of Lord Hardwicke, ' he was not 
 only the chooser of his own ministers, but the director 
 also of all the most important measures propounded by 
 
 Harris, Life of Hardwicke, v. 2, pp. 106-109.
 
 GEORGE III. AS A SOVEREIGN. 279 
 
 them ; and into every political step taken he seems to 
 have entered fully, even to the very details. As a poli- 
 tician, his great fault, especially for a king, was his 
 being so decided a partisan. He was the sovereign and 
 the head, in fact, not of the English people, but of the 
 Whig party.' 1 " 
 
 But the peers and landed gentry of this period 
 were possessed of enormous political influence, and the 
 united efforts of the leading Whig families gave them an 
 authority greater even than that of king and commons 
 combined. So that ' when George III. came to the throne, 
 the English Government was, in practice, assuming the 
 form of an exclusive oligarchy,' in which the king, 
 though nominally supreme, was entirely bereft of sub- 
 stantial power. 8 
 
 Naturally ambitious and self-reliant, the youthful George 
 sovereign began his reign with a determination to exer- 
 cise to the fullest possible extent the functions of royalty. 
 Born a Briton, and prepared by careful training for the 
 duties of his exalted station, he became at once popular 
 with the country at large, who were ready to sustain 
 him in any attempt to magnify his office. In a previous 
 chapter we have had occasion to dwell at considerable 
 length upon the character of George III.,* and to point 
 out several instances of his departure from the line of 
 conduct which should characterise a constitutional king, 
 and our further observations on this subject must neces- 
 sarily be brief. Regarded in the light of the relations 
 which now exist between the sovereign and his respon- 
 sible advisers, the conduct of George III. would call for 
 unqualified censure, from his systematic endeavours to 
 govern by the exercise of his personal authority, and 
 to absorb in himself the power and patronage of the 
 state. Such practices are incompatible with the acknow- 
 
 r Harris, Life of Hardwicke, v. 3, 1, pp. 64, 519. 
 p. 222 ; and see 519. p. * Ante, pp. 111-124. 
 
 s Massey, Reign of George III. v.
 
 280 THE SOVEREIGN. 
 
 George ledgment of parliamentary government, and would be 
 neither tolerated nor attempted in our own day. Never- 
 theless, before we condemn George III. for pursuing a 
 policy at variance with our present political ideas, we 
 should remember that the theory of royal impersonality 
 was but partially understood when he ascended the 
 throne. And not only was this particular theory still 
 unrecognised as a constitutional principle, but the prac- 
 tice of his immediate predecessors, who had voluntarily 
 abstained, for various reasons, from much personal in- 
 terference with the details of government, had fallen 
 into disfavour. The country was heartily sick of the 
 victories of court intriguers, and the monopoly of power 
 in the hands of certain ' Revolution families ; ' and the 
 young monarch, in obeying his mother's emphatic ex- 
 hortation of ' George, be a king ! ' did but respond to 
 the popular will, although the experience of the first 
 year of his reign should have sufficed to convince him 
 of its unstable and misleading character." The great 
 error of George III. was a love of power, which habit- 
 ually tempted him to ignore the constitutional restraints 
 of a limited monarchy. Notwithstanding his moral and 
 exemplary life, his sympathies with the popular preju- 
 dices, and his genuine endeavours to govern for the good 
 of all classes of his subjects, his frequent interference 
 in the smallest details of administration and consequent 
 disregard of the obligations of responsible government, 
 caused him to suffer during his lifetime from the violent 
 attacks of political partisans, and has loaded his memory 
 with an amount of calumny and misrepresentation from 
 which it is only now beginning to recover/ 
 
 Lord Campbell says of George III., that he 'certainly was a 
 prince possessed of very valuable qualities ; and it is only fair to 
 state that everything discovered concerning him since his death, has 
 
 u Quar. Rev. v. 105, Art. 6. Commentary on Brougham's 'Cha- 
 
 r Brougham, Brit. Statesmen (ed. racter of George III.' (London, 1860). 
 1858), v. 1, p. 13. And see Edison's
 
 GEORGE III. 'A PATRIOT KING.' 281 
 
 tended to raise our opinion both of his abilities and of his gene- George 
 rosity.' w 
 
 But if we make due allowance for the difficulties of 
 his position, and the temptations to an exaggerated idea 
 of his personal authority natural to a time when the 
 sovereign was still permitted to govern as well as reign, 
 we must acquit him of any intentional violation of the 
 constitution ; and at the same time admit that his in- 
 tegrity of purpose, and rigid adherence to the line of 
 duty, according to his lights, entitle him to be regarded 
 as ' a patriot king.' We may unreservedly condemn 
 his unconstitutional acts, but should yet be willing to 
 confess that much that was faulty in his conduct was 
 ' simply the natural result of a complicated position, still 
 undefined, and the working of a spirit as yet inex- 
 perienced in government, and seeking with hesitation 
 its course and its friends.' x During an unusually pro- 
 tracted reign, George III. devoted himself to the fulfil- 
 ment of his royal duties with the most scrupulous and 
 constant care, diligently superintending every move- 
 ment of the great political machine/ 
 
 The following instances of the direct interference of 
 George III. in the details of government have been 
 gathered from the pages of contemporary historians : 
 some of them being rather inconsistent with modern 
 ideas of the duties of a sovereign. 
 
 Shortly after his accession to the throne, the king informed his *^ s P er ~ 
 ministers that it was his wish that Lord Holdernesse, then one of O f p- overn . 
 the secretaries of state, should retire upon the wardenship of the ment. 
 Cinque Ports, and that the Earl of Bute should be appointed 
 secretary in his stead. With some reluctance the ministry acquiesced 
 in this arrangement. 2 In 1792 his Majesty conferred upon Mr. 
 Pitt the office of Lord Warden of the Cinque Ports, unsolicited by 
 that minister, and with a declaration that he would receive no 
 
 w Lives of the Chanc. v. 7, p. 341. * Mabon, Hist, of Eng. v. 4, p. 310. 
 
 * This felicitous phrase was app/ied z Harris, Life of Hardwicke, v. 3, 
 
 by M. Guizot to the conduct of Louis p. 242 ; but see a different account of 
 
 Philippe after his elevation to the this transaction in Rose, Corresp. v. 2, 
 
 throne of France. Guizot's Mem. v. p. 191. 
 2, p. 45.
 
 282 THE SOVEREIGN. 
 
 Personal recommendation in favour of any other person.* The king was 
 evidently determined to regard this post ' as his one private piece of 
 patronage,' for after Mr. Pitt's death he conferred it upon Lord 
 Hawkesbury, under precisely similar circumstances. 15 It was with 
 great difficulty that Mr. Pitt obtained the king's consent to confer a 
 bishopric and deanery upon his tutor and friend, Dr. Pretyman ; c and 
 when Mr. Pitt recommended his friend and biographer, Dr. Tomline, 
 for promotion to the see of Canterbury, the king insisted upon appoint- 
 ing Dr. Manners-Sutton, notwithstanding all the solicitations of his 
 minister." 1 The king refused to confer a dukedom upon Earl Temple, 
 although requested to do so by Mr. Pitt, and, moreover, declared his 
 determination to grant no more dukedoms except to princes of the 
 blood. 6 On the other hand, several examples of the rightful exercise 
 of kingly authority on the part of George III. may be profitably 
 cited. f E.g., upon the resignation of the elder Pitt, in 1761, the 
 king expressed his concern at the loss of so able a minister, and 
 made him an unlimited offer of any reward in the power of the 
 crown to bestow. In 1781, when the commander-in-chief carried 
 him a packet of military commissions to be signed, the king, on look- 
 ing over the list, observed one person appointed captain over an old 
 lieutenant. Referring to some private memoranda of his own, 
 which contained particulars very much to the credit of the old 
 veteran, his Majesty at once directed that he should be promoted to 
 the vacant company, without purchase. We have the authority of 
 Mr. Wynn for stating that from the close of the American war until 
 the breaking out of hostilities with France, the king's pleasure was 
 taken by the secretary-at-war upon every commission granted in 
 the army; and that throughout Mr. Pitt's administration, and so 
 long indeed as his Majesty was capable of attending to business, 
 ' every act and appointment was submitted to him, not nominally, 
 but really for the purpose of his exercising a judgment upon it.' 8 A 
 notable instance of the king's firmness occurred in 1780, during the 
 prevalence of the great anti-popery riots in London. His Majesty 
 was presiding at a Privy Council, to which all who had a right to sit 
 had been summoned. Ministers were timorous and vacillating in 
 advising the steps that should be taken to quell the disturbances, 
 when the king interposed ; and after taking the opinion of the 
 attorney-general, directed that an Order in Council should be drawn 
 up for the guidance of the proper authorities in the emergency, to 
 
 11 Stanhope's Pitt, v. 2, p. 160. v. 2, pp. 82-91. 
 
 b Yonge, Life of Ld. Liverpool, v. 1, e Stanhope's Pitt, v. 1 , p. 164. Fitz- 
 
 p. 209. maurice, Life of Ld. Shelburne, v. 3, 
 
 c Stanhope's Pitt, v. 1, p. 322 ; App. p. 419. 
 xx. f Edison, Geo. III. pp. 26, 44, 49. 
 
 " H>. v. 4, p. 252. Ptose, Corresp. Parl. D. v. 22, p. 334.
 
 GEORGE IV. AS A SOVEKEIGN. 283 
 
 which he instantly affixed the sign-manual. 11 Lord Eldon often de- 
 clared that he thought his old master George III. had more wisdom 
 than all his ministers conjointly ; and that he could not remember 
 having taken to him any state-paper of importance which he did 
 not alter, nor one which he did not alter for the better. This 
 peculiar sagacity he attributed not so much to the natural qualities 
 of the king as to his immense opportunities of gaining knowledge by 
 an experience in state affairs, which was far greater than that of the 
 oldest of his ministers. 1 
 
 George IV. had not the weight of personal charac- Georgeiv. 
 ter that belonged to his father. Naturally of an indolent 
 disposition, he was called to the throne too late in life 
 to become thoroughly acquainted with the duties of his 
 office, or to care for burthening himself with the details 
 of government. He was unpopular with the nation, 
 having alienated from himself their respect and good will 
 by his conduct as a prince. He was indifferent to the 
 exercise of political power, except when his own feelings 
 or interests were concerned, when he could be as im- 
 perative as his father. He strenuously opposed the 
 recognition of the independence of the Spanish South 
 American provinces, and also the granting of Eoman 
 Catholic emancipation in Great Britain, but was com- 
 pelled to acquiesce in the policy of his cabinet upon 
 these questions. Otherwise, he seldom differed in 
 opinion with his responsible advisers, and was content, 
 for the most part, to leave the functions of adminis- 
 tration in their hands. 3 ' It may, therefore, be said, 
 that from the beginning of his regency in 1811 to the 
 close of his reign in 1830, the regal influence was 
 limited to the strict exercise of the prerogative. George 
 IV. had no personal influence : instead of his popu- 
 larity supporting the ministry, the difficulty was for 
 the ministry to support his unpopularity, and to uphold 
 
 h Adolphus, Keign of Geo. III. And see the king's correspondence 
 
 v. 3, p. 144. with his ministers in Yonge, Life of 
 
 1 Campbell's Ohanc. v. 7, p. 253, n. Ld. Liverpool : and in Welln. Desp. 
 
 J May, Const. Hist. v. 1, p. 99. 3rd s.
 
 284 
 
 THE SOVEREIGN. 
 
 Georgeiv. the respect for the crown when it encircled the head of 
 such a sovereign.' k 
 
 In 1826, the dignified office of Constable of the Tower, which 'is 
 reserved for the king's exclusive disposal,' was unexpectedly con- 
 ferred by his Majesty upon the Duke of Wellington. 1 Upon a 
 vacancy occurring in the office of adjutant-general, the king wrote 
 to the prime minister notifying his intention to appoint his private 
 secretary, Sir Herbert Taylor, to the post. Taking offence at a 
 speech of Denrnaii's at the queen's trial, the king persistently refused, 
 for several years, to confer upon that eminent lawyer the rank of 
 king's counsel ; until at length, through the perseverance of the 
 Duke of Wellington (then premier) in 1828, the king consented to 
 grant him this dignity. The duke remarked that gaining this point 
 was the toughest job he had had in his life." But though he yielded, 
 the king afterwards declared that no consideration would ever 
 induce him to admit Mr. Denman into his presence. 
 
 George IV. was obliged to be more amenable to constitutional 
 usage than his father, in the matter of appointments to office. In 
 1821, he undertook to promise a vacant canoiiry of Windsor to a 
 young and inexperienced clergyman. Lord Liverpool (the prime 
 minister) respectfully, but firmly, informed the king that he could 
 not reconcile it with his ' public duty ' and ' official responsibility,' ' to 
 conform to his Majesty's wishes,' in this instance. The king was 
 very angry. But the minister would not yield. He declared that 
 in this, as in all similar cases, any ' expectation which might have 
 been personally held out by the sovereign was subject to the respon- 
 sibility of his minister ; and that it must be a sufficient answer on 
 such an occasion that the appointment had been obstructed in a 
 quarter which could not, by the laws of the country, be passed by.' P 
 
 A curious account of the disagreement between George IV. and 
 his ministers in the matter of Queen Caroline has been already given 
 in a former chapter. "i On this occasion, likewise, the king was re- 
 luctantly obliged to yield his personal wishes to the exigencies of his 
 position, and to permit his ministers to conduct that painful and 
 embai'rassing affair according to their own convictions of that which 
 it might be feasible to ask the Parliament to sanction. But a cir- 
 cumstance occurred in 1811, which shows that the king could stand 
 upon his prerogative when he thought proper. The see of Oxford 
 became vacant, and Mr. Perceval, the prime minister, waited upon 
 his royal master, with a recommendation that the bishopric should 
 
 k Lewis, Adminis. p. 421. 
 
 1 Welln. Desp. 3rd S. v. 3, p. 496. 
 
 '" Ib v. 4, pp. OG8-G72. 
 
 " A mould, Life of Denman, v. 1, 
 
 Ib. p. 435. 
 
 p Life of Ld. Liverpool, v. 3, pp. 
 150-154. 
 
 1 Ante, p. 128.
 
 WILLIAM IV. AS A SOVEREIGN. 285 
 
 be conferred upon Dean Legge. The prince peremptorily refused, 
 and declared his intention of appointing Dr. Jackson. Mr. Perceval 
 urged that it had been ' the positive and declared intention ' of the 
 king to give the appointment to Dean Legge ; whereupon the prince 
 reiterated his determination ' to make his own bishop,' and desired 
 that he might ' never more hear what were the king's wishes upon 
 such subjects through a third person.' 1 ' Dr. Jackson was accord 
 ingly nominated to the see, but he held it only four years. On 
 his death, which occurred in 1815, the bishopric was conferred upon 
 Dean Legge. 3 
 
 William IV. was an amiable monarch, of an honest w illiam 
 and truthful disposition, but deficient in strength of 
 character. His letters to Earl Grey, his prime minister, 
 ' supply abundant evidence of the conscientious indus- 
 try with which he must have laboured to make himself 
 master of the public questions of the day, so as to be 
 able efficiently to perform in this respect his duty as a 
 sovereign.' * He ascended the throne at an advanced 
 period of life, and found himself unable to cope success- 
 fully with the embarrassing questions which arose during 
 his short but eventful reign. Averse to parliamentary 
 reform, and fearful of its consequences, he nevertheless 
 gave a reluctant consent to the great experiment. But 
 ere long his mind underwent a reaction ; he withdrew 
 his confidence from the statesmen by whom that measure 
 had been accomplished, and attempted to form a Tory 
 government. But the endeavour proved abortive. He 
 learnt to his chagrin that the preponderance of power 
 was now so firmly established in the House of Commons, 
 that the mere prerogative and influence of the crown 
 were insufficient to effect a change of administration, 
 unless seconded by the voice of that assembly, or by 
 the unequivocal expression of popular opinion. 11 
 
 T Buckingham, Regency, v. 1, p. and principles from the period of his 
 
 172. accession in 1830 to the change of 
 
 Haydn, Book of Dignities, p. 363. ministry in Jan. 1835; in Stockmar's 
 
 * Earl Grey, Corresp. with William Mem. v. 1, pp. 314-350. 
 
 IV. v. 1, pref. pp. viii. xiv. And see u See ante, p. 194 ; Bagehot, Eng. 
 his Majesty's Memoir, addressed to Const, p. 284. 
 Sir R. Peel in 1835, of his conduct
 
 286 THE SOVEREIGN. 
 
 William Two instances may be cited wherein William IV. took upon him- 
 
 IV. self to interfere personally in political affairs without previous con- 
 
 sultation with his ministers : once in 1832, when, in the interest of 
 ministers themselves, and in furtherance of their public policy, he 
 caused a circular letter to be addressed by his private secretary to 
 the Opposition peers, urging upon them to cease from any further 
 resistance to the Reform Bill, so as to permit the passing of that 
 measure in the House of Lords without the necessity for creating a 
 new batch of peers in order to carry the Bill a stretch of the pre- 
 rogative to which his Majesty had been induced by his ministers to 
 consent, if necessary. This letter was circulated by the personal com- 
 mand of the king, and was undoubtedly an irregular interference with 
 the freedom of Parliament.* Again, in 1834, his Majesty gave public 
 expression to his alarm for the safety of the Established Church in 
 Ireland, in a remarkable reply to an address from the prelates and 
 clergy of Ireland, which he delivered without first communicating 
 with his responsible advisers. w This speech is said to have been de- 
 livered extempore, and to have been quite unpremeditated ; but 
 Maley, in his Recollections of this reign (v. 2, p. 133), gives reasons 
 for the belief that it was written for the king by some secret adviser. 
 But these were exceptional cases, arising out of the prevalence of 
 political excitement, both at home and abroad, during the period in 
 question, and by which the king himself was carried away to the 
 commission of acts which were irregular and indefensible, however 
 they may be excused by a consideration of the integrity of purpose 
 and solicitude for the public welfare by which they were dictated. 
 
 Upon the resignation of Sir E. Peel's short-lived 
 administration, the king reluctantly accepted another 
 Whig ministry, presided over by Lord Melbourne. But 
 though he did not always disguise his disinclinations 
 towards them, and sometimes strenuously opposed their 
 measures, x yet we have the assurance alike of Whig and 
 Tory statesmen that ' His Majesty uniformly acted with 
 scrupulous fidelity towards his advisers, whatever might 
 be their political bias ;' y and in the two Houses of Par- 
 liament, after the king's decease, the leading politicians, 
 without respect to party, vied with one another in 
 
 v See ante, p. 102. Torrens, Life of Melbourne, v. 2, c. v. 
 
 ' Ann. I leg. 1834, p. 43. > Peel's Mem. v. 2, p. 16. Earl 
 
 " See Lord Brougnton's Recollec- Grey, Corresp. v. 1, pp. vii ix. 
 tions, iu Ed. Rev. v. 133, pp. 317-324.
 
 QUEEN VICTOEIA AS A SOVEEEIGN. 287 
 
 bearing testimony to his exemplary conduct as a consti- 
 tutional sovereign. 2 
 
 The following instances of the independent exercise of judgment 
 by William IV., in matters of prerogative, have come under our 
 notice. He refused to confer a peerage upon Admiral Sir J. Saumarez, 
 notwithstanding the urgent and reiterated recommendations of the 
 premier (Earl Grey) but finally consented upon learning the acute 
 distress which the disappointment occasioned to this old and deserv- 
 ing officer.* He peremptorily declined to give the royal assent in 
 person to the Reform Bill, though strongly urged to do so by his 
 ministers. b When a member of the administration waited upon the 
 king to recommend that Captain Marryat might receive the royal 
 licence to wear an order which had been conferred on him by the 
 king of the French, his Majesty declined to comply with the 
 request ; assigning, as the ground of his refusal, his disapprobation 
 of a book, on the impressment of seamen, which had been written by 
 Marryat. 
 
 Since the accession of our present queen, the per- Queen 
 sonal predilections of the sovereign in respect to an 
 existing administration have never been brought into 
 public view. While she has abated nothing of the legi- 
 timate influence and authority of the crown wherever 
 it could be constitutionally exercised, her Majesty has 
 scrupulously and unreservedly bestowed her entire con- 
 fidence upon every ministry in turn with which public 
 policy, or the preference of Parliament, has surrounded 
 the throne. d ' It is well known,' says a recent political 
 writer, ' that her Majesty has habitually taken an active 
 interest in every matter with which it behoves a consti- 
 tutional sovereign of this country to be concerned ; in 
 many instances her opinion and her will have left their 
 impression on our policy.' 
 
 For example, in the year 1861, at the suggestion of the late Prince 
 
 1 Knight, Hist. Eng. v. 8, p. 377. 52-55. Ld. John Russell, Hans. D. 
 
 a Earl Grey, Corresp. v. 1, pp. 339, v. 130, p. 182. Earl Granville and 
 
 350. the Duke of Richmond, Ib. v. 208, 
 
 b Ib. v. 2, pp. 462-467. pp. 1069, 1070. This was in accord- 
 
 c Memoir of Marryat, preQxed to ance with Prince Albert's idea of the 
 
 Bohn's ed. of his ' Pirate.' duty of the queen towards her niinis- 
 
 d See Stockmar's Mem. v. 2, pp. ters. Ib. v. 165, p. 44.
 
 288 THE SOVEREIGN. 
 
 Queeu Consort, the forbearance and firmness of our gracious queen were 
 Victoria. exercised to require that the language of an important despatch 
 calling for the surrender, by the United States Government, of 
 certain persons who had been illegally taken from the Trent, a 
 British vessel, by an American ship-of-war should be so modified 
 as to make the demand as conciliatory as possible, in order to avert 
 the prospect of war with a kindred people. 6 
 
 Upon the transfer of the government of India from the rule of 
 the East India Company to that of the crown, in 1858, the queen 
 made numerous valuable suggestions in regard to the new constitu- 
 tion for India, the direction of the Indian army, and the policy to 
 be pursued towards the natives, most of which 'were adopted by 
 ministers. One important suggestion, which the cabinet would not 
 accept, was afterwards forced upon them by public opinion, and by 
 Parliament/ In 1859, her Majesty differed with the prime minister 
 and the foreign secretary upon a question of foreign policy. The 
 whole cabinet were then appealed to, when the queen's opinion was 
 sustained, s 
 
 Her wise ' But in no instance has the power of the crown been 
 so exercised as to expose it to check, or censure, or 
 
 tive - embarrassment of any kind. 11 It may be asserted with- 
 
 out qualification, that a sense of general content, of 
 sober heartfelt loyalty, has year by year gathered 
 around the throne of Victoria.' 1 The present writer 
 would add to this his sincere conviction, that attachment 
 to the person and throne of our gracious queen is not 
 confined to the mother-country, but extends with equal 
 if not greater intensity to the remotest bounds of her 
 immense empire ; and that few could be found, even in 
 lands that owe her no allegiance as a sovereign, who 
 would not willingly unite in a tribute of respect and 
 admiration for Victoria, as a woman, a mother, and a 
 queen. 
 
 Death of In the year 1861, her Majesty and the nation sus- 
 
 Consort. tallied a grievous loss in the death of the Prince Consort. 
 
 The queen herself in a few lines which she has caused 
 
 " Earl Russell in Hans. D. v. 178, Ib. pp. 458, 484, 486. 
 p. 72. Martin's Pr. Consort, v. 5, h See Karl Russell, in Hans. D. v. 
 
 pp. 418-420. 175, p. (515. 
 
 f Martin's Pr. Consort, v. 4, pp. ' Ed. Rev. v. 115, p. 211. Mr. 
 
 200-205, 2;52, 284, 810. Foster, in Hans. D. v. 228, p. 150.
 
 QUEEN VICTORIA AS A SOVEREIGN. 289 
 
 to be inserted in a published collection of his Royal 
 Highness's speeches, bore a tender and touching testi- 
 mony to 'the -ever- present, watchful, faithful, invaluable 
 aid which she received from the Prince Consort in the 
 conduct of the public business;' thereby 'proclaiming 
 the irreparable loss to the public service, as well as to 
 herself and to her family, which the prince's death has 
 occasioned.' j 
 
 The shock of this sudden calamity compelled the Shock to 
 Queen to withdraw, for a season, into retirement ; and Majesty 
 she has never since been able to resume to the full occasioned 
 extent as before her public and ceremonial duties. But death of 
 while her long-continued seclusion has been a source of the l lce> 
 universal regret, and even of complaint, ' it is the only 
 reproach which her people have ever addressed to her.' 
 Ten years after this great affliction befell her, two of 
 the leading statesmen of England publicly testified to 
 her unabated zeal and efficiency in the performance of 
 all other duties appertaining to her exalted station. 
 Thus Earl Granville said : ' I do not know any time of 
 her life when her Majesty has given more attention than 
 she does at present to the current business of the state, Her mi- 
 or when the interest she takes in all parliamentary and JntTon^o 
 administrative measures, the knowledge she takes care affairs of 
 to possess on all important measures, whether home 
 or foreign, and the supervision she exercises over all 
 appointments to be made, and honours to be distributed, 
 have been more strikingly shown.' k And a few weeks 
 afterwards, Mr. Disraeli took occasion to observe that 
 while her Majesty was at present unable, on account of 
 her health, 'to resume the performance of those public 
 and active duties which it was once her pride and 
 pleasure to fulfil,' yet that ' with regard to those much 
 higher duties which her Majesty is called upon to per- 
 form, she still performs them with a punctuality and a 
 
 j Prince Albert, Speeches, &c. p. 67. k Hans. D. v. 208, p. 1069. 
 
 VOL. I. U
 
 290 THE SOVEREIGN. 
 
 precision which have certainly never been surpassed 
 and rarely equalled by any monarch of these realms.' 1 
 During the present reign three questions, previously 
 undetermined, and that intimately affect the personal 
 rights of the sovereign, have been discussed and dis- 
 posed of. They will fittingly claim our attention before 
 we proceed to define the constitutional position of the 
 crown in public affairs. They concern 
 
 1 . The appointment of officers of the royal house- 
 
 hold. 
 
 2. The right of the sovereign to employ a private 
 
 secretary. 
 
 3. The constitutional position of a prince consort. 
 
 1. As to the Appointment of Members of the Household. 
 Appoint- Owing to the gradual introduction of the usages 
 
 ments in , . , , . , , , . 
 
 the royal which have been incorporated by time into the unwritten 
 hokTcon- ^ aw ^ ^ ie British Constitution, it was not until the end 
 trolled by of the reign of George II. that it became customary 
 to make alterations in the household establishment of 
 our sovereigns upon a change of ministry. 111 But it is a 
 fundamental principle of parliamentary government, 
 that ' the responsible servants of the crown are entitled 
 to advise the crown in every point in which the roya'l 
 authority is to be exercised;' 11 and nothing could tend 
 more to enfeeble an administration than that certain 
 high offices, held during pleasure, should be altogether 
 beyond their control. Accordingly, from the accession 
 of George III. it became a recognised practice to con- 
 cede this privilege to every successive administration. 
 
 Thus we find that when George III. dismissed the North minis- 
 try, in 1782, he was obliged to dismiss the Earl of Hertford from 
 the office of lord chamberlain, which he had held for fifteen years ; 
 
 1 Speech at Hughenden, Sept. 20, m Par!. D. v. 23, p. 412. 
 1871. - Mr. Poiisonby, Ib. p. 431.
 
 APPOINTMENTS IN THE ROYAL HOUSEHOLD. 
 
 291 
 
 and to appoint the Earl of Effingham, whom he disliked, to be 
 treasurer of the household. Even the aged Lord Bateman, who 
 was the king's personal friend, was obliged to resign his office of 
 master of the buckhounds. Similar difficulties, in regard to ap- 
 pointments in the household, attended the formation of the Portland 
 ministry in the following year.! 1 
 
 In 1812, when negotiations were set on foot for the reconstruc- 
 tion of the ministry, after the assassination of Mr. Perceval, the 
 premier, a question was raised as to whether the appointment of 
 officers in the royal household should form part of the proposed 
 ministerial arrangements, or should be left to the determination of 
 the sovereign. Lords Grey and Grenville, having been invited by 
 the Prince Regent to join the new administration, declined to do so 
 unless the actual incumbents of these offices were first dismissed. 
 The Prince Regent was advised by Lord Moira, who conducted the 
 negotiations with the Whig leaders, to resist this stipulation ; and, 
 accordingly, the attempt at a reconstruction of the cabinet resulted 
 in failure. But it has since come to light that the difficulty arose 
 from the unskilful management of the dispute. The Prince Regent 
 himself was quite willing to allow a change to be made in his house- 
 hold, and the officers of the household had all privately resolved to 
 resign as soon as the new ministry had been completed, leaving their 
 places at the disposal of the new cabinet. This intention had been 
 made known to Sheridan, but, either from accident or design, he did 
 not communicate it to his friends.^ In the subsequent explanations 
 in Parliament, it was admitted that an incoming administration, had 
 a right to claim the removal of the great officers of the household, 
 although the exercise of such a right on the present occasion was, for 
 special reasons, deemed inexpedient and impolitic. 1 ' The principal 
 officers of the royal household are invariably chosen from amongst 
 members of the two Houses of Parliament, and it is but reasonable 
 that they should be expected to co-operate with their colleagues in 
 the ministry. Moreover, from their habitual attendance upon the 
 person of the sovereign, they undoubtedly possess means of influence 
 that ought not to be at the disposal of any persons who are un- 
 friendly to the party in power. 
 
 Fischel, Eng. Const, p. 520; as 
 corrected by Haydn, Book of Digni- 
 ties, p. 206 ; Downe, Corresp. George 
 III. v. 2, p. 420. 
 
 P Tomline, Life of Pitt, v. 1, p. 
 149, n.; Paii. Hist. v. 23, p. 695. 
 But during Mr. Pitt's administration, 
 George III. (as he afterwards told 
 Mr. Rose) ' insisted on having in his 
 household such persons as he could, 
 
 Removal 
 of officers 
 of house- 
 hold on 
 change of 
 ministry. 
 
 with comfort to himself, associate 
 with occasionally.' (Rose, Corresp. 
 v. 2, p. 158.) This is a privilege 
 which no minister, at any time, would 
 have thought of denying to his sove- 
 reign. And see Life of Earl of 
 Minto, v. 3, p. 337. 
 
 q Campbell's Chanc. v. 7, p. 285 ; 
 May, Const. Hist. v. 1, p. 105. 
 
 * See ante, p. 165. 
 
 TJ2
 
 292 THE SOVEREIGN. 
 
 Upon the resignation of the Melbourne ministry in 1839, and 
 before the difficulty arose between her Majesty and Sir Robert Peel 
 respecting the ladies of the bedchamber, Lord Melbourne informed 
 the Queen ' that it had been usual in later times, when an adminis- 
 tration was changed, to change also the great officers of the house- 
 hold, and likewise to place at the disposal of the person entrusted 
 with the formation of a new administration those situations in the 
 household which were held by members of either House of Parlia- 
 ment.' 8 In claiming the exercise of this privilege, Sir Robert Peel, 
 when called upon to form a ministry, assured her Majesty that he 
 would not press the appointment of any one who was not personally 
 acceptable to her. At the same time he respectfully urged that, in 
 view of the throne being filled by a female sovereign, the same 
 principle should be held to apply to the chief appointments which 
 were held by the ladies of her Majesty's household, including the 
 ladies of the bedchamber. This was objected to by the Queen, 
 who declared that she must reserve to herself the whole of those 
 appointments, and that it was her pleasure that no change should be 
 made in the present incumbents. Afterwards, by advice of the 
 retiring ministers, her Majesty wrote to Sir Robert Peel, stating that 
 she could not ' consent to adopt a course which she conceived to be 
 contrary to usage, and which was repugnant to her feelings.' But, 
 in point of fact, nearly all the ladies of the court were related to the 
 Whig ministers or to their political adherents, having been selected 
 by the Melbourne Cabinet when her Majesty's household was first or- 
 ganised; thus identifying the entire court with the ministry of the day. 4 
 Under these circumstances it was impossible for Sir Robert Peel 
 to persevere in the attempt to form a ministry. He therefore wrote 
 to her Majesty, and stated that it was essential to the success of the 
 commission with which he had been honoured, ' that he should have 
 that public proof of her Majesty's entire support and confidence 
 which would be afforded by the permission to make some changes in 
 that part of her Majesty's household which her Majesty resolved on 
 maintaining entirely without change.' The Melbourne ministry 
 were then reinstated in office, and they at once recorded their opinion 
 on the point at issue in a minute of council, as follows : ' That for 
 the purpose of giving to the administration that character of 
 efficiency and stability, and those marks of the constitutional support 
 of the crown, which are required to enable it to act usefully to the 
 public service, it is reasonable that the great offices of the court, and 
 situations in the household held by members of Parliament, should 
 be included in the political arrangements made on a change of the 
 administration ; but they are not of opinion that a similar principle 
 
 5 Mir. of 1'arl. 18-'3!>, p. 2411. 
 
 1 May, Const. Hist. v. 1. p. 128.
 
 PRINCE CONSORT'S HOUSEHOLD. 293 
 
 should be applied or extended to the offices held by ladies in her 
 Majesty's household.' u 
 
 But two years afterwards, when it became necessary for the 
 Queen to apply again to Sir Robert Peel to undertake the formation 
 of a government, ' no difficulties were raised on the Bedchamber 
 question.' Through the interposition of Prince Albert, her Majesty 
 was induced to take a more correct view of her position towards the 
 incoming ministers upon this question than heretofore, and, by 
 previous negotiation with Sir R. Peel, the matter was satisfactorily 
 arranged before the change of ministry took place. Those ladies 
 of the household only who were near relatives of the outgoing 
 cabinet ministers retired, the others were permitted to remain. v 
 ' The principle which Sir R. Peel applied to the household has since 
 been admitted, on all sides, to be constitutional. The offices of 
 mistress of the robes and ladies of the bedchamber, when held by 
 ladies connected with the outgoing ministers, have been considered 
 as included in the ministerial arrangements. But ladies of the 
 bedchamber belonging to families whose political connection has 
 been less pronounced, have been suffered to remain in the household, 
 without objection, on a change of ministry.' w On the accession of 
 the Derby ministry, in 1866, the ladies of the court remained 
 unchanged, not having owed their appointments to political influence. 
 And Lord Torrington continued in office as one of the lords in 
 waiting, at the personal request of her Majesty. x 
 
 After the marriage of the Queen, in 1840, the ap- prince's 
 pointments to the prince's household were regulated, {^ e ~ 
 by desire of the prince/ upon the principle now es'ab- 
 lished in that of the Queen's, namely that those appoint- 
 ments only should be permanent which were held by 
 men entirely unconnected with politics, while those filled 
 
 u Mir. of Parl. 1839, pp. 2415, Eng. Const, p. 234. 
 2421. After his retirement from x Quardian, July 18, 1866, p. 761. 
 
 public life, Lord Melbourne is said to It is usual for the sovereign's choice of 
 
 have regretted the stand he took upon persons to serve as lords of the bed- 
 
 this question. Quar. Rev. v. 145, p. chamber to be approved of by the 
 
 225. prime minister, when the selection is 
 
 v Torrens, Life of Melbourne, v. 2, made from friends of the party in 
 
 p. 367. power. Grey, Corresp. with William 
 
 w May, Const. Hist. v. 1, p .131. IV. v. 1, pp. 26, 32,33,88. Once, in 
 
 And Martin, Life of the Prince Con- 1831, the king waived his right of 
 
 sort, v. 1, pp. 36, 105. The way in nomination in favour of anyone whom 
 
 which the new principle was applied the premier might choose. Ib. p. 
 
 to the ladies of the household upon 138. 
 
 the change of ministry in 1841 is de- f Torrens, Life of Ld. Melbourne, 
 
 scribed in Stockmar's Memoirs, v. 2, v. 2, p. 301. 
 p. 50. And see Amos, Fifty Years'
 
 294 THE SOVEREIGN. 
 
 by peers or members of the House of Commons should 
 change with the various changes of the ministry. In 
 choosing his more intimate and confidential officers, the 
 prince resolved that ' the selection should be made 
 without regard to politics,' and should not be exclusively 
 from either party ; in order that he might be the better 
 able to adhere to his prudent determination of reso- 
 lutely keeping himself free from all parties. 2 
 
 2. As to the right of the Sovereign to employ a Private 
 
 Secretary. 
 
 Private Until the reign of George III. none of the English 
 
 toThe" 7 m onarchs ever had a private secretary. It naturally 
 king. formed a part of the duty of the principal secretaries of 
 state to assist the sovereign in conducting his official 
 correspondence ; but such were the habits of industry 
 and attention to the duties of his exalted station which 
 characterised George III., that it was not until his sight 
 began to fail that he would permit another person to 
 assist him in transacting the daily business of the crown. 
 But in 1805 his Majesty became so blind as to be unable 
 to read the communications of his ministers. Averse to 
 remain in London, where his infirmity would be more 
 exposed to public observation, the king resolved to re- 
 side at Windsor. This rendered the appointment of a 
 private secretary absolutely necessary. Accordingly, on 
 Colonel the recommendation of Mr. Pitt, Colonel Herbert Taylor 
 
 Herbert . * 
 
 Taylor. was appointed to the office, with a salary of 2,000/. per 
 annum, which was paid out of funds at the disposal of 
 the crown, and never came under review in Parliament. 
 Colonel Taylor discharged the duties of this delicate 
 and confidential office, until the commencement of the 
 
 * Martin's Pr. Consort, v. 1, p. 54. and in regard to the practice respect- 
 Grey, Early Years of Pr. Consort, pp. ing officers of either the king or queen's 
 260, 821, 323. See Stockmar's Mem. household in relation to the ministry, 
 v. 2, p. 23. And see the Duke of Welln.Desp. 3rd S.v. 8, pp. 393-402, 
 Wellington's views on this question, 469.
 
 PRIVATE SECRETARIES TO THE KING. 295 
 
 Eegency, with such integrity, prudence, and reserve, 
 as to shield himself from every shadow of complaint. 
 Nevertheless, the appointment itself was viewed with 
 disfavour by many leading men in Parliament, who only 
 refrained from calling it in question from motives of 
 delicacy towards the afflicted monarch, whose loss of 
 sight was attributable to his unceasing devotion to his 
 public duties. 8 When the Prince Eegent was called to 
 the throne (in December 1810), he appointed his friend 
 Colonel M'Mahon, who was at the time a member of Colonel 
 the House of Commons, to be his private secretary and 
 keeper of the privy purse, with the same salary as his 
 predecessor, but with the important difference that it 
 was to be paid by the Treasury, thereby rendering 
 Colonel M'Mahon a public officer. This transaction 
 gave rise to an animated discussion in the House of 
 Commons. After the ' Official Gazette ' had appeared, 
 announcing the appointment, enquiries were made of 
 ministers, on March 23, 1812, as to the facts of the 
 case ; and on April 14, Mr. C. W, Wynn moved for a 
 copy of the appointment, for the purpose of founding 
 upon it a resolution of censure, or a declaration of the 
 inutility of the office. Mr. Wynn urged that the ap- 
 pointment was wholly unprecedented, except in the 
 case of Colonel Taylor, which was purely a private 
 affair, arising out of the king's infirmity ; and that ' it 
 was a most unconstitutional proceeding to allow the 
 secrets of the council to pass through a third person,' 
 thereby subjecting the advice of cabinet ministers to 
 their sovereign ' to the revision of his private secre- 
 tary.' Ministers opposed the motion, contending that 
 the Prince Eegent, who had not been trained to habits 
 of business like his father, stood m need of the services 
 of a private secretary to assist him in his private cor- 
 respondence, and to relieve the heavy manual labour 
 
 Parl. D. v. 22, pp. 121, 342, 361. Jesse, Life of George III. v. 3, p. 439.
 
 29G THE SOVEREIGN. 
 
 whicli the immense amount of public business requiring 
 the attention of the crown unavoidably entailed. This 
 office, moreover, was not one of responsibility and would 
 not encroach upon the province or responsibility of any 
 minister. Ministers of the crown would still be the legal 
 and constitutional organs through which all the public 
 business must be transacted. On a division Mr. Wynn's 
 motion was negatived, by a majority of 76. The Opposi- 
 tion, however, determined to renew the attack, on the 
 special ground that the appointment, unlike that of 
 Colonel Taylor, had been made a public one. But on 
 June 15, Lord Castlereagh informed the House that the 
 Prince Eegent had been pleased to direct that Colonel 
 M'Mahon's salary should be paid out of his privy purse. 
 The Opposition then agreed to let the matter drop ; and 
 Colonel M'Mahon continued to hold the office until his 
 death, in 1817, b when Sir B. Bloomfield was appointed 
 private secretary. He was replaced, in 1822, by Sir 
 Win. Knighton, who retained the office until the king's 
 death, in 1830. 
 
 Office of Colonel M'Mahon was made a privy councillor in 1812, and Sir 
 
 king's B Bloomfield in 1817. c But this was afterwards admitted to have 
 been a mistake, ' for in fact it gave authority and consequence where 
 confidence to any degree may be placed, but where authority and 
 consequence ought not to exist.' Accordingly, in 1823, when George 
 IV. wished to admit Sir W. Knighton into the privy council, it was 
 opposed by Lord Liverpool (the premier), as being ' most objectionable 
 in principle and precedent.' His lordship cited the opinion of George 
 III., ' who understood these matters better than any one,' that the 
 king's private secretary ' should be put upon exactly the footing of an 
 under-secretary of state ' a functionary who is ' never a privy coun- 
 cillor, although necessarily he knows more of the secrets of government 
 than any cabinet minister, except his principal and the first minister. 
 These arguments prevailed and the matter was allowed to drop. d 
 
 Sir Herbert Taylor, the faithful secretary of George 
 
 b Parl. D. v. 23, p. 476 ; Ann. Reg. 140, 141. 
 
 1817, p. 147. Sir B. C. Brodie'a d Welln. Desp. 3rd S. v. 2, pp. 103- 
 
 Works, v. 1, p. 77. Ed. Rev. v. 136, 105. And see the Duke of Welling- 
 
 p. 395. ton's advice to Sir W. Knighton, in 
 
 " Haydn, Book of Dignities, pp. Greville Mem. v. 1, p. 73.
 
 THE QUEEN S PRIVATE SECRETARY. 297 
 
 III., was reappointed to this office by William IV., in sir 
 succession to Sir W. Knighton. We have the testimony 
 of Lord Aberdeen, when prime minister, that no objec- 
 tion was made to these appointments, notwithstanding 
 that ' these men must of necessity have known and were 
 able to have given advice, or to have disclosed every- 
 thing, if they had thought fit, although neither of them 
 was a privy councillor.' 6 It is true that on one occasion, 
 as we have seen, William IV. made his private secretary 
 the medium of giving expression to his wishes to certain 
 peers, in regard to their conduct upon a great public 
 question, in a very irregular manner; 1 but this com- 
 munication was made with the knowledge and consent 
 of the prime minister. g 
 
 Upon the accession of Queen Victoria (on June 20, Her 
 1837) it was determined that no private secretary should Majesty's 
 
 ' . " private 
 
 be assigned to her, lest the influence of such an officer secretary. 
 over a youthful and inexperienced sovereign should 
 prove prejudicial to the State. But Lord Melbourne, 
 who was then first minister of the crown, undertook to 
 act also as her Majesty's private secretary. This was 
 avowedly a mere temporary arrangement, entered into 
 in the hope which, happily, was speedily realised 
 that her Majesty would very soon contract a marriage, 
 which would enable the duties of private secretary to 
 be appropriately transferred to her husband. Mean- 
 while his lordship was assisted in the discharge of this 
 self-imposed duty by Baron Stockmar, who acted (in- 
 formally) as her Majesty's private secretary for about 
 fifteen months after her accession. For upwards of 
 twenty years after this event the baron proved himself 
 a devoted friend and wise counsellor to the Queen and 
 her royal consort. 11 The assumption by the prime 
 
 e Hans. D. v. 130, p. 96. And see William IV. v. 2, pp. 439-452. 
 
 Nicholas, Pref. to Pro. Privy Coun. h Stockmar's Mem. v. 1, pp. Ixvi. 
 
 v. 6, p. 134, n. 383-388. And see Martin's Pr. Con- 
 
 f See ante, p. 286. sort, passim. Torrens, Life of Mel- 
 
 g See Earl Grey, Corresp. with bourne, v. 2, p. 236. The baron,
 
 298 
 
 THE SOVEREIGN. 
 
 minister of such a position towards the Queen, under 
 any circumstances, was however characterised most 
 truly by Lord Aberdeen as an ' unconstitutional ' pro- 
 ceeding; 1 being calculated to impair the free exercise 
 of the royal judgment, under the plausible pretext 
 of assisting the sovereign in the performance of her 
 onerous functions. But we are safe in concluding that 
 no such intention influenced Lord Melbourne upon this 
 occasion, and that his sole desire was to afford to his 
 royal mistress, in her youth and inexperience, the benefit 
 of his matured acquaintance with the routine of govern- 
 ment. After her Majesty's marriage with Prince Albert, 
 his Eoyal Highness, with the sanction of the ministers 
 of the crown, assumed the duties of the Queen's private 
 secretary ; although in consideration of his rank and 
 station he had been made a privy councillor. He was 
 peculiarly fitted for this office, not merely by his admir- 
 able personal qualities and high attainments, but from 
 his position as husband and alter ego of the Queen. 3 He 
 acquitted himself of the duties which thus devolved 
 upon him to the admiration of all parties, as well as to 
 the inestimable benefit of his sovereign and the country. 
 Subsequent to the great loss which her Majesty sus- 
 tained in the premature decease of her lamented con- 
 sort, several gentlemen in succession were appointed 
 as her private secretary. 1 " Of late years no constitutional 
 
 however, w.ns largely imbued with 
 reactionary ideas, which found expres- 
 sion in an elaborate dissertation on the 
 functions of the sovereign in a consti- 
 tutional government (see Martin's Pr. 
 Consort, v. 2, pp. 545-557). This 
 essay, though of considerable merit, is 
 unsafe and unsound as an exposition of 
 modern constitutional doctrine. See 
 Ed. Rev. v. 148, pp. 283-288. See 
 also Amos, Fifty Years of the Eng. 
 Const, pp. 318-326. Amos, however, 
 presses his views on the question too 
 far. The true constitutional doctrine 
 of the relation of the sovereign to the 
 
 ministers of the crown is that ex- 
 pressed by Mr. Gladstone, in his 
 Gleanings, v. ], pp. 203-248. And 
 see Todd, Parl. Govt. in the Colonies, 
 c. i. 
 
 ' Hans. D. v. 130, p. 96. 
 
 J Martin's Pr. Consort, v. 1, p. 71 ; 
 and v. 2, c. 1. Hans. D. v. 130, pp. 
 97, 105. 
 
 k Viz., Sir T. M. Biddulph and Lt - 
 Gen. the Hon. CharlesGrey. Upon the 
 death of Gen. Grey, in April 1870, 
 Col. Ponsonby was gazetted to this 
 office.
 
 CONSTITUTIONAL POSITION OF A TEINCE CONSORT. 299 
 
 objection has been urged to the continuance of this 
 office; and it is clear that the great and increasing 
 amount of routine duty devolving upon an English 
 sovereign at the present day, as well as a consideration employ a 
 of the altered position of the crown towards the mem- secretary, 
 bers of the administration since the establishment of 
 parliamentary government, alike justify and require the 
 appointment. 
 
 3. The Constitutional Position of a Prince Consort. 
 
 The position of a queen consort has been ascertained Prince 
 by the laws and customs of the realm. She has her c 
 own privileges and rights. She has important duties to 
 perform as head of the court, in maintaining its dignity 
 and respectability ; and by her example and authority 
 she is enabled to exercise a direct influence over the 
 manners of society, and especially of the female portion 
 of it. But the constitution has assigned no definite 
 place to the husband of a reigning queen. The only 
 precedent in modern English history, until the accession 
 of Queen Victoria, of this peculiar and difficult position 
 "is that of Prince George of Denmark, the husband of 
 Queen Anne ; but this prince was destitute of the ability 
 and strength of character which should have made him 
 an active and efficient helpmate to his wife and sove- 
 reign. 1 It was reserved for Prince Albert, by the 
 rare combination of admirable qualities with which he Character 
 was endowed, to create for himself a position of pre- ducVof 1 ' 
 eminent usefulness, without trenching in the slightest Prin ce 
 degree upon the limits within which, as the husband of 
 his sovereign, he was necessarily confined. Called to 
 his exalted station at a very early age, he diligently ap- 
 plied himself to the study of our laws and institutions, 
 in order that he might be qualified to afford to the 
 crown efficient aid and counsel in the discharge of its 
 
 1 Ed Rev. v. 115, p. 211.
 
 300 THE SOVEREIGN. 
 
 Prince onerous functions. His marriage to Queen Victoria 
 took place on February 10, 1840. On March 5, the 
 Queen conferred upon Prince Albert place and prece- 
 dence next to herself, and on September 11 following, 
 seven months after his marriage, and a few days after 
 the completion of his twenty-first year, he was intro- 
 duced, by her Majesty's command, to the Privy Council, 
 and took his seat at the board, which he never after- 
 wards failed to attend. 
 
 In tlanuary 1840, a Bill was introduced into the House of Lords 
 for the naturalisation of Prince Albert, which rapidly became law. 
 This Bill originally contained a clause to give the prince rank next 
 after the Queen ' in Parliament or elsewhere.' But being objected to 
 by the Duke of Wellington, who then led the Opposition in the 
 House of Lords, the clause was withdrawn ; and the opportunity 
 was lost of regulating the precise rank and position of a prince 
 consort by Act of Parliament. It was afterwards determined, with 
 the concurrence of the leaders of both parties, to give the prince 
 precedence next to the Queen by the exercise of the royal preroga- 
 tive ; a settlement of the question which was less satisfactory and 
 conclusive than if it had been definitively fixed by statute." 
 
 His royal highness was not a member of the House 
 of Peers, and had therefore no place formally assigned 
 to him for the public expression of his personal opinions 
 upon political questions. In this respect his position 
 was analogous to that of the Queen herself. As the 
 consort of his sovereign, he was in fact her alter ego ; 
 and it was in this capacity, not merely from his being a 
 member of the Privy Council, that he was constitution- 
 ally empowered to attend at every conference between 
 the Queen and her ministers. Generally present at 
 such times, he always took part in the discussions with 
 tact, ability, and discretion. It was not until July 2, 
 1857, that the title and dignity of prince consort were 
 granted to him by royal letters patent. p 
 
 m Grey, Early Years of Pr. Consort, Ld. Chief Justice Campbell, in 
 
 pp. 263, 286. Torrens, Life of Ld. Hans. D. v. 130, p. 105. Stockmar's 
 
 Melbourne, v. 2, p. 321. Mem. v. 2, pp. 492-498. 
 
 " Ib. pp. 32*5-327. And see Mar- r So early as 1S41, the Queen ex- 
 tin's Pr. Consort, v. 1, pp. 01, 93. pressed her desire that the title of
 
 THE PRINCE CONSORT. 301 . 
 
 As we have already seen, the prince, with the ex- 
 press sanction of the ministers of the crown, assumed 
 the duties of the Queen's private secretary, and in that 
 capacity was permitted to peruse all public despatches 
 that were laid before the Queen, and all the confidential 
 communications of minister s. q His memoranda upon 
 such occasions were sent to the prime minister, and 
 contributed very materially to shape the policy of 
 government. Upon his retirement from office in 1841, 
 Lord Melbourne took occasion to congratulate her 
 Majesty upon ' the inestimable advantage she possessed 
 in being able to avail herself of the advice and assistance 
 of her royal consort,' and asserted his conviction that 
 she could not do better ' than to have recourse to him 
 when it was needed, and to rely upon him with confi- 
 dence.' r Subsequently, Sir E. Peel and Lord Aberdeen 
 endorsed these assurances, and declared that the prince, 
 by his official relations to the Queen, was enabled to 
 assume the place and influence to which he was pro- 
 perly entitled. 3 
 
 In a work which was published, after his decease, His place 
 -by express permission of the Queen, we have Prince anddufc y- 
 Albert's own definition of his place and duties. He says 
 the position of ' the consort and confidential adviser 
 and assistant of a female sovereign ' ' is a most peculiar 
 and delicate one. Whilst a female sovereign has a great 
 many disadvantages in comparison with a king, yet if 
 she is married, and her husband understands and does 
 his duty, her position, on the other hand, has many 
 compensating advantages, and, in the long run, will be 
 found even to be stronger than that of a male sovereign. 
 But this requires that the husband should entirely sink 
 his own individual existence in that of his wife ; that he 
 
 king consort should be conferred Martin's Pr. Consort, v. 1, p. 257. 
 upon the prince, but after consulting q Ib. p. 95. r Ib. p. 117. 
 
 her ministers this idea was abandoned. Ib. p. 149.
 
 .302 THE SOVEREIGN. 
 
 Prince should aim at no power by himself or for himself; 
 should shun all ostentation, assume no separate respon- 
 sibility before the public, but make his position entirely 
 a part of hers ; fill up every gap which, as a woman, 
 she would naturally leave in the exercise of her regal 
 functions ; continually and anxiously watch every part 
 of the public business, in order to be able to advise and 
 assist her at any moment, in any of the multifarious 
 and difficult questions or duties brought before her 
 sometimes international, sometimes political, or social, 
 or personal. As the natural head of her family, super- 
 intendent of her household, manager of her private 
 affairs, sole confidential adviser in politics, and only 
 assistant in her communications with the officers of the 
 government, he is, besides the husband of the queen, the 
 t utor of the royal children, the private secretary of the 
 sovereign, and her permanent minister.' * 
 
 How thoroughly, and with what strict impartiality, 
 Prince Albert fulfilled the multifarious duties of his 
 difficult and delicate position, which lie has thus gra- 
 phically described, is well known to the world, as well 
 as to the British nation, who have never ceased to 
 mourn his loss. 
 
 Defenceof Prince Albert's position as alter ego of the Queen was 
 liuc? 011 " fully approved and sanctioned by all the leading states- 
 men of England, when called in question during a tem- 
 porary outburst of unpopularity by which he suffered at 
 the commencement of the Eussian war. At the opening 
 of the session of 1854, the principal members of govern- 
 ment and of the Opposition, in both Houses of Parlia- 
 ment, gave expression to their sentiments on this subject, 
 during the debate upon the address in answer to the 
 speech from the throne. A portion of the press had 
 attacked the prince for alleged unconstitutional ' inter- 
 
 1 Prince Albert's Speeches, &c. pp. vations on this definition, Cont. Rev. 
 74, 70. See Mr. Gladstone's obser- v. 26, p. 9.
 
 THE PR1XCE CONSORT. 303 
 
 ference' in politics, and in the affairs of the army, n 
 asserting that he had used his position to control the 
 action of the government, and to advance the interests 
 of foreign dynasties to the prejudice of England. The 
 prime minister, Lord Aberdeen, defended his Royal 
 Highness from these unjust aspersions upon his cha- 
 racter. He stated that Prince Albert had, with great 
 self-denial and discretion, declined to accept the office 
 of commander -in- chief of the British army, notwith- 
 standing the urgent solicitations of the Duke of Wel- 
 lington that he would consent to succeed him in that 
 post v ; and that his alleged ' interference with the 
 business of the army ' had been no more than his 
 position as a field-marshal and colonel-commanding 
 certain regiments, and one acting on behalf of a female 
 sovereign, amply justified. The commander-in-chief, 
 Lord Hardinge, corroborated this statement. At the 
 same time, the premier took the opportunity to define, 
 for the information of parliament and of the country, 
 the constitutional position occupied by the Prince 
 Consort, in relation to the executive government; and 
 to bear testimony to the wisdom and prudence which 
 he had uniformly exhibited in maintaining the same. 
 Lord Derby and Lord Campbell (Chief Justice of the 
 Common Pleas) in the House of Peers, and Lord John 
 Eussell and Mr. Walpole in the House of Commons, 
 expressed their entire satisfaction with this explanation, 
 and their cordial approval of the conduct of Prince 
 Albert in his position of confidential adviser of the 
 Queen. w 
 
 Since his decease (which occurred on December 14, 
 1861), ample evidence has been adduced as to the 
 
 u Martin's Pr. Consort, v. 2, p. 538, January 31, 1854. And see theeulo- 
 
 et seq. Stockmar's Mem. v. 2, pp. gitims pronounced upon the Prince 
 
 480-505. Consort, in both Houses of Parlia- 
 
 T For further particulars in regard ment, on February 6, 1862, after his 
 
 to this ofl'er see post, v. 2. decease, and especially the speeches 
 
 w Hans. D. in both Houses, for of Earl Russell and of Mr. Disraeli.
 
 304 THE SOVEREIGX. 
 
 Prince manner in which Prince Albert discharged the difficult 
 Consort, 
 
 l ie } ia j undertaken, during the whole course of his 
 brief but well-spent life. All agree in testifying that 
 the prince's conduct was invariably characterised by a 
 consummate judgment, and by a constant deference to 
 the constitutional rights of the ministers of the crown. 
 With strong political convictions, and a decided opinion 
 on the political questions of the day, which he expressed 
 and defended with great ability, his course was uni- 
 formly free from all party bias, straightforward, and 
 patriotic. ' His influence in public affairs was at once 
 so genial and so salutary, that, like the pressure of the 
 atmosphere, it was unfelt. He hit the exact mean on 
 which authority rests in a free country, and he contri- 
 buted to make the crown act as the adjusting balance 
 of our institutions at home, and of our policy abroad.' 
 He brought to the consideration of every question of 
 foreign policy, and of every point of domestic adminis- 
 tration, ' the principles of a statesman, rather than the 
 interests of a politician ; and as his position had placed 
 him beyond the region in which men contend for politi- 
 cal power, he sought, without distinction of parties or 
 persons, to apply his dignified, liberal, and honest rule 
 of life to the smallest as well as the greatest objects 
 to which he turned his clear and comprehensive mind.' x 
 His ser- With an intuitive perception of the widely-extended 
 
 thtfcom- field hitherto untrodden by royal footsteps wherein 
 munity. ].,j s var i e d accomplishments, and the influences of his 
 exalted station, could be suitably employed, Prince 
 Albert took a prominent part in the encouragement of 
 every social movement which sought to advance the 
 industrial, educational, or moral interests of the people. 
 He lent his aid and countenance to the promotion of 
 science and the arts, and was always ready to foster 
 
 x Rt. Hon. W. N. Massey, in Ed. an article on the prince (attributed to 
 Uev. v. 115, p. 211. And see Mar- Mr. Gladstone) in the Cont. Rev. v. 
 tin's Life of the Prince, passim. Also 26, p. 1.
 
 THE IMPERSONALITY OF THE CROWiV. 305 
 
 every undertaking that gave promise of contributing to 
 develope the resources of the empire, or of assisting her 
 friendly and successful rivalry with other countries in 
 the arts of peace/ 
 
 The loss which the nation sustained in the death of The value 
 this illustrious man has, unhappily, deprived our en- the * 
 quirv into the constitutional standing of a prince-'consort cause f 
 
 * J Tii monarchy. 
 
 of its immediate practical value ; nevertheless, the ex- 
 ample of his life is of incalculable service to the cause 
 of monarchy, as it helps us to explain and illustrate the 
 status of the sovereign in the existing development of 
 the British constitution, and also to exemplify the value 
 and extent of the influence which may be legitimately 
 exercised by one who is politically identified with the 
 occupant of the throne, and who yet fills a personally 
 irresponsible position, 2 without encroaching upon the 
 province of responsible government. 
 
 We now proceed to define, more particularly, the constitu- 
 constitutional position of the British sovereign. We gj^ 1 ^ " 
 have already seen that, in a system of parliamentary the sove- 
 government, as it is administered in England, the per- 
 sonal will of the monarch can only find public expres- 
 sion through official channels, or in the performance of 
 acts of state which have been advised or approved by 
 responsible ministers ; and that the responsible servants 
 of the crown are entitled to advise the sovereign in 
 every instance wherein the royal authority is to be 
 exercised. 11 In other words, the public authority of 
 the crown in England is exercised only in acts of repre- 
 
 y Martin, Pr. Consort, v. 1, pp. the chief merit of the conception and 
 
 332, 385, 485. He acted as Chair- carrying out of that great work, the 
 
 man of the Royal Commission for the forerunner of so many similar under- 
 
 Encouragement of the Fine Arts in takings, but pre-eminent amongst 
 
 the United Kingdom, from its ap- them all for its design and execution, 
 
 pointment in 1841 until his death. See E. A. Bowring's paper in 19th 
 
 (Com. Papers, 1863, v. 16, p. 323 ; Cent. v. 2, p. 62. 
 
 Martin's Pr. Consort, v. 1, p. 119). * Earl Derby and Mr. Disraeli in 
 
 He was also President of the Royal Hans. D. v. 165, pp. 27, 69. 
 
 Commission for the International * See ante, p. 267. \ 
 Exhibition of 1851 ; and to him is due 
 
 VOL. I. X
 
 306 THE SOVEREIGN. 
 
 sentation, or through the medium of ministers, who are 
 responsible to parliament for every public act of their 
 sovereign, as well as for the general policy of the 
 government which they have been called upon to ad- 
 minister. This has been termed the theory of Royal 
 Impersonality. But the impersonality of the crown only 
 extends to direct acts of government. The sovereign 
 retains full discretionary powers for deliberating 
 and determining upon every recommendation which 
 is tendered for the royal sanction by the ministers 
 of the crown; and, as every important act of adminis- 
 tration must be submitted for the approval of the 
 crown, the sovereign, in criticising, confirming, or dis- 
 allowing the same, is enabled to exercise a beneficial 
 influence and an active control over the government of 
 the country. In the gradual but almost entire trans- 
 formation which the kingly office has undergone, since 
 the substitution of parliamentary for personal govern- 
 ment, the functions of royalty are still vital if less con- 
 spicuous than before. They are now chiefly fulfilled in 
 the exercise of a direct and personal influence in the 
 whole work of government. 15 
 
 In the fulfilment of the functions of royalty, much 
 must always depend upon the capacity and personal cha- 
 racter of the reigning monarch. The sovereign ' should 
 be, if possible, the best informed person in the empire, as 
 to the progress of political events and the current of 
 political opinion both at home and abroad.' 'Ministries 
 change, and when they go out of office lose the means 
 of access to the best information which they had 
 formerly at command. The sovereign remains, and to 
 him this information is always open. The most patri- 
 otic minister has to think of his party. His judgment, 
 therefore, is often insensibly warped by party consider- 
 ations. Not so the constitutional sovereign, who is 
 
 b Seo Mr. Gladstone, in Cont. Rev. v. 20, pp. 10-15.
 
 NECESSITY FOR REGAL VIGILANCE. 307 
 
 exposed to no such disturbing agency. As the perma- 
 nent head of the nation he has only to consider what is 
 best for its welfare and its honour ; and his accumulated 
 knowledge and experience, and his calm and practised 
 judgment, are always available in council to the ministry 
 for the time, without distinction of party.' c 
 
 But in order to discharge his functions aright, it is Duty of a 
 indispensable that the sovereign should be ready and 
 willing to labour, zealously and unremittingly, in his 
 high vocation ; otherwise he will be unable to cope 
 with the multifarious and perplexing details of govern- 
 ment, or to exercise that controlling power over state 
 affairs which properly appertains to the crown. On 
 the other hand, a sovereign who, from whatever cause, 
 is indifferent to the exercise of his kingly functions, 
 may neglect the administrative part of his duties, and, 
 if he be served by competent ministers, the common- 
 wealth will suffer no immediate damage. But, in such 
 a case, the legitimate influence of the monarchical 
 element in the constitution is impaired, and is rendered 
 liable to permanent deprivation.* 1 Moreover, while a 
 sovereign may forego the active control of the affairs of 
 state without apparent public loss, provided his ministers 
 are able and patriotic, the moment political power falls 
 into the hands of self-seeking and unscrupulous men, 
 the nation is deprived of the check which a vigilant 
 and upright monarch alone can maintain a check no 
 less valuable because unseen, but which may suffice, 
 upon an emergency, to save the country from mis- 
 government. For the sovereign can always dismiss a 
 ministry, and summon another to his councils, provided 
 
 c Prince Albert's words, quoted in 313-316. See also, on the advan- 
 
 Martin's Pr. Consort, v. 2, -p. 159 ; tages derivable from the experience 
 
 and see Ib. p. 300. Mr. Disraeli's of a sagacious king, Bagehot, on the 
 
 speech at Manchester, April 3, 1872. Eng. Const, pp. 103-109. Prince 
 
 And in respect to George III. see Albert, as alter ego of the Queen, rea- 
 
 ante, p. 283. See also articles in the lised, in a pre-eminent degree, his 
 
 Sat. Rev. Nov. 8, 1862 ; June 4, own ideal of the kingly office. 
 1864; Martin's Pr. Consort, v. l,pp. d See Bagehot, pp. 112-116. 
 
 x 2
 
 >08 THE SOVEREIGN. 
 
 Coustitu- he does so not for mere personal considerations, but for 
 siSono? reasons of state policy, which the incoming administra- 
 te sove- tion can explain and justify to the satisfaction of. Par- 
 liament. This branch of the royal prerogative will 
 presently engage our special attention. 
 
 It need scarcely be urged that the possession of a 
 high personal character and a cultivated intellect are of 
 vital consequence to the sovereign, to fit him for his 
 rightful position in the inner councils of the state. 
 Therein, the king must be regarded as, in fact, the per- 
 manent president of his ministerial council, with liberty 
 to share in the initiation as well as in the maturing of 
 public measures ; provided only that he does not limit 
 the right of his ministers to deliberate in private before 
 submitting for his approval their conclusions in council ; 
 whilst they, on the other hand, are equally careful to 
 afford to their sovereign an opportunity of exercising 
 an independent judgment upon whatever advice they 
 may tender for his acceptance. For it is the duty of 
 the sovereign to subject every recommendation of his 
 ministers to the scrutiny of an intelligent and impartial 
 mind, intent only upon the promotion of the public 
 good.* Should such a necessity unfortunately arise, a 
 prudent and sagacious monarch while unable to im- 
 pose his personal views upon his ministers, or to shape 
 a policy for their guidance can do much to moderate 
 party asperities, rebuke selfish and unworthy aims, and 
 encourage patriotism, by bringing to bear upon his 
 ministers a healthy moral influence, similar to that 
 which proceeds from an enlightened public opinion. 
 
 On the wider field of national and non-political 
 pursuits, wherein the individuality of the sovereign is 
 equally excluded from direct interference, the moral 
 influence of the crown, as a means of promoting the 
 public welfare, is of incalculable weight and value. It 
 
 f See post, v. 2.
 
 PERSONAL PRE-EMINENCE OF THE KING. 309 
 
 properly devolves upon the constitutional sovereigns of 
 England to employ this powerful influence for the en- 
 couragement of public and private morality, for the 
 advancement of learning, and for the diffusion of civili- 
 sation among their peopled The favour of the monarch 
 is always an object of honourable ambition, and, when 
 worthily bestowed, will nerve the arm and excite the 
 brain to deeds which deserve a nation's gratitude, and 
 bring renown upon the whole empire. 
 
 With such advantages resulting from monarchical import- 
 rule, it were vain to imagine that, because the direct the kingly 
 interference of the crown in acts of government is for- office> 
 -bidden by the spirit of the constitution, therefore 
 royalty has ceased" to be anything but an empty phan- 
 tom or a costly pageant. Though divested, by the 
 growth and development of our political institutions, of 
 direct political power, the crown still retains immense 
 personal and social influence for good or evil. ' The 
 king's name is a tower of strength ; ' and without the 
 blessing of headship, in the person of an hereditary 
 sovereign, the time-honoured institutions of England 
 would sink at once to the level of a democracy, and the 
 good government of the country would be jeopardised, 
 if not overthrown, by the strife and cupidity of rival 
 factions contending for the mastery. h 
 
 One of the most important branches of the regal Cere- 
 functions is that wherein the crown, as ' the symbol of and per- 
 national sovereignty,' appears in public for the perform- sonalfunc - 
 
 g See Harris on Civilisation, pp. rational recreation of the people. See 
 
 291-294. Thus, upon the occurrence the letter with the Mayor's reply in 
 
 of a frightful catastrophe to a female the Ann. Reg. 1863, Chron. p. 122. 
 
 performer on the tight- rope, at Aston This ' personal and direct rebuke' by 
 
 Park, near Birmingham, Sir C. B. her Majesty led, we are told, to ' the 
 
 Phipps, by command of the Queen, instant destruction of Blondinism ' in 
 
 wrote to the Mayor of Birmingham, Great Britain. Viet. Mag. v. 29, p. 
 
 on July 25, 1803, to express her Ma- 229. And see Louis Blanc's Letters 
 
 jesty's desire that he would use his on England, 2nd S. v. 1, p. 271 ; and 
 
 influence to prevent in future such Hans. D. v. 211, p. 1733. 
 demoralising exhibitions in a place h See Cox, Eng. Govt. p. 634. 
 intended for the healthy exercise and
 
 310 THE SOVEREIGN. 
 
 ance of those acts of state which peculiarly appertain 
 to the kingly office such as opening and proroguing 
 Parliament, holding public receptions, or ceremonials 
 for conferring marks of distinction and royal favour 
 upon particular persons, and according, on behalf of the 
 nation, a hospitable welcome to foreign sovereigns, or 
 other eminent persons from abroad, who may visit the 
 kingdom. These duties, while they frequently entail 
 heavy burdens upon the sovereign, cannot be inter- 
 mitted except for unavoidable causes, and for a limited 
 time without impairing the dignity and influence of 
 the crown itself. The presence of the sovereign in the 
 midst of his people, dispensing favours, or engaged in 
 the performance of high acts of state, affords oppor- 
 tunity for the public expression of the loyalty or 
 personal devotion of the people to their king. This 
 elevated Christian sentiment is of the greatest value in 
 uniting together the ruler and the subject, so that 
 fidelity and attachment to the monarchy become a 
 part of the national life. 1 But ' loyalty needs to be 
 stimulated by external display, by the pomp and cir- 
 cumstance of power, by all the kindly feejings which 
 personal intercourse creates between sovereign and 
 subject. If a sovereign omits to keep it alive by such 
 means, he leaves unfulfilled that one function which no 
 one else can perform in his stead.' 3 
 
 Moreover, notwithstanding the supreme political 
 power which is concentred in the hands of the prime 
 minister for the time being, the court, presided over by 
 Social pre- the sovereign, is still the highest point in the social 
 scale. No prime minister, or leader of a political party, 
 can attempt to vie with his sovereign in this particular. 
 The personal pre-eminence of the king invests himself 
 and his surroundings with a dignity which is absolute 
 
 1 On this point see Austin, Plea for J Sat. Rev. March 26, 1864. 
 the Const, p. 37.
 
 COURT INFLUENCE. 311 
 
 and unapproachable. The most exalted position in 
 English society is thereby withdrawn from the arena of 
 political competition, which is an immense benefit to 
 the best interests of the nation. Were it otherwise, 
 ' politics would offer a prize too dazzling for mankind.' 
 If, in addition to the advantages that at present attend 
 upon a successful parliamentary career, ' the highest social 
 rank was to be scrambled for in the House of Commons, 
 the number of social adventurers there would be incal- 
 culably more numerous, and indefinitely more eager ; ' 
 and an overwhelming preponderance would be given to 
 a force which is ' already perilously great.' k From all 
 these disturbing influences, our political system has been 
 preserved by the position assigned therein to the monarch. 
 The court of our sovereign is therefore an important 
 element in the forces whereby the legitimate influences of 
 royalty make themselves felt in the body politic ; and if 
 the favour and hospitalities of the court are beneficially 
 dispensed and its recreations becomingly directed into 
 moral and healthful channels the social and moral 
 tone of the upper classes, and by their example, of the 
 whole community, are proportlonably elevated. 1 
 
 The foregoing definition of the true place and work 
 of the sovereign in the British Constitution, as now ad- 
 ministered, may be suitably illustrated by reference to 
 the recorded opinions of eminent statesmen of our own 
 day upon this topic : 
 
 Lord Brougham, in his ' Historical Sketches,' has the following Lord 
 weighty remarks : ' The question is, Does the king of this country Brougham 
 hold a real or only a nominal office ? Is he merely a form, or is he ?? , e 
 a substantive power in our mixed and balanced constitution ? Some office, 
 maintain nay, it is a prevailing opinion among certain authorities 
 of no mean rank that the sovereign, having chosen his ministers, 
 assigns over to them the whole executive power. They treat him as 
 
 k Bagehot, Eng. Const, p. 73. see a well- written ' Letter to the 
 
 1 See Mr. Gladstone on this subject Queen, on her Retirement from Public 
 
 in Cont. Rev. v. 26, p. 13, and in the Life : by one of her Majesty's most 
 
 Church Quar. Rev. v. 3, p. 487. And Loyal Subjects ' (London, 1875).
 
 312 THE SOVEREIGN. 
 
 a kind of trustee for a temporary use, to preserve, as it were, some 
 contingent estate ; or a provisional assignee, to hold the property of 
 an insolvent for a day, and then divest himself of the estate by as- 
 signing it over. They regard the only power really vested in the 
 crown to be the choice of ministers, and even the exercise of this to 
 be controlled by Parliament. They reduce the king more completely 
 to the condition of a state pageant, or state cypher, than one of 
 Abbe" Sieyes' constitutions did, when he proposed to have a grand 
 functionary with no power except to give away offices ; upon which 
 Napoleon, then First Consul, to whom the proposition was tendered, 
 asked if it well became him to be made a ' Cochon a 1'engrais a la 
 somme de trois millions par an ? ' m The English animal, according 
 to the Whig doctrine, much more nearly answers this somewhat 
 coarse description ; for the Abbe's plan was to give his royal beast a 
 substantial voice in the distribution of all patronage, while our lion 
 is only to have the sad prerogative of naming whomsoever the Par- 
 liament chooses, and eating his own mess in quiet, 
 
 ' Now, with all the disposition in the world to desire that the 
 royal prerogative should be restricted, and the will of the nation 
 govern the national affairs, we cannot comprehend this theory of a 
 monarchy. It assigns to the crown either far too much revenue, or 
 far too little power. To pay a million a year, or more, for a name 
 seems absurdly extravagant. To affect living under a kingly 
 government, and yet suffer no kind of kingly power, seems extrava- 
 gantly absurd. Surely the meaning of having a sovereign is, that 
 his voice should be heard, and his influence felt, in the administra- 
 tion of public affairs. The different orders of the state have a right 
 to look towards that high quarter all in their turn for support, when 
 their rights are invaded by one another's encroachments, or to claim 
 the royal umpirage when their mutual conflicts cannot be settled by 
 mutual concessions ; and unless the whole notion of a mixed mon- 
 archy, and a balance of three powers, is a mere fiction and a dream, 
 the royal portion of the composition must be allowed to have some 
 power to produce the effect upon the quality of the whole. It is 
 not denied that George III. sought to rule too much it is not main- 
 tained that he had a right to be perpetually sacrificing all other con- 
 siderations to the preservation or extension of his prerogative : but 
 that he only discharged the duty of his station by thinking for himself, 
 acting according to his conscientious opinions, and using his influence 
 for giving these opinions effect, cannot be denied.' . . . ' George III. 
 set one example which is worthy of imitation in all times. He 
 refused to be made a state puppet in his minister's hands, and to let 
 his name be used either by men whom he despised, or for purposes 
 which he disapproved. Nor could any one ever accuse him of ruling by 
 
 m A hog to be fatted at the rate of 120,000/. a year,
 
 THE SOVEREIGN NOT A MERE FIGURE-HEAD. 
 
 313 
 
 favourites ; still less could any one, by pretending to be the people's 
 choice, impose himself on his vigorous understanding.' n 
 
 Again, in his ' Political Philosophy,' Lord Brougham interprets 
 the British Constitution as intending that the opinions of the 
 monarch should have a sensible weight, even against the most con- 
 flicting sentiments of the people and of the peers, and that the 
 individual monarch should be a substantive part of the political 
 system, as a check on the other branches. 
 
 In his Essay on Parliamentary Government,? Lord Grey thus ex- 
 presses himself : ' There is a further safeguard against abuse, in its 
 being requisite that the ministers of the crown should obtain its 
 direct sanction for all their most important measures. The crdwn, 
 it is true, seldom refuses to act upon the advice deliberately pressed 
 upon it by its servants, nor could it do so frequently without 
 creating great inconvenience. But the sovereigns of this country 
 nevertheless may, and generally have exercised much influence over 
 the conduct of "the government ; and in extreme cases the power of 
 tfie crown to refuse its. consent to "what is proposed by its servants 
 may be used with the greatest benefit to the nation. A refusal on 
 the part of the sovereign to sanction measures which the ministers 
 persist in recommending as indispensable, is indeed a legitimate 
 ground for their resignation : and if the question which leads to this 
 is one on which they have the support of public opinion, they must 
 in the end prevail. But if this high power is exercised with wisdom, 
 and is reserved for great emergencies, the crown may generally cal- 
 culate on the support of the nation in refusing to sanction measures 
 improperly pressed upon it by its ministers, especially where the 
 measures so urged involve an abuse of the royal authority for their 
 own party objects.' 
 
 The late Earl of Derby, speaking in Parliament on this subject, 
 has said : ' The people of this country are under a great mistake if 
 they suppose that the sovereign does not exercise a real, salutary, 
 and decided influence over the councils and government of the 
 country. The sovereign is not the mere automaton, or puppet, of 
 the government of the day. She exercises a beneficial influence and 
 control over the affairs of the state ; and it is the duty of the 
 minister for the time being, in submitting any proposition for the 
 assent of her Majesty, to give satisfactory reasons that such propo- 
 
 n Historical Sketchesof Statesmen, 
 in the Time of George III. 1st S. ed. 
 1839, pp. 12-14. But when Lord 
 Brougham was a cabinet minister, 
 in the reign of William IV., his 
 treatment of the king was hardly in 
 accordance with this deliberately ex- 
 pressed opinion of the political rights 
 
 of the sovereign. See the Duke of 
 Somerset on Monarchy and Demo- 
 cracy, p. 8. 
 
 V. 3, p. 302. But see Mr. 
 Senior's comments upon this pa ssage, 
 in his Historical Essays, v. 1, p. 347. 
 
 P New ed. pp. 5, 6. 
 
 Earl Grey 
 on the 
 kingly 
 office. 
 
 EarlDerby 
 on the in- 
 fluence of 
 the sove- 
 reign.
 
 314 THE SOVEREIGN. 
 
 sitions are called for by public policy, and justified by the public 
 interests. If the sovereign is not satisfied with the advice tendered 
 to her, if, either from the suggestions of her own mind, or from 
 objections which may be suggested to her [by the Prince Consort] 
 her Majesty is of opinion that she will not accept the advice of the 
 responsible minister of the crown, the course of the crown and 
 the minister is equally open. The course of the crown is to refuse 
 to accept that advice of the minister, and the inevitable consequence 
 to the minister would be the tender of his resignation.' 1 
 
 The influence which properly appertains to the 
 opinions of the sovereign, when constitutionally ex- 
 pressed, would naturally be exerted in such an emer- 
 gency to place the government of the country in the 
 hands of a minister whose policy was in accordance 
 with the views entertained by the crown itself ; but 
 un ess those views found a response from the nation at 
 large, and were accepted by Parliament, they could not 
 ultimately prevail. For ' the greater part of the power 
 still practically retained by the crown depends upon 
 the influence it can exercise on individual statesmen, 
 and through them on the dominant party of the day.' r 
 In the last resort, no opinions or policy can be carried out 
 by the government of England but such as meet with 
 the sober approval of Parliament and of the people. 3 
 
 The term ' prerogative ' in its primary sense is used 
 to express the freedom of independent action which 
 belongs to the sovereign.* This freedom of action, in 
 the limited monarchy of England, is, as we have already 
 pointed out, so restricted and controlled by constitu- 
 tional maxims, which have practically the force of law, 
 that it is powerless for evil, however potent and bene- 
 ficial may be its occasional exercise, to correct or abate 
 the injurious consequences of ministerial action or ad- 
 vice. For while the sovereign is free to accept or reject 
 
 i Hans. D. v. 130, p. 103. And ' See further, on this point, post, 
 
 see Mr. Disraeli's observations, Ib. v. v. 2. 
 
 188, p. 1113; v. 191, p. 1705. Earl * See Amos, Fifty Years of the 
 
 Uranville, Ib. v. 193, p. 290. Eng. Const, p. 260. 
 
 r Quar. Kev. v. 123, p. 544.
 
 COURT FAVOUR. 315 
 
 the advice of his ministers, upon any matter, by reason 
 of the prerogative of the crown, the action of the sove- 
 reign, under such circumstances, must be sustained by 
 ministers, or it will fail to secure the approval of Parlia- 
 ment, or the consent of the nation." 
 
 The power of the sovereign in England, as has been influence 
 well remarked by a recent political writer, is consider- sovereign 
 ably increased when rival political parties are evenly in P L il ?' 
 
 11 i MI 11 r cal affairs. 
 
 balanced ; and ' it rises still higher when the competi- 
 tion between the various statesmen of all parties be- 
 comes close. For, though the rise and fall of parties is 
 decided in the main by the constituencies, their power 
 extends only in very rare cases to the careers of indi- 
 vidual politicians. Unless a man be singularly eminent, 
 the sovereign can place a ban upon him, and exclude 
 him, if not from all office, at least from the highest 
 office, without any great risk of a collision with the 
 House of Commons or the people. Court favour, there- 
 fore, is no matter of tinsel, but an object of substantial 
 importance to politicians ; and the fear of losing it 
 avails, to a certain extent, to mould their policy, 
 -whether they are in office or in opposition. If this spe- 
 cies of influence were merely used to give a due weight 
 to the personal opinions of the sovereign, there would 
 be no reason to complain, and its exercise would be ac- 
 quiesced in cheerfully.' In past times there have been 
 ' obscure favourites concealed under the shadow of the 
 throne,' whose conduct gave rise to complaints of un- 
 authorised advice and backstairs influence ; but ' in our 
 day the sense of honour has become keener, and po- 
 litical combatants no longer consider stratagems of this 
 kind legitimate. ' v 
 
 Let us now consider the prerogative of the crown 
 in the appointment of ministers of state, to whom the 
 government of the country is to be entrusted. 
 
 u See Amos, Fifty Years of the v Sat. Rev. Aug. 1, 1863, p. 142. 
 Eng. Const, p. 307.
 
 316 THE SOVEREIGN. 
 
 Appoint- From the high and commanding position occupied 
 
 masters ^J tne sovereign, it would be natural to infer that he 
 by the should be free to secure the services of the wisest and 
 ablest men for this purpose. Accordingly the British 
 Constitution distinctly recognises the right of the sove- 
 reign to make choice of all his responsible ministers, 1 " 
 and the continuance of the royal confidence in an ex- 
 isting ministry is an. essential prerequisite to its remain- 
 ing in office. 
 
 their Commenting upon the exercise of this branch of the 
 
 dismissal, royal prerogative, Lord Brougham asserts that it is the 
 ' unquestioned power of the crown to choose and to 
 change its servants ; ' and that ' no one would think of 
 questioning the foundation of this power, of objecting 
 to its existence, or of wishing to restrict it,' provided 
 only that it is exercised ' on grounds capable of being 
 stated and defended.' The grounds upon which the 
 sovereign may constitutionally dismiss a ministry he 
 has thus defined : ' If they exhibit internal dissensions 
 amongst themselves ; if they differ from the sovereign, 
 or from the country at large [upon a question of public 
 policy] ; if their measures are ruinous to the interests 
 of the country, at home or abroad ; or if there should 
 exist a general feeling of distrust and disapprobation of 
 them throughout the country. ' x 
 
 Furthermore, as observed by Mr. Pitt, ' the sove- 
 reign exercises his opinion on the sentiments as well as 
 capacity of his ministers ; and if upon either he judges 
 them to be incompetent, or in any degree unfit, it is the 
 prerogative and, with perfect loyalty let me add, the 
 duty of the crown to dismiss such ministers.' 7 For 
 ' the king cannot be required to take advice from men 
 in whom he cannot confide ; and, were there no other 
 
 w Ilallam, Const. Hist. v. 3, p. And see May, Const. Hist. v. 1, 
 
 392. And see a resolution of the p. 122. 
 House of Lords, on Feb. 4, 1784. y Parl. Hist. v. 35, p. 1121. 
 
 1 Mir. of Parl. 1835, pp. 28, 29.
 
 APPOINTMENT AND DISMISSAL OF MINISTERS. 317 
 
 reason, a diminution of confidence is a sufficient ground 
 for a change in his Majesty's councils.' 2 But these ab- 
 stract considerations, as will be hereafter shown, are 
 modified and restrained by the necessity for obtaining 
 the approval of Parliament to the choice of ministers by 
 the crown. For constitutional usage requires that the 
 sovereign shall not exercise his undoubted right of dis- 
 missing his ministers for mere personal motives, but 
 solely in the interests of the state, and on grounds which 
 can be justified to Parliament.* 
 
 It is the undeniable right of either House of Parlia- Advice of 
 ment to advise the crown upon the exercise of this or m " n t a <>n 
 any other of its prerogatives ; but this right cannot be th< ? ap " 
 
 T f, -, . pomtment 
 
 pressed so far as to render the sovereign ' accountable of mi 
 to Parliament for his conduct in changing his advisers,' 
 or as to entitle Parliament ' to question the motives of 
 his Majesty for dismissing ministers who had lost his 
 confidence.' b 
 
 The House of Lords have nothing to say to the changes which 
 may take place in his Majesty's councils. It is his Majesty's prero- 
 gative to appoint his own ministers, and to change them as he 
 pleases ; and the House of Lords cannot take into consideration the 
 special circumstances under which such changes have been made, 
 except in particular cases, in which an administration has been re- 
 moved in consequence of an address from this house. 
 
 It has been contended, indeed, that ' it is the right and 
 privilege of the House of Commons to express its opinion 
 and judgment, and even to offer advice to the sovereign, 
 as to the circumstances under which, and the mode in 
 which, he may have been advised to exercise his un- 
 doubted prerogative of choosing the ministers of the 
 crown. ' d But such an interference with the free choice 
 of the sovereign would be justifiable only in the extreme 
 
 z Ld. Selkirk, Parl. D. v. 9, p. 377. 377. And see Ld. Colchester's Diary, 
 
 See Mr. Gladstone's comments upon v 2, p. 119. 
 
 the dismissal of the Melbourne Minis- c Duke of Wellington, Parl D 
 
 try, in 1834, by William IV. Glean- N.S. v. 17, p. 455. 
 ings of the Past Years, v. 1, p. 231. d Lds. Morpeth and Stanley Mir 
 
 a See post. v. 2. of Parl. 1835, p. 74. 
 
 b Ld. Selkirk, Par!. D. v. 9, p.
 
 318 
 
 THE SOVEREIGN. 
 
 case, if we may suppose that such could occur, wherein 
 the crown had selected unfit or improper persons as its 
 advisers. 6 In all ordinary circumstances, the ministers 
 chosen by the sovereign are entitled to receive from 
 Parliament, if not ' an implicit confidence,' at the least 
 a fair trial. < a f a i r trial.' f This has been the established rule and 
 practice of the constitution, as the following cases will 
 show : 
 
 King's 
 ministers 
 
 Sove- 
 reign's 
 right to 
 nominate 
 ministers. 
 
 When Mr. Pitt was appointed prime minister by George III., in 
 1 783, in the face of a hostile majority in the House of Commons, he 
 braved the fierce opposition with which he was encountered, and 
 disregarded the factious obstructions of his foes, until he was in a 
 position to dissolve Parliament and appeal to the people.e Advert- 
 ing, nearly twenty years afterwards, to the conduct of the House of 
 Commons upon this occasion, Mr. Pitt declared that amidst all the 
 violence which characterised the proceedings of the House at the 
 time, the ' general principle ' of the sole right of the king to nominate 
 his ministers ' had never been attempted to be denied in the abstract.' 11 
 The hostility of the House to Mr. Pitt arose, according to Sir Robert 
 Peel, from a suspicion that he owed his appointment to unconstitu- 
 tional motives ; that is to say, to the exercise of secret influence, by 
 means of which it was notorious that the previous administration 
 had been overthrown. But Mr. Pitt took his stand upon the princi- 
 ple that it was irregular for the House to endeavour to control the 
 prerogative of the crown in the choice of its ministers, by denounc- 
 ing them without waiting to see their acts. 1 
 
 In 1801, after the retirement of Mr. Pitt from office, and the 
 appointment of Mr. Addington to the premiership, an arrangement 
 which was not satisfactory to Parliament, Mr. Pitt expressly claimed 
 for the king ' the sole right of nominating his ministers,' and con- 
 tended ' that the House had no right to form any resolution till 
 their conduct came to be judged of by the acts of their administra- 
 tion.' He asserted, moreover, that the new ministers were entitled, 
 at the outset, to ' a constitutional confidence ' ; in other words, ' that 
 unless some good reason were assigned to the contrary, the House 
 was bound, by the best principles of policy, as well as by the true 
 spirit of the constitution, to wait to see the conduct of the ministers 
 of the crown before they should withhold their confidence. 'J The 
 
 ' Ld. Selkirk's speech, Parl. D. v. 
 0, p. 377. And see Adolphus, Hist, 
 of KPK. v. 3, p. 46(5, n. 
 
 < Sir R. Peel's Mem. v. 2, p. 07. 
 Hans. D. v. 101, p. 1728. 
 
 K See ante, p. 144. 
 h Parl. Hist. v. 35, p. 9fi2. 
 ' Mir. of Parl. 1841, p. 1937. 
 J See ante, p. 150.
 
 HIS RIGHT TO APPOINT MINISTERS. 319 
 
 House of Commons acquiesced in this reasoning, and refrained from 
 any attempt at disturbing the new ministry. 
 
 In 1807, after the dismissal by George III. of the Grenville ad- 
 ministration, and the appointment of the Duke of Portland's 
 ministry, debates arose in both Houses of Parliament upon this 
 event, and upon the circumstances which had given rise to it. The 
 ex-ministers had a majority in both Houses. Their friends accord- 
 ingly endeavoured to embarrass the new government by proposing 
 resolutions expressive of regret at the change in the royal councils. 
 But Parliament, while they were inclined to approve of the conduct 
 of the late ministry in the matter which had occasioned their dis- 
 missal, refused to concur in resolutions of censure, or to take any 
 steps which would appear like an attempt to limit the exercise of 
 the prerogative by refusing to the new ministers of the crown a fair 
 trial. Accordingly the resolutions were superseded in the Lords by 
 a motion of adjournment, and in the Commons by a resolution to 
 pass on to the orders of the day. k During the debate in the House 
 of Commons, Sir William Grant took occasion to show that the 
 attempt of the late ministers to convert Parliament into a court of 
 appeal against the king's decision was unwarrantable and unprece- 
 dented. 1 
 
 In 1812, the newly appointed ministry of Lord Liverpool was 
 vehemently assailed in the House of Commons, and motions were 
 submitted to express regret that men had not been chosen who 
 were more entitled to the support of Parliament, and to the confi- 
 dence of the country. But after much debate it became apparent 
 -that the sense of the House was opposed to any proceedings that 
 might appear like an attempt to dictate to the crown in regard to the 
 choice of its advisers. The leader of the government, moreover, 
 claimed for the new ministry ' the constitutional support of Parliament 
 till their actions should show them to be unworthy of it.' The 
 several motions of censure were then put and negatived. 1 " 
 
 In 1834 Sir Robert Peel, by desire of William IV., undertook 
 the formation of a ministry, although his party was in a decided 
 minority in the House of Commons. A dissolution of Parliament 
 ensued, but this did not add very materially to the strength of the 
 new administration. Ministers sustained very severe defeats in the 
 new House ; nevertheless, Sir R. Peel refused to resign, saying, ' I 
 hold there is nothing unconstitutional, in the post I fill, and in the 
 fulfilment of my duty, to persevere in the discharge of those duties 
 to which my sovereign has called me, in defiance of the majority 
 that is against me upon any abstract question, &c. I will perform 
 
 k See ante, p. 158. mons after the death of Mr. Perceval : 
 
 1 Parl. D. v. 9, p. 474. See also ante, p. 164. 
 the proceedings in the House of Coin- bee ante, pp. 172, 173.
 
 320 
 
 THE SOVEREIGN. 
 
 my duty until the House shall by its vote refuse its sanction to some 
 measure of importance which I think necessary to submit to its 
 consideration.' n He accordingly persisted in the attempt to maintain 
 his position, in the face of repeated defeats in the Commons for 
 nearly two months ; when, being convinced of the evil of permitting 
 the House of Commons to exhibit itself to the country free from 
 any control on the part of the government, and believing that ' in 
 conformity with the constitution, a government ought not to persist 
 in carrying on public affairs, after a fair trial, against the decided 
 opinion of a majority of the House of Commons,' he resigned, and a 
 new ministry, whose views were in accordance with the opinions of 
 the Commons, was appointed. 
 
 Earl Derby in 1852, in 1858, and in 1866, assumed the reins of 
 government, by command of the Queen, with an adverse majority in 
 the House of Commons. Upon each occasion the new ministry 
 were treated with great forbearance by the House, and were per- 
 mitted to remain in office without molestation or annoyance until 
 they had developed their policy, and had shown themselves to be 
 decidedly at issue with the House of Commons upon some great public 
 question.? 
 
 The Conservative ministry, appointed in July 1866, continued in 
 office for nearly two years and a half, notwithstanding that their 
 party was in a minority in the House of Commons. 3 
 
 The interval between the resignation or dismissal of 
 a ministry, and the appointment of their successors, 
 varies according to the exigency of the case, and the 
 
 Delays in 
 forming 
 a new 
 ministry. 
 
 thecrown difficulties that may attend the formation of another 
 thereon. ca binet. During this interval, should it appear expe- 
 dient to either House to tender advice to the sovereign 
 in regard to the formation of a ministry whether it be 
 to urge the appointment of a strong and efficient ad- 
 ministration, or even to indicate the political character 
 of a ministry that would prove acceptable to Parlia- 
 ment it is perfectly constitutional to do so. 
 
 In 1783, thirty-seven clays (February 24 to April 2) elapsed be- 
 tween the resignation of the Shelburne ministry and the appoint- 
 ment of a Coalition ministry, under the Duke of Portland, On 
 March 24, the Commons passed an address to the king, praying him 
 
 n Mir. of Pnrl. 1835, p. 135. Hans. 
 J). v. 119, p. 1278. 
 See ante, p. 199. 
 
 Ib. pp. 221, 228, 237. 
 Ib. p. 237.
 
 FORMATION OF A NEW MINISTRY. 321 
 
 to form a strong and united administration. His Majesty sent a p rece _ 
 gracious reply to this address through Earl Ludlow, 1 " expressing his dents, 
 earnest desire to do everything in his power to comply with the 
 wishes of his faithful Commons. 8 On March 31, a motion was made 
 for the adoption of another address, representing the urgent necessity 
 which existed for the immediate appointment of an efficient and 
 responsible administration ; but after some debate, the motion, being 
 regarded as premature, was withdrawn.* 
 
 Upon the break-up of the Perceval administration, owing to the 
 assassination of the premier, on May 11, 1812, four weeks elapsed 
 before a new ministry, under the Earl of Liverpool, was appointed. 
 On May 21, a motion was made in the House of Commons for an 
 address to the Prince Regent, praying him to form a strong and effi- 
 cient administration. It being known that the former colleagues 
 of Mr. Perceval were desirous of remaining in office, and were in 
 communication with the prince upon the subject, the motion was 
 resisted by the friends of the late government, on the ground that it 
 was an attempt to interfere with the crown in the choice of its 
 servants, which was not justified by existing circumstances. The 
 motion was nevertheless agreed to by a small majority, and the 
 mover and seconder of the address were ordered to present it to 
 his Royal Highness. The mover reported on the following day that 
 the prince had promised that the address should receive his imme- 
 diate and serious consideration. Viewing this address as equivalent 
 to a declaration of their own inefficiency, the remaining members of 
 the administration immediately placed their offices at the disposal 
 t)f the Prince Regent. Negotiations were then commenced with the 
 Whig party, but they proved unsuccessful ; and the old ministry was 
 reinstated in office, under the premiership of the Earl of Liverpool." 
 
 During this interval, on May 30, and again on June 5, notice 
 was given in the House of Commons for a further address to the 
 Prince Regent, beseeching him to proceed without delay to appoint 
 a strong ministry, in which the House could confide. But the House 
 being informed that negotiations were in active progress, with every 
 prospect of a successful termination, the motions were not made. v 
 
 A fortnight elapsed between the resignation of Lord Liverpool, 
 on March 27, 1827, and the appointment of the Canning administra- 
 tion. Meanwhile, after eight days had elapsed, notice was given, for 
 April 6th, of an address to the crown, to be pleased to appoint a 
 ministry who were unanimous on questions of vital importance to 
 the empire. But when the day arrived for bringing on this motion, it 
 was withdrawn upon an intimation that the formation of a ministry 
 
 r He was Comptroller of the ' II. March 31, 1783. 
 Household. u See ante, pp. 161-172. 
 
 5 Com. Jour. March 20, 1783. " Ib. pp. 168, 170. 
 
 VOL. I. Y
 
 322 THE SOVEREIGN. 
 
 was about to take place. Four days afterwards the Canning 
 ministry was appointed. w 
 
 Precedents Upon the resignation of the Grey ministry, on May 8, 1832, 
 of prpce- consequent upon their defeat upon the Reform Bill in the House of 
 ! " Lords, the House of Commons passed an address to the king on the 
 forming 10th inst., expressing their deep regret at the retirement of ministers, 
 new minis- an( j imploring his Majesty ' to call to his councils such persons only 
 as will carry into effect, unimpaired in all its essential provisions,' 
 the measure of Reform to which the House had recently agreed. 
 The address was ordered to be presented by members of the House 
 who were of the Privy Council. 1 Four days having elapsed without 
 the reception by the House of any reply to their address, the Speaker 
 was questioned upon the subject. He could only state that the ad- 
 dress had been placed in proper hands for presentation, and suggest 
 that his Majesty, not having any responsible minister or confidential 
 adviser, might think it better to delay sending an answer till he had 
 such a minister, through whose hands it might be conveyed. This 
 surmise was afterwards confirmed, and declared to have been the 
 reason why no reply had been sent to the address, by the Chancellor 
 of the Exchequer, upon his return to office.y For the king, having 
 failed in the attempt to form a Tory administration, had been obliged 
 to recall his late advisers. 
 
 Ten days elapsed between the resignation of Sir Robert Peel, in 
 1835, and the appointment of the Melbourne ministry ; and there 
 was a similar interval between the resignation of the Derby ministry, 
 in 1852, and the appointment of their successors. Upon neither of 
 these occasions was there any action taken by Parliament, although 
 a change of ministry is ordinarily effected within one week. 
 
 But on February 1, 1855, the Aberdeen Ministry resigned, and 
 the Palmerston Ministry accepted office on the 8th inst. Notwith- 
 standing this short interval, on the motion to adjourn the House of 
 Commons, on February 6, a short debate ensued, in which dissatis- 
 faction was expressed at the delay in forming a ministry, and hints 
 were given that, if much further delay occurred, it might be expe- 
 dient to address the crown upon the subject. 2 
 
 Having vindicated the right of the sovereign to the 
 free choice of his constitutional advisers, by whom the 
 administration of the government is to be conducted 
 a freedom which necessitates that they should be unre- 
 servedly accepted by Parliament at the outset of their 
 
 w See ante, pp. 174-177. r Ib. pp. 2024-2079. 
 
 * Mir. of Parl. 1832, pp. 1970- See ante, p. 224. 
 1992.
 
 CHOICE OR DISMISSAL OF MINISTERS. 323 
 
 career, and until they prove themselves by their general Personal 
 policy and public conduct to be undeserving of conn- lioiTof 
 dence it remains to be seen to what extent the sove- th . e 80 T e - 
 
 . . reign in 
 
 reign is at liberty to exercise his personal inclinations the forma- 
 in the choice or dismissal of individual ministers. ministry 
 
 The cabinet, as will be hereafter more fully explained, 
 is a committee of the Privy Council. The sovereign is 
 empowered by his prerogative to summon whom he will 
 to the Privy Council ; and he is at liberty to dismiss any 
 member thereof, at any time, who may incur his dis- 
 pleasure.* As every cabinet minister is necessarily a 
 member of the Privy Council, the sovereign is thereby 
 enabled to remove an obnoxious member from his cabi- 
 net council whenever he may think fit to do so. But 
 by modern constitutional practice the freedom of choice 
 possessed by the crown in the selection of its advisers 
 has been subjected to important limitations. 
 
 Theoretically, it is presumed that the sovereign acts 
 in this matter according to his own discretion. William 
 III., it is notorious, allowed no interference with his 
 own will in appointing whom he would to fill the high 
 -offices of state ; b but the necessities of parliamentary 
 government, coupled with the inferior capability of his 
 immediate successors upon the throne, soon entangled 
 the reigning monarch in the meshes of party, and de- 
 prived him of free agency, even in the choice of his own 
 ministers. 
 
 From the accession of the House of Hanover until 
 at least the year 1812, it appears to have been a funda- 
 mental article of the Whig creed that the ministers of 
 the crown, and especially the prime minister, should be 
 nominated by the chiefs of their own party, when in 
 power ; and that the choice of the sovereign, in regard 
 to his ministers generally, should be limited to the 
 
 See post, v. 2. b Macaulay, Hist, of Eng. passim* 
 
 y 2
 
 324 
 
 THE SOVEREIGN. 
 
 Nomina- 
 tion of 
 ministers 
 by the 
 crown. 
 
 members of certain leading aristocratic families. In 
 this they were partially successful, the earlier sovereigns 
 of this dynasty being unable to resist the strength of 
 the party by whom this claim was set up. But George 
 III., immediately upon his accession, endeavoured to 
 free himself from such trammels, and to break down 
 the great Whig oligarchy. As a matter of compromise, 
 he succeeded in making good his right to appoint a por- 
 tion of every administration, whilst the remainder were 
 nominated by the leading statesmen who were invited 
 to join the same. This arrangement appears to have 
 continued in operation until after the accession of 
 William IV. It was not until Sir Eobert Peel took 
 office, in 1834, that we find the present constitutional 
 practice which renders the prime minister responsible 
 for the choice of his colleagues distinctly and unre- 
 servedly established. d 
 
 In 1778, in view of the proposed retirement of Lord North, we 
 find George III. stipulating in regard to the personnel of the in- 
 coming administration. 6 
 
 In 1782, George III. was allowed to nominate Lord Thurlow as 
 Lord Chancellor and a member of the cabinet, whilst the Shelburne 
 and Rockingham parties introduced five members each. f Thurlow 
 was first appointed to the chancellorship in 1778, and continued to 
 hold the office during successive administrations, until 1792, on 
 account of the king's strong partiality for him. But the imprudence 
 of this arrangement was afterwards manifested by Thurlow's own 
 conduct, for he pertinaciously opposed the policy of his colleagues, 
 and boasted of his independence on the ground that he was ' the 
 king's friend.' & 
 
 During Mr. Pitt's administration, the king, who had great confi- 
 dence in that statesman, did not interfere at all in his arrangement 
 of the political offices, though in regard to some of them he privately 
 expressed his extreme disapprobation. 11 
 
 Duringthe Regency, in 181 2, the negotiations with Lords Grey and 
 
 e See ante, p.236. 
 
 d In regard to the deference paid 
 to the wishes of the sovereign, in the 
 choice, by the Premier, of his col- 
 leagues, see post, p.332. 
 
 Fitzraaurice, Life of Ld. Shel- 
 
 burne, v. 3, p. 20. 
 
 f Parl. D. v. 23, p. 413. 
 
 g Campbell's Chanc. v. 5, pp. 517, 
 611. 
 
 h Rose, Corresp. v. 2, pp. 158, 
 175.
 
 SELECTION OF PRIME MINISTER. 325 
 
 Grenville for the reconstruction of the ministry fell through, because Precedents 
 the Prince Regent claimed the right to nominate three members of of nomina- 
 the cabinet (including the prime minister) himself. This claim was m i n i s t er s 
 objected to by the Whig lords, not as being unconstitutional, but by the 
 because they deemed it to be opposed to the spirit of mutual conn- crown 
 dence and freedom from suspicion which ought to characterise the 
 cabinet council, and which rendered it essential that parties invited 
 to co-operate in forming an administration should be at liberty to 
 arrange its personnel amongst themselves. 1 
 
 In 1827, when George IV. accepted Canning as the head of a 
 coalition ministry, he imagined that he would be able to exercise, 
 more directly than before, personal influence and control in nomina- 
 tions to office. This led him to propose Herries as chancellor of 
 the exchequer, and though Canning made no objection to the choice, 
 Lord Lansdowne (with other of his colleagues) demurred to this de- 
 parture from constitutional usage, and tendered his resignation. 
 The king became alarmed. He consulted the Duke of Wellington, 
 who told him that the choice of a first minister must be the king's 
 own act ; that ' it was the only personal act the king of England 
 had to perform ; and that when he had appointed his first minister, 
 all the rest devolved upon the person so appointed, who became re- 
 sponsible for the king's acts.' Finally his Majesty yielded the point, 
 and induced Lord Lansdowne to remain in office.J 
 
 Nevertheless, in 1828, upon the formation of a ministry by the 
 Duke of Wellington, George IV. was requested to state 'whether 
 he had any wishes for particular persons, or objections to any 1 ' k 
 When, shortly afterwards, it became necessary to reorganise the 
 cabinet, upon the resignation of Mr. Huskisson and Lord Palmerston, 
 the king forwarded to the duke a list of his own, in which it was 
 proposed to assign different offices to the men recommended by the 
 duke for places in the ministry. The duke objected to the proposed 
 arrangement, whereupon his Majesty did not urge it any further. 1 
 
 Upon the formation of Sir Eobert Peel's administration, in 1834, 
 he being abroad when the king resolved upon selecting him as 
 premier, his Majesty appointed the Duke of Wellington to be secre- 
 tary of state, and named Lord Lyndhurst for the office of chancellor. 
 But it was distinctly understood that this was to be a mere 'ad 
 interim arrangement ; and upon the arrival of Sir Robert Peel in 
 England, three weeks afterwards, one of his first acts was the formal 
 recommendation to the king that the Duke of Wellington should be 
 
 1 Parl. D. v. 23, p. 428. k Peel's Mem.v. 1, p. 11. 
 
 i Torrens, Life of Melbourne, v. 1, ' Well. Desp. 3rd s. v. 4, pp. 455, 
 
 p. 233. Colchester's Diary, v. 3, p. 462, and v. 5, p. 134. 
 501.
 
 326 
 
 THE SOVEREIGN. 
 
 Free 
 
 choice of 
 the prime 
 minister 
 by the 
 crown. 
 
 Choice of 
 the pre- 
 mier by 
 his col- 
 leagues 
 in the 
 ministry. 
 
 appointed foreign secretary, and that Lord Lyndhurst should be 
 the chancellor. 
 
 It is only since the accession of George IV. that the 
 unrestricted choice of the crown in the selection of the 
 prime minister himself has been freely admitted by all 
 parties in the state. 
 
 During the debates on the Regency, in 1788, Mr. Pitt publicly 
 referred in the House of Commons to the pretensions of the Whig 
 party to be allowed to nominate the king's ministers, including 
 the prime minister. Mr. Fox, who was present, did not attempt 
 to deny the claim. 11 Its existence serves to explain many obscure 
 passages of political history, wherein ministerial negotiations, 
 otherwise promising, proved unsuccessful, because of the attempt 
 to assert the independence of the crown in the choice of its 
 first minister. It continued in operation until the time of the 
 Regency, when Lord Wellesley, having been authorised by the 
 Prince Regent to reconstruct the ministry, after the assassination of 
 Mr. Perceval, failed in the endeavour, as we learn upon Whig testi- 
 mony, mainly because that party had not been empowered to choose 
 the premier, although they were invited to enter a cabinet to be 
 formed upon their own political principles. In the debate upon the 
 failure of these negotiations, Mr. Canning adverted to this doctrine, 
 and claimed, on behalf of the constitution, that the crown should be 
 unfettered in the choice of its ministers, save only by the advice and 
 control of a free Parliament.? It is somewhat remarkable, however, 
 that Mr. Pitt, who in 1783 had contended for the rights of the 
 sovereign in this particular, should himself have been a party, in 
 1803, to a negotiation with Mr. Addington (the then prime minister) 
 for his own return to power, as the head of the administration, 
 without having previously obtained the consent of the king to the 
 proposed arrangement. The correspondence between Pitt and 
 Addington was presented to the king by the latter, after the scheme 
 had proved abortive ; but his Majesty refused to read it, caustically 
 remarking that ' it was a foolish business, which was begun ill, con- 
 ducted ill, and terminated ill.' Q 
 
 The Prince Regent being unable to reconstruct the ministry in 
 1812, in consequence of the obstinate adherence of the Whig leaders 
 to their favourite maxim, requiring a surrender of the prerogative 
 of the crown in the choice of its advisers as the condition of their 
 support and co-operation, his Royal Highness was induced to appoint 
 
 m Peel's Mem. v. 2, pp. 17, 27, 35. 
 D See ante, p. 125. Parl. Hist. v. 
 27, p. 772. 
 
 See historical precedents, cited 
 
 in Stapleton's Canning and his Times, 
 pp. 202-207. 
 
 P Parl. D. v. 23, p. 455. 
 
 q See ante, p. 151.
 
 SELECTION OF PRIME MINISTER. 827 
 
 Lord Liverpool to be first minister, because it was notorious that 
 every member of the ministry considered him the fittest person to be 
 placed at their head. It was thus that Lord Liverpool began his 
 long and prosperous career as premier. 1 " 
 
 After Lord Liverpool's resignation, in 1827, Mr. Canning was 
 obviously the one who, from his position and influence, should have 
 succeeded him ; but his known opinions in favour of Roman Catholic 
 Emancipation made the king averse to placing him in such a pro- 
 minent office. Accordingly, after a fruitless interview with Mr. 
 Canning, his Majesty resorted to an undignified and unwarrantable 
 expedient, and sent the following minute to the cabinet : ' That 
 his Majesty is desirous of retaining all his present servants in the 
 stations which they at present fill, placing at their head, in the 
 station vacated by Lord Liverpool, some peer professing opinions 
 upon whom his Majesty's confidential servants may agree, of the 
 same principles as Lord Liverpool.' He afterwards sent a verbal 
 message to Mr. Canning, leaving it to his discretion to make or with- 
 hold this communication to his colleagues. Mr. Canning being of 
 opinion that it was inexpedient and objectionable to refer the selec- 
 tion of their chief to the suffrages of the cabinet (an opinion which 
 he shared with the Duke of Wellington and Mr. Peel), 8 decided 
 upon withholding it ; while he at the same time privately made known 
 to them its general purport, to which they responded by simply ex- 
 pressing their earnest desire for a speedy termination of the present 
 embarrassing position of the government : whereupon the king 
 allowed his proposal to drop. Several days were then spent in con- 
 ferences between his Majesty and leading members of the cabinet, 
 which terminated at last in the issue of the royal commands to Mr. 
 Canning to prepare, with the least possible delay, a plan for the 
 reconstruction of the administration. Thus commenced the premier- 
 ship of Mr. Canning, which, in a few short weeks, was brought to a 
 sudden and unexpected close by his premature decease.* 
 
 It is now universally conceded that the prime minis- The prime 
 
 7 .. . , , ill- minister 
 
 ter as the minister in whom the crown has placed its to be the 
 
 constitutional confidence, and who is responsible to his 
 sovereign for the government of the whole empire crown. 
 should be the free and unbiassed choice of the crown 
 itself. In 1 827, as we have seen," the Duke of Wel- 
 lington declared that this was the sole act of personal 
 
 r See ante, p. 365. * Stapleton, Canning and his 
 
 ' See Well. Desp. 3rd S. v. 4, p. 18, Times, pp. 586-590. See ante,?. 177. 
 and Colchester Diary, v. 3, p. 501. u See ante, p. 325.
 
 328 
 
 THE SOVEREIGN. 
 
 Necessity 
 
 for 
 
 ministers 
 
 dence of 
 meat. 
 
 government now exercised by the king. And in 1845, 
 Sir Eobert Peel said, in explaining the particulars of 
 his resignation of office : ' I offered no opinion as to 
 the choice of a successor. That is almost the only act 
 which is the personal act of the sovereign ; it is for the 
 sovereign to determine in whom her confidence shall be 
 placed.' v A retiring minister may, if requested by the 
 sovereign, suggest that any particular statesman should 
 be empowered to form a new administration, but such 
 advice should not be obtruded upon the sovereign un- 
 asked. Being debarred by his own resignation, or dis- 
 missal from office, from the constitutional right to tender 
 advice to the crown, he can only do so, if required, in 
 the quality of a peer or a privy councillor ; being still 
 responsible, in that capacity, for any advice he may give 
 to the sovereign. w 
 
 But while the doctrine is now fully established, that 
 the sovereign has a free choice in the appointment of 
 ^ e P r i me minister, the selection of that functionary is 
 nevertheless practically limited by the all-important fact, 
 that no minister can, for any length of time, carry on 
 the government of the country who does not possess the 
 confidence of Parliament, and more especially of the 
 House of Commons. 1 This circumstance has contributed 
 to restrain the undue exercise of the prerogative of the 
 crown to choose or change its responsible advisers, at 
 discretion, and to compel the crown, in all its dealings 
 with an administration, to govern itself by considera- 
 tions of high political expediency/ Ample security, 
 moreover, that no changes of ministry will be effected 
 by the authority of the crown but such as would com- 
 mend themselves to the judgment of Parliament, is 
 
 v Hans. D. v. 83, p. 1004. See 
 also Ld. Derby, ib. v. 123, p. 1701. 
 Mr. Disraeli, ib. v. 214, p. 1943. 
 
 * See post, v. 2. 
 
 y See ante, p. 316. And see Mar- 
 tin's Pr. Consort, v. 1, p. 110. And 
 
 And Massey's George III. v. 3, p. Prince Albert's opinion, quoted by 
 
 O1 Q TT* 1 T 11 TT T"k _ tftfr 
 
 213. 
 
 See ante, p. 116. 
 
 Earl Russell, in Hans. D. v. 165, 
 p. 44.
 
 RESPONSIBILITY OF A NEW MINISTRY. 329 
 
 obtained by the operation of the constitutional rule 
 which requires that whenever a change of ministry 
 takes place in consequence of an act of the crown, the so 
 incoming ministers shall be held responsible to Parlia- their pre- 
 ment for the policy which occasioned the retirement of 
 their predecessors in office. z 
 
 This principle was first recognised by Mr. Pitt in 1783, when he 
 accepted office upon the dismissal of the Portland administration. 4 
 
 It was qualified by Mr. Perceval, in 1807, who, while admitting 
 that every act of the crown must be vouched for by a responsible 
 minister, nevertheless contended that, in the interim between 
 successive ministries, the action of the crown was necessarily inde- 
 pendent ; and that whatever then took place was beyond Parlia- 
 mentary criticism or censure. b But this argument was distinctly 
 repudiated in 1835, when Sir R. Peel took office. 
 
 In 1807, when George III. dismissed the Grenville ministry, 
 because of their refusal to carry out his particular views in reference 
 to the Roman Catholics, the incoming administration endeavoured to 
 evade the responsibility which had devolved upon them in regard to 
 the change of government : but it was emphatically asserted, by the 
 best parliamentary authorities, ' that there was not a moment in the 
 king's life, from his accession to his demise, when there was not a 
 person constitutionally responsible for his actions ; ' and that although 
 he might seem to be acting without advice when, in the exercise of 
 his undoubted prerogative, he dismissed his ministers and appointed 
 others, yet that the incoming ministers were themselves responsible 
 for the dismissal of their predecessors. 
 
 In 1834, William IV., having become a convert to Tory principles, 
 suddenly determined to dismiss the Whig ministry of Lord Melbourne. 
 It did not appear that either the interests of the state or the wishes 
 of Parliament necessitated this proceeding ; for there had been no 
 immediate difference of opinion between the king and the cabinet on 
 any point of public policy, nor had ministers lost the confidence of 
 the House of Commons. d His Majesty, however, determined to en- 
 trust to Sir R. Peel the formation of a new ministry. Sir Robert 
 was absent from England at the time, and was ignorant of the cir- 
 cumstances attending: the dismissal of Lord Melbourne. When 
 
 1 Grey, Parl. Govt. 189, n. Hearn, e See ante, p. 158. And see the 
 
 Govt. of Eng. p. 98. Ld. Brougham, case of Ld. Danby, cited by Lds. 
 
 in Mir. of Parl. 1835, p. 25 ; and see Lauderdale and Holland, on this 
 
 ante, pp. 135, 196. occasion, Hans. D. v. 9, pp. 405, 
 
 See ante, p. 118. 414. 
 
 b Ib. p. 158. Hans. D. v. 246, p. d See ante, p. 133. 
 253.
 
 330 THE SOVEREIGN. 
 
 informed of the facts, he expressed great doubts of the policy which 
 had occasioned the change of government. Nevertheless, so fully 
 did he recognise the extent of his obligations in accepting office, 
 that he boldly avowed his constitutional responsibility ' for the dis- 
 solution of the preceding government, although he had not the 
 remotest concern in it.' e The late ministry had a large majority in 
 the House of Commons, and one of Sir R. Peel's first acts was to 
 appeal to the people. The new House, although more favourably 
 inclined to the new minister, failed to put him in a sufficiently strong 
 position to enable him to carry on the government ; and, after a 
 gallant struggle for several weeks against an adverse majority, Sir 
 R. Peel was compelled to retire from office. The king had then no 
 alternative but to recall to his councils the Melbourne ministry, 
 which he had before so summarily dismissed. 
 
 Upon the resignation or dismissal of a ministry, it 
 is customary for the sovereign to send for the recog- 
 nised leader of the Opposition, or for some other person 
 of known weight and influence in either House of Par- 
 liament, who is capable of leading successfully the po- 
 litical party to which he belongs, and to authorise him 
 to undertake the formation of a new administration. 
 It is not essential, however, that the person selected to 
 bring about the construction of a new cabinet should be 
 the intended prime minister. It may be difficult at first 
 to fix upon any one suitable for this office with whom 
 a new administration could be induced to co-operate. 
 Under such circumstances some less prominent person 
 could be chosen to negotiate for the formation of the 
 ministry. 
 
 Thus, in 1742, upon the resignation of Sir Robert Walpole, 
 George II. (upon the advice of -Walpole) sent for Mr. Pulteney, the 
 leader of the Opposition, and empowered him to form a new adminis- 
 tration. Having the disposition of places in his own hands, Pulteney 
 refused to accept office for himself, demanding only a peerage and a 
 seat in the cabinet/ 
 
 In 1812, Lord Moira received a commission of this 
 kind from the Prince Eegent, with the understanding 
 
 Peel's Mini. v. 2, p. 31. f Ewald, Life of Walpole, pp. 422- 425.
 
 RELATIONS WITH THE PEIME MINISTER. 331 
 
 that he should receive some inferior office, together with 
 a seat in the cabinet. 8 
 
 In 1859, upon the resignation of the Derby ministry, 1859. 
 consequent upon the adoption, by the House of Com- of p^ 1 . 
 mons, of a vote of want of confidence, which was moved mier - 
 by Lord Hartington, the Queen charged Lord Granville 
 to form a ministry, upon the ground that ' to make so 
 marked a distinction as is implied in the choice of one 
 or other as prime minister, of two statesmen, so full of 
 years and honours as Lord Palmerston and Lord John 
 Russell, would be a very invidious and unwelcome task.' 
 But notwithstanding Lord Palmerston's willingness to 
 serve under Lord Granville, Lord John Eussell was not 
 equally compliant. Accordingly, Lord Granville failed 
 in his endeavour ; whereupon Her Majesty commissioned 
 Lord Palmerston to form a ministry. 11 
 
 But if, in the opinion of the sovereign, the state of 
 parties would render a coalition ministry expedient, the 
 sovereign would suitably communicate directly with the 
 two leading statesmen whose co-operation was desired, 
 indicating of course the one to whom the formation 
 _of the ministry was entrusted. 1 
 
 We have already seen that it has of late years Pri me 
 
 i -IT . , , -i -i i / minister 
 
 become a settled principle that the political chiefs to empower- 
 whom the sovereign may confide the task of forming a ^ ^ se his 
 ministry are at liberty to select the individuals to com- coi- 
 pose the same, and to submit their names for the royal 
 approval. This privilege is indispensable to the suc- 
 cessful working of our parliamentary system, and, after 
 a long struggle, it has been conceded to every political 
 party which may, in turn, acquire the pre-eminence.* It 
 
 * See the Duke of Wellington's Adminis. p. 96. Mr. Canning's letter 
 
 remarks on this point, in Hans. D. of 1827, in Hans. D. N.S. v. 17, p. 
 
 N.S. v. 17, p. 464 ; and in Well. 457 ; Duke of Wellington's letter of 
 
 Desp. 3rd. S. v. 3, pp. 636-642 ; v. 4, 1828, in Peel's Mem. v. 1, p. 11 ; Sir 
 
 pp. 3, 17, 22. E. Peel, Evidence, 285, Com", on 
 
 11 See ante, p. 234. ' Ib. p. 222. Official Salaries, in 1850 ; and see 
 
 J See ante, p. 324. And see Lewis, Mill, Rep. Govt. p. 96.
 
 332 THE SOVEEE1GN. 
 
 1859. is a constitutional necessity that the first minister of the 
 crown should be able to assume full personal responsi- 
 bility before Parliament for the appointment of every 
 member of the administration. This he can only do 
 when he has been empowered to advise the crown in 
 regard to the selection of the persons who are to be 
 associated with him in the functions of government. 
 The sovereign has, indeed, an undoubted right to ex- 
 press his wishes in favour of the introduction or exclu- 
 sion of particular persons, but by modern constitutional 
 usage he has no authoritative voice in the selection of 
 any one but the prime minister. It is true that, in this 
 as in other matters, the expression of a strong personal 
 feeling on the part of the crown may have great weight 
 in excluding a person from office, or including him, at 
 least for a time ; but even this consideration must ulti- 
 mately yield to a regard for the public interests, and 
 the sovereign must be prepared to accept as his advisers 
 and officers of state those who have been chosen for 
 such functions by the premier. 
 
 Personal George III., it is notorious, had such a repugnance to Mr. Fox, 
 
 that for a long time he absolutely refused to admit him into the 
 
 reign in cabinet. k 
 
 the selec- In 1801, after entrusting the formation of a new ministry to 
 
 ministers ^ r ' -Aldington, an d giving him full authority to make such ar- 
 rangements for carrying on the public service as he should think fit, 
 George III. expressed a ' wish ' that he might be enabled to place 
 the Great Seal in the hands of Lord Eldon, and place Sir Pepper 
 Arden in the office of Chief Justice of the Common Pleas. 1 Both 
 these appointments were conferred agreeably to the king's desire. 
 George IV. refused to allow the readmission of Mr. Canning into 
 the cabinet, in 1821, after the death of Queen Caroline, although 
 he had retired therefrom a few months previously, solely on account 
 of his objections to taking part in the proceedings against the 
 queen. A year afterwards, the premier (Lord Liverpool) renewed 
 
 k Stanhope, Life of Pitt, v. 4, p. l Pellew's Life of Sidmouth, v. 1, 
 1 70. Jeeee, Life of George III. v. 3, p. 298. 
 
 p. 36/5. m Yonge, Life of Ld. Liverpool, v. 
 
 3, pp. 142-150.
 
 CONSULTED IX FILLING MINISTERIAL VACANCIES. 333 
 
 his appeal to the king on Mr. Canning's behalf, but still without 1859. 
 success ; until at length, through the intercession of the Duke of 
 Wellington, his Majesty was induced, very reluctantly, to yield." 
 In 1823, in deference to the wishes of the king, the claims of Mr. 
 Huskisson to a seat in the cabinet were not pressed." In 1827, Mr. 
 Herries was appointed Chancellor of the Exchequer, to please the 
 king, instead of Lord Palmerston, who was the nominee of the 
 premier (Lord Goderich). The appointment proved disastrous to 
 the fate of the ministry. p Though a member of the succeeding 
 administration, the king's desire to see him reinstated at the Ex- 
 chequer was not acquiesced in by the new premier (Duke of Wel- 
 lington).i When the Wellington Coalition ministry was about to be 
 formed, in 1828, George IV., while expressing his wishes in regard 
 to several statesmen, on the whole gave a carte blanche for the 
 selection of any persons who had heretofore been in his service, 
 except Lord Grey, whom he objected to receive again into the cabi 
 net. r Upon the reappointment of the Melbourne ministry, in 1835, 
 William IV. stipulated that Lord Brougham, who was personally 
 displeasing to his Majesty, should not be replaced in the office of 
 Lord Chancellor. 8 
 
 In like manner, in the event of a vacancy occurring in Sanction 
 an administration, whether from ordinary circumstances, crown in 
 or as the unavoidable result of differences between a PP mt ; 
 
 ment or a 
 
 individual members of the same, it is the duty of the new mini- 
 prime minister to take the pleasure of the crown in 
 regard to the appointment of some one selected by 
 himself to fill the vacant office.* And, as Lord Liver- 
 pool ventured to assure George IV., in a Memorandum 
 urging upon the king the propriety of accepting Mr. 
 Canning as a cabinet minister, that ' the principle of 
 exclusion has rarely been attempted without having the 
 effect of lowering the crown and exalting the individual 
 proscribed.' u 
 
 If difficulties should occur in the formation of a 
 
 n Yonge, Life of Ld. Liverpool, P See ante, p. 179. 
 
 v. 3, pp. 194-202. Stapleton, Can- q Herries' Memoirs, c. viii. 
 
 ning and his Times, pp. 323, 363. * Peel's Mem. T. 1, p. 12. 
 
 See the Duke's Mem. to the King of s Howley, Brit. Const, p. 209; 
 
 Sept. 7, 1822, in the last series of his Ann. Reg. 1835, p. 237. 
 
 Desp. ' See post, v. 2. 
 
 Well. Desp. 3rd S. v. 2, pp. 9, u Yonge, Life Ld, of Liverpool, v. 
 
 132. 3, p. 148.
 
 334 THE SOVEREIGN. 
 
 1859. ministry, it is always competent for the sovereign to 
 
 The king send for, and take the advice of, any peer or privy- 
 
 peenTon councillor of weight and experience in public affairs, 
 
 the forma- whose counsel he might consider would be serviceable 
 
 tion of a 
 
 ministry, to him in the emergency. 
 
 Thus George II. repeatedly availed himself of the advice of Sir 
 Robert Walpole, upon state emergencies, after the retirement of 
 Walpole from public life. v In 1812, upon the crisis arising out of 
 the assassination of Mr. Perceval, when it became necessary to 
 reconstruct the cabinet of which he was the chief, the Prince 
 Regent applied for and acted upon the advice of his brother, the 
 Duke of Cumberland. w In 1827, during the interregnum occasioned 
 by the break-up of the Liverpool Administration, on accpunt of the 
 death of the premier, and the delay in the formation of a new 
 ministry by Mr. Canning, the Duke of Newcastle used his privilege 
 as a peer to obtain an audience of the king, at which he threatened 
 the withdrawal of the support of the Tory party from the govern- 
 ment if his Majesty should select Mr. Canning as prime minister. x 
 Upon the resignation of the Russell ministry in 1851, after several 
 ineffectual attempts on the part of various statesmen to form a new 
 administration, her Majesty sent for the Duke of Wellington, not 
 for the purpose of entrusting the making of a cabinet to his hands, 
 but in order that she might take counsel from him in regard to the 
 existing state of affairs, determining also ' to pause awhile before 
 she again commenced the task of forming an administration. 'y 
 Again, in 1852, upon the resignation of the Derby ministry, and in 
 1 855, after the resignation of Lord Aberdeen, her Majesty sent for 
 Jie Marquis of Lansdowne for a similar purpose. 2 Both the Duke 
 of Wellington and (after his death) the Marquis of Lansdowne, 
 from their eminent position, acknowledged patriotism, and freedom 
 from all selfish aims, were regarded by common consent as the per- 
 sonal advisers and referees of the Queen. In this capacity they 
 often and successfully intervened to reconcile political adversaries 
 and rival competitors for power, and afforded substantial assistance 
 to the crown upon occasions of grave emergency. a 
 
 The act of the sovereign, in communicating with 
 trusty counsellors in circumstances of political exigency, 
 is in strict accordance with constitutional principle ; and 
 
 * Ewald's Life of Walpole, p. 442. * Hans. D. v. 114, pp. 1033, 1075. 
 w Campbell's Ohanc. v. 7, p. 280. Ib. v. 123, p. 1702. Martin's Pr. 
 
 x Stapleton's Canning and his Consort, v. 3, p. 205. 
 Times, p. 582. Sat, Rev. Feb. 7, 1863, p. 168.
 
 HIS COMMUNICATIONS WITH PEIVY COUNCILLOES. 335 
 
 it is not to be confounded with the attempts made by 1859. 
 George III., during the early years of his reign, to 
 govern with the aid of secret and irresponsible advisers. 
 For advice given to the sovereign upon any such 
 emergency, the peer or privy-councillor is liable to be 
 called to account by Parliament, shcnild his counsel be 
 followed by consequences that require parliamentary 
 interposition. 1 * 
 
 Once a ministry is formed, it becomes the duty of a Mutual 
 constitutional monarch to give it his implicit confidence between 
 and support, co-operating heartily and sincerely witli the ki pg 
 the members of his cabinet, so long as he may consider ministers. 
 that the best interests of the country are served by their 
 continuance in office ; and so long as the ministry retain 
 the confidence of parliament. Should the sovereign 
 have reason to believe that the public interests would 
 be promoted by a change in his advisers, he is at liberty 
 to insist that they shall give place to others, in whom 
 he can repose more perfect trust : but he must always 
 take care to assure himself beforehand that the proposed 
 alteration in the ministry is one that will satisfy the 
 nation, and will merit and secure the approbation of 
 Parliament. 
 
 The sovereign never attends at meetings of the Cabinet 
 cabinet council. Previous to the accession of the pre- n t nc 
 
 sent dynasty it was otherwise ; and so long as it was 
 consistent with the practice of the constitution for sovereign. 
 the monarch to take an active and immediate part in 
 the direction of public affairs, it was fitting that no 
 meeting of the cabinet should be held without his 
 presence. But under the existing system of govern- 
 ment, through responsible ministers, it is obvious that 
 in order to enable the cabinet to arrive at impartial 
 conclusions upon any matter, it is necessary that their 
 deliberations should be private and confidential. 3 
 
 b See ante, p. 118. c Ib.. p. 136. d See post, v. 2.
 
 336 
 
 THE SOVEREIGN. 
 
 The sove- 
 reign and 
 the prime 
 minister. 
 
 Etiquette 
 in writing 
 to the 
 sovereign. 
 
 Royal 
 sign- 
 manual. 
 
 The proper medium ol communication between the 
 sovereign and the administration collectively is the 
 prime minister ; not merely on account of his position 
 as head of the government, but especially because he 
 is the minister who has been personally selected by the 
 sovereign as the one in whom the crown reposes its 
 entire confidence. He is bound to keep the sovereign 
 duly informed of all political events of importance, in- 
 cluding the decisions of Parliament upon matters of 
 public concern. Formal decisions of the cabinet upon 
 questions of public policy are also submitted to the 
 sovereign by the prime minister, upon whom it devolves 
 to take the royal pleasure thereupon. Subordinate 
 ministers, however, have the right of access to the 
 sovereign and of direct communication with him, upon 
 departmental business. 6 
 
 The mode in which ministers address the sovereign 
 in epistolary communications is peculiar. It is the 
 established etiquette for the minister to use the third 
 person, and to address his sovereign in the second.* 
 When or by whom this epistolary form was introduced 
 is unknown. Mr. Grenville's letters to George III., in 
 1765, are in the ordinary form. g But, twenty years 
 later, we find Mr. Fox employing the phraseology which 
 is now in use : ' Mr. Fox has the honour of transmit- 
 ting to your Majesty the minute of the cabinet council 
 assembled this morning at Lord Eockingham's, 18th 
 May, 1782.' h 
 
 When it is necessary to obtain the royal sign- 
 manual to any important document, the various secre- 
 taries and other ministers of state who may require it, 
 in their respective departments, should make personal 
 
 e See further on this subject, post, Grenville Papers, v. 3, pp. 4-15. 
 
 v. 2. h Russell's Fox, v. 1, p. 351 ; 
 
 f Corresp. William IV. with Earl Stanhope's Pitt, v. 4, Appx. pp. i. n, 
 
 Grey, v. 1, pp. xiii., 390. Lewis, xiii. 
 Adminis. p. 34, n.
 
 AUTHORITY OF THE ROYAL SIGN-MANUAL. 337 
 
 application for the same. But if the paper to be signed 
 be of an ordinary and unimportant character, it may 
 be transmitted to the sovereign in a departmental 
 despatch- box. 1 It is the duty of the Lord Chancellor 
 to attend upon the sovereign in order to obtain the 
 sign-manual for the sanction of bills that have passed 
 the two Houses of Parliament. 5 
 
 If at any time the sovereign should be unable, Royal 
 through physical infirmity, to append the royal sign- manual, 
 manual to the multifarious papers which require his when dis 
 signature, the intervention of Parliament must be in- with, 
 voked to give legal effect to the arrangements necessary 
 under the circumstances. k In the last year of the 
 reign of George IV., an Act was passed authorising his 
 Majesty to appoint one or more persons to affix his 
 royal signature to papers, by means of a stamp, the 
 state of the king's health being such as to render it 
 painful and inconvenient for him to sign his own name. 1 
 And in 1862, with a view to relieve her Majesty from 
 the excessive labour of signing every separate commis- 
 sion for officers of the army, marines, &c., after having 
 already signed a ' submission paper ' authorising the 
 issue of such commission, an Act was passed empower- 
 ing the Queen in Council to direct that the said com- 
 missions may be signed by the commander-in-chief and 
 a secretary of state, and to dispense with the necessity 
 for the royal signature being appended thereto. 01 The 
 urgency for this relief will be apparent when it is 
 stated that in 1862 her Majesty was signing commis- 
 sions of 1858, and that up to the time when an Order 
 in Council was issued to permit the commander-in-chief 
 and the secretary of state to sign on her behalf, there 
 
 1 Hans. D. v. 165, p. 841. c. 23. And see Well. Desp. Civil S. 
 
 J Campbell's Chanc. v. 7, pp. 157- v. 7, pp. 9, 60-67. 
 159. m 25 Viet, c. 4. See the debates 
 
 k See Clode, Mil. Forces, v. 2, p. on this Bill, in Hans. v. 165, and Ib. 
 
 440. v. 176, p. 2020. 
 
 1 11 George IV. & 1 William IV. 
 
 VOL. I. Z
 
 338 
 
 THE SOVEREIGN. 
 
 Delega- 
 tion of 
 royal 
 
 were 15,931 commissions remaining unsigned. These 
 arrears were soon cleared off; but the Queen still 
 undertook to sign first commissions, and these had so 
 accumulated, that up to June 1, 1865, there were 4,800 
 first commissions awaiting her signature. But arrange- 
 ments were then made to prevent the recurrence of 
 such delays. 11 
 
 If circumstances should occur at any time that 
 would render the personal exercise of the royal func- 
 
 f unctions. ^j ons inconvenient or impossible, the powers of the 
 crown may be temporarily delegated to commissioners 
 or other substitutes. The only exception appears to 
 be in regard to the power of creating peers, which has 
 never been made the subject of delegation. Neither 
 can a commission be granted for the purpose of signi- 
 fying the royal assent to bills in Parliament, except 
 with respect to specified bills, which have passed both 
 Houses at the date of the commission. p 
 
 Absence ^he most general delegation by the crown of its 
 
 of sove- . , 
 
 reign from political power has been that which has taken place 
 ' from time to time in the appointment, by the sovereign, 
 of Lords Justices and Guardians for the administration 
 of the government during the absence of the sovereign 
 from the realm. The powers granted to such persons 
 have usually included every possible exercise of the 
 royal authority, except that of assenting to bills in 
 Parliament, and of granting peerages. But it has been 
 customary to accompany the commission by instruc- 
 tions, requiring the commissioners not to exercise cer- 
 tain of the powers granted (particularly those for the 
 pardon of offenders and the dissolution of Parliament) 
 without special signification of the royal pleasure. 
 
 During the long reign of George III. the sovereign 
 was never absent from England ; and his son and suc- 
 
 " Rep. Com*. Pub. Accounts, Com. 
 Pap. 1865, v. 10; Evid. 2060-2065, 
 2118-2127. Hans. D. v. 180, p, 073. 
 
 Cox, Eng. Govt. pp. 614-617. 
 Ib, p. 49.
 
 AUTIIOKITY OF THE KOYAL SIGN- MANUAL. 339 
 
 cessor, George IV., went abroad once only, in the year 
 1821, when Lords Justices were appointed by his 
 Majesty in Council. After the accession of the present 
 Queen, her Majesty, in the year 1843, paid a short 
 visit to the King of the French at the Chateau d'Eu ; 
 and again, in 1845, visited Germany. -Upon both these 
 occasions, the opinion of the law-officers of the crown 
 was taken, as to whether there was any legal necessity 
 for the issue of a commission appointing Lords Justices 
 during her Majesty's absence. Each time the law- 
 officers were clearly of opinion that it was unnecessary. 
 The question then resolved itself into one of expedi- 
 ency ; and considering the great facilities for speedy 
 communication afforded by the general introduction of 
 the railway system, and the circumstance that her 
 Majesty would necessarily be accompanied by a respon- 
 sible minister of the crown, and could therefore per- 
 form any royal act required of her with as much 
 validity and effect on the continent of Europe as if it 
 were done in her own dominions, the ministry decided 
 that it was quite unnecessary to advise the appoint- 
 ment of Lords Justices, ' really for no practical pur- 
 pose.'* 1 Eoyal visits abroad have since been of no 
 infrequent occurrence, and as no appointment of 
 Lords - Justices has taken place upon such occasions, 
 the practice may be considered to have fallen into 
 desuetude/ 
 
 It is essential to the due execution of any powers 
 by delegation from the crown, that a special authority, 
 under the royal sign-manual, should be issued for the Royal 
 purpose. But, in 1788, a difficulty presented itself on inTbey^ 8 
 
 this score, arising out of the melancholy condition of J nc ? 
 
 J during iii- 
 
 George III., who was first attacked by insanity at that ness of 
 
 time. Georgelll 
 
 i Ld.Chanc.Lyndhurst, in Hans.D. pp. 700, 882. And see ante, p. 270. 
 v.82, p. 1514. Mr. Disraeli, /6.v. 228, r Campbell's Chanc. v. 4, p 125, n. 
 
 z 2
 
 340 THE SOVEREIGN. 
 
 The mental disorder which afflicted the king was of 
 such a serious character, that it rendered it imperative 
 upon Parliament to take immediate steps to supply the 
 defect in the royal authority for so long a period as the 
 king's illness might continue. Parliament then stood 
 prorogued for a particular day, upon which, under 
 ordinary circumstances, it is probable that it would not 
 have assembled. But, taking advantage of the autho- 
 rity of the royal proclamation, ministers determined to 
 meet Parliament without further delay, and deliberate 
 upon the posture of affairs. After full enquiries had 
 been instituted, by both Houses, into the state of his 
 Majesty's health, they agreed to a resolution, that it 
 was the right and duty of the Lords and Commons 
 assembled in Parliament to provide for the exercise of 
 the royal authority, in such manner as the exigency of 
 the case might appear to require. It was then resolved 
 by both Houses, that it was expedient and necessary 
 that letters-patent for opening Parliament should pass 
 under the Great Seal. This was done accordingly ; 
 and, so far as was possible, under these painful and 
 unprecedented circumstances, the usual forms for the 
 opening of Parliament were adhered to, notwithstand- 
 ing the incapacity of the sovereign. 8 But in the pro- 
 ceedings had upon this occasion, the two leading 
 statesmen, Pitt and Fox, with their respective followers, 
 Proceed- were at issue. Pitt contended that Parliament alone 
 supply de- was competent to make good the deficiency in the 
 feet m the executive authority ; whilst Fox claimed for the Prince 
 office. of Wales an inherent moral, if not legal, right to 
 assume the crown, as though the king his father were 
 actually dead. A succinct account of this memorable 
 controversy will be found in ' May's Constitutional 
 History.'* It will suffice here to state the general 
 
 Parl. Hist. v. 27, p. 653, et seq. 
 
 * V. 1, pp. 146--162. See also Lewis, Administ. p. 112.
 
 MENTAL AFFLICTION OF GEORGE III. 341 
 
 results arrived at, so far as they establish an important 
 point of constitutional law. 
 
 The decision of Parliament upon this great question was given 
 exactly one hundred years after the determination, by the same 
 authority, of another question, of still more importance, affecting 
 the right of succession to the English throne viz., the devolution 
 of the crown upon the ' abdication ' of James II., which took place 
 in the year 1688. For those who are curious in such points, it may 
 also be noted that exactly ten years elapsed between the births of 
 the following statesmen, all of them among the most prominent 
 characters of this remarkable era : Mr. Fox was born in 1749 ; 
 Mr. Pitt and Lord Grenville in 1759 ; the Duke of Wellington, 
 Lord Castlereagh, and Napoleon Bonaparte, in 1769." Moreover, 
 "William IV. received from Earl Grey the draft of the Reform, 
 Bill on January 31, 1831, the anniversary of the martyrdom . of ; 
 Charles I. v 
 
 It was argued by Mr. Pitt, who was then prime Pariia- 
 minister, that in conformity with the principles estab- "p^iy 
 lished by the Eevolution of 1688, and by the Bill; of ^y 
 Eights, the Lords and Commons represented the whole office 
 estates of the people, and were, therefore, legally as well ^-aiie 
 as constitutionally, empowered to supply any deficiency 
 in the kingly office, whensoever that should arise-; that 
 this assumption of power was not incompatible with the 
 principle of an hereditary monarchy, but was essential 
 as a safeguard of the throne itself against encroachment 
 from any quarter. Having succeeded in obtaining the 
 concurrence of Parliament to these conclusions^ Mr. Pitt 
 admitted that, as a matter of discretion, the Prince of 
 Wales ought to be called upon to assume the regency, 
 with all necessary authority, unrestrained by any per- 
 manent council, and with a free choice of his political 
 servants. But he contended that any power which was 
 not essential, and which might be employed to embarrass 
 the exercise of the king's authority, in the event of his 
 recovery, should be withheld. This was strenuously 
 opposed by Fox, who maintained that the regent ought 
 
 u Lewis, Administ. p. 301 n. T See ante, p. 188.
 
 342 THE SOVEREIGN. 
 
 to possess the full authority and prerogatives of the 
 crown, without any diminution. Parliament, however, 
 agreed to the views propounded by Mr. Pitt, and the 
 Prince of Wales consented to accept the regency upon 
 these terms. The proposed restrictions upon the exer- 
 cise of the regal authority by the prince were defined and 
 embodied in a bill, which it was intended should be 
 passed by both Houses, and receive the royal assent ' by 
 a commission to be ordered by the two Houses of Par- 
 liament, in the king's name.' The bill actually passed 
 the Commons, but during its progress through the 
 Lords, the king's com 7 alescence was announced, and the 
 bill was dropped. 
 
 In 1801 the king was threatened with a return of 
 insanity, and the premier, Mr. Addington, had deter- 
 mined to follow the precedent established in 1788, when, 
 happily, the king's recovery rendered any such pro- 
 ceedings unnecessary. But in 1810 the king's malady 
 Return of again showed itself, this time destined to remain, and to 
 
 the king s 
 
 malady. terminate only with his life. Mr. Spencer Perceval was 
 prime minister at this juncture, and he decided to adhere 
 strictly to the precedent afforded by the proceedings 
 in 1788, in every essential particular. 3 " The ministerial 
 plan was warmly opposed in Parliament, but was car- 
 ried, nevertheless, without alteration. The Opposition 
 did not then maintain that the Prince of Wales, as heir- 
 apparent, succeeded of right to the regency during the 
 king's incapacity. Mr. Lambe (afterwards Lord Mel- 
 bourne) upon the resolution that certain restrictions 
 should be imposed upon the regent moved an amend- 
 ment, ' That the entire royal power should be conferred 
 upon him, without any restrictions.' This amendment 
 was negatived, by a majority of 224 to 200. Lord 
 Brougham remarks upon these two precedents that they 
 
 w Pellew's Life of Sidmouth, v. 1, pole, Life of Perceval, v. 2, chs. v. 
 P- 347. and vi. 
 
 x Lewis, Administ, p. 325. Wai-
 
 LEGAL REMEDY AGAINST THE CROWN. 343 
 
 ' have now settled the constitutional law and practice in 
 this important particular.' y 
 
 Notwithstanding the authority of Lord Brougham, his successor, 
 Lord Campbell, adheres to the Whig doctrine in regard to this ques- 
 tion, and stoutly maintains that the Imperial Parliament had no 
 right to interfere with the assumption by the Prince of Wales of 
 the regal authority during the incapacity of the king, his father ; 
 but should have imitated the example of the Irish Parliament, in 
 1789, in acknowledging the right of the prince, and in addressing 
 him to take upon himself the government as regent/ 
 
 The pre-eminence of the king, by virtue of his pre- 
 rogative, is such that he cannot be sued in any court, 
 either civilly or criminally. Nevertheless, the law has 
 provided a remedy for injuries proceeding from the 
 crown which affect the rights of property ; as where it 
 is alleged that the crown is in wrongful possession of 
 real or personal property to which the subject has a 
 legal title, or of money which is due to the subject from 
 the crown either by way of debt or damages on breach 
 of contract and where there is an absence of an appro- 
 priate compulsory remedy against the crown. a It can- 
 not be presumed that the crown would knowingly be a 
 party to the injury of a subject, yet it might commit 
 injustice by misinformation or inadvertency, through 
 the medium of some responsible agent. It is therefore 
 fitting that the subject should be authorised to repre- 
 sent to the sovereign, in a respectful manner, the nature Petition 
 of the alleged grievance, in order to enable a remedy 
 to be applied. This remedy is by means of a Petition of 
 Eight, a mode of procedure, the origin of which has 
 been traced back to the reign of Edward I., if not to 
 Magna Carta itself. b 
 
 y Sketches of Statesmen, v. 1, p. Att.-Gen. Palmer, Hans. D. v. 
 
 176. 176, p. 2120. Thomas v. The Queen. 
 
 z Campbell's Chanc. v. 6, p. 337 ; L. T. Rep. N. S. v. 31, p. 439. 
 
 v. 6, pp. 180, 683 ; v. 7, p. 96. See b Inquiry to Petitions of Right, 
 
 a debate in the H. of Com. on the by A. Cutbill (London, 1874). And 
 
 Regency question, on July 6, 1830 a treatise (privately printed) by Mr.
 
 344 THE SOVEKEIGN. 
 
 But a Petition of Eight will not lie to enforce a claim 
 to a share of money received by the crown under a 
 treaty, in discharge of claims of subjects. The crown 
 cannot be coerced to do justice. Where the sovereign 
 receives money for distribution, such distribution is not 
 subject to the control of a court of law. It must be 
 administered by the advisers of the crown, who are re- 
 sponsible to Parliament ; and an application to Parlia- 
 ment is the only remedy of an aggrieved party. 
 
 It has been held that a Petition of Right does not lie to recover 
 compensation from the crown for damage to the property of an 
 individual occasioned by the negligence of the servants of the 
 crown, d nor to recover compensation for a wrongful act done by a 
 servant of the crown in the supposed performance of his duty. 6 
 Public officers are themselves personally liable under the law and 
 constitution for any dereliction of duty/ Although the law will 
 afford protection to all officials in the performance of duties imposed 
 upon them by Government, as well against their own subordinates 
 as against the general public.^ 
 
 The. law in regard to Petitions of Eight was amended 
 and simplified in 1860, by the Act 23 & 24 Viet. c. 34 ; 
 which was extended to Ireland in 1873 by the Act 
 36 & 37 Viet. c. 69. The object of this Act is to as- 
 similate the procedure upon such petitions as much as 
 
 Archibald, in the form of a letter ad- post, p. 495. 
 
 dressed to Ch. Justice Bovill. Broom, * See Thomas, Oases in Const. Law, 
 
 Const. Law, pp. 241, 726 (K) ; Cox, p. 71. And post, p. 499. For a 
 
 Eng. Govt. p. 416. For the present comparison of the laws in the princi- 
 
 procedure see Scott v. The Queen, in pal States of Europe and America 
 
 Fost. and Fin. Nisi Prius Cases, v. 2, affording redress to private persons 
 
 6634. And L. T. v. 54, p. 109. against the Government, see Am. L. 
 
 ay, Common Law Practice. Rev. v. 6, pp. 156-158 ; v. 10, p. 81. 
 
 c Rustomjee v. The Queen, L. T. A petition of right will not be issued 
 
 Hep. N. S. v. 34, p. 278. Confirmed from an English Court in reference to 
 
 by the Court of Appeal, Ib. v. 36, p. claims in Colonies possessing a sepa- 
 
 190. rate legislature, Holmes v. The Queen, 
 
 d Viscount Canterbury v. The At- L. T. Rep. N. S. v. 5, p. 548. The 
 
 torney-Gen. ] Phill. p. 306. Parl. of Canada, in 1876, by Act 39 
 
 e Tobin v. The Queen, C. B. N. S. Vic. c. 27, made provision for the in- 
 
 v. 16, p. 310. stitution of suits against the Crown 
 
 ' Attorney-Gen. (R. Palmer) in by Petition of Right. 
 Hans. D. v. 176, p. 2121. And see
 
 PETITIONS OF RIGHT. 846 
 
 possible to that which is adopted in cases between sub- Petitions 
 ject and subject, and to permit Petitions of Eight to be 
 entertained by any of the superior courts of law or 
 equity at Westminster. It provides that any such peti- 
 tion shall be left with the secretary of state for the home 
 department, in order that the same may be submitted 
 for her Majesty's consideration. If she think fit, the 
 Queen will grant her fiat that right be done, when the 
 merits of the suit will be investigated by the proper 
 court, and judgment given according to law. b 
 
 It is a mistake to suppose that whenever a Petition 
 of Eight is presented, the sovereign should be advised to 
 write upon it soit droitfait, whatever may be its prayer, 
 leaving it to the courts to decide whether it contains any 
 grounds for relief. By the law and constitution of Eng- 
 land a suit cannot be maintained against the sovereign, 
 without the express consent of the crown. That consent 
 cannot properly be withheld when sufficient foundation 
 or primd facie groundwork for the claim put forth has, 
 in the statement of facts on behalf of the petitioner, been 
 adduced ;* but it ought to be withheld, by advice of the 
 attorney-general, where it is clear that no relief can be 
 afforded. The attorney-general is answerable to Parlia- 
 ment for the advice he may give as to the granting or 
 withholding of a Petition of Eight, in like manner as he 
 would be in respect to the granting of a writ of error, 
 or a nolle prosequi) 
 
 In 1863, in the case of Mr. G. O'Malley Irwin, it was contended Mr.Irwin's 
 by Sir Fitzroy Kelly (ex-attorney-general), in his place in Parlia- case- 
 ment, that ' it was not competent or consistent with the duty of any 
 officer of the crown to advise the Queen to withhold her fiat to any 
 Petition of Right, upon any ground, whether right or wrong, 
 whether well or ill founded. Such an interference was only to be 
 justified in a case where a petition appeared to be founded on fraud, 
 
 h See a return of all Petitions of Papers, 1876, v. 61, p. 267. 
 
 Right fiated by her Majesty under the ' Broom's Leg. Max. p. 61 n. 
 
 Act 23 & 24 Vic. from 1860 to 1876, J Campbell's Chanc. v. 7, p. 
 
 with the result in each case ; Com. 408-n.
 
 346 THE SOVEREIGN. 
 
 Petitions or upon gross and manifest error.' In reply, the solicitor-general 
 Right. (gi r Roundell Palmer) stated, that he was prepared to show that 
 Mr. Trwin's petition ' had been presented in gross and manifest 
 error, and that no minister could be justified in advising the crown 
 to give its fiat to that so-called Petition of Right.' k On July 26, 
 1864, a motion was made in the House of Commons for an address 
 to the Queen that she would be pleased to grant her fiat to the 
 Petition of Right of Mr. O'Malley Irwin, or to satisfy his claims 
 without suit. But the attorney-general reviewed the facts of the 
 case, showed that Mr. Irwin's claims were frivolous and untenable, 
 and declared that if the law-officers had put their fiat on his peti- 
 tion, they would have adopted a different course to that pursued by 
 their predecessors in office, and would have given advice the ten- 
 dency of which must have been most pernicious. After a short 
 debate, the motion was negatived. Previous to this discussion in 
 the House of Commons, Mr. Irwin had brought an action in the 
 Court of Common Pleas against Sir George Grey, the secretary of 
 state for the home department, to recover damages for his having 
 refused or neglected to present to her Majesty his Petition of Right 
 in relation to certain claims upon the crown to the extent of 
 100,OOOZ., for alleged damages sustained by reason of a prosecution 
 against him in Ireland. 1 The case was tried before the lord chief 
 justice and a special jury, in December 1862. Sir George Grey 
 stated that he had presented Mr. Irwin's petition to the Queen, 
 with the advice that it should not be granted ; that he had acted 
 on the advice of the then attorney-general, Sir R. Bethell, and that 
 the plaintiff had been duly informed of the result. The lord chief 
 justice then told the jury that if they believed the home secretary's 
 statement that he had presented the petition to the Queen, ' ac- 
 companied with certain advice which he, as a responsible minister 
 of the crown, considered it to be his duty to give,' he had been 
 guilty of no breach of duty, they ought in such a case to give a 
 verdict for the defendant. The jury at once declared that they 
 believed the statement, and gave their verdict for the defendant 
 accordingly. Subsequently, the plaintiff moved for a new trial on 
 the ground of misdirection, but took nothing by his motion, the 
 court being of opinion that the question as to the nature of the 
 advice given to the crown by the secretary of state ought not to 
 have been answered. The only thing for the court to enquire into 
 was whether the Petition of Right had been presented to the 
 Queen by the home secretary, and advice tendered to her Majesty 
 
 k Hans. D. v. 172, p. 1174. m Dublin Evening Post, Dec. 6, 
 
 1 See comments on this case, in 1862. And see Index to the Times 
 
 Tobin v. The Queen, 16 C. B. Rep. for 1863, verbo Irwin, Mr. 
 
 N. S. p. 308.
 
 PETITIONS OF RIGHT. 347 
 
 thereupon. But ' the advice he gave ought not to have been Petitions 
 divulged.'" of Right- 
 
 In 1867, the case of Mr. Irwin came before the House of Lords, 
 on appeal from the decision of the Court of Common Pleas, but 
 judgment was given against him. He then petitioned for a re- 
 hearing, but that was refused by the Appeal Committee. On May 
 7, 1867, he petitioned the Lords to address the Queen either to 
 grant her fiat to his Petition of Right, or to satisfy his claim on 
 her Majesty ' without suit at all.' But no action was taken on this 
 petition.? 
 
 The foregoing case has established the point that 
 the advice to be given to the crown, by its responsible 
 ministers, upon a Petition of Eight, is discretionary ; 
 and that ministers are responsible for the same to the 
 sovereign and to Parliament, but not to the ordinary 
 courts of law. q 
 
 In 1876, in the case of Eustomjee v. The Queen, the 
 Queen's Bench decided, that a Petition of Eight does 
 not lie to compel the execution of a trust, or for the 
 distribution of money received by the crown in pursu- 
 ance of a treaty. Where money was paid to the crown 
 for the use of a subject, the remedy of a subject not 
 receiving the money was not to call upon the crown to 
 account to him as a trustee, but to fall back upon the 
 principle of the accountability of ministers to Parlia- 
 ment/ 
 
 It has been already stated, as a constitutional prin- Personal 
 ciple, ' that the personal actions of the sovereign, not o^the 1 "* 7 
 being acts of government, are not under the cognizance soverei gn- 
 of law ; ' and that as an individual he is independent of, 
 and not amenable to, any earthly power or jurisdiction. 3 
 Some further remarks on this point may be appropriate. 
 The best authorities have declared that there is no legal 
 
 n See the case in 3 Fost. and Finl. case of Dickson v. Viscount Comber- 
 
 Nisi Prius Cases, p. 636. mere and others, 3 Fost. and Finl. 
 
 Lds. Jour. 1867, pp. 38, 156, p. 527. 
 do. r L. T. Jour. v. 60, p. 246. Ib. 
 
 P Ib. p. 193. Reports S. N. v. 34, p. 280. 
 
 q See also, to the same effect, the s bee ante, p. 261.
 
 348 
 
 THE SOVEREIGN. 
 
 Sovereign 
 in his 
 personal 
 capacity 
 not amen- 
 able to 
 authority. 
 
 Personal 
 acts and 
 opinions 
 of sove- 
 reign and 
 royal 
 
 family not 
 cognizable 
 by Parlia- 
 ment. 
 
 remedy obtainable by the subject for personal acts of 
 tyranny and oppression on the part of the sovereign 
 which have not been instigated by bad advisers, but 
 have proceeded from the personal misconduct of the 
 monarch himself. Should any such cases occur, so far 
 as the ordinary course of law is concerned, they would 
 be covered by the maxim which forbids the imputation 
 of wrong to the sovereign,* and the erring prince must 
 be left to the rebukes of his own conscience, and to his 
 personal accountability to God alone. No decisions in 
 regard to common criminal offences committed by any 
 English king are to be found in the books ; the jurists 
 contending that the case of a sovereign being guilty of 
 a common crime must be treated as the laws of Solon 
 treated parricide, it must be considered an impos- 
 sibility. 11 It was truly observed by Locke, in his essay 
 on ' Government,' that the inconveniency of some par- 
 ticular mischiefs that may happen sometimes, when a 
 heady prince comes to the throne, are well recompensed 
 by the peace and public security which result from the 
 person of the chief magistrate being set out of reach 
 of danger/ 
 
 It would be unparliamentary to put questions to 
 ministers of the crown, in either House, in regard to 
 any personal acts or opinions of the sovereign, or of 
 any of the royal family, for which ministers are not re- 
 sponsible. w In 1871, Mr. Gladstone replied to a question 
 of this kind, under protest, and in order to disabuse 
 the public mind of an erroneous impression/ And it 
 is contrary to the usages of Parliament to address the 
 Crown upon matters which have not been made matters 
 of compact between the sovereign and Parliament/ 
 
 * Broom's Leg. Max. p. 63. 217, pp. 1187, 1446. Ib. v. 228, p. 
 u Rachel, Eng. Const, p. 123. 1495. 
 
 v Book 2, section 205. And see * Hans. D. v. 204, p. 866. 
 Cox, Eng. Qovt. pp. 408-416. * Mr. Gladstone, Hans. D. v. 206, 
 
 * Mir. of Parl. 1841, pp. 60, 78. p. 323. And see similar precedents 
 And see Yonge, Life of. Ld. Liverpool, in Com. Papers, 1868-9, v. 35, p. 
 v. 2, pp. 4, 5, 230-234. Hans. D. v. 959.
 
 THE CIVIL LIST. 349 
 
 Questions relating to the discharge of public duties 
 by the sovereign are not irregular, but they must be 
 couched in respectful and parliamentary language. 2 
 
 The curious question, whether the sovereign is T1 ! e sove - 
 
 . reign as ;i 
 
 examinable as a witness, was raised in 1818, in the Ber- witness. 
 keley peerage case, in reference to the Prince Eegent. 
 The crown lawyers were unanimous in their opinion 
 that the reigning monarch could not, by any mode, give 
 evidence as a witness in a civil suit. a On the other 
 hand, it has been asserted by Lord Campbell, ' that the 
 sovereign, if so pleased, might be examined as a witness 
 in any case, civil or criminal, but that he must be 
 sworn ; although there would be no temporal sanction 
 to the oath,' inasmuch as he is the fountain of justice, 
 and no wrong may be imputed to him. b 
 
 How far the king is bound in his private capacity to undertake 
 municipal charges or offices is said to be doubtful. George III. 
 was nominated churchwarden of St. Martin's, and the parishioners 
 absurdly threatened to bring an action to compel him to assume the 
 functions ! He accepted the office, and got himself represented by 
 deputy. 
 
 The ' civil list ' which is granted by Parliament for Koyai in- 
 the support of the royal household, and for the main- 
 tenance of the dignity of the crown in England, has, 
 ever since the accession of George III., been given in 
 exchange for the hereditary revenues of the crown, 
 which are all surrendered to Parliament. The civil list 
 is settled anew upon the accession of every sovereign, 
 and was fixed, in the case of Queen Victoria, at ,385,000 
 per annum. d But more than one-third of this amount 
 is allotted, by Act of Parliament, to defray salaries and 
 superannuation allowances of the royal establishment. 
 The sole remaining portions of the ancient estates of the 
 
 
 1 Hans. D. v. 192, p. 711. p. 527. 
 
 See the opinion, in Yonge's Life c Fischel, p. 135 n. And see Cox, 
 
 of Ld. Liverpool, v. 2, pp. 369-375. Eng. Govt. p. 248 n. 
 
 b Lives of the Chancellors, v. 2, d See May, Const. Hist. c. iv.
 
 350 THE SOVEREIGN. 
 
 civil list, crown which continue under the exclusive control of 
 the royal family, are the Duchies of Lancaster and 
 Cornwall. The former is a peculium of the Queen, 
 although the chancellorship of the duchy is considered 
 as a political office. Parliament is annually informed 
 of the revenues of the duchy, though the nett receipts 
 are paid into the Queen's privy purse. Under the im- 
 proved management effected by the late Prince Consort, 
 the estates of the duchy are becoming increasingly 
 valuable. 
 
 The Duchy of Cornwall is the independent inherit- 
 ance of the Prince of Wales, as heir-apparent, and only 
 becomes the property of the crown when there is no 
 heir-apparent of the throne. 6 Without denying the 
 abstract right of Parliament to interfere with the dis- 
 posal of the income arising from these royal duchies, it 
 is not customary for the House of Commons to enter 
 upon such enquiries.* 
 
 There is a moral liability laid upon Parliament to 
 provide to an adequate extent for the honourable sup- 
 port of the junior branches of the royal family as they 
 come to years of maturity, or are about to form matri- 
 monial engagements, upon being invited to do so by 
 message from the crown. This obligation has been 
 invariably undertaken by Parliament in a loyal and 
 liberal spirit. 8 
 
 e See the Crown Lands, by J. W. Com. Papers, 1874, v. 35. For a 
 
 Lyndon (London, 1871). As to the history of all the ancient crown 
 
 distinction between lands which have revenues, see Com. Pap. 1868-9, v. 
 
 been assigned by the state for the 35, pp. 915-961. 
 
 maintenance of the honour and dig- f Hans. D. v. 206, p. 323 ; v. 210, 
 
 nity of the crown and estates which pp. 284-299. 
 
 belong to the reigning sovereign, for * Mr. Gladstone, Hans. D. v. 208, 
 
 the time being, as a private person, pp. 570-575, v. 217, p. 1338. For 
 
 see Smith's Parl. Remb. 1862, p. 104. precedents of such grants, from 1688 
 
 And see a discussion upon a Bill to to the present time, see Com. Pap. 
 
 grant to her Majesty the enjoyment 1869-9, v. 35, p. 607, &c. Forprac- 
 
 of Claremont House during her life or tice, in both Houses, on such messages, 
 
 pleasure. Hans. D. v. 182, pp.960- see Hans. D. v. 217, p. 1180. And 
 
 965, 1075. Ib. v. 183, pp. 423, 921. see Amos, Fifty Years of the Eng. 
 
 And Act 29 & 30 Vic. c. 62, sec. 30. Const, p. 226.
 
 RIGHT OF DECLARING WAR AND MAKING PEACE. 351 
 
 There are some branches of the royal prerogative Preroga- 
 which may fitly engage our attention in the present chap- relation to 
 ter : those wherein the sovereign represents the state in forei g n 
 
 * powers. 
 
 its dealings with foreign nations. They will naturally 
 admit of the following classification : 1. The right of 
 declaring war and making peace. 2. Intercourse with 
 foreign powers. 3. The right of making treaties. 4. 
 Interference in the internal concerns of foreign nations. 
 Under each head the constitutional limits of parlia- 
 mentary interference with the prerogative in question 
 will be briefly stated. 
 
 (1.) The Right of declaring War and making Peace. 
 
 The Constitution has vested this right exclusively in Right of 
 the crown, to be exercised according to the discretion ^ano^ 
 of the sovereign, as he may judge the honour and in- making 
 terests of the nation to require. But this, like all other E 
 prerogatives, must be exercised by the advice and upon 
 the responsibility of ministers, who are accountable to 
 Parliament, and are liable to parliamentary censure or 
 impeachment for the improper commencement, conduct, 
 -or conclusion of a war. h 
 
 The previous consent of Parliament, either to the 
 commencement of a war or the conclusion of a peace, 
 is not formally required by the Constitution. The 
 necessity for obtaining adequate supplies for the prose- 
 cution of a contest with any foreign power, and the 
 control possessed by Parliament over the army and 
 navy by means of the annual Mutiny Acts, coupled with 
 the existence of ministerial responsibility, constitute a 
 sufficiently powerful check against the improper use of 
 this prerogative. Nevertheless, if the hostilities about HOW far 
 to be entered into are likely to involve serious conse- parUa* t0 
 quences, it would be the duty of ministers, before en- mentar y 
 
 h Cox, Inst. Eng. Govt. 596. Amos, Fifty Years of the Eng. 
 Bowyer, Const. Law, 160. And see Const, p. 370.
 
 352 
 
 THE SOVEREIGN. 
 
 gaging therein, to summon Parliament, to communicate 
 to it the reasons for resorting to arms, and to ask for 
 its advice and co-operation in carrying on the war. 1 If 
 Parliament be in session at the time, it is customary for 
 a royal message to be sent down, announcing the com- 
 mencement of hostilities ; but this form has not been 
 invariably observed. j 
 
 A debate arose in the House of Commons in 1867 k upon the 
 question of whether the conduct of the government in prosecuting 
 the expedition for the forcible release of certain British subjects 
 imprisoned in Abyssinia, without immediate appeal to Parliament, 
 was constitutional. The 54th Clause of the Indian Government 
 Act 1 expressly directs that when any order to commence hostilities 
 is sent to India the fact shall be communicated to Parliament within 
 three months, if Parliament be sitting, or within one month after its 
 next meeting. The China war (1857-1860) was 'begun and finished 
 without the servants of the crown thinking fit to ask for a direct 
 approval of their policy by Parliament,' although resolutions con- 
 demnatory of the war were proposed in both Houses and carried in 
 the House of Commons. 111 
 
 Inter- 
 
 
 
 The crown, in communicating to Parliament the 
 breaking out of hostilities, the existence of a state of 
 
 this* iS. th war ' or t ^ ie commencement of negotiations for peace, n 
 rogative. thereby invites an expression of opinion upon the same. 
 
 When negotiations for peace have failed, Parliament should be 
 immediately informed thereof, in order that some action should be 
 taken thereupon, if necessary. 
 
 The advice tendered by Parliament may be unfavour- 
 able to the policy of ministers, and its indispensable 
 
 1 Macaulay, in Hans. D. v. 84, p. 
 889. Palmerston, Ib. v. 144, p. 168, 
 and v. 146, p. 1638. Earl Grey, Ib. 
 v. 144, pp. 72, 2475. Disraeli, Ib. v. 
 218, p. 89. For precedents of parlia- 
 mentary interference in questions of 
 war and peace, see May, Const. Hist, 
 v. 1, p. 458. Smith's Parl. Rememb. 
 1859, p. 95; 1860, p. 1. 
 
 J Com. Jour. Feb. 11, 1793. May 
 22, 1815. March 27, 1854. No 
 message was sent upon the commence- 
 
 ment of the China War ; see Mir. of 
 Parl. 1840, p. 2584. As regards the 
 Persian War, see Parl. D. v. 146, p. 
 1577. And as to wars in India, Ib. 
 151, p. 1002, &c. 
 
 k Hans. D. v. 190, p. 178. 
 
 1 21 and 22 Vic. c. 106 
 
 m Hans. B. v. 161, p. 546. 
 
 n Com. Jour., Dec. 8, 1795, Oct. 
 29, 1801, Jan. 31, 1856. 
 
 Hans. D. v. 138, pp. 105, 181, 
 560, 836, &c.
 
 RIGHT OF DECLARING WAR AND MAKING PEACE. 353 
 
 assistance withheld. Thus, the American war was 
 brought to a close, against the will of the king, by the 
 interposition of the House of Commons. 
 
 On March 4, 1782, the House resolved, that 'all those who should 
 advise the continuance of the American war were to be considered 
 as enemies to the king and country.' This brought the war to an 
 end, despite the wishes and intentions of George III.P 
 
 In 1791, Mr. Pitt was obliged to abandon an intended 
 war with Russia, which he deemed essential to the pre- 
 servation of the balance of power in Europe, in defer- 
 ence to the adverse opinion of the House of Commons, 
 expressed indirectly but unmistakably, after a royal 
 message on the subject had been transmitted to Parlia- 
 ment.* 1 After the escape of Napoleon from Elba, in 
 1815, a message was sent to both Houses by the prince 
 regent, informing them of the measures undertaken by 
 government for securing the peace of Europe. In the 
 Commons, on April 7, in amendment to an address of 
 thanks in answer to this message, Mr. Whitbread moved 
 that the prince regent should be requested to exert his 
 most strenuous endeavours to secure to the country the 
 . continuance of peace. This was negatived by a large 
 majority. Again, on April 28, he moved an address to 
 the prince regent, entreating him to take measures to 
 prevent the renewal of war on the ground of the execu- 
 tive power of France being vested in any particular 
 person. This also was opposed by government, and 
 negatived by a large majority. On March 3, 1857, the 
 House of Commons condemned the policy of the war 
 with China. This occasioned a dissolution of Parlia- 
 ment, which resulted in favour of ministers. 
 
 But if the government, on their own responsibility, 
 and with a knowledge of the international relations of SfraV to 
 the kingdom, which it would have been impolitic to 
 have fully disclosed to Parliament beforehand, should in a 
 
 P May, Const. Hist. v. 1, p. 458. Stanhope's Pitt, v. 2, p. 1 13. 
 
 VOL. I. A A 
 
 foreign 
 war.
 
 .354 THE SOVEREIGN. 
 
 have found it necessary, in defence of the honour or 
 the interests of the state, to engage in a foreign war, it 
 becomes the duty of Parliament, in the first instance 
 to afford the crown an adequate support. Thus, Mr 
 Disraeli, the leader of the Opposition, upon the declara- 
 tion of war with Eussia, in 1854, said, ' If her Majesty 
 sends a message to Parliament, and informs us that she 
 has found it necessary to engage in war, I hold that it 
 is not an occasion when we are to enter into the policy 
 or impolicy of the advice by which her Majesty has 
 been guided. It is our duty, under such circumstances 
 to rally round the throne, and to take subsequent and 
 constitutional occasions to question the policy of her 
 Majesty's ministers, if it be not a proper one.' r In 
 a succeeding chapter when treating of the preroga- 
 tive in regard to the direction and control of the army 
 various precedents will be adduced, pointing out 
 the manner in which Parliament should exercise its 
 constitutional right of inquiry into the prosecution of 
 foreign wars ; 8 and the case of the China war, above 
 cited, is a memorable example of the condemnation by 
 Parliament of a war which it regarded as unwise and 
 inexpedient, while, at the same time, it did not refuse 
 to furnish the means of bringing it to a successful 
 issue. 
 
 On July 8, 1873, a resolution for an address to the 
 Queen was agreed to by the House of Commons on 
 division (against ministers), praying that the foreign 
 secretary might be instructed to propose to foreign 
 powers the establishment of a general and permanent 
 system of international arbitration. On July 17, her 
 Majesty's answer was reported, stating that ' the prac- 
 tice of closing controversies between nations by sub- 
 
 r Hans. D. v. 132, p. 281. For similar remarks by Mr. Disraeli in 
 reference to this prerogative, see Ib. v. 173, p. 97. 
 1 See post, pp. 634-542.
 
 INTERCOURSE WITH FOREIGN POWERS. 355 
 
 mission to the impartial judgment of friends ' had been 
 hitherto advocated by the crown, and will be hereafter 
 encouraged, * with due regard to time and opportunity, 
 when it shall seem likely to be attended with advantage.' 
 
 (2.) Intercourse with Foreign Powers. 
 
 The sovereign is the constitutional representative of inter- 
 the nation in its intercourse with foreign powers. The 
 transaction of affairs of state with other nations apper- crown and 
 tains exclusively to the executive government, which is powers. 
 always in existence, ready for the discharge of its func- 
 tions, and constantly assisted by experienced advisers in 
 the performance of its discretionary powers. 
 
 The medium of communication between the sove- secretary 
 reign of Great Britain and the accredited representatives g f s ^ e 
 of foreign nations is the secretary of state for foreign medium 
 affairs.* It is his duty, in official interviews with foreign munica^ 
 ministers, and by means of written despatches, to convey tion - 
 the views, opinions, and conclusions of the government 
 upon matters arising out of the relations of the British 
 Crown with other countries. 
 
 It is a necessary rule that the substance of all per- 
 sonal communications between the representatives of the 
 British Crown and the ministers of any foreign country, 
 upon matters of public concern, should be committed to 
 writing, in order that a fair and complete record of the 
 transactions between Great Britain and other states may 
 be preserved in the Foreign Office, and, in due course, 
 submitted to Parliament." The English constitutional informa- 
 system requires that Parliament should be informed, oftobe e " 
 from time to time, of everything which is necessary to ^ ve ? to 
 explain the conduct and policy of government, whether meat " 
 at home or abroad/ in order that it may interpose with 
 
 1 See ante, p. 267. T Ld. Palmerston, Ib. v. 173, 
 
 u See Mr. Disraeli's speech in Hans. 1103. Earl Russell. Ib. v. 203 
 D. v. 157, p. 1179. 1060. 
 
 A A 2
 
 356 
 
 THE SOVEREIGN. 
 
 Advan- 
 tage of 
 commu- 
 nicating 
 to Parlia- 
 ment 
 informa- 
 tion on 
 foreign 
 policy. 
 
 advice, assistance, or remonstrance, as the interests of 
 the nation may appear to demand. 
 
 In 1810 the House of Commons passed a resolution of censure 
 upon the Earl of Chatham (the Master-General of the Ordnance and 
 a cabinet minister), who had commanded a military expedition to 
 the Scheldt, on account of his having presented to the king a secret 
 report of the expedition, without communicating the same to his 
 colleagues, or causing it to be considered as a public document. 
 (See ante, p. 267.) It was justly contended, that if such a proceed- 
 ing were permitted, it would strike at the root of ministerial respon- 
 sibility^ 
 
 It is unquestionably of immense advantage to the 
 country, that the diplomatic transactions and proceed- 
 ings of government abroad should be freely communi- 
 cated to Parliament, for thereby the foreign policy of the 
 crown ordinarily receives the approbation of Parlia- 
 ment, and is sustained by the strength of an enlightened 
 public opinion.* This in itself confers an additional 
 weight to our policy and opinions abroad. On the 
 other hand, it is notorious that the English system of 
 giving publicity to information obtained by government, 
 in regard to occurrences in foreign countries, is viewed 
 with great disfavour on the Continent. A knowledge of 
 the fact that all information procured by our foreign 
 agents is liable to be made public, militates somewhat 
 against their usefulness, and tends to place them occa- 
 sionally in an embarrassing position. It induces towards 
 them, moreover, a feeling of reserve on the part of the 
 representatives of other governments ; and necessitates 
 that our ministers should resort, more than they would 
 otherwise do, to the practice of private correspondence/ 
 But a certain amount of discretion must always be 
 allowed to the government in respect to communicating 
 
 Parl. D. v. 16, p. 3**. 
 
 * See Earl of Clarendon, on the in- 
 creasing power of public opinion over 
 
 Amos, Fifty Years of Eng. Const. 
 p. 370. 
 
 ' Rep. of Com. Com 6 , on the Diplo- 
 
 the foreign policy of the Government, matic Service, Com. Pap. 1861, v. 6 
 Hans. D. v. 183, p. 572. And see pp. 75, 130, 844, 392.
 
 INTERCOURSE WITH FOREIGN TOWERS. 357 
 
 or withholding documents and official correspondence Discretion 
 which may be asked for by either House of Parliament, holding 
 
 While it is necessary that Parliament should be informed 
 of all matters which are essential to explain or defend to be 
 the policy of government, it is equally necessary that a 
 minister should be able, upon his own responsibility, to 
 withhold from the public such information as he may 
 judge could not be afforded without detriment to the 
 public service. Ministers are sometimes obliged to give 'Extracts' 
 * extracts ' only from official papers, in certain cases ; but certain 
 Parliament is bound to receive what is communicated cases - 
 upon the faith and credit of the administration in whom 
 their general confidence is reposed, unless they are pre- 
 pared to question the personal integrity of ministers,. or 
 to pronounce a verdict of censure upon their public 
 conduct. 
 
 A debate took place in the House of Commons on . 
 March 19, 1861, on a motion for a committee to con- 
 sider the discrepancies between the copies of certain 
 correspondence relating to Afghanistan, which was pre- 
 sented to Parliament in 1839, and again (in a different 
 shape) in 1858 ; and to report thereon with a view to 
 secure that all copies of documents presented to the 
 House shall give a true representation of the originals. 
 After explanations on the part of Lord Palmerston, 
 against whose official conduct the motion was directed, 
 it was negatived. 2 
 
 Thus, it is generally inexpedient, and highly impo- Papers 
 
 T ... & . / -or concern- 
 
 litic, to communicate to Parliament papers concerning mgpend- 
 diplomatic negotiations which are still pending ; a and J?g ne e- 
 
 . . & . J ' tuitions. 
 
 ' nothing is more prejudicial to the action and efficiency 
 of the diplomatic service than the perpetual motions for 
 the production of papers, which are made by a certain 
 
 1 But see Smith's Parl. Rememb. Despatches, noticed in Smith's Parl. 
 
 1861, p. 45. And Louis Blanc's Rememb. 1860, p. 35. 
 Letters on England, 2nd S. v. 1, p. a See post, p. 370. 
 206. See also the case of the China
 
 358 THE SOVEREIGN. 
 
 class of politicians,' who insist upon the fullest infor- 
 mation on questions of foreign policy, at unseasonable 
 times. b 
 
 Sometimes, however, the government, in the exercise 
 of their own discretion, have laid before Parliament 
 papers in regard to disputes with foreign nations, whilst 
 the negotiations were still pending, expressly in order 
 that the opinion of Parliament might be declared, so as 
 to -influence the course of events. But in 1860 a mo- 
 tion in the House of Commons, for the production of a 
 copy of a despatch received from abroad (upon a sub- 
 ject on which negotiations were pending), and before it 
 had been answered, was successfully opposed by the 
 foreign secretary (Lord John Eussell), on the ground 
 tli at ' such a course would not only be contrary to pre- 
 cedent, but contrary to every principle recognised by 
 the Constitution : ' it ' would be like inviting the House 
 to dictate the answer. ' d 
 
 Count Wa- I n 1858, a despatch was received from Count Walewski, foreign 
 lewski's secretary to the French Government, referring to a recent attempt 
 inTsss U P 011 ^ e ^ e ^ *ke Drench emperor, which had been plotted in 
 England, and angrily remonstrating against the alleged impunity 
 of assassins in England. Instead of replying to this despatch, the 
 government laid it before Parliament, and made it the foundation of 
 a Bill, which they introduced into the House of Commons, to amend 
 the law concerning conspiracy to murder. But the Commons, in- 
 dignant at the imputations contained in this despatch, and at the 
 conduct of the ministry in relation thereto, rejected the bill upon 
 its second reading, by the adoption of a resolution, expressing their 
 regret that the government, ' previously to inviting the House to 
 amend the law of conspiracy, had not felt it to be their duty to 
 make some reply ' to Count Walewski's despatch. 6 This resolution 
 Jed to a change of ministry. 
 
 In 1872, as a deviation from the general rule, ministers consented 
 to lay before Parliament ' the English case ' under the treaty of 
 Washington, the American case having been widely circulated by 
 
 b Rep. Com. Diplomatic Service, 173, p. 863. 
 Cora. Pap. 1861, v. 6, p. 344. " Hans. 1). v. 157, p. 1 177. And 
 
 ' Mr. Disraeli, citing- case of Cri- sec ante, p. 441. 
 mean War, in !*>!. Ilnn?. D. v. * HI. v. 148, j, 1758,
 
 INTERCOURSE WITH FOREIGN POWERS. 359 
 
 the American Government. Otherwise, 'our own case would not 
 be presented to Parliament because it is a document prepared for a 
 process which has yet to come on, and it is for the consideration of 
 the arbitrators,' &c. f 
 
 It is a common practice, in order to save time, to Drafts 
 send on a despatch, intended for presentation to a foreign 
 court, by the British minister abroad, with instructions 
 to withhold the delivery thereof until all the parties 
 concerned had agreed upon it. If afterwards the de- 
 spatch is not agreed to, it is simply cancelled. It then 
 has no existence ; and government have uniformly re- 
 fused to communicate to Parliament the original draft 
 of any such despatch. 8 It is likewise contrary to diplo- 
 matic usage to communicate to Parliament, or to the 
 public, the answer to a despatch, until it has been re- 
 ceived by the power to which it has been addressed. 11 
 
 Any attempt to coerce the government into produc- Private 
 
 T> V 11 j.1 j.1 
 
 ing to Parliament all the papers they may possess upon 
 a matter of foreign policy, without regard to their being 
 confidential, or unsuitable for general publication, could 
 only result in compelling the agents of government to 
 have recourse to ' private correspondence ' for the com- 
 munication of everything but mere ordinary information. 
 This would occasion not only immediate public loss, but 
 also permanent injury to the state ; for w T hen one admi- 
 nistration succeeded another, it would be unable to 
 discover, amongst the official records of the public de- 
 partments, the real grounds of action, and motives for 
 decisions, upon great public questions. In communica- 
 tions between the Imperial Government and its agents 
 abroad, private and confidential letters are necessarily 
 frequently made use of. These letters refer to circum- 
 stances not sufficiently certain, or sufficiently important, 
 to be placed in the formal shape of a despatch ; or it 
 
 f Mr. Gladstone, Ib. v. 209, p. 208. 540. (Layard), Ib. v. 175, p. G62. 
 Ld. Palmerston, Ib. v. 173, p. h Ib. v/234, p. 319.
 
 ,360 
 
 THE SOVEKEIGN. 
 
 Etiquette 
 towards 
 foreign 
 sove- 
 reigns. 
 
 may be that they communicate circumstances which 
 have been learnt from conversations, or otherwise ex- 
 press opinions which it would be impossible to lay before 
 Parliament without placing the writer in a position that 
 would exclude him thereafter from all means of infor- 
 mation which it is essential he should obtain. Such 
 letters it is the duty of the foreign secretary to receive, 
 and it is equally his duty not to lay them before the 
 House. 1 
 
 It is contrary to the etiquette observed towards 
 sovereign princes to communicate to Parliament auto- 
 graph letters addressed by them to the monarch of 
 Great Britain. The practice is, for the secretary of state 
 to refer to the substance of such letters in an official 
 despatch, acknowledging the receipt thereof, whereby 
 an official record is preserved of their contents. 3 Nor 
 is it proper, or consistent with practice, to lay before 
 Parliament a letter from a foreign monarch to one of his 
 ministers of state, even though a copy of the same may 
 have been transmitted to the Foreign Office by our own 
 ambassador. 1 " 
 
 It is also unusual to lay before Parliament any com- 
 munications between ambassadors and ministers abroad 
 and the sovereign to whom they are accredited. 
 
 An ambassador is understood, in monarchical states, to be on 
 equal terms with the sovereign to whom he is accredited, and there- 
 fore at liberty to appeal, by word of mouth, from the administration 
 of a country to their master. An envoy is presented to the sove- 
 reign, but transacts his diplomatic business with the minister alone. 
 
 ' Ld. Palmeraton, Hans. D. v. 157, 
 p. 1182. And see Walrond's Letters 
 of Ld. Elgin, p. 79. For discussions 
 concerning the publication of 'private 
 and confidential letters ' addressed by 
 Sir D. Lange to the foreign secre- 
 tary, see Hans. D. v. 227, pp. 1426- 
 1436, 1500. As to the use or private 
 correspondence in communications 
 between the Home and East Indian 
 Government?, and especially with the 
 
 Indian Frontier States, see Ib. \. 234, 
 p. 1829. For further particulars in 
 regard to the practice of private cor- 
 respondence between the foreign se- 
 cretary and the diplomatic servants of 
 the crown, see post, v. 2, on ' Depart- 
 ments of State ' (the Secretary of 
 State for Foreign Affairs). 
 
 J Mr. Canning, in Parl. D. v. 36, 
 p. 187. 
 
 k Hans. D. v. 184, p. 381.
 
 INTERCOURSE WITH FOREIGN POWERS. 361 
 
 A charge* d'affaires has no recognised claim to approach the throne, 
 except by favour. 1 
 
 Such documents are regarded as ' confidential ' for the 
 obvious reason that their production ' might lead to 
 serious consequences.' m 
 
 The sovereign, considered as the representative of 
 her people, has the exclusive right of sending ambassa- ambassa- 
 dors to foreign states, and receiving ambassadors at 
 home. 11 This prerogative should be regarded as invio- 
 late, and should not be interfered with by either House 
 of Parliament, except in cases of manifest corruption 
 or abuse ; else the responsibility for its faithful exercise 
 by the minister of state who is properly accountable for 
 the same would be impaired, if not destroyed. 
 
 In 1814, the Right Hon. George Canning was appointed ambas- Not to be 
 sador extraordinary at the Court of Lisbon, for the purpose of con- controlled 
 gratulating the Prince of Brazil upon his return to Portugal. The men t. 
 salary and allowances to Mr. Canning were on the scale ordinarily 
 allowed to such functionaries ; but a few months previously, it ap- 
 pears that the foreign secretary had written to the resident minister 
 at Lisbon, requiring him, as a matter of economy, to reduce the ex- 
 penses of the mission. The subsequent appointment of Mr. Canning, 
 at a greatly increased rate of expenditure, led to the imputation that 
 "he owed his nomination to corrupt influences, and that his appoint- 
 ment was, in fact, ' a pecuniary and profitable party job.' Accord- 
 ingly, on May 6, 1817, after Mr. Canning had returned home, Mr. 
 Lambton moved in the House of Commons a series of resolutions 
 reciting the particulars of the case, and asserting the appointment 
 to have been inconsistent with the previous declarations of govern- 
 ment in regard to this mission, uncalled for, and resulting in an 
 ' unnecessary and unjustifiable waste of the public money.' The 
 foreign secretary (Lord Castlereagh) defended the conduct of the 
 government, and afterwards Mr. Canning himself gave full and satis- 
 factory explanations, which entirely exonerated all parties from cor- 
 rupt or improper conduct in the matter. Nevertheless, the motion 
 was pressed to a division, but it was negatived by a large majority. 
 
 Upon the accession to office of Sir Robert Peel, in 1835, he 
 
 1 Ld. Stratford de Redcliffe, in The n Bowyer, Const. Law, pp. 157, 
 
 10th Cen. v. 2, p. 476. 158. 
 
 m Ld. John Russell, Hans. D. v. Parl. I), v. 36, pp. 160-234. 
 131, p. 702.
 
 3C2 
 
 THE SOVEREIGN. 
 
 Houses of 
 Par ia- 
 ment 
 may not 
 communi- 
 cate 
 directly 
 with 
 foreign 
 powers. 
 
 selected the Marquis of Londonderry to be ambassador at St. Peters- 
 burg. This choice was unpopular in the House of Commons, and 
 on March 13, 1835, a motion was made for an address 'for a copy 
 of the appointment, if any, of an ambassador to St. Petersburg, to- 
 gether with a return of the salary and emoluments attached thereto.' 
 No vote was taken on this motion, it being stated that the appoint- 
 ment, although intended, had not yet been made. But the adverse 
 feeling towards Lord Londonderry on the part of the House of 
 Commons was so very apparent, that his lordship, without commu- 
 nicating with any member of the govemment, declared in the House 
 of Lords that he would not accept the mission.? Both the Duke of 
 Wellington and Lord John Russell protested against the unconstitu- 
 tional invasion by the House of Commons of the royal prerogative ; 1 
 and Sir R. Peel, who had announced his intention of adhering to the 
 choice he had made, 1 " afterwards stated that he had been no party to 
 Lord Londonderry's withdrawal, and that had the address passed, he 
 should have resigned office. 9 
 
 It would be a manifest breach of this prerogative 
 and of international courtesy for either House of Parlia- 
 ment to communicate directly with any foreign prince 
 or power. All such communications should be made 
 officially through the government, and by a responsible 
 minister of the British Crown. 4 
 
 In 1836, the French Government made a valuable present of 
 books to the libraries of the Houses of Lords and Commons. The 
 fact was duly reported to each House, by their respective library 
 committees. In the House of Lords, a resolution, expressing grate- 
 ful satisfaction for this donation^ was adopted ; but it was admitted 
 that no precedent existed to warrant the House in transmitting the 
 same direct to the French Chamber of Peers After a short discus- 
 sion on the point of form, it was agreed that the resolution should 
 be forwarded through the secretary of state for foreign affairs, 
 without any further action on the part of the House." It was de- 
 cided in the Commons, that, after the session, their Speaker should 
 make some arrangements for conveying an expression of thanks for 
 this donation to the French authorities, without the adoption by the 
 House of any formal vote thereupon. v 
 
 And in 1868 a resolution was agreed to by the House of Com- 
 
 f Mir. of Parl. 1835, p. 350. 
 
 > Ib. pp. .350, 358. 
 
 ' Ib. p. 335. 
 
 1 Ib. 1841, p. 1834. Peel's Mem. 
 
 v. 2, p. 88. 
 
 1 Hans. 1). v. 20(5, pp. 02, 64. 
 u Mir. of Parl. I8i, p. 193G. 
 ' Ib. p. 2836.
 
 INTERCOURSE WITH FOREIGN POWERS. 303 
 
 mons (July 31) accepting, 'with much gratification,' a certain volume 
 presented by the Congress of the United States, and directing that 
 a copy of this resolution be forwarded to the American secretary 
 of state, with a request that he will communicate the same to Con- 
 gress. 
 
 Upon the occasion of the successes of the allied armies of Eng- 
 land and France, during the Crimean war, in 1854, the thanks of 
 Parliament were voted to the French commander and his army, 
 ' for their gallant and successful co-operation ' with our troops, and 
 the English commander, Lord Raglan, was desired to convey to them 
 this resolution. But this vote was admitted by Lord John Russell 
 to be ' unusual, and perhaps unprecedented ; ' and grave doubts were 
 expressed by Earl Derby, whether such a proceeding on the part of 
 the House towards the troops of a foreign power was not irregular 
 and unbecoming. Nevertheless, the unanimity of feeling which 
 generally prevailed at the time towards our French ally caused the 
 point of form to be overruled. w 
 
 On May 1, 1865, addresses to the Queen were voted in both 
 Houses of Parliament, to convey to her Majesty the expression of 
 the deep sorrow and indignation with which the intelligence of the 
 assassination of Mr. Lincoln, President of the United States, had 
 been received, and praying her Majesty to communicate the abhor- 
 rence of the House, and their sympathy with the govemment and 
 people of the United States, upon this occasion, to the American 
 Government. These addresses were agreed to, nemine dissentiente ; 
 although, in the House of Lords, Earl Derby took exception upon 
 formal grounds, and suggested that the more regular course would 
 "have been ' simply to move a resolution of this, in conjunction with 
 the other House of Parliament,' expressing the feelings proposed to 
 be embodied in the address to the crown. No reply was made by 
 the mover of the address (Earl Russell, the foreign secretary) to 
 this point. 1 
 
 On June 30, and July 10 and 13, 1863, a singular and unprece- Andonpht 
 dented occurrence took place in the House of Commons. Two no T com- 
 members, Messrs. Roebuck and Lindsay, in the course of debate murica- 
 upon the expediency of recognising the Southern American Confe- tions from 
 deracy, communicated to the House an opinion of the Emperor of the J^f J ^ n 
 French upon the subject, which his Imperial Majesty, they stated, 
 had authorised them to make known to the House of Commons. 
 This proceeding gave rise to a very lively discussion, and elicited 
 from Lord Palmerston (the premier) some very pertinent remarks. 
 ' The British Parliament,' he said, ' is in no relation to, has no inter- 
 course with, no official knowledge of, any sovereign of any foreign 
 
 Hans. D. v. 136, pp. 329, 390. * Ib. v. 178, p. 1223.
 
 364 
 
 THE SOVEREIGN. 
 
 Houses of 
 Parlia- 
 ment 
 can only 
 communi- 
 cate with 
 other 
 legislative 
 bodies 
 through 
 the im- 
 perial 
 executive. 
 
 country. Therefore it is no part of our functions to receive commu- 
 nications from the sovereign or government of any foreign state, 
 unless such communications are made by the responsible minister of 
 the crown, in consequence of official communications held by order 
 of a foreign government with the British Government.' After further 
 observations on this point, his lordship declared that he thought it 
 right to place on record, so far as could be done by a statement in 
 the House, that the proceeding in question was ' utterly irregular, 
 and ought never to be drawn into precedent.' * 
 
 The principle involved in the foregoing cases admits, 
 moreover, of a more extended application, and forbids 
 of any formal communications between the Houses of 
 Lords and Commons and other legislatures in the British 
 empire, except through the medium of the executive 
 officers of the Imperial Government ; and likewise of 
 any official communication between a colonial and a 
 foreign government, except through the same channel. 
 
 Thus, on March 1, 1855, inquiry was made of ministers, in the 
 House of Lords, whether they intended to propose that the thanks 
 of Parliament should be given to the several colonial legislatures 
 who had liberally evinced their sympathy with the mother country 
 during the Russian war, by large contributions to the Patriotic Fund. 
 It was replied, that no precedent existed for such a communication, 
 and that ' it was a matter of grave doubt whether a precedent should 
 be now set, recognising an intercommunication between the Imperial 
 Parliament and the legislatures of the colonies in matters pertain- 
 ing to the crown, which would set the crown altogether aside.' In 
 this view all the leading statesmen of the House concurred. 2 
 
 In 1878, the colonial government of New Zealand, being desirous 
 of conveying the thanks of the colony to the Government of the 
 United States of America, for a generous gift of salmon ova to be 
 distributed to the different rivers in the colony, communicated the 
 same through the Governor, to her Majesty's secretary of state for 
 the colonies ' in the hope that her Majesty's Government will permit 
 a communication to be made to the Government of the United 
 States ' to this effect.* A similar course was taken by the two Houses 
 
 ' Hans. D. v. 172, p. 669. 
 
 Ib. v. 136, pp. 2073-2084. See 
 also the course taken by the II. of 
 Lords, in 1856, upon the occasion of 
 the gift by the widow of the late Ld. 
 Chanc. Truro of bis collection of law 
 
 books, as a donation to the library. 
 Ib. v. 141, p. 133. Lords' Jour. 1856, 
 pp. 74, 95. 
 
 a New Zealand Papers, 1878, A. 1, 
 p. 12.
 
 THE RIGHT OF MAKING TREATIES. 3G5 
 
 of the several Australian Parliaments in expressing their sympathy 
 and condolence upon the death of President Garfield. These resolu- 
 tions were ordered to be sent by telegraph. b The United States 
 Government promptly responded by telegram addressed by their 
 Secretary of State to the United States Minister in London. He 
 sent the reply to the Foreign Office, which communicated it to the 
 Colonial Office, and the secretary for the colonies forwarded it to 
 the several governors in Australia.* 5 
 
 (3.) The Right of making Treaties. 
 
 It is a peculiar function of sovereignty to make trea- Rights of 
 ties, leagues, and alliances with foreign states or princes ; th . e s ve ' 
 and by the law of nations it is essential to the validity making 
 of a treaty that it be made by the sovereign power, for treaties - 
 then it binds the whole community. In the British 
 empire this sovereign power is vested exclusively in 
 the crown, acting under the advice of its responsible 
 ministers. 
 
 The question of conferring upon the colonies a right to make 
 treaties in certain cases, e.g., the extradition of offenders and reci- 
 procal tariff arrangements, has been recently discussed between the 
 imperial and colonial authorities. d 
 
 Whatever engagements or contracts the sovereign 
 -enters into, no other power within the kingdom can 
 legally delay, resist, or annul ; although the king's mi- 
 nisters are responsible to Parliament for their participa- 
 tion in the conclusion of any treaty derogatory to the 
 honour and interests of the nation. 6 
 
 A treaty is a promise or engagement entered into 
 by the highest authorities in the states concerned to do 
 certain things. But it is an obligation of honour and 
 good faith. No penalty is provided for its violation ; 
 
 b Tasmania Leg. Coun. Vote, Sept. e Bowyer, Const. Law, p. 160. 1 
 
 29, 1881. Blackstone, c. vii. Ld. Palmerston, 
 
 c Ib. July 12, 1882. Hans. D. v. 174, p. 787. Ld. Stanley, 
 
 d See Sess. Pap, of Victoria, 1871. Ib. v. 187, p. 1916. See debate in 
 
 Despatches to and from the Governor H. of Lords on the interpretation of 
 
 of New Zealand in 1872, in New Zea- the ' collective guarantee ' in the 
 
 land Pap. See also Am. Law Mag. treaty of Luxemburg, Hans. D. v. 
 
 v. 7, p. 186. 188, p. 966.
 
 300 
 
 THE SOVEREIGX. 
 
 and there is no existing tribunal, or external authority, 
 which can enforce the obligations of a treaty/ 
 
 But it was decided by the judge of the Admiralty 
 Court, on March 15, 1879, that where a right of a British 
 subject has been recognised by Parliament, the crown 
 cannot cede or extinguish that right by a public treaty 
 without the sanction of the legislature ; and it is not 
 competent to the crown, without the authority of 
 Parliament, to clothe a foreign mail packet with the 
 immunity of a foreign ship of war, so as to deprive a 
 British subject of the right to proceed against her. g 
 But on February 27, 1880, this decision was reversed 
 by the Court of Appeal, on the ground that the immu- 
 nity of this ship from civil process was incident to her 
 public character and ownership. 11 
 
 The constitutional power appertaining to Parliament 
 m respect to treaties is limited. It does not require 
 respect to their formal sanction or ratification by Parliament, as a 
 condition of their validity. 1 The proper jurisdiction of 
 Parliament in such matters may be thus defined : First, 
 it has the right to give or withhold its sanction to those 
 parts of a treaty that require a legislative enactment to 
 give it force and effect ; as, for example, when it pro- 
 vides for an alteration in the criminal or municipal law, 
 or for the extradition of criminals, or proposes to 
 change existing tariffs or commercial regulations^ Se- 
 condly, either House has the right to express to the 
 crown, by means of an address, its opinion in regard to 
 any treaty, or part of a treaty, that has been laid before 
 
 Power of 
 
 1 Earl Derby, Hans. D. v. 230, p. 
 1462. Ld. Hammond, Ib. p. 1803. 
 H. Richard, M.P., on the Obligation 
 of Treaties in Law Mag. 4th S. v. 3, 
 p. 91. And a paper on Treaties of 
 Guarantee, Ib. v. 6, p. 215. 
 
 Case of ' Le Parlement Beige,' 4 
 L. R. Prob. Div. p. 129. Law Mag. 
 4th S. v. 4, p. 257. 
 
 " 42 L. T. Rep. N.S. p. 273. 
 
 ' Hans. D. v. 156, p. 1361. Ib. v. 
 201, p. 174. Earl Derby's evid. before 
 Com 6 . onjDiplom. Service, Com. Pap. 
 1870, v. 7, p. 468. 
 
 J See cases in Hertslet's Treaties, 
 v. 9, p. 1064, &c. And see Forsyth, 
 Const. Law, p. 369.
 
 THE RIGHT OF MAKING TREATIES. 3G7 
 
 Parliament. 11 Thirdly, it is in the power of either 
 House, if it disapproves of a convention or treaty, to 
 visit the ministers of the crown who are responsible 
 for the same with censure or impeachment, as the case 
 may be. 1 
 
 If a treaty requires legislative action, in order to 
 carry it out, it should be subjected to the fullest discus- 
 sion in Parliament, and especially in the House of Com- 
 mons, with a view to enable the government to promote 
 effectually the important interests at stake, in their pro- 
 posed alterations in the foreign policy of the nation. 
 But while Parliament may refuse to agree to measures 
 submitted to them for the purpose of giving effect to 
 any treaty, they have no power to change or modify, in 
 any way, a treaty itself. n 
 
 Until of late years, it was not usual to lay before 
 Parliament treaties prior to their ratification by the 
 governments concerned. A contrary practice has re- 
 cently prevailed in several instances. 
 
 In 1865, the government submitted to the House of Commons a 
 ' Sugar Duties and Drawback Bill,' the object of which was, ' to give 
 effect to a treaty which had not yet been ratified, and therefore could 
 not be presented to the House in the usual form, by command of 
 her Majesty ; but for the information of the House, as the treaty 
 required legislation, a copy had been presented as a return from the 
 Treasury.' P 
 
 In 1870, a treaty of neutrality with Belgium was for special 
 
 k Mr. Pitt's dictum, Smith's Parl. and Ld. John Russell's observations 
 
 Bememb. 1860, p. 33. Ld. Aber- thereupon. Hans. D. v. 159, p. 188G. 
 
 deen's motion in H. of Lords, Jan. ' Mr. Gladstone, in Hans. D. v. 
 
 26, 1832, for an address to the king, 166, p. 1380. Ld. H. Petty'a motion 
 
 to cause certain alterations to be made of censure in regard to the Convention 
 
 in the project of a treaty respecting of Cintra. Parl. D. Feb. 21, 1809. 
 
 Holland, which had been made public, For older cases, see Cox, List. Eng. 
 
 with a view to the honour of Great Govt. p. 599. And ante, p. 106. 
 
 Britain and the just claims of Hoi- m Hans. D. v. 156, pp. 1256, 1326. 
 
 land. (Mir. of Parl. 1831-2, pp. 310, n Mr. Gladstone, Hans. D. v. 71, 
 
 2823.) Mr. B. Cochrane's motion, in p. 548. 
 
 House of Commons, on July 13, 1860, Hans. D. v. 206, p. 1 103. 
 
 in regard to an article in the treaty p Chan, of the Excheq. Hans. D. v. 
 
 with China, respecting the residence 180, p. 280. 
 of a British Plenipotentiary at Pekin ;
 
 368 
 
 THE SOVEREIGN. 
 
 Right of 
 govern- 
 ment to 
 withhold 
 i nf orma- 
 tion. 
 
 reasons informally communicated to both Houses of Parliament on 
 the day of prorogation, although its formal ratification had not been 
 completed.^ The same course was taken with regard to the treaty of 
 Washington in 1871, r and in the case of the French Commercial 
 Treaty in 1873. 3 
 
 Nevertheless, the prerogative of the crown in this 
 particular has not been abandoned, and it is still in the 
 discretion of government to refrain from communicating 
 any treaty, especially a treaty of peace, to either House 
 of Parliament until after it has been ratified.* 
 
 Treaties between foreign powers, to which Great 
 Britain is not a party, are not communicated to Parlia- 
 ment ; although copies thereof may be in the possession 
 of the British Government." 
 
 On March 3, 1873, Lord Campbell moved that the House of 
 Lords should address her Majesty, praying that all treaties or con- 
 ventions by which disputed questions between Great Britain and a 
 foreign power are referred to arbitration may be laid upon the table 
 of both Houses six weeks before they are definitively ratified. But 
 the leaders of the government and of the Opposition objected to this 
 motion ; it was negatived without a division. On the following day, 
 a motion in the House of Commons, that all treaties with foreign 
 powers ought to be made conditionally on the approval of Parlia- 
 ment, was negatived without a division. 
 
 After the treaty of Washington of 1871 had been signed, but 
 before its ratification, the government was induced to communicate 
 it to Parliament. Whereupon, on June 12, Earl Russell moved, in 
 the House of Lords, an address to her Majesty praying that a certain 
 novel principle in the said treaty for the settlement of the Alabama 
 claims might not be sanctioned. Ministers, while anxious for discus- 
 sion in Parliament upon the treaty, deprecated the adoption of the 
 proposed motion. The Earl of Derby (a leading Opposition peer) 
 was of the same opinion. He pointed out that the agreement of the 
 House of Lords to the resolution would not lead to the breaking off 
 of the treaty, unless concurred in -by the House of Commons. And that 
 such a question, being vital to the existence of a ministry, would be 
 treated as one of confidence by the House of Commons, and not 
 
 i Chan, of the Excheq. Hans. D. 
 v. 203, pp. 1759, 1790. 
 ' Ib. v. 206, p. 1108. 
 Ib. v. 214, p. 173. 
 
 * Mr. Gladstone. Hans. D. v. 214, 
 p. 470. 
 
 u Mir. of Parl. 1834, p. 2868.
 
 THE RIGHT OP MAKING TREATIES. 369 
 
 determined upon the merits of the case. Accordingly, after full 
 debate, the motion was negatived without a division.' 
 
 On June 29 Lord Oranmore moved an address to the Queen con- 
 veying the deep regret felt by the House of Lords at her Majesty's 
 having been advised to sign a treaty with the United States which 
 was unbecoming the honour and dignity of this country. But the 
 motion was negatived without a division. w 
 
 It is unnecessary and inexpedient for the House of Alleged 
 Commons to interfere in any way, or declare its opinion, oftreaties 
 on any matter of alleged violation of treaty, or which 
 concerns the foreign relations of Great Britain with other 
 countries ; unless at the instigation of the executive 
 government, and with a view to powers or opinions 
 sought for by the executive ; as matters affecting our 
 relations with foreign countries are prerogative. 1 But 
 questions may be put to the administration in Parliament, 
 in reference to alleged infractions of treaties by foreign 
 powers, and for the purpose of directing the attention of 
 government thereto/ 
 
 Moreover, ' it is neither regular to ask, nor is it con- Treaties 
 
 , . . still pend- 
 
 venient to answer, questions relative to treaties which ing. 
 are yet pending.' z The initiation of a foreign policy 
 -and the conducting of negotiations with foreign powers 
 appertains exclusively to the executive government, who 
 are responsible for the course and issue of the same ; 
 and should not be interfered with by Parliament, who 
 necessarily can only possess imperfect information upon 
 the subject, either by advice or by vote. a So long as 
 
 ' Hans. D. v. 206, pp. 1623-1901. War, were ' at variance with the 
 
 * Ib. v. 207, p. 729. principles of international law.' 
 
 * Lord John Russell, Hans. D. (3) r See Ib. v. 157, pp. 749, 757 ; v. 
 v. 90, pp. 890, 891. See the discus- 158, pp. 1109, 1120. 
 
 B ion, in the H. of Commons, on June E Mir. of Parl. 1841, p. 1032. 
 
 28, 1861, on an abstract resolution British guarantee in the Luxem- 
 
 proposed in reference to the Garibaldi burg case, Hans. D. v. 187, p. 259. 
 
 fund, for the liberation of Italy. And Treaty of Tien-tsin, Ib. v. 191, p. 
 
 on the motion in the House, on April 1147. Mr. Bagehot, in his Eng. 
 
 28, 1864, to resolve that certain in- Const, ed. 1872, urges the expediency 
 
 structions issued to a colonial go- of some parliamentary control over 
 
 vernor, in regard to the observance the making of treaties, as by requir- 
 
 of neutrality in the American Civil ing that they be laid upon the table 
 
 VOL. I. B B
 
 370 
 
 THE SOVEREIGN. 
 
 Parlia- 
 
 not to 
 legislate 
 
 negotia- 
 tion. 
 
 Parliament is satisfied with the general principles upon 
 which negotiations are being conducted, and approves 
 of the general policy of the government, it should ab- 
 stain from all interference with pending negotiations. 1 * 
 
 So strictly is this rule observed, that, in 1839, a Bill introduced 
 by government for the Suppression of the Portuguese Slave Trade 
 was rejected by the House of Lords, at the instigation of the Duke 
 of Wellington, Lord Lyndhurst, and other eminent statesmen, ex- 
 itters p ress iy on the ground that Parliament ought not to be called upon 
 * act i n a matter which should properly be effected by negotiation 
 and by the action of the executive government on their sole respon- 
 sibility. After the rejection of the Bill, an address to the crown 
 was adopted by the House of Lords, urging negotiations with foreign 
 powers to suppress the traffic in slaves, and the adoption of other 
 measures by government to that end, especially as regards the 
 Portuguese slave trade, and giving assurances of the readiness of 
 the House to concur with the Commons in whatever measure might 
 be necessary to bring about such a desirable result. To this address 
 a suitable reply was given by the crown. At the same time, the 
 ministry introduced another Bill on the subject, which was free from 
 the principal objections pointed out in the former measure. The 
 Duke of Wellington, however, was still dissatisfied, and adhered to 
 his opinion that the objects intended ought to be effected by order 
 in council, without the intervention of Parliament. In its progress 
 through the Lords, the Bill underwent some important alterations, 
 rendering it more comformable to constitutional law and usage ; and 
 it was finally agreed to by both Houses. 
 
 On June 4, 1872, Earl Russell moved that the House of Lords 
 do address her Majesty, praying that proceedings may be stayed 
 before the arbitrators at Geneva, under the Treaty of Washington, 
 until the indirect claims, included in the American case, shall have 
 been withdrawn ; inasmuch as it is understood by her Majesty's 
 government that these claims do not come within the province of 
 
 of both Houses certain days before 
 they become valid, pp. xlv.-xlix. But 
 see 'Mr. Gladstone thereon, Hans. D. 
 v. 210, p. 325. 
 
 b See the speeches of Mr. Disraeli 
 and of Ld. Palmerston, in Hans. D. 
 v. 175, pp. 1279, 1286. And of Earls 
 Derby and Russell, Ib. pp. 1924, 
 1928. Papers regarding pending ne- 
 gotiations with foreign powers are 
 only communicated to Parliament at 
 the discretion of the Crown, and so 
 
 far as they can be produced without 
 public injury or inconvenience ; see 
 Mir. of Parl. 1630, p. 671 ; 1840, pp. 
 2047, 2049; 1841, p. 1507. Hans. 
 D. v. 187, p. 1492. Confidential com- 
 munications from foreign powers are 
 never laid before Parliament without 
 previous communication with the 
 powers concerned. Disraeli, Ib. v. 
 230, p. 885. And see ante, p. 357. 
 
 See Parl. D. 1839, passim. Ann. 
 Keg. 1 839, pp. 242-255.
 
 THE EIGHT OF MAKING TREATIES. 371 
 
 the arbitrators. Earl Granville (foreign secretary) declared that such 
 an address would be considered as a vote of censure. On June 6, 
 upon receiving certain satisfactory assurances from government, 
 Earl Russell withdrew his motion. On June 11, Lord Oranmore 
 moved a similar address, which was put and negatived without 
 debate or division. 
 
 After the conclusion of important negotiations with Result of 
 the representatives of any foreign state or states, it is S^to" 
 usual for the government to communicate the result to , be made 
 
 _.,. , , , 1-1 t t known to 
 
 Parliament, and to declare what is the course which Pariia- 
 the government propose to take in regard to the ques- ' 
 tions involved therein. 4 If either House should be of 
 opinion that the government has failed in its duty in 
 any respect, it is competent for them to take any line 
 of conduct they may think proper, in order to make 
 known to the crown their opinions upon the subject. 6 
 For, while the initiation of a foreign policy is the 
 prerogative of the crown, to be exercised under the 
 responsibility of constitutional ministers, it is the duty 
 of Parliament, when the result of the negotiations con- 
 ducted by ministers has been communicated to them, 
 to criticise, support, or condemn that policy, as they 
 may deem the interests of the nation shall require/ 
 
 Thus, on July 4, 1864, after the protocols of the conference held Invasion 
 in London, in the summer of 1864, between the representatives of f Den- 
 European powers, to consider of the dissensions between Denmark ?^f, ' 
 and Germany, had been laid before Parliament, Mr. Disraeli moved 
 in the House of Commons a vote of censure upon ministers, in the 
 shape of an address to the Queen, to represent that the course pur- 
 sued by the government had failed to maintain their avowed policy 
 of upholding the integrity and independence of Denmark, had 
 lowered the just influence of this country in the counsels of Europe, 
 and thereby diminished the securities for peace. An amendment, to 
 declare that the independence of Denmark and the security of its 
 possessions in Schleswig-Holstein ought to be guaranteed, was 
 negatived without a division. Another amendment, approving of 
 the conduct of government in abstaining from armed interference 
 
 d Mr. Gladstone, Hans. D. v. 199, Earl Russell, Ib. v. 176, p. 323. 
 p. 3-25. ' Mr, Disraeli, Ib. p. 749. 
 
 B B 2
 
 372 
 
 THE SOVEREIGN. 
 
 Whether 
 the crown 
 may dis- 
 possess 
 itself of 
 territory, 
 without 
 assent of 
 Parlia- 
 ment. 
 
 in the war, for the defence of Denmark, was put, and agreed to. On 
 July 8, a similar vote of censure was proposed in the House of 
 Lords ; an amendment, to modify the terms thereof, was put, and 
 negatived, and the main question was agreed to. It is noteworthy 
 that this vote was carried by means of proxies, for, of the peers 
 present, there were 123 non-contents to 119 contents ; but, by the 
 aid of proxies, this decision was reversed, and the total majority in 
 favour of the vote of censure was 9, there being 177 in favour and 
 168 against it.s 
 
 On March 30, 1871, the course taken by govern- 
 ment in accepting a proposal for the assembling of a 
 conference in London to revise the obligations imposed 
 by the Treaty of Paris, of 1856, was made the subject 
 of a motion of censure in the House of Commons, 
 which motion, after a long debate, was negatived, 
 without a division. The question whether the crown 
 has power by its prerogative to cede British territory 
 to a foreign state, except under a treaty of peace, or 
 to dispossess itself of its sovereignty over any portion 
 of its dominions, without the assent of Parliament, has 
 been frequently discussed, and still remains doubtful. 11 
 This question, so far as regards the right of the crown 
 to surrender to a foreign state a part of its territory, 
 was supposed to have been settled in the affirmative, 
 on the authority of Lord Chancellor Thurlow, but Lord 
 Campbell disputed the correctness of the dictum of his 
 predecessor. 1 The point again arose in 1863 upon the 
 cession of the Ionian Islands to Greece, when it was 
 argued by Earl Grey, in favour of the crown ; j also by 
 
 * Han8. D. v. 176, p. 1190. 
 
 h See a digest of cases and opinions 
 on the subject in Forsyth, Const. 
 Law, pp. 182-186. And the debate 
 in H. of Commons, in 1854, in rela- 
 tion to the issue of a royal procla- 
 mation abandoning the sovereignty 
 of the crown over the Orange River 
 territory, Hans. D. v. 133, pp. 53- 
 87. And see Amos, Fifty Years Eng. 
 Const, p. 413. Also observations in 
 
 bothHouses in regard to the pro- 
 posed transfer of the Gambia Settle- 
 ment to France. Hans. D. v. 201, 
 p. 1843 ; v. 203, pp. 339, 351 ; v. 206, 
 p. 153 ; v. 226, pp. 444 ; v. 227, p. 
 374 ; v. 228, p. 264. 
 
 1 Campbell's Chanc-^v. 6, pp. 555, 
 rib. " 
 
 556 n. Smith's Parl. Rememl 
 pp. 13, 141. 
 
 J Hans. D. v. 169, p. 57. 
 
 1863,
 
 INTERNAL CONCERNS OF FOREIGN NATIONS. 373 
 
 Lord Palmerston, and Sir R. Palmer (Solicitor- General), 
 to a similar effect, with an exception in the case of 
 newly-discovered territories which had been settled by 
 British subjects, when the laws of England having 
 been introduced therein, it was contended that the 
 cession could not take place without the consent of 
 Parliament. Or, in the case of conquered or ceded 
 countries, if Parliament had legislated concerning them, 
 Sir Eoundell Palmer considered that the concurrence 
 of Parliament might be necessary to their relinquish- 
 ment : k an opinion which was considered by the Privy 
 Council, without being fully decided, in 1876. 1 
 
 The consent of Parliament is not necessary to the Consent of 
 acquisition, by the crown, of additional territory, from mTntTnot 
 foreign powers ; provided the same is not obtained by necessary 
 
 J for acqui- 
 
 purchase. m sition of 
 
 territory. 
 
 On June 25, 1872, it was moved in the House of Commons that 
 an address be presented to her Majesty that she would be pleased to 
 consider the propriety of establishing a protectorate at Fiji, or of 
 annexing those islands, with the consent of the inhabitants. Being 
 opposed by ministers, the motion was negatived on division. The 
 question was again mooted in the House, with a similar result, on 
 June 13, 1873. On August 4, 1874, whilst negotiations were pend- 
 ing for the annexation of the Fiji Islands to the British Empire, a 
 private member of the House of Commons moved a resolution to 
 express approval of the same. But it was objected to, as tending 
 to diminish the responsibility of the government, and to assume an 
 unjustifiable responsibility on the part of the House of Commons, 
 and the motion was negatived. 
 
 (4). Interference in the Internal Concerns of Foreign 
 Nations. 
 
 The crown, acting through the secretary of state inter- 
 for foreign affairs, is sometimes called upon to express J^J^ 
 
 of foreign 
 
 k Hans. D. v. 169, pp. 230, 1807 ; p. 657; v. 211, p. 287. Diamond nations - 
 
 and see Ib. v. 174, p. 378. Fields in S. Africa, Ib. v. 207, p. 1631. 
 
 1 Damodhar Gordhan v. Deoram Acquisition of Fiji, Ib. v. 226,p. 571. 
 
 Kangi. 1 L. R. App. Cases, p. 33^ ; And see Amos, Fifty Years of Eng. 
 
 and Law Rev. v. 4, 4th S. p. 277. Const, p. 403. 
 
 m Dutch Guinea, Hans. D. v. 205.
 
 374 
 
 THE SOVEREIGN. 
 
 interven- its opinions in regard to the conduct of other powers, 
 
 tion in - . , . mi 
 
 in matters oi internal or domestic concern. I he inter- 
 
 foreign 
 
 affairs. 
 
 ests of British subjects resident in foreign parts, or 
 engaged in commercial transactions with foreign citi- 
 zens, may require the interposition of the crown on 
 their behalf; or a particular line of policy adopted by 
 a foreign state towards its own subjects, or towards 
 a neighbouring state, may be viewed by the British 
 government as contrary to recognised principles of 
 humanity, or of natural right, or as being likely to 
 occasion a disturbance of the peace of nations. Under 
 such circumstances, the crown is warranted by inter- 
 national usage in offering friendly advice or remon- 
 strance to a foreign government. 11 But great delicacy 
 is necessary in all such acts of intervention, lest they 
 should fail of their intended effect, and irritate instead 
 of conciliating ; thereby weakening the moral strength 
 of the crown in its foreign relations, or necessitating a 
 resort to arms. 
 
 ' All public writers have declared that a nation has the right to 
 settle its own form of government, provided it does not injure other 
 nations in its mode of doing so, just as every householder may 
 regulate his own house, provided he does not cause a nuisance to 
 the neighbourhood ; but if one nation attacks another, all nations 
 are at liberty to judge whether their interests and the general inde- 
 pendence are affected thereby. Thus the first kind of intervention 
 should, as a rule, be forbidden and avoided.' Of late years, the 
 leading powers of Europe have abstained, as a general principle, 
 from such intervention. ' But the case would be quite different if, 
 when a great power attacks a small independent state, with a view 
 to conquest, other powers were as a rule to remain quiescent/ ' It 
 does not follow, however, that in every case of invasion with a view 
 
 " See a number of instances, cited 
 by Ld. Palmerston, wherein the Brit. 
 Government ' have interfered with 
 great success in the affairs of other 
 countries, and with great benefit to 
 the countries concerned,' Hans. D. v. 
 175, p. 532. Ib. v. 235, p. 402. 
 
 Ld. Palmerston, when foreign 
 secretary, gave frequent offence to 
 
 foreign governments, and even to his 
 own government. Thus, in 1848, an 
 irritating and ill-judged despatch, 
 which greatly irritated the Spanish 
 Government, and gave rise to much 
 debate in both Houses of Parliament. 
 Martin's Pr. Consort, v. 2, p. 65. 
 And see Ib. pp. 278, 301.
 
 INTERNAL CONCERNS OF FOREIGN NATIONS. 375 
 
 to interference in the internal concerns of a state, neutral powers 
 are bound to resist the invader.? 
 
 It is obvious that, if any diplomatic interventions 
 are called for, they can only be exercised through the 
 recognised official channels of international communi- 
 cation. Direct interference by either House of Parlia- whenPar- 
 
 . J . , t ' ' liament 
 
 ment in the domestic or municipal concerns 01 a loreign may inter- 
 country would be highly irregular and unconstitu- ^IrsTof 
 tional. q If, however, by virtue of existing treaties foreign 
 
 i / 4.\ powers. 
 
 with a foreign state, or lor any other reason, tne 
 British crown possesses a distinct and formal ground 
 for interposition in a domestic matter arising within a 
 foreign territory, it would be perfectly regular for 
 either House to address the crown to exercise that 
 right ; or for either House themselves to appoint a 
 committee to institute inquiries into matters within the 
 jurisdiction of foreign countries, but in relation to 
 which British subjects have a direct interest. 
 
 On February 7, 1872, the House of Commons appointed a select 
 committee to report upon the subject of railway communication 
 between the Mediterranean, the Black Sea, and the Persian Gulf, 
 with a view to the furtherance of British interests in railway com- 
 munication with India. This committee reported on July 22. r 
 
 On February 23, 1875, the House of Commons appointed a select 
 committee to inquire into the circumstances attending the making 
 of contracts for loans by British subjects with certain foreign states, 
 and into the causes which have led to the non-payment of the 
 
 p Earl Russell (citing authorities) For the opinions of Earl Derby and 
 
 in Essay on the Eug. Const, new ed. Lord Stanley on non-intervention, see 
 
 pp. Ixxxii.-xciii. And see his speech Hans. D. v. 184, pp. 1154, 1218, 1253. 
 
 in Hans. D. v. 176, p. 1178 ; Ib. v. See also Ib. Ap. 12, 1872 ; and in 
 
 188, p. 146 ; Quar. Rev. v. 146, p. 88; later years to 1879, cited in Amos, 
 
 the proposed votes of censure upon Fifty Years of Eng. Const, p. 365, &c. 
 
 the policy of the government on the q See Ld. Stanley's remarks on a 
 
 Schleswig-Holstein question, in the proposal to record the opinion of the 
 
 H. of Lords, on April 11, and in the H. of Com. on the murder of Maxi- 
 
 H. of Com. on July 4, 1864 ; the dis- milian, Emperor of Mexico, and his 
 
 cussion, in the Lords, on affairs of generals, Hans. D. v. 188, pp. 1393, 
 
 Austria, &c., May 8, 1866 ; and the 1709. 
 
 debate, in the H. of Com., on the r Com. Pap. 1872, v. 9, p. 171. 
 
 Treaty of Luxemburg, June 14, 1867. And see Hans. D. v. 226, p. 871.
 
 376 THE SOVEREIGN. 
 
 principal and interest of such loans. This committee reported on 
 July 29." 
 
 The Pacific Islands' Protection Act, 38 & 39 Vic. c. 51, sec. 6, 
 authorised the Queen to exercise power and jurisdiction over British 
 subjects within any islands, &c., of the Pacific Ocean not within the 
 Queen's dominions, or within the jurisdiction of any civilised power. 
 
 Such proceedings, however, must be restrained 
 within the limits of political expediency, and should 
 not be persevered in, if opposed, on this ground, by 
 the responsible advisers of the crown.* 
 
 Lafayette, In the years 1794 and 1796, u the House of Commons was moved 
 ' to address the crown to intercede with the government of Prussia 
 for the liberation of General Lafayette and other Frenchmen, who 
 had been captured during the war with France, and confined in 
 Prussian prisons. The proposed addresses were supported by Fox 
 and other leading Whigs, on the ground that Lafayette and his 
 friends were not subjects either of Prussia or Austria; that they had 
 not violated the laws of either country, but were mere prisoners of war, 
 and that England, as an ally of Prussia, was entitled to intercede in 
 their behalf. Mr. Pitt, however, successfully resisted the motions 
 on constitutional grounds. He said, 'No instance of such inter- 
 ference as is now proposed has ever occurred at any former period 
 nor could such interference be attempted without establish- 
 ing a principle of the most unwarrantable tendency; a principle 
 inconsistent with the internal policy and independent rights of 
 foreign states.' ' It would be improper for this House to take any 
 share in a transaction which in no degree comes within their 
 province, and on which their decision could have no influence.' v 
 Polignac, On a similar occasion, on May 31, 1836, a motion was made in 
 &c - the House of Commons for an address to his Majesty to use his 
 good offices with his ally, the King of the French, for the release of 
 Prince Polignac and other state prisoners, formerly ministers of 
 state of the late King Charles X., now confined in the fortress of 
 Ham for attempting a revolution in France, which was afterwards 
 successfully accomplished by others in July 1830, and by means of 
 which the present King of the French was placed upon the throne. 
 The foreign secretary (Lord Palmerston), though personally sympa- 
 
 Com. Pap. 1875, v. 11, p. 1. u See Parl. D. on General Fitz- 
 
 1 Ld. Palmerston, on proposed patrick's motions on March 17, 1794, 
 
 address for the recognition of the and Dec. 16, 1796. 
 
 Southern American Confederacy, T Parl. Hist. v. 32, p. 1362. 
 
 Hans. D. v. 172, pp. 656, 668.
 
 INTERNAL CONCERNS OF FOREIGN NATIONS. 377 
 
 thising in the object sought to be obtained by the motion, declared 
 that the House ' could take no step so inexpedient, or even dan- 
 gerous, as to ask the King of England by address to interfere in 
 matters connected with the domestic concerns of another country.' w 
 After a short debate, the motion was withdrawn. 
 
 On March 5, 1839, a member moved an address for correspond- P rt of 
 ence between the Foreign Office and the British minister at Stock- 
 holm relative to the erection of Slito, in Gottland, into a free-port, 
 to the manifest advantage of British interests. Lord Palmerston 
 opposed the motion, because no sufficient parliamentary grounds for 
 it had been shown; and because neither ' this House nor the English 
 Government has any business to meddle with the internal affairs of 
 the Government of Sweden,' as would be done were this motion to 
 prevail. It was accordingly negatived.* 
 
 And on May 10, 1861, a motion for copies of despatches from 
 our ambassador at Vienna, describing the constitution lately 
 granted by the Emperor of Austria to his subjects, was withdrawn ; 
 on its being stated by the foreign secretary (Lord John Russell) 
 that, ' although there is no secret about the matter,' it was not 
 desirable to produce papers ' which relate so entirely to the internal 
 affairs of Austria.' * 
 
 But there is a manifest difference between an un- 
 authorised interference in the municipal proceedings 
 of a foreign country and interference with a specific 
 object, under a specific treaty. 2 
 
 But in any case it is not regular to lay before Parliament copies 
 of official documents of foreign countries, unless they are in the 
 formal and official possession of government.* And it is a rule 
 which, as a matter of courtesy, is always observed, that, when 
 documents have been communicated to the British Government by 
 foreign powers, they are not laid before Parliament without first 
 consulting said powers as to whether or not they desire them to be 
 published. 1 * 
 
 Recognising this distinction, the government acquiesced in Affairs in 
 motions made in the House of Commons, both in 1832 and 1842, Poland, 
 for addresses for copies of manifestoes and ukases issued by the 
 Russian Government, and relating to the administration of the king- 
 dom of Poland ; England having been party to a treaty, in 1815, 
 
 w Mir. of Par!. 1836, p. 1611. And * Hans. D. v. 162, p. 1870. 
 see Life of T. S. Duncombe, M.P. v. Earl Derby, Ib. v. 234, p. 1823. 
 1, pp. 237-244. Ib. v. 83, p. 423; Ib. v. 217, p. 
 
 ' Ib. 1839, pp. 786-792; see also 1087. 
 Ib. p. 2762. b Ib. T. 173, pp. 330, 861.
 
 THE SOVEREIGN*. 
 
 by which the condition of Poland had been regulated, and subse- 
 quent acts of the Russian Government towards the Poles having 
 taken place, in alleged contravention of that treaty, so that the 
 Parliament of England possessed a right to information as to the 
 grounds upon which that condition had been changed, and were 
 justified in expressing their sympathy with the sufferings of Poland, 
 although it might not be expedient for the government to take 
 any formal steps that would be regarded as hostile or offensive by 
 Russia. 
 
 A motion for an address to the crown for a copy of the in- 
 structions by the Government of the United States to its officers for 
 the suppression of the slave trade was opposed by the administration, 
 because, although the instructions had been communicated to the 
 British Government under a recent treaty, yet it was no part of the 
 duty of the British Government to communicate them to Parliament, 
 but rather for the United States Government to determine whether 
 they should publish them or not, d 
 
 Poland. But, on March 17, 1865, Lord Palmerston opposed a motion con- 
 
 demnatory of the conduct of Russia towards Poland, on the ground 
 that the records of Parliament already contained a deliberate ex- 
 pression of opinion on the subject, and that it was not desirable to 
 weaken this proceeding by any mere repetition of similar opinions. 
 Such motions, he contended, should only be resorted to in order to 
 obtain from the House once and for all a decisive expression of 
 opinion, which may have the effect of influencing events, or, if 
 necessary, of obtaining from government some action with a view to 
 give effect to the same. The motion was accordingly withdrawn. 
 
 On March 16, 1841, a member moved to resolve that, in the 
 opinion of the House of Commons, certain tolls, known as the Sound 
 dues, levied by the King of Denmark on British (and other) ship- 
 ping were unjust, and required revision. The foreign secretary 
 admitted the fact, and the truth of the general statements urged in 
 its behalf ; also, that the grievance was one of long standing ; but 
 he declared that negotiations had been recommenced for the re- 
 moval of the tolls, and that it was therefore inexpedient for the 
 House to interfere. Sir R. Peel (in Opposition at the time) con- 
 curred in the inexpediency of interference by the House in foreign 
 negotiations, but considered that, if the crown should be unable to 
 procure redress, the House might properly and advantageously 
 interpose, and fortify the crown by a temperate expression of 
 opinion on the subject, which would doubtless have weight with 
 the Danish Government. By general consent, the present motion 
 was set aside by the previous question, to be renewed at another 
 
 e Sir R. Peel, in Hans. D. v. 64, pp. 823-825. d Ib. v. 71, p. 581.
 
 INTERNAL CONCERNS OP FOREIGN NATIONS. 379 
 
 time, if necessary. 6 The House was afterwards informed, in reply 
 to a question, of the satisfactory progress of the negotiations.' 
 
 The British Government has likewise a right to Protection 
 interfere and demand redress from a foreign govern- subjects. 
 ment whenever there is reason to believe that any 
 British subject had suffered a wrong for which that 
 government was responsible, and had failed to obtain 
 redress. Papers, in such cases, should be submitted to 
 Parliament ; and if it should appear that there is any 
 ground of complaint against the Foreign Office, that 
 department would be amenable to parliamentary criti- 
 cism and censure for the same. 8 But the government 
 have distinctly declined to take up, as international 
 questions, complaints of British subjects against foreign 
 states arising out of private loan transactions ; or to 
 interpose, except by good offices, between bondholders 
 and the states by which they may be wronged. h 
 
 Bearing in mind the constitutional limits wherein 
 the active interference of Parliament in the affairs of 
 foreign nations is necessarily restrained, there is, never- 
 theless, an important function fulfilled by the British 
 legislature, as the mouthpiece of an enlightened public 
 opinion, which calls for special remark. When events in 
 are transpiring abroad upon which, in the interest of 
 humanity, or of the peace and good government of the affairs - 
 world, it is desirable that British statesmen should 
 have an opportunity of declaring their sentiments, 
 from their place in Parliament whether by so doing 
 they merely express, with the weight due to their per- 
 sonal character and high official position, the general 
 
 e Mir. of Parl. 1841, pp. 790-793. v. 203, pp. 5, 1412. 
 
 f Ib. p. 2364 h Foreign Sec. despatch of Ap. 26, 
 
 Affairs of Greece, Hans. D. v. 1871, quoted in Hans. D. v. 225, p. 
 
 Ill, p. 1293 ; Ib. v. 112, pp. 228, 201. And see observations in H. of 
 
 329, 478, 609-739. Case of the Com. on July 21 and Aug. 14, 1876, 
 
 'Tornado,' Ib. v. 200, p. 2109. on the guaranteed Turkish Loan of 
 
 Murder of British subjects by Greek 1854. And see Hans. D. v. 235, p. 
 
 brigands, Ib. v. 201, pp. 1123, 1162 ; 1322.
 
 380 THE SOVEREIGN. 
 
 Foreign feelings of the country, or whether they aim at in- 
 fluencing public opinion itself by intelligent and autho- 
 ritative explanations upon points concerning which 
 they possess peculiar facilities for instructing the public 
 mind it is customary for some member to call the 
 attention of the House and of the government thereto, 
 in an informal way, or upon a motion for papers * or, 
 if need be, to propose resolutions, to express the sense 
 of the House in regard to the proper action of the 
 British Crown in such a contingency. But, while im- 
 portant beneficial results may follow from the temperate 
 use of this practice, it is liable to great abuse. Discus- 
 sions upon topics which are beyond the jurisdiction of 
 Parliament to determine should not be provoked except 
 upon grave and fitting occasions. When by the opera- 
 tion of existing treaties, the position or interests of 
 England may be affected by events transpiring in other 
 countries 3 or where there is a reasonable probability 
 that the observations of statesmen and politicians in 
 the British legislature will have a beneficial influence 
 upon the fortunes of the country to which they refer k 
 they would not be unsuitable, or out of place. But 
 whenever the ministers of the crown discourage or 
 deprecate the expression of opinions in Parliament 
 upon the course of affairs in other countries, it is safer 
 to defer to their guidance, and to refrain from utter- 
 ances that may be hurtful to the cause which it is 
 
 4 E.g. see the observations of Sir Commons on the state of Turkey on 
 
 R. Peel and of Ld. John Russell on June 18, 1875 ; and the debates, in 
 
 religious intolerance in Spain, Hans. 1877, upon the Eastern Question, 
 
 D. v. 161, pp. 2054, 2072 ; discussion especially on the resolutions proposed 
 
 on the affairs of Denmark, and Hoi- by Mr. Gladstone. Hans. D. v. 234, 
 
 stein, in the H. of Lords, on March pp. 101, 955. 
 
 18,1861; and on the Pope and the > Hans. D. v. 169, p. 884. And see 
 
 Kingdom of Italy, in the Lords, on the debate in the Commons (upon a 
 
 April 19, 1861 ; debates on the affairs formal motion), Hans. D. v. 190, p. 
 
 of Poland, in the Lords, on July 19, 1983, on the law of expatriation. 
 
 1861, and in the H. of Com. on Feb. k Sir F. Goldsmid and Ld. Pal- 
 
 27, 1863. And the debate in the merston, Ib. v. 167, pp. 1171, 1195.
 
 INTERNAL CONCERNS OF FOREIGN NATIONS. 381 
 
 desired to promote, and that might even operate preju- 
 dicially upon the interests of the British nation. 1 
 
 We have now passed under review some of the Con : 
 prerogatives of the British Crown, and have endea- remarks, 
 voured to point out, in the light of precedent, and with 
 the help of recognised authority in the interpretation 
 of constitutional questions, the proper functions of 
 Parliament in relation thereto. We have shown that 
 the exercise of these prerogatives has been entrusted, 
 by the usages of the Constitution, to the responsible 
 ministers of the crown, to be wielded in the king's 
 name and behalf, for the interests of the state ; subject 
 always to the royal approval, and to the general sanc- 
 tion and control of Parliament. Parliament itself, we 
 have seen, is one of the councils of the crown, but a 
 council of deliberation and advice, not a council of 
 administration. Into the details of administration a 
 parliamentary assembly is, essentially, unfit to enter ; 
 and any attempt to discharge such functions, under the 
 specious pretext of reforming abuses, or of rectifying 
 corrupt influences, would only lead to greater evils, 
 and must inevitably result in the sway of a tyrannical 
 " and irresponsible democracy. ' Instead of the function 
 of governing, for which,' says Mill, m ' such an assembly 
 is radically unfit, its proper office is to watch and con- 
 trol the government ; to throw the light of publicity 
 on its acts ; to compel a full exposition and justification 
 of all of them which anyone considers questionable ; 
 to censure them if found to merit condemnation ; and 
 if the men who compose the government abuse their 
 trust, or fulfil it in a manner which conflicts with the 
 deliberate sense of the nation, to expel them from office ' 
 or, rather, compel them to retire, by an unmis- 
 takable expression of the will of Parliament. Instead 
 of attempting to decide upon matters of administration 
 
 1 Hans. D. v. 195, p. 362. "> Mill, Rep. Govt. p. 104.
 
 382 THE SOVEREIGN. 
 
 by its own vote, the proper duty of a representative 
 assembly is ' to take care that the persons who have 
 to decide them are the proper persons,' ' to see that 
 those individuals are honestly and intelligently chosen, 
 and to interfere no further with them ; except by un- 
 limited latitude of suggestion and criticism, and by 
 applying or withholding the final seal of national 
 assent.'" 
 
 n Mill, Rep. Govt. pp. 94, 106. Functions of Representative Bodies ' 
 The whole chapter ' On the Proper is deserving of a careful study.
 
 THE ROYAL PREROGATIVE. 383 
 
 CHAPTER VL 
 
 THE ROYAL PREROGATIVE IN CONNECTION WITH PARLIAMENT. 
 
 THE term Prerogative may be defined as expressing p re 
 those political powers which are inherent in the crown, 
 and that have not been conferred by Act of Parliament, 
 and which accordingly continue within the competency 
 of the sovereign, except in so far as they have been 
 modified or restrained by positive legislation.* For the 
 king's prerogative is a part of the law of the realm, 
 and hath bounds set unto it by the laws of England. 1 * 
 All that is meant by prerogative, nowadays, is ' the 
 practical division which it is necessary to make between 
 
 the duties of the executive and the duties of the legiS- 
 ti 
 
 lative power.' 
 
 The prerogatives of the sovereign of Great Britain 
 are of vast extent and paramount importance. In the 
 crown is centred the whole executive power of the 
 empire, the functions appertaining to the administration 
 of government, and supreme authority in all matters 
 civil, judicial, military, and ecclesiastical. 
 
 The king is, moreover, the head of the legislature, 
 of which he forms an essential constituent part ; the 
 generalissimo, or first in command, of the naval and 
 military forces of the state ; the fountain of honour and 
 
 Cox, Inst. p. 592. And see Ld. b Coke, 3 St. Tri. p. 68. 
 Cairns' speeches on the Army Regula- c Mr. Gladstone, Hans. D. v. 214, 
 
 tion Bill, Hans. D. v. 208, p. 520 ; p. 476. And see Law Mag. 4th s' 
 
 and on the Irish Peerage, Ib. v. 225, v. 8, pp. 260-275. 
 p. 1214.
 
 384 THE ROYAL PREROGATIVE. 
 
 of justice, and the dispenser of mercy, having a right 
 to pardon all convicted criminals ; the supreme governor, 
 on earth, of the national church ; and the representative 
 of the majesty of the realm abroad, with power to 
 declare war, to make peace, and to enter into treaty 
 engagements wth foreign countries. 
 
 It is beside the object of the present writer to con- 
 sider the prerogatives of the crown in their legal aspect ; 
 for information on this subject the treatises of Chitty 
 and Bowyer on Prerogative must be consulted. The 
 present enquiry is confined to an investigation of the 
 prerogative from a constitutional point of view, in re- 
 ference more particularly to the legitimate control of 
 Parliament over the exercise of the same on the part of 
 ministers of state. 
 
 The English constitution is unwritten. It rests upon a series of 
 traditions as well as of Parliamentary enactments: 'unconstitu- 
 tional,' therefore, is not only what is at variance with a particular 
 law or tradition, but what is opposed to the spirit of the constitu- 
 tion^ Mr. Hallam defines an unconstitutional, as distinguished 
 from an illegal, act, to be ' a novelty of much importance, tending to 
 endanger the established laws.' e 
 
 For it must be observed, of all the royal prerogatives, 
 that they are held in trust for the benefit of the whole 
 nation, and must be exercised in conformity with the 
 mirdstere constitutional maxim, which requires that every act of 
 for every the royal authority should be performed by the advice 
 the P re- of councillors who are responsible to Parliament, and to 
 rogative. ^ j aw o f t ^ e i an( j f TM S responsibility is now ac- 
 knowledged to be thorough and complete ; and as no 
 public act of the sovereign is valid which is not per- 
 formed under the advice of some responsible minister, 
 so, on the other hand, for every exercise of the royal 
 
 4 See Stockmar's Mem. v. 2, p. And see Quar. Rev. v. 146, p 234 
 490. ' See ante, p. 265 ; Palmerston, 
 
 Hallam, Const. Hist. v. 3, p. 106. Hans. D. v. 153, p. 1415.
 
 IS RELATION TO PARLIAMENT. 885 
 
 authority, ministers must be prepared to account to 
 Parliament, justifying the same, if need be, at their own 
 peril. 
 
 Nevertheless it is incumbent upon ministers to bear Dangers 
 in mind that they are charged with the maintenance te,.} 111 
 and defence of the rights of the crown under the British garchy. 
 constitution ; and that it is one of their foremost duties 
 to protect and preserve intact the royal prerogative. 
 Since 1830 the constitutional monarchy of England has 
 been constantly in danger of becoming a pure ministerial 
 oligarchy ; to the detriment, not only of the rights of 
 the sovereign in the body politic, but also of certain 
 vital interests of the commonwealth, which we have 
 elsewhere shown it is the especial province of the 
 sovereign to conserved 
 
 The advisers of the crown are responsible not only 
 for the legality, but also for the policy and wisdom, of 
 every measure of government. And they are responsible 
 not merely for overt acts of government, but likewise 
 for whatever policy, be it active or passive, that may be 
 agreed upon between the sovereign and his ministers 
 while they continue in power. h Having so vast a trust 
 reposed in them, they are bound to use their best en- 
 deavours, irrespective of all party claims or personal 
 advantages, to administer the affairs of the kingdom for 
 the public good, and for the honour and credit of the 
 sovereign. 
 
 In conducting the necessary measures of government 
 through the Houses of Parliament, it is the duty of 
 ministers to shield the crown from personal obloquy, to 
 avoid all reference to the expressed opinions of their 
 sovereign for the purpose of influencing the freedom of 
 debate, and to assume themselves an entire responsi- 
 
 terial 
 trust. 
 
 See ante, p. 305. Stockmar's v. 3, p. 473. 
 
 essay, in Martin's Pr. Consort, v. 2, h Palmerston, Bulwer's Life of, 1, 
 
 p. 546. And see Gladstone's criti- p. 75. 
 cism thereon, in Church Quar. Rev. 
 
 VOL. I. CC
 
 386 THE ROYAL PREROGATIVE 
 
 bility for the administration of public affairs in all its 
 details. 1 
 
 It is proposed, in the present and succeeding chap- 
 ters, to examine, in detail, the leading prerogatives of 
 the crown, which are now exercised solely upon the 
 advice of responsible ministers, and to point out the 
 rightful authority of Parliament in relation to each. In 
 every instance, after defining the limit within which the 
 prerogative in question is properly subject to parlia- 
 mentary supervision and control, a selection of prece- 
 dents will be given, in illustration of the doctrine in 
 the text. Before entering upon this enquiry, however, 
 it will be necessary to consider, briefly, the relations 
 between the crown and the Parliament itself. 
 
 The Parliament of Great Britain is composed of the 
 king (or queen) and the three estates of the realm to 
 wit, the Lords spiritual, the Lords temporal, and the 
 Commons. But it is in the crown, and not in the body 
 which the law assigns to advise and assist the crown, 
 that the legislative authority is vested by the con- 
 stitution. In the words of the old Year Book (of 23 
 Edward III.) it may still be said, that ' the king makes 
 the laws, by the assent of the peers, &c., and Eot the 
 peers and the commune.' 1 In its collective capacity, 
 Parliament exercises supreme authority in and over the 
 empire, to which the constitution has assigned no limit. 
 In the words of Sir Edward Coke, the power of Parlia- 
 ment ' is so transcendent and absolute that it cannot be 
 confined, either for causes and persons, within any 
 bounds.' 
 
 From the supremacy of the sovereign in a con- 
 stitutional monarchy, it necessarily follows that while 
 regular meetings of Parliament are indispensable, the 
 legal existence of this high court results altogether from 
 
 1 See po.it, \. 2. Govt. of Enr. p. 51 . Ld. Redesdu'.o 
 
 J Stubb's, v. 2, p. 572. Ilearn, in Colchester's Diary, v. 3, p. 47.
 
 IN RELATION TO PARLIAMENT 387 
 
 the exercise of the royal prerogative. It is summoned, Pariia 
 by virtue of the king's writ, to meet for despatch of 
 business, at whatsoever time or place he may please to 
 direct. The necessary interval between the date of 
 summons by royal proclamation and the meeting of 
 Parliament was formerly fourteen days, but by a recent 
 statute, it has been reduced to six days. k 
 
 In 1858 an informal discussion arose in the House of Commons, 
 in which it was suggested that it would be desirable to have meet- 
 ings of Parliament in the autumn, so as to secure a prorogation 
 early in the summer. 1 Next session, an address to the crown to this 
 effect was proposed, and negatived, after a short debate. In 1873, 
 a similar address was again proposed, but after a debate, the motion 
 was withdrawn." 
 
 Parliament can only commence its deliberations at 
 the time appointed by the king, and cannot continue 
 them any longer than he may allow. Formerly, upon 
 the death of the reigning monarch a dissolution of Par- 
 liament immediately ensued. But after the Revolution 
 an existing Parliament was empowered to continue in 
 existence, for a period of six months and no longer from 
 the death of the sovereign. And by a clause in the 
 Reform Act of 1867, it is provided that it shall be no 
 longer compulsory for a dissolution of Parliament to 
 take place at any future demise of the crown. The 
 power of adjournment is discretionary with each House ; 
 but the crown is empowered by law to put an end to 
 an adjournment extending beyond fourteen days. p The 
 deliberations of Parliament may be cut short at any 
 moment by the exercise of the royal power of proroga- 
 tion,' 1 which quashes all proceedings pending at the 
 
 k Hans. D. v. 203, p. 1146 ; 38 & Notes on the ' Representation of the 
 
 34 Vic. c. 81. People's Act, 1867,' p. 22. 
 
 1 Ib. v. 151, pp. 1185, 1198. P May, Parl. Prac. 1883, p. 52. 
 
 m Ib. v. 155, p. 61. And see Colchester's Diary, v. 2, p. 
 
 a Ib. v. 214, p. 902. 463. 
 
 Ib. v. 189, p. 738. Act 30 & 31 ' 1 Ib. v. 2, p. 374. And see ante, 
 
 Vic. c. 102, s. 51. See Anstey's p. 189. 
 
 c c 2
 
 388 THE ROYAL PREROGATIVE. 
 
 time, except impeachments by the Commons, and writs 
 of error and appeals before the House of Lords which, 
 being judicial proceedings, continue in statu quo from 
 Parliament to Parliament/ 
 
 All trials in progress before election committees are 
 suspended by a prorogation of Parliament, but are 
 resumed, by statutable authority, in the ensuing session. 8 
 By a prorogation, all resolutions,* bills, and other pro- 
 ceedings, pending in either House, are naturally termi- 
 nated, and cease to have any further effect, except in 
 so far as they may be continued in operation by the 
 express authority of Parliament. 
 
 The only apparent exception to the rule concerning resolutions 
 is in the case of standing orders. By the custom of Parliament 
 these are accounted to be in force, in succeeding sessions, until 
 rescinded. They are considered as being declaratory of the law and 
 practice of Parliament ; and, without relying upon their absolute 
 validity, the House agrees to adhere to their observance." 
 
 But in the case of private bills generally, except Indian Divorce 
 Bills, in certain cases, v or of railway bills in particular, relief has 
 been repeatedly granted to the parties concerned in promoting or 
 opposing such measures, when a session of Parliament has been 
 brought to a sudden and premature close, on account of the exigen- 
 cies of political warfare. This was done in regard to all private 
 bills, in 1820, 1831, 1841, 1857, and in 1859, and as respects 
 railway bills only, in 1845 and 1847, by the adoption, in both 
 Houses, of resolutions, permitting such bills to be reintroduced in 
 the following session, and by means of pro forma and unopposed 
 motions advanced to the stages at which they severally stood when 
 the prorogation took place. w The orders made in 1859, for this 
 purpose, were peculiarly simple and effectual, and will probably be 
 followed hereafter, in preference to earlier precedents. x So in 1871, 
 the Tramways (Metropolis) Bills were suspended in a similar man- 
 ner. But, inasmuch as these Bills had been submitted to Parlia- 
 
 r Hats. Free. v. 4, p. 273, n. v 1 Geo. IV. c. 101. 
 
 Act 11 & 12 Vic. c. 98. w See Com. Journals, v. 75, p. 119; 
 
 * Com. Pap. 1861, v. 11, p. 439. vol. 86, pt. 2, p. 525. Mir. of Parl. 
 u May, Parl. Prac. ed. 1883, p. 1841, pp. 2303, 2346. Hans. D. v. 
 
 T94. Com. Pap. 1859, s. 1, v. 3, p. 144, p. 2209; ib. v. 153, pp. 1528, 
 
 .'if. <Joui c . on the Jews ' Act, Haus. 1607. 
 
 1). v. 152, p. 402. And see Hans. L). * May, Parl. Prac. ed. 1883, p. 
 
 v. 192, p. 1078 . 779.
 
 PROCEEDINGS BETWEEN BOTH HOUSES. 339 
 
 ment under the provisions of the Tramways Act of 1870, it was 
 necessary to sanction this proceeding by a special Act of Parlia- 
 ment, in addition to the resolutions of both Houses.? 
 
 It was suggested, in the Session of 1865, that on account of the 
 great mass of private business before Parliament, and the desira- 
 bility of an early prorogation, with a view to an immediate dissolu- 
 tion, similar resolutions should be agreed to ; but the case was not 
 deemed sufficiently urgent and unexpected to warrant such a course, 
 which should only be resorted to when the session has been brought 
 to an abrupt and premature termination. 2 
 
 Parliamentary Proceedings between the Two Houses. 
 
 For nearly seventy years, it has been a frequent and 
 increasing cause of complaint that, owing to the late 
 period of the session at which it is usual for Bills to 
 be sent up from the Commons to the Lords for their Houses. 
 concurrence, sufficient time is not afforded to that 
 House for the adequate consideration of legislative 
 measures.* On April 14, 1848, Lord Stanley (after- 
 wards Earl of Derby) submitted to the House of Lords 
 a Bill for the remedy of this evil. Admitting that it 
 was expedient, as a general rule, that legislation should 
 be initiated in the Lower House inasmuch as Bills 
 originating with the Lords were seldom favourably re- 
 ceived by the other branch, b because ' the more proper 
 function of their lordships was to control, amend, and 
 revise, the legislation of the House of Commons,' he 
 proposed to grant to the House of Lords ' the power, 
 when they saw fit, upon the receipt of a Bill passed by 
 the other House of Parliament, to adjourn the consi- 
 deration thereof from the period of the session at which 
 they could not deliberately enter upon its consideration 
 to an early day to be named at the commencement of 
 the next session,' to be then proceeded upon at the 
 stage at which it had been postponed. The Bill was 
 
 y Hans. J>. v. 212, p. 582. Act 35 a Ib. v. 159, p. 2145, and v. 194, 
 
 and 36 Vic. c. 43. p. 593. 
 
 * Ib. Y. 180, pp. 6P2, 851 ; and see b Ib. v. 119, p. 250. 
 
 ib. v. 80, p. 854. c Ib. v. 98, p. 329.
 
 390 THE ROYAL PREROGATIVE 
 
 Facility of read a second time, notwithstanding the strenuous oppo- 
 between sition of Lords Campbell and Eedesdale, who urged 
 both that it was open to ' strong constitutional objections,' 
 
 Houses. B J 
 
 and would tend to aggravate disputes between the two 
 Houses. With a view to obviate some of these objec- 
 tions, Lord Stanley moved certain amendments, to pre- 
 serve the prerogative of the crown intact, and to afford 
 to the House of Commons an opportunity of re-con- 
 sidering a postponed Bill, even though it should have 
 passed the Lords, in the following session without amend- 
 ment. These amendments were agreed to, and the Bill 
 was passed.* 1 In the House of Commons, the Bill was 
 read twice, and then referred to the select committee 
 on public business. 6 The Bill was carefully considered 
 by this committee, but they simply reported that they 
 did not think it advisable to recommend it for adoption 
 by the House ; f a conclusion which is said to have been 
 arrived at ' in order to avoid any points of controversy 
 between the two Houses.' g 
 
 In 1852, a Parliamentary Proceedings Facilitation 
 Bill, similar to that brought in by Lord Derby in 1848, 
 was laid upon the table of the House of Lords, by 
 Lord Lyndhurst. It was read a first time, but was 
 afterwards dropped. 11 
 
 However, in the year 1854, the project was revived 
 by another committee of the House of Commons on the 
 business of the House. In a draft report, which appears 
 upon their minutes, the committee state that ' they have 
 also considered a resolution in favour of a plan brought 
 into the Upper House by the Earl of Derby in 1848, for 
 facilitating public business by "enabling either House 
 of Parliament to adjourn proceedings during the pro- 
 rogation of Parliament, upon certain Bills passed by 
 
 d Hans. D. v. 98, pp. 981, 1255; Parl. Prac. ed. 1883, p. 338, gives a 
 
 v. 99, p. 246 summary of the attempts, from 1848 
 
 " H>. v. 100, pp. 131-137. to 1869, to pass such permissive 
 
 f Com. Pp. 1847-8, v. Hi, p. 140. Bills and of the objections thereto. 
 Hans. I), v. lf4, p. 619. JNJay, h Ib. v. 119, p. 317.
 
 AND DESPATCH OF BUSINESS. 391 
 
 the other House, and to resume proceedings thereupon 
 after such prorogation " ; and they have considered a 
 proposal which will shortly be submitted to the House 
 of Lords to ensure an earlier termination of the session 
 by making a rule that no Bill shall be read a second 
 time after a certain day, except under special and urgent 
 circumstances/ l Upon these suggestions,' it is added, 
 ' your committee is unprepared to offer any decided 
 opinion.' But this paragraph was omitted in the report 
 which was finally adopted by the committee. 1 
 
 The other proposal referred to in the draft report 
 above cited, was designed to apply to Public Bills, a 
 restrictive principle of a similar nature to that already 
 enforced, with the best effect, in reference to private 
 business. On May 2, 1854, the House of Lords upon 
 motion of Lord Eedesdale, agreed to a sessional order, 
 declaring that this House will not read any Bill a 
 second time after July 25, except Bills of aid or supply, 
 or any Bill in relation to which the House shall have 
 resolved, before the second reading is moved, that the 
 circumstances which render legislation on the subject 
 matter of the same expedient are either of such recent 
 occurrence or urgency as to render the immediate 
 consideration of the said Bill necessary.' j In the same 
 session, after a long debate, the Lords resolved, upon 
 division, and contrary to the opinions of Lord Eedes- 
 dale, to allow a Bill concerning bribery to proceed not- 
 withstanding this order, upon the ground of urgency. k 
 In the session of 1855, the Order was renewed, with 
 the consent of the ministry. 1 Certain Bills were never- 
 theless allowed to proceed, on the ground of urgency, 
 though not without opposition. 111 The Order was again 
 
 ' Com. Pap. 1854, v. 7, pp. 31-32. k Ib. v. 135, pp. 943, 1182, 
 
 J Hans. D. v. 132, p. 118& S*e > Ib. v. 138, p. 94. 
 
 observations in the House of Com- m Ib. v. 139, pp. 1850, 1895, 1923, 
 
 nion-s concerning this Order, ib. v. 2023. 
 
 135. p. 417.
 
 392 THE ROYAL PREROGATIVE 
 
 f n eed " renewe(1 in 1856, assurances being given as to its 
 between beneficial operation. 11 Likewise in 1857 ; but not with- 
 Houses. Ollt complaint in the House of Commons, owing to the 
 unusual shortness of the session. It was again renewed 
 in 1858 ; p but not in 1859, because, as in 1857, two 
 sessions were held in that year. It was renewed for 
 the last time in 1860. q During this session the rule 
 was pronounced by Mr. E. P. Bouverie, who had filled 
 the office of chairman of committees in the House of 
 Commons to be ' a great infringement of the privileges 
 of the Commons ' ; but it was vindicated by Mr. Disraeli, 
 who considered that ' the effect of the rule, has, on the 
 whole, been salutary.' r Several debates took place, in 
 the Lords, during this session, upon motions to exempt 
 particular Bills from the operation of the rule. 8 
 
 On August 13, 1860, the resolution of urgency was 
 proposed on behalf of the Savings Bank, &c., Invest- 
 ments Bill, a government measure affecting the financial 
 arrangements of the country, though not strictly a Bill 
 of supply, but oh division, the numbers being equal, 
 the motion was negatived.* On account of the import- 
 ance of the Bill, and an apprehension that its being laid 
 aside would occasion a misunderstanding between the 
 two Houses, ministers resolved upon again taking the 
 sense of the House upon this motion. Admitting the 
 advantages which have resulted from the use of this 
 order, Earl Granville (the president of the council) 
 declared that he had often thought ' that strictly and 
 in principle that resolution could not be defended, and 
 if its examination were passed, it would be found not 
 to be in accordance with our relations either with the 
 other House or with the crown.'" Accordingly, on 
 
 " Hans. D. v. 142, p. 245 ; v. 143, r Ib. pp. 1958, 19G1. 
 p. 1180. Ib. v. ICO, pp. 346, 417, G27, 
 
 Ib. v. 147, pp. 419, 557, 714, 1031. 
 717. t jb. v. 100, p. 1180. 
 
 " Th. v. 149, p. 1853. u Ib. pp 1347, 1445, 2145. 
 
 ' Ib. v. 159, p. 550.
 
 AND DESPATCH OF BUSINESS. 393 
 
 August 20, the resolution of urgency was again pro- Proceed- 
 posed on behalf of this Bill and agreed to, Lord Mont- between 
 eagle entering a protest against this decision/ Houses 
 
 On February 8, 1861, Lord Derby, upon motion for 
 the appointment of a select committee on the public 
 business of the House, 
 
 [A similar motion, which gave rise to a debate on the expediency of 
 some legislation on this question, was made in the House of Lords 
 by Lord Derby on July 19, 1860, but withdrawn w ] 
 
 adverted to Lord Eedesdale's annual sessional order, 
 fixing the day after which their lordships would decline 
 to proceed upon Bills unless they were of an urgent cha- 
 racter. He said that it had worked well, but that there 
 was much difficulty in determining upon the question of 
 urgency. He thought it would be ' perfectly easy for 
 the Lords to act upon a rule, which he believed they 
 might adopt of their own authority, of suspending Bills 
 at the termination of one session, and resuming them 
 in the next,' provided that the House of Commons 
 should not think it necessary when they sent Bills back 
 to them to put them through all their stages again. 
 Lord Redesdale objected to this idea, and considered 
 that ' there might be inconvenience, if not danger, in 
 such a course.' The Lord Chancellor (Campbell) would 
 leave these questions to the consideration of the select 
 committee, but while he agreed that Lord Redesdale's 
 resolution had worked beneficially in practice, he thought 
 ' it encroached upon the privileges of the House of Com- 
 mons and the prerogative of the crown.' x Later in the 
 session, Lord Redesdale defended the principle of his 
 annual resolution, but declared that he should refrain 
 from moving it while the matter was under considera- 
 tion by committees of both Houses, now sitting on 
 public business. 7 Subsequently (in 1869) Lord Redes- 
 
 T Hans. D. v. 160, pp. 1551-1564. ' Ib. v. 162, p. 414. But see 
 w Ib. v. 159, pp. 2139-2150. ib. v. 164, p. 1358 ; v. 199, p. 424. 
 
 * Ib. v. 161, pp. 183-186. Smith, Parl. Keuiein. 1861, p. 0.
 
 394 THE 'ROYAL PREROGATIVE 
 
 Proceed- dale stated that ' in deference to a feeling of jealousy on 
 between the part of the Commons, he gave up pressing for a 
 Houses ren ewal of the order ; but he did so on the understand- 
 ing that the principle of it would be adhered to by the 
 governments of the day. z 
 
 The select committees appointed by both Houses in 
 this session to consider alterations for the promotion of 
 the despatch of public business, having been e'mpowered 
 to communicate with each other, certain conclusions 
 arrived at therein were transmitted by letter from the 
 chairman of one committee to the chairman of the 
 other. The initiative was taken by Sir James Graham, 
 the chairman of the Commons committee, who wrote, 
 on March 14, 1861, to Lord Eversley, the chairman 
 of the Lords committee, upon several points, one of 
 which was to the effect that .the Commons committee 
 were ' disposed to adhere to the report of the committee 
 in 1848,' which declared, ' that, having considered the 
 provisions of the Parliamentary Proceedings Adjourn- 
 ment Bill, they do not think it advisable to recommend 
 it for adoption by the House.' 
 
 Whereupon, the Lords committee, on motion of 
 Earl Grey, agreed to the three following resolutions, 
 to be adopted by both Houses of Parliament : 
 
 1st. That it is expedient, in certain cases, to adopt 
 an abridged form of proceeding with reference to Bills 
 which shall be again brought before this House after 
 having been passed by it in the immediately preceding 
 session of the same Parliament. 
 
 2nd. That the Bills in respect to which such abridged 
 form of proceeding may be adopted shall be, mutatis mu- 
 tandis, the same Bills which the House may have passed 
 and sent to the other House, and as to which that House 
 may. have resolved that there did not remain time for 
 their due consideration in the session in which they 
 were received. 
 
 1 Hans. D. v. 108, p. 1474.
 
 AND DESPATCH OF BUSINESS. 395 
 
 3rd. That on a resolution being moved, that it is ex- Proceed- 
 pedient again to pass, and to send to the other House between 
 for its concurrence, any such Bill, the question shall be !jL oth 
 put whether the House will agree to the same, and on 
 such resolution being agreed to, the Bill to which it 
 relates shall be forthwith sent to the other House for 
 its concurrence, without any further question being put, 
 or any debate allowed. 
 
 The foregoing resolutions were transmitted to the 
 Commons committee on April 2, with an intimation that, 
 if they met with the concurrence of that committee, the 
 Lords committee were prepared to agree to them ; and 
 to give due consideration to any amendment that might 
 be suggested therein. It was added, that the resolu- 
 tions ' would not, in any degree, better the discretion 
 of the House, or interfere with the passing of a Bill in 
 the ordinary manner, nor would they apply to any case 
 where it was introduced in an amended form.' In reply, 
 the Lords committee were informed that the Commons 
 committee would not agree to the proposed resolutions, 
 being of opinion that instead of furthering the prompt 
 transactions of public business, they would have an 
 opposite tendency ; ' and that, if common to both Houses, 
 they would afford new facilities for retarding and post- 
 poning legislation.' 
 
 The Lords committee on May 7, reported to their 
 own House the proceedings above mentioned. They 
 referred to the regret which had been so frequently ex- 
 pressed, ' that Bills have been sent up by the other 
 House of Parliament, at so late a period of the Session 
 as to render it impossible to give them that full con- 
 sideration which the public interests require ' ; a com- 
 plaint of long standing, as is ' proved by the standing 
 order of May 5, 1668, and the subsequent proceedings 
 of this House.' But as the Commons committee had 
 declined to agree to the plan devised by their lordships' 
 committee, ' for the reasons set forth in their report,'
 
 396 THE ROYAL PREROGATIVE 
 
 Proceed- the committee deemed it useless to prolong its sittings, 
 between A draft report had been submitted by Earl Grey, advert- 
 hoth i n g to the action of the Commons committee, combating 
 
 Houses. . . 
 
 the arguments adduced in their report, and recommend- 
 ing to the House ' that it should steadily refuse to pro- 
 ceed with Bills to which it has not a fair opportunity 
 of giving the deliberate consideration their importance 
 requires, leaving to the House of Commons the respon- 
 sibility of adopting such measures as it may think fit, 
 in order to prevent the strict observance of this rule 
 from standing in the way of that progress in the work 
 of legislation which the country has a right to expect 
 from Parliament,' but this report was negatived. a 
 
 Meanwhile, the Commons committee made their 
 report. After recapitulating various improvements on 
 the method of transacting public business which they 
 recommended for adoption by the House, they referred 
 to the three resolutions above mentioned, which had 
 been communicated to them by the Lords committee, 
 and explained the reasons for which they had been 
 unable to agree to them. They also noticed the ' pro- 
 posal made in the other House that a power should be 
 given by statute to either House of Parliament of 
 suspending (at any stage of proceeding) Bills which 
 shall have been passed by the other House, and of resum- 
 ing such BiUs in the succeeding session at the precise 
 stage where they had been dropped.' They observed 
 that ' the objections to this proposal are grave and 
 numerous ' ; for that by it efficient legislation would be 
 retarded, and ' the opportunities for re-considering, 
 improving, and amply discussing, important measures 
 would be inconveniently abridged.' 
 
 ' Moreover, this suspending power in either House 
 of Parliament, if exercised at its own discretion, would 
 be at variance with the prerogative of the crown.' b In 
 
 Com. Pap. 1861, v. 11, pp.422- b Ld. Colchester's Diary, v. 1, p. 
 421). 432.
 
 AND DESPATCH OF BUSINESS. 397 
 
 the Bill introduced in the House of Lords in 1848, there Proceed- 
 was a provision that the consent of the crown should be befwcen 
 first duly signified to such suspension. This consent of ^th 
 the crown to the mode of dealing with the Bills not 
 perfected by the concurrence of the ' other branches of 
 the legislature, would be a novelty at variance with con- 
 stitutional practice, not to be defended by any necessity. 
 The prerogative of the crown, in all cases where the 
 rights, interests, and property of the crown are not 
 specially affected, is limited to assenting to or rejecting 
 Bills which have passed both Houses. It is barred from 
 all interference during the discussion of them in either 
 House of Parliament.' For these reasons, the committee 
 agreed with the committee in 1848, in thinking it un- 
 advisable to sanction any such enactment. 
 
 In 1869, the Marquis of Salisbury revived the con- 
 sideration of this question in the House of Lords, by the 
 introduction of a Bill to enable either House of Parlia- 
 ment to suspend proceedings on a Bill in one session 
 and resume the same in the next. In order to protect 
 the royal prerogative, the Bill provided that the assent 
 of the crown should be necessary to the resumption of 
 proceedings in any case. And to save the privileges of 
 the other House, it required that the House from whence 
 the resumed Bill emanated should have a final vote upon 
 it after the proceedings thereon had terminated. The 
 leader of the government (Earl Granville) advised the 
 House on March 4 to agree to the second reading of 
 this Bill, with an understanding that it should be after- 
 wards referred to a joint committee of both Houses. 
 Lord Kedesdale, on constitutional grounds, was opposed 
 to the principle of regulating parliamentary proceedings 
 by statute, when the desired object could be effected by 
 standing orders, which would more readily admit of 
 alteration. He also thought it was unconstitutional to 
 
 c Ld. Colchester's Diary, v. 1, pp. 439,44(X
 
 308 THE ROYAL PREROGATIVE 
 
 Proceed- require the assent of the crown before the presentation 
 between of a Bill to the sovereign. Earl Derby approved of the 
 Houses ^^ ^ being similar to the one he had brought in, in 
 1848. But he objected to the consent of the crown 
 being required to the resumption of proceedings ; and 
 also to the consent of the one House being necessary to 
 the resumption of a Bill by the other. He preferred 
 that on resumed Bills going back to the originating 
 House, even if without amendment, that House should 
 be at liberty to reconsider details, and even amend 
 their own Bill. Earl Russell concurred in this sugges- 
 tion. Lord Cairns likewise agreed therein ; but would 
 prefer, with Lord Redesdale, that the question should be 
 dealt with by standing orders. He was, nevertheless, 
 willing to refer the matter to a joint committee. The 
 Marquis of Salisbury consented to amend the Bill by 
 omitting any reference to the royal prerogative, and by 
 providing that when a Bill went back to the originating 
 House, that House should be empowered to amend it 
 throughout, and not merely where it had been amended 
 by the other branch. The Bill was then read a second 
 time. 4 
 
 On March 8, Lord Redesdale communicated to the 
 House the draft of a standing order he had framed to 
 accomplish the object in question. Earl Derby stated 
 that Viscount Eversley (ex-Speaker of the House of 
 Commons) was maturing a standing order for the same 
 purpose. Earl Granville said that he found, on enquiry, 
 that a Bill could not be formally referred to a joint 
 committee unless it had been before both Houses. But 
 he had no doubt such committee (if appointed) would 
 consider the measure as carefully as though it had been 
 formally referred to them. 6 
 
 On March 14 and 15, a joint committee of both 
 Houses was appointed ' to consider whether any facili- 
 
 Hans. D. v. 104, pp. 588-G20. e Ib. v. 104, p. 7i>9.
 
 AND DESPATCH OF BUSINESS. 309 
 
 ties can be given for the despatch of business in Parlia- Proceed- 
 ment, especially in regard to the relations of the two between 
 Houses.' f both 
 
 , . Houses. 
 
 This committee made their report on August z. 
 Adverting to the Bill to facilitate Proceedings on Bills 
 in Parliament, ' the committee admit, with some qualifi- 
 cation, the existence of the evil which it is proposed to 
 correct, but are of opinion that it can only be remedied 
 by general consent,' and believe that the House of 
 Commons would be unlikely now to take a different 
 view from that which they took in 1848 on the subject. 
 They consider ' that considerable expedition might be 
 made in the progress of legislation, if more Bills, espe- 
 cially those of a legal or ecclesiastical character, were 
 to originate in the House of Lords.' 
 
 A difficulty attending the first introduction of important public 
 Bills, involving disputed points of public policy in the House of 
 Lords, may be illustrated by the proceedings upon the Parochial 
 Schools (Scotland) Bill, in the session of 1869. This Bill was first 
 introduced by ministers into the House of Lords, but as they were 
 in a minority in that chamber, the Opposition were enabled to re- 
 model the Bill during its passage through the Lords to such an 
 extent that it became the Bill of the Opposition. When it reached 
 the House of Commons the Lord Advocate was unable to recom- 
 mend it as a government measure. So he got the House to allow it 
 to be committed pro forma, in order that he might introduce such 
 amendments as were needful to restore the Bill to somewhat like its 
 original form. He then took the discussion on the re-committal of 
 the Bill, which, in the ordinary course, would have taken place on 
 its second reading. This involved an apparent discourtesy to the 
 House of Lords, and the setting aside, without adequate discussion, 
 of their important and carefully prepared amendments. % It was 
 not until August 9 that the Bill was returned to the Lords, with 
 amendments which completely altered its character. Accordingly, 
 upon decision, the consideration of the amendments was put off for 
 three months ; and the Bill, as amended by the Commons, was 
 ordered to be reprinted, with a view to preserve a record of this 
 transaction. 11 
 
 f Hans. D. v. 194 pp. 1309, 1560. h Ib. pp. 1470-1484, 1524 ; v. 200, 
 Ib. v. 198, pp. 802-816. p. 304.
 
 400 THE ROYAL PREROGATIVE 
 
 Proceed- But that ' the arrangement of public business between 
 
 in firs 
 
 between the two Houses can only be left to the discretion of her 
 Houses Majesty's ministers.' Moreover, it is evident that the 
 excessive pressure of business in the House of Com- 
 mons, while it occasions inconvenient delay in sending up 
 Bills to the Lords, likewise obstructs the passage through 
 that House of Bills which have originated in the Lords. 
 The committee, however, submit copies of new standing 
 orders, framed by Lords Eversley and Eedesdale, and 
 substantially approved by Sir E. May, to provide for 
 the postponement of Bills sent up to the Lords too 
 late for their due consideration until the next session ; 
 and for the resumption of proceedings thereon at that 
 time by passing them rapidly through the stages prior 
 to that at which it had been laid aside. Likewise pro- 
 viding for the re-introduction and summary passing of 
 Bills which had passed one House in the preceding 
 session and been dropped in the other (without having 
 been actually rejected), so as to enable them to 
 be re-considered in that House ; but securing to the 
 originating House an opportunity for the re-consid- 
 eration of their own Bill, after it shall have been 
 passed by the other House, either with or without 
 amendment. 1 
 
 On July 4, 1871, in view of the continued delays in 
 sending up important Bills for the consideration of the 
 Lords, Earl Grey again urged the adoption of some 
 plan of the sort. j 
 
 In 1875, the Commons committee on Acts of Par- 
 liament recommended that where all the clauses of 
 a consolidation Bill cannot be got through before 
 the prorogation, the Bill should be suspended till the 
 ensuing session, and resumed where it had been left 
 off. But beyond the case of such Bills, Parliament still 
 
 1 Coin. Pap. 18G8-9, v. 7, p. 173. Rep. Com , on Despatch of business, 
 pp. iii. iv. 21, 23. > Jlans. D. v. 207, p. 1079.
 
 AND PRIVATE BILL LEGISLATION. 401 
 
 regards this project unfavourably, so far as public Bills 
 are concerned. 1 " 
 
 Furthermore, the committee made certain recom- 
 mendations further to facilitate private Bill legislation : 
 
 l^riVili 
 
 1. That the House of Commons should not insist on Bills 
 its privileges in regard to local rates, in the case of 
 private Bills, or in the case of public Bills confirming 
 provisional orders. 1 In 1858, the Commons relaxed 
 their privileges as regards local tolls and charges, but 
 not as regards Bills imposing or authorising the imposi- 
 tion of rates. A committee of the House did, indeed, 
 agree in 1848 to advise that the privilege should be 
 abandoned, in the case of local rates or duties ; but the 
 resolution for the same was rescinded a week after- 
 wards. While in the practice of the House itself there 
 is a material difference of procedure between imperial 
 and local taxes, yet the one class is so closely related 
 to the other, and an increase of the latter frequently 
 has such a marked effect upon the former, that the 
 Commons have been unwilling to yield to the Lords 
 in such matters. Sir E. May thinks, however, that in 
 . the case of Bills which are permissive ' which enable 
 local authorities to impose taxes, without actually 
 imposing them, the privileges of the Commons might 
 readily be surrendered.' And if the House were dis- 
 posed to relax their privileges further, it might do so 
 in the words used by the committee in 1848, which 
 exactly indicate the material distinction between the 
 two classes of taxes ' provided such taxes shall be as- 
 sessed and levied by local authorities for local purposes, 
 and shall not be applied to the public service.' He 
 would clearly advise such a concession in the case of 
 private Bills, because in that case l the parties who are 
 
 k Rep. Coin, on Acta of Parl. sion on this subject see Social Science 
 
 1875, v. 8, p. 21:3; Evid. pp. 11, Trans. 1875, p. 185. 
 112, 114. For papers and a discus- ' Com. Pap. 1868-9, v. 7, p. 174. 
 
 VOL. I. D D
 
 402 THE ROYAL PREROGATIVE 
 
 to be taxed petition Parliament for permission to tax 
 themselves.' It is otherwise in the case of local rates 
 imposed by public Bills. m 
 
 2. The committee recommended the adoption of a 
 series of resolutions reported by them, for referring 
 opposed private Bills to a joint committee of both 
 Houses, a method which they consider would introduce 
 greater simplicity, and rapidity of proceeding, and a 
 corresponding economy. This plan was considered in 
 1854, but was then deemed to be impracticable, be- 
 cause ' it was supposed to be one of the privileges of 
 the House of Commons that on joint committees the 
 members of that House must be double the number of 
 the Lords.' 'It is now well understood that the num- 
 bers from each House serving on joint committees 
 should be equal.' ' The committee believe that the ap- 
 pointment of a joint standing order committee would 
 remove the inconvenience arising from a difference of 
 opinion between the two Houses, which sometimes leads 
 one House to reject a Bill, after a decision in the other 
 House allowing the same to proceed. This scheme is 
 very much facilitated by the fact that the standing 
 orders of the two Houses are now practically identical." 
 This report, however, has not yet been considered by 
 either House of Parliament. 
 
 Sir Erskine May, in his evidence before this com- 
 mittee, warmly advocated this novel procedure of a 
 joint committee on opposed private Bills. He said it 
 was considered by a committee of the Commons in 1854, 
 and had it been then introduced, ' would have saved the 
 promoters and opponents of private Bills many millions 
 in costs.' If this plan should be approved, it would be 
 necessary, at the outset, to relax the privileges of the 
 Commons, ' so that all private Bills could be introduced 
 
 Com. Pap. 18H8-9. v. 7, pp. 184-180. If), p. 174. 
 - Hans. 1). v. 207, p. 093.
 
 AXD PRIVATE BILL LEGISLATION. 403 
 
 indifferently into either House, according to the desire 
 of the parties who petition.' He then proceeded to 
 show, with great minuteness of detail, the probable 
 advantages of this new machinery, and the mode of 
 giving effect thereto, in both Houses. 1 * 
 
 In 1872, Mr. Gladstone expressed a strong opinion 
 in favour of joint committees of both Houses on private 
 Bills. But Mr. Disraeli doubted the expediency of the 
 proposal/ 1 
 
 In 1873 Bills for railway amalgamations of great magnitude 
 were to come before Parliament, and it was agreed, between both 
 Houses, that such Bills should be referred to a joint committee. 
 This arrangement did not at all involve the principle of referring 
 ordinary railway or other Bills to a joint committee. 1 " In 1876 a 
 joint committee of both Houses was appointed to report on the 
 expediency of making further regulations concerning the admis- 
 sion and practice of parliamentary agents. 8 
 
 Adverting to the rule of the House of Lords that 
 private Bills shall not be read a second time after a 
 certain day, Sir Erskine May observed that * it has 
 certainly prevented any Idches on the part of the agents ; 
 they are very anxious to advance their Bills, but some- 
 times they are obliged to claim the indulgence of the 
 House of Lords.' He very much questioned, however, 
 whether it would be possible to introduce a similar 
 system into both Houses with regard to public measures. 
 4 Certainly it would not be possible as regards Govern- 
 ment Bills : otherwise a Government Bill could be readily 
 defeated by delay, and there are already more than 
 sufficient obstacles to the progress of any Bill.' * 
 
 p Com. Pap. 1868-9, v. 7, pp. 189, House of Commons, though the 
 
 199. House of Lords had no such rules 
 
 " Hans. D. v. 209, pp. 155, 156. (Com. Pap. 1876, v. 12, p. Ml) until 
 
 T F>. v. 214, p. 88(>. 1876, Hans. T). v. 231, pp. 3, 319. 
 
 8 Ib. v. 230, pp. 316, 1767. Cer- 1061. For an able criticism of these 
 
 tain rules, the most recent of which rules, see L. T. v. 62, p. 295. 
 were sanctioned by the Speaker in ' Com. Pap. 1868-9, v. 7, p. 199. 
 March 1873, were in force in the 
 
 1) D 2
 
 404 
 
 THE ROYAL PREROGATIVE 
 
 Utility of 
 C( m- 
 mittees 
 for legis- 
 lation. 
 
 In view of the facts that the House of Commons in 
 1868 parted with its jurisdiction in election matters, 
 that ' the number of private Bills has lately very much 
 diminished,' and that if this scheme of joint committees 
 should be entertained, the labour of private legislation 
 will be further diminished, it has occurred to SirErskine 
 M;iy that an attempt might be made ' to utilise com- 
 mittees for the purpose of legislation.' It would be a 
 pity that a very large body of members of botli Houses, 
 and especially of the Commons, ' should not be utilised 
 in maturing public Bills,' and thus spare the whole 
 House a considerable amount of labour, in discussing 
 and amending or proposing to amend the wording of 
 clauses. So far as this has already been done, it has 
 proved advantageous, and the practice might be usefully 
 extended. But he would only apply it to Bills of 
 secondary importance, and with numerous details not 
 involving important principles ; and he would still retain 
 the practice of passing all Bills through a committee of 
 the whole House/ 
 
 On February 17, 1870, an informal discussion took 
 place in the House of Lords in regard to the origination 
 of public business in that House, and ministers promised 
 that certain measures of law reform should be introduced 
 therein, at an early date. w 
 
 On March 4, 1872, a similar informal debate arose 
 in the Lords, but without any practical result/ The 
 fact that for many years every ' liberal ' government has 
 been in a minority in the House of Lords is one special 
 reason why they have refrained from initiating impor- 
 tant legislation in that Chamber. 
 
 On April 24, 1871, it was proposed on behalf of 
 government to bring in a Bill (for the suppression of 
 crimes in Ireland) into the House of Lords, founded 
 
 T Con:. Tap. 18(58-!), v. 7, pp. 200, 
 201. 
 
 w Hans. P. v. 190, p. 4l3-4-'o. 
 " 11. v. 1>09, p. ll>U8.
 
 IX RELATION TO PARLIAMENT. 406 
 
 upon evidence taken before a select committee of the 
 House of Commons, a copy of which was obtained by 
 message. This was agreed to by the Lords/ 
 
 The statutable provision in regard to the meeting of 
 Parliament now in force merely requires that no longer 
 a period than three ) T ears shall elapse between the de- meat - 
 termination of one Parliament and the issue of writs for 
 another. 2 Nevertheless, by constitutional practice, the 
 annual assembly of Parliament has become necessary. 
 Supplies for the public service are voted annually, 
 and the Acts for the control of the army and navy are 
 limited in their duration to one year, and must be 
 renewed before the expiration of that time. a 
 
 In order to give life and existence to a Parliament, Opening 
 and to enable it to proceed to the execution of its func- 
 tions, the personal presence or delegated authority of 
 the crown is required for the formal opening of the ses- 
 sion. At the beginning of every new Parliament, and 
 of every session after a prorogation, the cause of sum- 
 mons must be declared to both Houses, either by the 
 sovereign in person, or by commissioners appointed to 
 represent him, in a speech from the throne : until this 
 has been done neither House can enter upon any busi- 
 ness. The act of the Commons in choosing a Speaker is 
 no exception to this rule, for they are specially em- 
 powered to make choice of a presiding officer by com- 
 mand of the sovereign, who refrains from making known 
 the purpose for which Parliament has been convened 
 until the Commons are completely organised, by the 
 election of their Speaker. b 
 
 > Hans. D. v. 205. p. 1548. May, Pail. Prac. ed. 1883, p; 
 
 * 16 Chas. II. c. 1 ; 6 and 7 W. 050. 
 
 and M. c 2. Hats. Pree. v. 2, p. 292. h 2 Hats. pp. 308, 327. And see 
 
 And see post, v. 2. Mir. of Parl. 1833, p. 1.
 
 400 THE ROYAL PREROGATIVE 
 
 In 1874, a change of ministry having taken place after the 
 general election, and before the meeting of Parliament, the House 
 of Lords and the House of Commons (after their Speaker was 
 chosen) adjourned, from March 9 to 19, before the delivery of the 
 speech from the throne, the Lords Commissioners having declared 
 ' Her Majesty's pleasure that an opportunity -may now be given to 
 issue writs for supplying the vacancies so occasioned, and that after 
 a suitable recess, [both Houses might] proceed to the consideration 
 of such matters as [would] then be laid before ' them. c 
 
 But when once Parliament has been formally opened, 
 by the declaration of the causes of summons, each 
 iiainent. branch of the legislature has a separate and distinct 
 jurisdiction ; and business may be entered upon by either 
 House, in conformity with its recognised rules, usages, 
 and customs, irrespective of the royal will and pleasure. 
 It is an ancient and undoubted privilege of the two 
 Houses of Parliament, after the speech from the throne 
 has been delivered, to proceed upon any matter, at their 
 discretion or convenience, without giving priority to the 
 discussion of the topics included in the royal speech. 
 As a deliberate assertion of this right, both Houses 
 invariably read a Bill a first time, pro form a, before they 
 enter upon the consideration of the speech ; and there 
 are many instances of their postponing the consideration 
 of the same in favour of other business for one or more 
 days. d 
 
 Communi- Formal communications between the sovereign and 
 between Parliament, in the shape of royal speeches or messages, 
 the crown an j the interposition of the authority of the crown to 
 
 and Par- " i -i -i i / 
 
 liament. enect the adjournment, prorogation, or dissolution 01 
 Parliament which heretofore emanated from the mere 
 personal will of the reigning monarch are, under our 
 present constitutional system, considered as the acts of 
 the sovereign's responsible advisers. Ever since the in- 
 troduction of ministers into Parliament, they have been 
 
 Hans. I), v. 218, pp. 15-22. 
 
 d -2 Hats. pp. 309. May, Parl. Prac. ed. 1883, p. 48.
 
 IN RELATION TO PARLIAMENT. 407 
 
 held directly responsible for every exercise of the royal 
 authority. The recognition of this principle has pro- 
 duced important changes in the relations between crown 
 and Parliament. While the outward ceremonial remains 
 unaltered, a greater harmony and freedom both of action 
 and intercourse has been brought about between the 
 executive and the legislature. The sovereign is no 
 longer called upon to perform ungracious acts towards 
 his Parliament, or held individually accountable for a 
 policy which is distasteful to that august body. If Bills 
 are introduced into either House that are disapproved 
 of by the crown, the royal veto need not be invoked for 
 their rejection ; but after they have undergone the fullest 
 and freest discussion, the constitutional influence of 
 ministers generally suffices to control their fate. 
 
 The royal veto upon bills in Parliament has not been exercised 
 for upwards of 150 years ; nevertheless, its continued existence is 
 undoubted, arid circumstances might at any time arise that would 
 justify the crown in resorting thereto. 6 
 
 If it be necessary, on the other hand, to propose for 
 the acceptance of Parliament the adoption of unpopular 
 measures, ministers are at hand to explain and defend 
 them, upon their personal responsibility. And if it be 
 impossible to continue to carry on the government suc- 
 cessfully without appealing from the House of Commons 
 to the constituent body, ministers of the crown are 
 themselves responsible for the act of dissolution. 
 
 The opinions of either House of Parliament are Reso- 
 constitutionaUy expressed either by means of an address p^iia- 
 of advice or remonstrance to the crown, or by their ment - 
 agreement to a Bill to add to, alter, or repeal an existing 
 law. But no mere resolution of either House has any 
 legal validity, except in so far as it records the opinion 
 of the House upon some matter which comes within the 
 
 See post f v. 2,
 
 408 
 
 THE LOYAL PREROGATIVE 
 
 sphere of its acknowledged authority, as a component 
 branch of the legislature, to determine. 
 
 For example, either House of Parliament may resolve 
 that its privileges have been infringed in a particular 
 instance. But it cannot enforce a claim of privilege 
 beyond the limits of acknowledged precedent, or by 
 any assumption of privilege exercise unconstitutional 
 powers ; or alter, suspend, or supersede the established 
 laws of the land, so as to deprive the subject of any 
 remedy or right provided for or conferred on him by 
 law. 
 
 See the decisions of the Judges cited/ and the proceedings in the 
 case of Stockdale v. Hansard, wherein the House of Commons laid 
 claim to a privilege which the courts of law denied. s The matter 
 was finally settled by the passing of an Act (3 & 4 Viet. c. 9), 
 legalising the action of either House of Parliament in regard to the 
 main question at issue. See also Sir Erskine May's evidence before 
 a Committee of the House of Commons in 1869 on the mode of 
 examining witnesses which treats of the ' well established rule of 
 Parliamentary law that neither House of Parliament has power to 
 claim any new privilege,' or to revive a power which has been long 
 disused. 11 
 
 Either House may declare the expediency of an alter- 
 ation of the law in a given direction, but it can only 
 give effect to its opinions by the regular method of par- 
 liamentary procedure that is to say, by the introduc- 
 tion and passing of a Bill, which is assented to by the 
 other branches of the legislature. No mere resolution 
 of either House, or joint resolution of the two Houses, 
 can override an Act of Parliament, 1 or dispense with its 
 
 f Thomas's Const. Law, p. 34. 
 May, Parl. Prac. ed. 1883, c. vi. 
 
 See 9 Ad. and Ell. p. 134. Ar- 
 nould's Life of Denman, c. 26. 
 
 h Com. Pap. 1809, v. 7, p. 707. 
 Hans. D. v. 196, p. 620 ; Mr. Dis- 
 raeli, Hans. 1). v. 217, p. 372. 
 
 1 Hans. 1). v. 203, p. 1115. And 
 see debates upon a proposed new 
 standing order, which was errone- 
 ously assumed to be iu contravention 
 of the provisions of au Act of Parlia- 
 
 ment, ib. v. 233, pp. 693, 1527. And 
 see objection taken to a proposed 
 resolution of the House of Lords, in 
 a Scotch peerage case, that it was an 
 infringement of the provisions of an 
 Act of Parliament, Hans. D. v. 235. 
 p. 957. And so the Board of Trade 
 will not sanction a provisional order 
 in Avhicb. it is proposed to repeal any 
 part of a general statute. See Com. 
 Pap. 1877, v. 16, p. 605.
 
 IN RELATION TO PABLIAMENT. 400 
 
 requirements, even although it may relate to something 
 which directly concerns but one chamber of the legisla- 
 ture. Although provision is sometimes made by statute 
 to declare a ' resolution of the House of Commons,' j or, 
 a resolution of * both Houses of Parliament,' 1 " to be valid 
 and effectual for confirming or allowing some act of 
 government, which would not otherwise be legal. The 
 effect of a parliamentary resolution in a matter of ad- 
 ministration will be presently considered. 1 But, first, it 
 will be expedient to notice certain cases explanatory of 
 the principle above mentioned. 
 
 The House of Lords having repeatedly refused to agree to cer- Jews in 
 tain bills passed by the Commons for the admission of Jews to a . 
 seat in Parliament, in the year 1857 a select committee was ap- 
 pointed by the House of Commons, to consider whether the House 
 had not the power of itself, under the Act 5 & 6 Will. IV., c. 62, to 
 admit Jews to the privilege of membership, by substituting a decla- 
 ration in lieu of the oath prescribed by law, which oath contained 
 words ('upon the true faith of a Christian') that rendered it unsuit- 
 able to, and impossible to be taken by, a Jew. The committee was 
 presided over by Lord John Russell, who, together with the attorney- 
 general (Sir R. Bethell), was inclined to the opinion that the legal 
 power to administer a declaration to a person objecting to take the 
 oath was possessed by the House of Commons, although it was 
 confessedly undesirable to use that power until all other constitu- 
 tional remedies had been tried. Thus, in 1833, Mr. Pease, a Quaker, 
 was admitted by the House to sit and vote, upon making affirmation 
 instead of the oaths directed to be taken by law. This course was 
 adopted upon a general construction of the statutes permitting 
 Quakers to make affirmation in lieu of being sworn. m But the 
 introduction of Jews into Parliament in a similar way would have 
 been a violation of the principle of Christianity, as recognised in 
 the statutes upon the subject of oaths. But the majority of the 
 committee was against this opinion, whereupon the committee 
 agreed to report to the House as follows : ' The following resolu- 
 tion was proposed by a member of the committee : That, in the 
 opinion of this committee, the House of Commons is included 
 
 J As by Act 25 & 26 Viet. c. 78, of Indian troops out of India. See 
 
 sec. regarding contracts ; see past, po*t, p. 523. 
 
 p. 49.J. > See post, -p. 419. 
 
 k As by Act, 21 & 22 Viet. c. 106, m May, Parl. Prac. ed. 1883. p. 
 
 see. 55, concerning the employment 209.
 
 410 THE ROYAL PREROGATIVE 
 
 within the following words of the 8th section of 5 & 6 Will. IV., c. 
 62, that is to say, " All bodies now by law, or statute, or by any 
 valid usage, authorised to administer or receive any oath" [may 
 make order, <fec., authorising and directing the substitution of a 
 declaration in lieu of any oath]. Upon deliberation, the resolution 
 passed in the negative.' n Notwithstanding the able arguments 
 made use of to induce the House to assert a claim to settle this 
 controversy by its own act, and the eminent men by whom this 
 claim was advocated, the House of Commons refrained from the 
 attempt. But the probability that a continued resistance on this 
 point might lead to a serious conflict between the two Houses, and 
 possibly between the courts of law and the House of Commons, 
 induced the House of Lords, in 1858, to pass a bill empowering 
 either House to agree to a resolution admitting Jews to sit and vote, 
 upon their taking a suitable declaration, in lieu of the oath imposed 
 by law. This compromise was agreed to by the other House, and 
 the vexed question was thus finally determined, so far as the ad- 
 mission of Jews to a seat in the House of Commons was concerned.!* 
 No such resolution, however, was ever adopted by the House of 
 Lords. Nevertheless, by an Act passed in 1866, the oath required 
 to be taken by members of both Houses of Parliament was altered, 
 so as to omit the words ' on the true faith of a Christian,' thereby 
 rendering a Jew eligible for a seat in either House. q 
 
 Cattle. In 1866, when immediate legislation was called for, to stay the 
 
 ravages of the cattle plague, and yet the question itself was beset 
 with so many difficulties as to render it impossible for Parliament to 
 agree to a measure without patient and careful consideration of the 
 whole matter, it was suggested by the Earl of Derby, that general 
 resolutions should be adopted by both Houses of Parliament, autho- 
 rising the government to deal with the subject by orders in council, 
 upon certain main principles to be laid down in the resolutions, 
 such orders to remain in force until Parliament had matured a Bill 
 upon the subject. But Earl Russell (the premier) and Earl Grey 
 both objected that this would be a dangerous and unwarrantable 
 proceeding. Accordingly, it was not pressed upon the consideration 
 of the House/ 
 
 In 1876, the attention of the House of Commons 
 was called to an unconstitutional practice which had 
 
 Com. Pap. 1857, Sess. 2, v. 9, " 29 Viet. c. 19. Life of Sir F. 
 
 p. 477 ; and see May, Parl. Prac. ed. Goldsuiid, p. 62. 
 
 1883, p. 20(5. ' Hans. D. v. 181, pp. 441-445, 
 
 Flans. L). v. 151, p. 1372. 503. See also the case of the Totne<, 
 
 21 & 22 Viet. c. 49. &c , Writs, Hans. D. v. 100, p. 674.
 
 IN RELATION TO PARLIAMENT. 411 
 
 grown up, since 1868 in allowing referees, being paid 
 officers of the House, appointed to serve as assessors 
 or advisers upon private bill committees, the power of 
 voting thereon, as though they were ele'cted members 
 of Parliament. The right of referees to sit on com- 
 mittees had been conferred, by a resolution of the 
 House in 1868 which did not specify any power of 
 voting ; but such power had, in fact, been exercised ever 
 since. Whereupon, on February 18, a select com- 
 mittee was appointed to enquire into the matter and 
 particularly as to the legality and expediency of the 
 exercise of the power of voting by the referees. 8 The 
 committee reported their unanimous conclusion, that it 
 was inconsistent with ancient parliamentary usage, and 
 contrary to constitutional principle, to allow the referees 
 the right of voting.* Whereupon it was ordered, that 
 it be an instruction to committees on private bills, that 
 referees, appointed to such' committees, may take part 
 in all the proceedings thereof, but without the power of 
 voting." 
 
 In the ordinary course of procedure, resolutions of Abstract 
 either HouSe of Parliament should be the embodiment J^s?ob- 
 of well-ascertained opinions, or facts, as a basis or pre- i^ti< 
 liminary step towards some proximate parliamentary 
 action. Mere abstract resolutions upon any question, 
 while they are too commonly regarded as allowable 
 weapons in the exigencies of party warfare, are open to 
 grave objection. They are generally made use of to 
 assert a principle, perhaps undeniable in itself, but 
 which it would be impossible or inexpedient to carry 
 out at the time. They have, accordingly, a tendency 
 to fetter the present action of government, to precipi- 
 tate the solution of great public questions, before they 
 are ripe for settlement, and to impede the current of 
 
 Hans. D. v. 227, p. 485. Com. Pap. 1876, v. 14, p. 4. 
 
 u Hans. D. v. 2:18, p. 616.
 
 412 THE ROYAL PREROGATIVE 
 
 useful legislation. Upon these grounds the most emi- 
 nent statesmen have concurred in condemning them. v 
 
 o 
 
 Thus in 1865, Mr. Gladstone said : 'I have never concealed my 
 strong opinion that a resolution of this House, unless relating to a 
 matter of grievance or recommending the reduction of a burden 
 oppressive to the community, does not demand great consideration 
 from the government.' w Again, in 1870, he observed, that 'as a 
 rule, this House proceeds by Bill, and not by resolution. The 
 framer of a Bill is under the necessity of thinking out and through 
 all parts of his subject, and of presenting it to the House in such a 
 manner as will bear testimony that he has thought it through 
 and will give the House some means of judging whether his means 
 are adapted and well proportioned to his ends.' Whereas, by an 
 abstract resolution, ' we are called upon, at a moment's notice, to 
 pledge ourselves irrevocably to the utterance of opinions which are 
 subject to doubt and hesitation in every conceivable way, and which 
 ought never to be entertained with a view to adoption unless they 
 have been subjected to severe scrutiny. 1 
 
 The prerogative that will first engage our attention 
 is that which concerns the executive authority of the 
 crown in the administration of public affairs. This 
 prerogative is of such widespread and pervasive opera- 
 tion, as to include, in a certain sense, every other. Our 
 remarks in reference thereto, and the authorities cited, 
 will accordingly be of general application, and will con- 
 tribute, it maybe hoped, to the solution of any question 
 that may arise out of the constitutional relations 
 between the Crown and Parliament. 
 
 Our comments upon this prerogative in the sub- 
 sequent chapters are divisible into four heads : I. 
 General principles which govern the relations between 
 
 T Lid. Altborp and Lid. Stanley pies to be afterwards embodied in 
 
 (Earl of Derby), Mir. of 1'arl. 1835, legislative measures is equally o l >- 
 
 p. 082; Sir R. Peel, ib. 1840, p. jectionable, Seeti. v. 200, pp. 1130- 
 
 .'{524; Marq. of Lansdowne, Hans. 1140. 
 
 1). v. 94, p. 177; Mr. Cardwell, ib. w Ib. v. 178, p. 3S; and see ib. v. 
 
 v. 125, p. 615; Mr. Disraeli, 6. v. 216, p. 730. 
 
 151, p. 125; ib. v. 214, p. 1931 ; Mr. Ib. v. 201, p. 522; and Mr. 
 
 Gladstone, &. v. 161, p 1448. Any Grant Duff, ib. p. 843. See also ib. 
 
 attempt to obtain from ministers a v. 211, p. 406. 
 premature admission of the priuci-
 
 IN RELATION TO PARLIAMENT. 413 
 
 ministers of the crown and the two Houses of Parlia- 
 ment in matters of administration, with precedents 
 illustrative thereof. II. The practice of Parliament in 
 the appointment of select committees to enquire into 
 administrative questions. III. Practice in regard to 
 the granting or withholding, by the executive, of in- 
 formation desired by either House of Parliament. IV. 
 Circumstances which may require the interposition of 
 Parliament to restrain the illegal exercise of executive 
 authority : in relation (more specially) to (1) orders in 
 council and royal proclamations ; (2) minutes of com- 
 mittees of council, and other departmental regula- 
 tions ; (3) contracts entered into by public depart- 
 ments ; (4) the remedy against illegal or oppressive 
 acts by ministers of the crown.
 
 414 THE ROYAL PREROGATIVE 
 
 CHAPTER VII. 
 
 1. GENERAL PRINCIPLES WHICH GOVERN THE RELATIONS 
 BETWEEN THE CROWN AND PARLIAMENT IN MATTERS 
 OF ADMINISTRATION. 
 
 Pariia- FREEDOM of speech in Parliament is an essential part of 
 
 ment may , ... . /.-n T ^ mi M 
 
 advise the the liberties 01 Englishmen. Ihis privilege was guaran- 
 crown in tee( j j^ ^ -p^ Q f Righ tSj an( } j t includes a licence to 
 
 matter. discuss all matters affecting the public welfare, whether 
 the same have been formally commended by the crown 
 to the consideration of Parliament or not. From the 
 time of Edward III. to our own day, Parliament has 
 freely exercised the right of tendering advice to the 
 sovereign, unasked, upon matters the final determination 
 of which appertained to the sovereign alone. The House 
 of Lords, as representing the ancient Great Council of 
 the realm, always possessed this right ; and after the 
 House of Commons arose, its position, as the Grand 
 Inquest of the kingdom, justified it in claiming similar 
 privileges. The two Houses of Parliament collectively 
 represent the whole community, and are the Great 
 Council of the nation, while ' ministers are merely the 
 council of the prince.' a They are, therefore, entitled 
 to approach the sovereign with advice or remonstrance 
 upon all affairs of state, and in regard to every griev- 
 ance under which any subjects of the realm may be 
 suffering. But it is equally necessary to remember that 
 Parliament is designed for counsel and not for rule for 
 
 Rt. Hon. C. W. Wynn, Mir. of Tarl. 1835, p.
 
 IN MATTERS OF ADMINISTRATION. 415 
 
 advice, and not for administration. There are some 
 prerogatives with the exercise of which the Houses of 
 Parliament must ordinarily refrain from intermeddling, 
 lest their intrusion should be equivalent to an unwar- 
 rantable interference with executive functions. 
 
 The true responsibility of ministers depends upon Free 
 their freedom in exercising the lawful authority of the of e execu- 
 crown. Without freedom of action there can be no ji ive .. 
 
 ., .,. . . functions. 
 
 genuine responsibility. It is this which renders it so 
 essential to the successful working of parliamentary 
 government that ministers should be sustained by a pre- 
 dominant party in the legislature, who are prepared, on 
 general grounds of public policy, to approve their acts, 
 and to assume a measure of responsibility for their con- 
 duct in office. b De Lolme, in anticipating the events 
 that would be likely to destroy the fair fabric of the 
 English constitution, strikingly remarks that, ' when the 
 representatives of the people shall begin to share in 
 the executive authority,' the government will be over- 
 thrown. 
 
 Great weight must necessarily be attributed to the 
 opinions of either House of Parliament on public affairs ; 
 but, under ordinary circumstances, those opinions are haa ' ent - 
 constitutionally expressed by the degree of support they 
 consent to afford to the ministers of the crown in the 
 conduct of the government. If the Queen's ministers 
 possess the confidence of Parliament, it is inexpedient 
 and unwise, as a general rule, to interefere with their 
 decisions in regard to the details of administration, 
 except in cases wherein it may appear that the public 
 interests have been injuriously affected by the action of 
 ministers. 
 
 The abstract right of Parliament, in this matter, has 
 been asserted by the best constitutional authorities. 
 
 * Ed. Rev. v. 108, p. 285. 
 
 De Lolme, Const, pp. 430-450. And see Cox, Inst. p. 3.
 
 410 THE ROYAL PREROGATIVE 
 
 Thus, Earl Russell says : ' The two Houses of Parliament 
 constitute the Great Council of the king, and upon what- 
 ever subject it is his prerogative to act it is their privi- 
 lege and 'even their duty to advise. Acts of executive 
 government, however, belong to the king.' d And of 
 the House of Commons Burke says : ' It is their privi- 
 lege to interfere, by authoritative advice and admonition, 
 upon every act of executive government, without ex- 
 ception.' e In 1784 the House of Commons resolved 
 in conformity with the report of a select committee to 
 search for precedents on the subject : ' That it is con- 
 stitutional and agreeable to usage for the House of 
 Commons to declare their sense and opinions respecting 
 the exercise of every discretionary power which, whether 
 by Act of Parliament or otherwise, is vested in any body 
 of men whatsoever for the public service.'* 
 night of In 1788, on a motion for enquiring into the conduct 
 
 enquiry. Q t j ie ^ c ] ra i ra lty in a certain matter, Mr. Pitt (the prime 
 minister), said : ' That the House had a constitutional 
 power of enquiring into the conduct of any department 
 of the government, with a view either to censure or 
 punishment, was unquestionable ; and whenever a case 
 was made out strong enough to warrant a suspicion of 
 abuse that deserved either censure or punishment, he 
 should ever hold it to be the indispensable duty of the 
 House to proceed to enquire.' Mr. Fox, on the same occa- 
 sion, remarked, that ' it was the constitutional province 
 and the undoubted duty of the House to watch over 
 the executive departments, and where they had cause 
 to suspect abuse, to institute an enquiry, with a view 
 either to censure or punishment.' g In 1809, the irre- 
 gular promotion of Lord Burghersh to higher military 
 rank, contrary to the prescribed regulations, was com- 
 plained of in the House of Commons, and notwithstand- 
 
 d Russell, Eng. Const, p. 151. v. 2, p. 369. 
 
 e Rowlands, En;;. Const, p. 498. f Parl. Hist. v. 24, pp. Jttl-.^l. 
 
 See also Wynn, in Tarl. Deb. N. S., * Ib. v. 27, pp. 277, 281.
 
 IN MATTERS OF ADMINISTRATION. 417 
 
 ing the claim of the secretary for war (Lord Castle- 
 reagh) that * it was part of his Majesty's prerogative, as 
 the undoubted head of the army, to dispense with his 
 own regulations when he thought proper ; ' it was 
 insisted, on the part of Lord Temple, that ' the House 
 of Commons had over that, as well as over every other 
 branch of the royal power, a privilege to enquire and 
 control.' Whereupon, on a division, ministers were 
 defeated, and compelled to cancel the objectionable 
 promotion. 11 
 
 It is now an acknowledged principle that ' every act 
 done by the responsible ministers of the crown having 
 any political significance is a fit subject for comment 
 and, if necessary, for censure in either House of Parlia- Rights of 
 ment.' ! The House of Commons, says May, ' has a mon?to" 
 right to advise the crown even as to the exercise of the a^ 1 * 6 the 
 prerogative itself; and should its advice be disregarded 
 it wields the power of impeachment, and holds the 
 pursestrings of the state.' ] 
 
 In like manner, Canning defined the House of Commons to be a 
 council of control, as well as a council of advice ; and declared that 
 in cases of adequate importance, especially where the prerogative 
 Vas concerned, it should endeavour, by the timely interposition of 
 advice, to prevent the necessity of control. k 
 
 But it is evident that these extraordinary powers of when 
 
 necessit 
 requires, 
 
 interference ought not to be evoked except upon special 
 
 necessity ; as a general principle, Parliament should 
 confide in the discretion of the responsible advisers of 
 the crown, who are the trustees of the royal prerogative 
 for the rightful administration of the same. So long as 
 Parliament continues its confidence in ministers, it ought 
 to be willing to leave the exercise of the prerogative in 
 their hands, unfettered by restrictions in regard to its 
 exercise, and should ordinarily refrain from interference 
 
 h Fonblanque, Life of Gen. Bur- D. v. 171, pp. 1720, 1728. 
 
 goyne, p. 458, n. i May, Const Hist. v. 1, p. 458. 
 
 1 Earls Derby and Russell, Hans. k Parl. D. v. 23, p. 267. 
 
 VOL. I. E B
 
 418 THE ROYAL PREROGATIVE 
 
 therewith. The general responsibility of ministers for 
 the wisdom, policy, and legality of the measures of 
 government should be sufficient guarantee, in all ordi 
 nary cases, for the faithful discharge of the high 
 functions entrusted to them. In fact, ' the ministry of 
 the day are responsible for everything that is done in 
 any department of the state ; ' and while ' it is true that 
 the House of Commons ought to have a control and 
 supervision over every such department, its functions 
 are those of control, not of administration.' l l The 
 House can interfere with great advantage in prescribing 
 the principles on which the executive government shall 
 be carried on ; but beyond that it is impossible for the 
 legislature to interfere with advantage in the details of 
 the administration of the country.' m 
 
 Defects Mr. Frederic Harrison, in an essay, n points out the ominous 
 
 defects recently apparent in our system of government by Parlia- 
 ment. He shows that the peculiar character of the House of Com- 
 mons as ' the aristocratic public council of a governing class was 
 put an end to by the Reform Bill of 1831.' That since then, the 
 House has gradually, and insensibly, but ' practically usurped 
 executive functions, and really has become the executive.' Its 
 existing constitution and methods are totally incompatible with 
 the efficient discharge of such functions. He suggests as a remedy 
 (1) that the question must be settled, ' Is the House of Commons 
 the proper body to carry on the executive of this vast empire, or 
 directly to control the executive in all the minutiae of business 1 ' 
 If these functions are still to be exercised, ' there is no half-way 
 house between the present dead-lock and the transfer of all details 
 of Bills to a complete system of Revising Committees,' consisting 
 of between ten and twenty members each and other business to 
 properly constituted standing committees. Besides this reform, in 
 favour of which he urges some weighty reasons, it is imperative to 
 curtail and revise the great and growing abuse of ' questions to 
 
 1 Palmerston, Hans. D. v. 150, p. servations in his Life of Fox, v. 3, 
 
 1357 ; and Ib. v. 164, p. 999. And p. 311 ; Rep. Com 6 . Board of Admi- 
 
 see Prof. Austin's observations on ralty; Corns. Pap. 1861, v. 5, pp. 335, 
 
 this point, Plea for the Constitution, 363 ; Evid. 2612, 2905 ; Fitz James 
 
 p. 24. Stephens on Parl. Govt. in Con. Rev. 
 
 m Cobden, Hans. D. v. 176, p. v. 23. 
 3909. See also Earl Russell's ob- n 19th Cen. v. 10, p. 317.
 
 IN MATTERS OF ADMINISTRATION. 419 
 
 ministers,' which now occupy an enormous and greatly dispropor- 
 tionate amount of time and attention. Some effectual means must 
 also be devised to put an end to excessive and unprofitable debate, 
 on any and every subject. Proceedings on public Bills must not be 
 put an end to by the close of a session, and private Bills must be 
 largely transferred to other tribunals. 
 
 The New Rules, passed in the autumn session of 1882, were not 
 designed merely to suppress obstruction, but to facilitate the pro- 
 gress of public business. To effect this it was deemed necessary ' to 
 curtail the legitimate rights of the Opposition, and to introduce 
 novel machinery into the ancient practice of Parliament.' 
 
 Any direct interference, by resolution of Parliament, inter- 
 in the details of government is inconsistent with and 
 subversive of the kingly authority, and is a departure 
 from the fundamental principle of the British constitu- of govern- 
 tion, which vests all executive authority in the sovereign, E 
 while it ensures complete responsibility for the exercise 
 of every act of sovereignty. Experience has uniformly 
 demonstrated the unfitness of large deliberative assem- 
 blies for the functions of government. The intrusion of 
 parliamentary committees into matters which appertain 
 to the jurisdiction of the executive government is equally 
 to be deprecated, as it tends inevitably to the overthrow 
 "of all genuine responsibility, and the substitution instead 
 of an arbitrary tyrannical power. p During the reign of 
 Charles I. the Long Parliament assumed, on the part of 
 its committees, various executive functions ; but this is 
 admitted to have been a usurpation, and it is now 
 acknowledged without dispute that all acts of adminis- 
 tration belong exclusively to the crown. 
 
 Parliament does not interfere directly in carrying on the 
 executive government ; the supreme executive authority belongs to 
 the crown, nor do the measures adopted by its ministers in the 
 exercise of this authority require the previous sanction of Parlia- 
 ment, i 
 
 See Mr. Curtis's paper on the > Grey, Parl. Govt. new ed. p. 22 
 
 New Rules, Fort. Rev. v. 33, p. 19. and p. 9, n. See Sir C. Wood, Hans. 
 
 p See the injurious operation of D. v. 175, p. 259. And see a curious 
 
 Standing Com* in the U.S. Congress, case cited ante, p. 370. 
 North Am. Rev. v. 118, p. 12. 
 
 E B 2
 
 420 THE ROYAL PREROGATIVE 
 
 interfer- Accordingly, no resolution of either House of Par- 
 
 ence of,. -i v -i . i i 
 
 Pariia- liament which attempts to adjudicate in any case that is 
 within the province of the government to determine 
 or, to define the mode in which any prerogative of the 
 crown should be exercised has of itself any force or 
 effect/ If it be intended merely to express the sense of 
 the House upon some objectionable system, practice, or 
 act of administration, or to complain of an existing 
 grievance and suggest a remedy, Parliament is perfectly 
 competent to entertain and pass a resolution on the 
 subject, or to approach the crown, by address, with 
 advice upon the same. It then becomes the duty of 
 the government to give respectful consideration to the 
 matter, but nevertheless to decide upon the course to 
 be followed on their own responsibility. Sometimes, 
 indeed, the government themselves invite the assistance 
 of Parliament to institute, by means of select com- 
 mittees, enquiries into questions of administration, for 
 the purpose of obtaining the fullest information to 
 enable them to accomplish some desirable reform ; or 
 express their willingness to be guided in a particular 
 matter by the general sense of parliamentary opinion. 
 But where the government deprecate interference, or 
 refuse to concur in any such recommendation, the 
 persistence of the House therein would either amount 
 to an infringement of the royal prerogative, or it would 
 be tantamount to a vote of censure upon the existing 
 administration. And it would be highly irregular to 
 confer supervisory or administrative duties in matters of 
 public concern upon private members of either House 
 of Parliament. 8 
 
 ' The limits,' says May, ' within which Parliament, 
 or either House, may constitutionally exercise a control 
 over the executive government have been defined by 
 usage upon principles consistent with a true distribu- 
 
 See post, pp. 5GG, 667. * Hans. D. v. 234, p. 1785.
 
 IN MATTERS OP ADMINISTRATION. 421 
 
 tion of powers in a free state and limited monarchy. 
 Parliament has no direct control over any single depart- 
 ment of the state. It may order the production of 
 papers for its information ; it may investigate the con- 
 duct of public officers and may pronounce its opinion 
 upon the manner in which every function of govern- 
 ment has been or ought to be discharged ; but it cannot 
 convey its orders or directions to the meanest executive 
 officer in relation to the performance of his duty. Its 
 power over the executive is exercised indirectly, but not 
 the less effectively, through the responsible ministers of 
 the crown. These ministers regulate the duties of every 
 department of the state, and are responsible for their 
 proper performance to Parliament as well as the crown. 
 If Parliament disapprove of any act or policy of the 
 government, ministers must conform to its opinion or 
 forfeit its confidence. In this manner the House of 
 Commons, having become the dominant power of the 
 legislature, has been able to direct the conduct of the 
 government and control its executive administration of 
 public affairs, without exceeding its constitutional 
 _ powers.' * 
 
 Since the passing of the Eeform Act of 1867, the Encroach- 
 House of Commons has shown a disposition to en- en * of 
 
 i T i i L f tlie Corn- 
 
 croach, more and more, upon the sphere of government, mons. 
 It now ' claims to have a voice in every subject before 
 it is decided. By means of questions proposed to 
 ministers, which have enormously multiplied in number 
 and importance within the last few years, it controls 
 and directs the course of administration to a degree 
 never dreamt of for many years after the [first] 
 Eeform Bill." 
 
 * Every measure of the ministers of the crown,' says Minister 
 Lord Grey, ' is open to censure in either House ; so ^b^to*" 
 that when there is just or even plausible ground for Parlia - 
 
 1 May, Const. Hist. v. 1, p. 457. 
 
 u Mr. Lowe, M.P., Fort, Rev. v. 22, p. 444.
 
 422 THE ROYAL PREROGATIVE 
 
 objecting to anything they have done or omitted to do, 
 they cannot escape being called upon to defend their 
 conduct. By this arrangement, those to whom power 
 is entrusted are made to feel that they must use it in such 
 a manner as to be prepared to meet the criticisms of 
 opponents continually on the watch for any errors they 
 may commit, and the whole foreign and domestic policy 
 of the nation is submitted to the ordeal of free dis- 
 cussion.' v 
 
 The following cases may be adduced in illustra- 
 tion of the foregoing doctrine. They are entered in 
 chronological order, a rule which will be generally ob- 
 served in the series of precedents hereinafter quoted : 
 
 Prece- In 1807 a Bill to abolish reversions was passed by the House 
 
 of Commons, but failed to receive the sanction of the House of 
 Rever- Lords : whereupon, on August 10, just before the prorogation, the 
 sions. Commons agreed to an address, nem. con., that his Majesty would 
 
 be graciously pleased not to grant any office in reversion in any 
 part of the empire until six weeks after the commencement of the 
 next session of Parliament. To this request the king returned a 
 favourable answer. In the following session a new Bill to suspend 
 the granting of offices in reversion for a limited time was brought 
 in, and received the royal assent (48 Geo. III. c. 50). By two 
 subsequent Acts (50 Geo. III. c. 88, and 52, c. 40) the grant of 
 offices in reversion was suspended for a further period. But the 
 House of Lords, in 1814, continuing to oppose the permanent 
 abolition of reversions, ministers resisted a motion for an address 
 similar to that voted in 1807, asserting that 'its object was an 
 innovation of the constitution, and an exclusion of the House of 
 Lords from their share in the legislature,' which ' might place the 
 crown in a contradictory relation to each of the two Houses.' The 
 motion was accordingly negatived. w But in deference to public 
 opinion, and to repeated (though unsuccessful) motions on the sub- 
 ject, in both Houses, between the years 1815 and 1819, ministers 
 afterwards abstained from advising the grant of places in reversion, 
 and the exercise of this prerogative is now formally abandoned. 1 
 In 1836, on motion of Lord John Russell, then chancellor of 
 
 * Parl. Govt. p. 20. Jour. 1801-1820, p. 699. Sir R. 
 
 w Parl. D. v. 28, pp. 634, 792. Peel, in Rep. on Off 1 '. Salaries, Coin. 
 
 x Ib. v. 31, p. 881 ; v. 38, p. 1253 ; Pap. 1850, v. 15, p. 230. 
 v. 39, p. 386. Gen. Index Com.
 
 IN MATTERS OF ADMINISTRATION. 423 
 
 the exchequer, the House of Commons passed an address to the Prece- 
 king, that he would be pleased to take steps for the effectual dis- c 
 couragement of Orange lodges, and generally of all secret societies. Orange 
 This led to the immediate formal dissolution of the great Orange lodges. 
 Society of the United Kingdom.? But it was afterwards re-estab- 
 lished, with a different set of rules. 2 
 
 On May 22, 1838, a resolution was carried against the govern- Negro ap- 
 ment, by a majority of three, in favour of the ' immediate ' termi- P rentlces - 
 nation of negro apprenticeship in the colonies.* The government 
 declined to take any action in carrying out this resolution, and 
 intimated their intention of opposing any Bill that might be intro 
 duced to give effect thereto : b whereupon the mover of the reso- 
 lution declined to take any further action in the matter for the time 
 being, but reserved his right to do so whenever he should think fit, 
 leaving the resolution meanwhile to speak for itself. c This induced 
 the government, on May 28, to submit to the House a motion that, 
 for certain alleged reasons, ' it is not advisable to adopt any pro- 
 ceeding for the purpose of giving effect to the resolution of May 
 22.' After a long debate, this motion was agreed to by a majority 
 of 72. d 
 
 On February 18, 1839, Mr. Duncombe presented a petition to Theatres 
 the House of Commons from the lessee, &c. of Drury Lane Theatre, * n Lent - 
 complaining of the restrictions imposed by the lord chamberlain 
 forbidding theatrical performances in the city of Westminster on 
 Wednesdays and Fridays during Lent. He then proposed an 
 address to the Queen, that she would be pleased to direct the 
 removal of these restrictions. This was opposed by government, 
 and after a short debate, was negatived on division. However, on 
 February 28, Mr. Duncombe moved to resolve that, in the opinion 
 of the House, the continuance of these restrictions was objection- 
 able. Lord John Russell, on behalf of the government, deprecated 
 an attempt by the House to declare by a resolution in what manner 
 a discretionary power vested in an officer of the crown Rhoulcl be 
 performed ; but, notwithstanding, the resolution was agreed to on 
 division. 6 Subsequently Mr. Duncombe complained that this reso- 
 lution had been disregarded by government, and moved for corre- 
 spondence on the subject, which was granted/ He then proposed 
 (on March 11) a vote of censure on the Queen's ministers for 
 
 T Mir. of Parl. 1836, pp. 300, 340. 4218. 
 
 Ann. Reg-. 1836, p. 19. And see b Ib. pp. 4221, 4244. 
 
 post, p. 537. c Ib. p. 4324. 
 
 Hans. D. v. 186, pp. 856-887 ; d Ib. p. 4431. 
 
 v. 195, p. 506. Ib. 1839, p. 625. 
 
 a Mir. of Parl. 1838, pp. 4202- f Ib. p. 806.
 
 424 THE ROYAL PREROGATIVE 
 
 assuming the responsibility of directing the lord chamberlain (who 
 was authorised by statute to regulate theatrical entertainments in 
 Westminster) to continue his obnoxious restrictions in manifest 
 disregard of the resolution of the House. In reply, Lord John 
 Russell justified the course he had pursued, declaring that, ' with 
 every respect for the resolutions of the House, he was far from 
 supposing that they could supersede the law of the realm, or dis- 
 pense with the prerogative of the crown.' The proposed vote of 
 censure he regarded as quite uncalled for. The proper course would 
 have been for the mover of the resolution to have followed it up 
 with an address to the crown, which, if agreed to by the House, 
 would have brought the matter under the notice of government, 
 and necessarily elicited a reply ; or he might have introduced a Bill 
 into the House to carry out the principle embodied in the resolu- 
 tion. His lordship added, that the general question of licensing 
 entertainments was under the consideration of government, and 
 that some change in the present arrangements might hereafter be 
 made. h After some further debate, the motion of censure was put 
 and negatived. Before the commencement of Lent in the ensuing 
 year, the lord chamberlain issued a new order, allowing all theatres 
 under his jurisdiction to be open during Lent, except on Ash 
 Wednesday and in Passion- week. An astronomical lecturer, here- 
 tofore in the habit of lecturing during Passion- week at the theatres, 
 petitioned the House, complaining that the new order prevented 
 the continuance of his lectures : whereupon Mr. Duncombe moved 
 an address to the Queen, that she would be pleased to direct that 
 ' astronomical lectures ' should be exempted from the operation of 
 the new order. This motion, though opposed by the government, 
 was agreed to on a division. 1 But no answer to the address was 
 communicated to the House. Up to 1861, the theatres under the 
 jurisdiction of the Lord Chamberlain, which has been extended 
 by the Act 6 & 7 Viet. c. 68, to the whole metropolis, were 
 closed for dramatic performances during Passion- week. In conse- 
 quence, however, of strong representations from the managers of 
 the hardship inflicted on them by restrictions placed on no other 
 class of the community, the limitation clause as to Passion-week 
 has been since omitted, always excepting Good Friday ; and the 
 question of opening in that week is now left to the discretion of the 
 managers.^ At present, it is only on Sundays, Christmas Day, Ash 
 Wednesday, and Good Friday, that theatres and music halls are 
 
 ' Mir. of Parl. 1839, p. 987. 84-39. 
 
 11 Ib. pp. 987, 988. J Kep. Com", on Theatrical Li- 
 
 1 II. 1840, pp. 2482-2485. And cences, Com. Pap. I860, v. 16, p. 
 
 ee T. S. Duncombe's Life, v. 2, pp. 299.
 
 IN MATTERS OF ADMINISTRATION. 425 
 
 forbidden to be opened. k But as regards Ash Wednesday, the pro- Prece- 
 hibition is not strictly enforced. 1 dents. 
 
 On March 22, 1842, a series of resolutions were proposed in Admiralty 
 the House of Commons, by Sir Charles Napier, in favour of the Board, 
 selection of naval officers, instead of civilians, as members of the 
 Admiralty Board, and in favour of naval civil situations being 
 filled by professional men. Sir Robert Peel, the prime minister, 
 moved the previous question, and refused, as a minister of the 
 crown, to make any promise as to what he would do in the matter ; 
 because, he added, ' it must be reserved as the prerogative of the 
 crown, and I altogether protest against the House of Commons 
 laying any restrictions upon the exercise of the royal prerogative 
 with regard to any branch of the public service.' After some 
 further debate the previous question was put and negatived. 
 
 On May 30, 1850, on motion of Lord Ashley in the House Sunday 
 of Commons, an address to the Queen in favour of the total ces- |? b p r i" 
 sation of Sunday labour in the post-offices of the United Kingdom O ftj ce . 
 was agreed to. The ministry, though disapproving of the plan, 
 advised her Majesty to comply with the wishes of the House." [The 
 majority in favour of this address is said to have been obtained 
 owing to the absence at a court ball, of many members who would 
 have opposed it. ] Much public inconvenience resulted from this 
 decision ; accordingly, arrangements were entered into by newspaper 
 agents and others for a general delivery of mailable matter on 
 Sunday, which involved the employment of many extra hands on 
 that day. Whereupon, on July 9, the House passed another 
 address to a contrary effect, expressing an opinion in favour of 
 a partial delivery of letters and papers through the Post-office on 
 the Lord's Day. To this address her Majesty returned a favourable 
 reply.? 
 
 On April 18, 1871, a private member of the House of Commons 
 moved a resolution condemning the employment of letter carriers 
 and rural messengers in the delivery of letters throughout the 
 United Kingdom on Sundays. The prime minister (Mr. Gladstone), 
 admitting that the adoption of this motion ' would demand obedi- 
 ence from the executive government,' moved an amendment in 
 favour of an official inquiry into the practicability of a further 
 reduction of Sunday labour in the service of the Post-office which 
 was accepted, and agreed to by the House, "i Whereupon a depart- 
 mental committee of enquiry was appointed, upon whose report 
 
 k Hans. D. v. 224, p. 469. n Ib. v. Ill, pp. 484, 980, 
 
 1 Ib. v. 209, p. 1022 ; v. 222, p. Ed. Rev. v. 120, p. 74. 
 
 1279. See further, L. T. v. 74, p. 2. P Hans. D. v. 112, pp. 1215, 1375. 
 
 m Hans. D. v. 61, pp. 1061-1070. And see v. 113, p. 1077. 
 
 See further on this subject, post. 1 Ib. v. 205, pp. 1259-1280. 
 
 pp. 534, 543.
 
 420 
 
 THE ROYAL PREEOGATIVE 
 
 Prece 
 dents. 
 
 Education 
 in Ireland. 
 
 Site of 
 
 National 
 
 Gallery. 
 
 Fortifica- 
 tions. 
 
 revised instructions were issued by the postmaster-general on the 
 subject. 1 " 
 
 On June 17, 1856, an address to the Queen, in relation to 
 education in Ireland, was passed by the House of Commons unex- 
 pectedly, and in opposition to the wishes of the government, by 
 whom it was considered as tending to the subversion of the system 
 of national education in operation in that country. By consent of 
 the government, an opportunity was afforded to the House to re- 
 consider the subject before the Queen's reply to the address should 
 be given ; 8 and a counter-resolution, expressing a decided opinion in 
 favour of the maintenance of the existing system of Irish edu- 
 cation, was agreed to.* In the course of the debate, Lord John 
 Russell commented on the embarrassment resulting from the rule 
 of the House permitting an address to be passed upon one deli- 
 beration ; and said that he had been quite prepared to move for the 
 rescinding of the vote, but was willing to accept the proposed reso- 
 lution as a satisfactory equivalent." On June 26 the Queen's reply 
 to the address was sent down. It expressed an earnest desire to 
 maintain the established system of education in Ireland, and a 
 readiness to give to the wishes and recommendations of the Com- 
 mons the consideration to which they were entitled. v 
 
 On June 27, 1856, an address to the Queen for the issue of 
 a royal commission to determine the site of the new National 
 Gallery was carried against ministers, and contrary to the wishes 
 of the principal leaders of the Opposition^ Whereupon the com- 
 mission was issued by the crown. x 
 
 In the session of 1860, upon the recommendation of the crown, 
 the sum of two million pounds was granted by Parliament towards 
 the construction of works for the defence of the royal dockyards 
 and arsenals, and of the ports of Dover and Portland, &c. The 
 entire cost of these fortifications, as originally estimated, was some- 
 what over five million pounds. But before they were completed 
 their estimated cost amounted to 7,460,000. Foremost in this 
 great scheme of national defence was the construction of fortifica- 
 tions at Spithead, a roadstead in the vicinity of Portsmouth. Under 
 the influence of the excitement occasioned by the news from 
 America of the contest between the ironclad war-vessels, the 
 Merrimac and the Monitor, the House of Commons, on April 4, 
 1862, resolved 'that it is expedient to suspend the construction of 
 the proposed forts at Spithead until the value of iron-roofed gun- 
 
 ' Com. Pap. 1872, v. 30, p. 338. 
 Hans. D. v. 223, p. 1282. 
 
 Hans. D. v. 142, pp. IGGti, 1827. 
 1 Ib. pp. 1836, 1884. 
 u Ib. p. 1862. 
 
 T Ib. p. 1992. 
 " Ib. p. 2154. 
 Ib. v. 143, p. 510. 
 v. 171, pp. 261, 516. 
 
 Aud see ib.
 
 IN MATTERS OP ADMINISTRATION. 427 
 
 boats, for the defence of our ports and roadsteads, shall have been Prece- 
 fully considered ; ' and that on a future day (named) the House dents, 
 would go into committee to consider of authorising the funds appro- 
 priated for the construction of forts to be expended in building 
 ironclad ships. (This committee, however, never sat, the order 
 respecting it being allowed to drop.) y Meanwhile, in deference 
 to the foregoing resolution, the government suspended the works 
 at Spithead, although they thus incurred a heavy expense in 
 indemnifying the contractors for losses sustained thereby. They 
 also referred the question to the consideration of the Defence 
 Commissioners, upon whose report they determined to suspend the 
 further prosecution of the works until the result of certain experi- 
 ments had been ascertained. 2 Adverting to the delay and expense 
 attending this course, Lord Palmerston (the prime minister) took 
 occasion to remark, ' that when the House of Commons takes into 
 its own hands administrative details, and takes them out of the 
 hands of the executive government, the probability is that such a 
 course will be attended with increased expense and diminished 
 efficiency.'* But as the Government had merely consented to defer 
 f o ra while and not to abandon the system of fortifications they had 
 decided upon in 1860, another resolution was proposed, on June 23, 
 1862, as an amendment to a motion for the grant of a further 
 sum in aid of the construction of fortifications : ' That considering 
 the changes and improvements now in progress affecting the science 
 of attack and defence, it is not at present expedient to proceed 
 with the construction of the proposed forts,' &c. ; ' and that in any 
 general system of national defence this House is of opinion that 
 the navy should be regarded as the arm on which the country must 
 mainly depend.' After some debate this amendment was with- 
 drawn, and the original motion put and agreed to. b 
 
 On August 9, 1867, upon a Bill to grant additional supply for 
 the fortifications, it was moved to resolve that it is inexpedient to 
 proceed further with these works, until sufficient experiments had 
 been made to test the principles upon which it was proposed to con- 
 struct them. The motion was withdrawn as the government under- 
 took that experiments should be made to test the efficiency of the 
 War Office plans. The result of these experiments was afterwards 
 
 y See Smith's Parl. Rememb. 1862, tion that ' it is not expedient to com- 
 
 p. 130. For change in the opinion mence at the present time building 
 
 of ths House in regard to iron-plated wooden ships which are to be castd 
 
 wooden ships, see debates on Mr. with iron armour-plates;' and Lord 
 
 I jindsay's motions, Feb. 26 and Mar. Palmerston's observations thereon, Ib. 
 
 12, 1863. v. 169, p. 1385. The motion was 
 
 * Hans. D. v. 167, pp. 879, 883. negatived. 
 
 Ib. v. 166, p. 1281. See debate b Hans. I), v. 167, pp. 907-964. 
 (Hans. D. v. 169, p. 1333) on a mo- c Ib. v. 189, p. 1289.
 
 428 
 
 Prece- 
 dents. 
 
 communicated to Parliament.* 1 Meanwhile another attempt was made, 
 on May 8, 1868, to induce the House of Commons to interfere to sus- 
 pend these works until after further enquiry, but it proved unsuccess- 
 ful. 6 But in 1869 an Act was passed granting a final sum to complete 
 works in progress of construction, and authorising the abandonment 
 of works already sanctioned by Parliament which had not been yet 
 commenced/ In 1882, after nearly the whole sum authorised to be 
 borrowed had been raised, the Fortification Acts were repealed, and 
 a small unexpended balance repaid to the National Debt Commis- 
 sioners in accordance with the provisions of 45 & 46 Viet. c. 72, 
 sec. 20. 
 
 II. PRACTICE OF PARLIAMENT IN THE APPOINTMENT OF 
 SELECT COMMITTEES TO ENQUIRE INTO ADMINISTRA- 
 TIVE QUESTIONS. 
 
 Select Of late years it has become a frequent practice in 
 
 mittees both Houses of Parliament to appoint select corn- 
 questions niittees to take evidence, and report upon important 
 public questions, upon which precise information is 
 needed, with a view to legislation^ It is also desirable, 
 and in accordance with constitutional practice, that se- 
 lect committees should be appointed, from time to time, 
 to examine into the constitution and management of 
 the various departments of state. h But Parliament is 
 sometimes invited to institute enquiries, by a select 
 committee, into matters which are strictly within the 
 province of the executive government to determine ; a 
 proceeding which tends to shift the labour and respon- 
 sibility of administrative functions more and more from 
 those to whom it properly belongs ; and to increase, in 
 equal proportion, the power and influence of the House 
 of Commons in details of government. 1 Committees of 
 
 * Hans. D. v. 193, p. 1428. 1613. And see post, v. 2. 
 
 e 76. v. 191, p. 2021 ; and v. 193, ' See the objections taken to the 
 
 pp. 1426-1439. appointment of a committee of en- 
 
 1 Act 82 & 33 Viet. c. 76; and quiry into the existence and best 
 
 Hans. D. v. 203, p. 1311. means of suppressing unlawful com- 
 
 Hans. 1). v. 214, p. 1116. binations in Ireland, which neverthe- 
 h Mr. Gladstone, Ib. v. 203, p. less was agreed to. But the order
 
 IN MATTERS OF ADMINISTRATION. 429 
 
 enquiry, however, ought not to be appointed to con- Select 
 sider questions of principle, upon which the House has 
 not yet agreed to legislate. Such questions should be 
 reserved for discussion by the House itself. It is only 
 when a question is open, that it is suitable for enquiry 
 by a select committee.* 
 
 When restricted in their enquiries within constitu- 
 tional limits, k select committees are often very service- 
 able, in bringing members to a common agreement upon 
 great public questions upon which legislation, founded 
 upon an impartial investigation of facts, is necessary. 
 
 Nothing is more remarkable than the tender forbearance with 
 which the House of Commons treats its own select committees ; 
 though, if their proceedings were strictly canvassed, there are 
 perhaps few parts of our system of government which can less sup- 
 port criticism. As a means of enquiry and investigation, they are of 
 the highest value, and they are constantly carrying on, with great 
 success, the political education of Parliament and of the nation : 
 but when they strain at executive authority they generally fail, nor 
 can their judicial impartiality (except in peculiar cases) be entirely 
 relied on. 1 
 
 Such committees are usually appointed either at the 
 suggestion or with the direct approval of the govern- 
 ment, and are composed of a fair proportion of leading 
 men from both sides of the House, including members 
 of the existing and of former administrations, in order 
 that, as a general rule, the balance of parties may be 
 maintained, and the feeling of the House represented 
 thereon. In the appointment of select committees, it 
 
 of reference was afterwards dis- k See Mr. Disraeli, on this point, 
 
 charged, and another order substi- in Hans. D. v. 161, pp. 1866- 
 
 tuted, more in accordance with con- 1868 ; by Mr. Cobden, Ib. v. 176, p. 
 
 stitutional precedent. See Com. J. 1908 ; by Mr. Lowe, Ib, v. 182, p. 
 
 1871, pp. 66, 73. In regard to the 158. 
 
 appointment of committees of en- * Ed. Rev. v. 108, p. 290. For a 
 
 quiry into misconduct or abuses in humorous description of the manner 
 
 ministerial departments, see post, v. 2. in which such committees are some- 
 
 J Mr. Forster and Sir M. H.- times organised, extracted from the 
 
 Beach, Hans. D. v. 233, pp. 1753, Sat, Rev., see Fischel. p. 470. 
 
 1825. - Hans. D. v. 202,'p. 596.
 
 430 THE ROYAL PREROGATIVE 
 
 usa g e tnati a majority of one should be given to 
 mittees that side which possesses the majority in the House 
 itself. But it is not customary ' that minute attention 
 should be paid to the representation of the three king- 
 doms.' 11 Men should be selected to serve on public 
 committees who, from their abilities, experience, or the 
 special interests they represent, are peculiarly qualified 
 for such service. 
 
 Very few committees are appointed without a conference between 
 their principal promoters and the government. If intended to in- 
 vestigate matters of great importance, the leaders of different parties 
 in the House should also be consulted by the mover, before he selects 
 the members to serve thereon. The names of the proposed com- 
 mitteemen are usually arranged in friendly conversation out of the 
 House, and with the assistance of 'the whips' on both sides. If 
 this cannot be done, the House must decide, in some impartial 
 manner, of whom the committee shall consist. 1 * When the conduct 
 of a minister or other official is in question, the government should 
 take as little part as possible in the matter, and in the nomination 
 of the committee should be guided by the general feelings of the 
 House.i And when the character of a member of the House is 
 concerned in the proposed enquiry, it is customary for the committee 
 to be selected through the intervention of an intermediate body. 1 " 
 
 As a rule, * strong partisans on each side are knowingly 
 and advisedly chosen, in order that truth might be 
 elicited from the conflict of opposite and, it might be, 
 interested opinions. If such committees consisted wholly 
 of impartial men, their investigations would be most 
 unsatisfactory.' s 
 
 After taking evidence from every available source, 
 
 Mr. Gladstone, Hans. D. v. 199, 216, p. 1449. 
 
 p. 795; v. 204, p. 1112; v. 206, p. Sec*. Sir G. 0. Lewis, Hans. D. 
 
 1117 ; v. 209, p. 1120. v. 162, p. 1012; and see Ib. v. 187, 
 
 Ib. v. 195, p. 124. p. 1364. But in 1872 it was con- 
 
 p Disraeli, Hans. D. v. 137, pp. eidered desirable to exclude any 
 
 1613, 1620, 1691. Ib. v. 187, p. direct representation of railway com- 
 
 1498; v. 2^7, p. 2018; v. 234, p. panies upon a Sel. Com 8 , which had 
 
 187. to enquire into the subject of the 
 
 q Gladstone, Ib. v. 216, p. 1214. Amalgamation of Railway Com- 
 
 r Hana. D. v. 123, p. 751. Ib. v. panies. Ib. v. 209, p. 944.
 
 IN MATTERS OP ADMINISTRATION. 431 
 
 the committee reports the same to the House, generally Select 
 with observations embodying practical suggestions, 
 which they submit for the consideration of the govern- 
 ment. It then becomes the duty of the administration 
 to consider these propositions, to subject them in turn 
 to careful scrutiny and, if necessary, to appoint either 
 a royal commission, or a departmental committee of 
 their own, to make further enquiries in order to enable 
 the government to decide, upon their own responsi- 
 bility,* to what extent, and in what way, the proposed 
 reforms can be carried out, in conformity with the 
 general principles upon which the public service is con- 
 ducted. 11 
 
 As a general rule, it is not customary to submit to Result of 
 
 1, TT f 4.1, f their en- 
 
 tne House motions lor concurrence in the reports of quiries. 
 such select committees, or any other resolutions founded 
 thereupon. It is usual to leave with the government 
 the initiation of any measures, be they legislative or ad- 
 ministrative, that may be required to carry out the 
 recommendations of a public committee/ Sometimes, 
 however, a member of the committee (usually the chair- 
 -man) submits to the House an abstract resolution on 
 the matter either in the same, w or in some succeeding 
 session,* in order to enforce the recommendations of the 
 committee, or to elicit the views of the House upon the 
 subject. 
 
 In illustration of the principles upon which it is 
 usual to appoint public committees, of the proceedings 
 
 Hans. D. v. 235, pp. 1478, 1725. p. 1277 ; v. 226, p. 789. 
 
 u Rep. Com*. Diplomatic Service, w Holyhead Harbour, Hans. D. v. 
 
 Com. Pap. 1870, vol. 7, pp. 420, 421. 172, p. 1330. 
 
 Ev. 1767-1770. Ib. 2nd Rep. 1871, x Anchors and Chains, Merchants' 
 
 v. 7, p. 359. Hans. D. v. 161, pp. Service, Hans. D. v. 164, pp. 235- 
 
 496, 817 ; Ib. v. 168, pp. 626-633 ; 242 ; Medical Officers in Unions 
 
 v. 173, p. 1239 ; v. 235, p. 1478. In (Ireland), Ib. v. 177, p. 1516 ; Bank- 
 
 1850 the Commons addressed the ruptcy Act of 1861, Ib. v. 179, pp. 
 
 crown to appoint a commission to 420, 1 109. Royal Dockyards, Ib. v. 
 
 follow up certain enquiries instituted 190, p. 2034. Naval Cadets, Ib. v. 
 
 by a Sel. Com*. Com. J. v. 105, p. 85, 206, p. 2011. 
 
 * Hans. D. v. 201, p. 431 ; v. 203,
 
 432 
 
 THE ROYAL PREROGATIVE 
 
 Select 
 Com- 
 mittees. 
 
 Prece- 
 dents. 
 
 Opening 
 letters at 
 Post- 
 office. 
 
 consequent upon their labours, and of the conduct of 
 government in respect to the same, the following cases 
 may be consulted : 
 
 On June 14, 1844, Mr. Duncombe presented a petition to the 
 House of Commons from four persons, of whom Joseph Mazzini, 
 the well-known Italian refugee, was one, complaining that their 
 letters had been detained at the London post-office, broken open, and 
 read. The home secretary (Sir James Graham) explained that 
 Mazzini's letters only had been opened ; and that this had been done 
 by his express authority, under a warrant issued in conformity 
 to an Act of Parliament. On June 24, Mr. Duncombe moved for a 
 select committee to enquire into the operations of the Post-office De- 
 partment in such cases. The motion was successfully opposed by 
 government, on the ground that they had merely exercised a right 
 which had been constantly resorted to by their predecessors in office, 
 and which had proved advantageous to the public interest, in the 
 prevention and detection of crime. But on July 2, Mr. Duncombe 
 again moved for a committee of enquiry ; in amendment to which Sir 
 James Graham himself proposed the appointment of a secret com- 
 mittee, to investigate the law in regard to the opening of letters, 
 and the mode of its exercise which was agreed to by the House. 
 On July 4 a similar committee was appointed by the House of Lords. 
 These committees were composed of some of the most eminent and 
 impartial men in Parliament. A motion to include Mr. Duncombe 
 upon the Commons' committee was negatived upon division^ Mr. 
 Duncombe afterwards complained to the House, that while he had 
 been invited to attend the committee to prefer his complaint against 
 the home secretary, and to give in a list of witnesses in support of 
 the same, he was not permitted to be present himself during the 
 examination of witnesses. He then moved that it be an instruction 
 to the committee to allow him to attend, and produce and examine 
 witnesses in support of the case of the petitioners : but the motion 
 was negatived. A motion to add Mr. Duncombe to the committee 
 was ruled out of order by the Speaker, on the ground that a similar 
 motion had been already negatived by the House. 2 After due inves- 
 gation, these committees reported. They entirely exonerated Sir 
 James Graham from blame in the discharge of his duty, and gave 
 full particulars of the origin and exercise of the power of opening 
 letters entrusted by statute to the secretary of state. They recom- 
 mended no alteration of the law on this subject.* A few days after- 
 wards, Lord Radnor introduced into the House of Lords a Bill to 
 
 > Hans. D. v. 76, p. 257. 
 * Jli. v. 70, pp. 1010-1024. 
 
 505. 
 
 Com. Tap. 1844, v. 14, pp. 501,
 
 IN MATTERS OP ADMINISTRATION. 
 
 433 
 
 abolish the right of opening letters, but it did not proceed beyond a 
 first reading : b so that the secretary of state still retains his accus- 
 tomed authority whenever he may deem it advisable to exercise it. 
 On June 16, 1841, a select committee of the House of Commons, 
 appointed to enquire into the present state of the national monu- 
 ments and works of art in Westminster Abbey and in other public 
 edifices, reported an opinion in favour of the opening of the English 
 cathedrals, daily, to the public, for the inspection of their architec- 
 tural beauties. On April 16, 1844, a motion was made to approve 
 of this recommendation. Sir Robert Peel (the prime minister), 
 while expressing himself favourable to the free admission of the 
 public to such edifices, nevertheless opposed this motion as an 
 attempt, by a mere resolution of the House, to control the lawful 
 guardians of these institutions, who possessed rights independent of 
 the House as an encroachment on the liberties of the people, and a 
 dangerous endeavour to effect, by inadequate means, that which, if 
 desirable, should be made the subject of legislation. The motion was 
 accordingly withdrawn." 1 
 
 A committee on Public Moneys, which sat during the years 
 1856 and 1857, made numerous recommendations, of more or less 
 importance, in reference to the public finances, with a view to subject 
 the public expenditure to a more rigid investigation and control on 
 the part of the House of Commons. In their final report they 
 stated that they were ' aware that the important and extensive 
 changes they have suggested cannot all be immediately carried into 
 effect ; but they believe that the continued attention of Parliament 
 -and of the executive government to the subject, will secure, at no 
 distant date, all the objects embraced in their recommendations.' 6 
 In the session of 1861, the chancellor of the exchequer informed the 
 House that the said recommendations had, in the interim, received 
 the careful consideration of the government, and that he was prepared, 
 in regard to most of them, to submit to Parliament Bills, or resolu- 
 tions, to carry the same into effect/ 
 
 . In the years 1857 and 1858 on motion of the secretary to the 
 treasury a committee of the House of Commons was appointed to 
 enquire into the policy of making further grants of public money 
 for the improvement and extension of harbours of refuge on the 
 coasts of Great Britain and Ireland. Pursuant to the report of this 
 committee, a royal commission was appointed to complete the enquiry, 
 which reported in 1859. While mutually agreed as to the necessity 
 
 b Hans. D. v. 76, p. 1714 ; and see 
 May's Const. Hist. v. 2, p. 292. 
 
 e See Broom, Const. Law, pp. 615- 
 617 ; and see post, v. 2. 
 
 d Hans. D. v. 74, pp. 29-48. 
 
 VOL. I. 
 
 e Com. Pap. 1857, Sess. 2, v. 9, 
 p. 502. 
 
 ? Hans. D. v. 161, pp. 711, 1310. 
 And see post, vol. 2. 
 
 F F 
 
 Select 
 Com- 
 mittees. 
 Prece- 
 dents. 
 
 Cathe- 
 drals. 
 
 Public 
 moneys. 
 
 Harbours 
 of refuse.
 
 434 
 
 THE ROYAL PREROGATIVE 
 
 Select 
 Com- 
 mittees. 
 Prece- 
 dents. 
 
 for the construction of these important works, the two tribunals 
 differed as to their cost, and as to the mode of obtaining funds for 
 the purpose. The committee recommended that two million pounds 
 should be expended for this service, but suggested that three-fourths 
 of the required amount, and three-fourths of the cost of maintaining 
 these harbours, should be raised from passing tolls 011 shipping. The 
 commission, on the other hand, adjudged that an outlay of four 
 millions would be required to construct the works, and were of 
 opinion that, inasmuch as the general interests of the community 
 were concerned in the undertaking, the greater part, if not the 
 whole, of this sum should be paid out of the Consolidated Fund ; and 
 that no passing toll should be levied either for the erection or main- 
 tenance of these harbours. On June 19, 1860, the House of Commons 
 resolved that it was the duty of the government to adopt, at the 
 earliest possible period, the necessary measures to carry into effect 
 the recommendations of the commissioners. Some progress had 
 been made by government in the construction of these harbours, but 
 owing to the state of the public finances, and the large expenditure 
 required for other extraordinary services, they had not felt warranted 
 in incurring the whole of this enormous outlay. Sir Morton Peto, 
 in his work on Taxation (p. 316), observes that ' the case of the 
 so-called harbours of refuge should be a lesson to us for the future. 
 A great deal of money has been uselessly expended on very ill-con- 
 ceived plans.' Whereupon, on May 6, 1862, it was moved in the House 
 of Commons to resolve, that it is the duty of the government to adopt 
 measures to carry into effect the preceding resolution. But, after 
 full debate and explanations from ministers, the motion was negatived 
 upon division. Again, on April 17, 1863, it was moved to resolve, 
 as the opinion of the House of Commons, that so much of the 
 report of the commissioners on Harbours of Refuge as concerned 
 Waterford, Wick, and Padstow be carried into effect, but, after 
 some debate, it was negatived without a division. The whole case in 
 regard to the harbours of refuge is given in the correspondence 
 between the Board of Trade and other public departments respecting 
 said harbours, since the report of the Commons' Committee in 1858.K 
 After the report of the royal commission, Lord Palmerston induced 
 Parliament to pass the Harbours' Loan Act, which gave facilities to 
 localities throughout the kingdom, to make or improve their own 
 harbours, by the aid of government loans on easy terms. h On April 
 26, 1864, a motion to declare the opinion of the House that the 
 government ought to proceed with the construction of harbours of 
 refuge, was negatived, on division. On June 13, 1865, a motion 
 that, in the opinion of the House, the government should adopt 
 measures for the construction of some of the said harbours on the 
 
 Com. Tap. 1804, v. 55, p. 4:39. 
 
 Hans. D. v. 231, p. 38.
 
 IN MATTERS OF ADMINISTRATION. 435 
 
 coast of Great Britain and Ireland, was negatived, on division. A Select 
 
 similar motion was proposed and negatived, on March 21, 1871. ^ O . m ' 
 
 mittecs 
 On June 27, 1871, a proposed vote in supply, on behalf of Alderney p re . 
 
 Harbour was negatived, without a division, it being admitted that cedents. 
 the grant would have been a waste of public money. 1 On July 28, 
 1876, and on June 1, 1877, motions in favour of a new harbour on 
 the north-east coast of England were proposed and negatived. 
 
 On March 5, 1861, a motion was made in the House of Commons Colonial 
 for the appointment of a select committee, to enquire and report defences, 
 whether any, and what, alterations may be advantageously adopted 
 in regard to the defence of the British dependencies, and the 
 proportions of cost of such defence as now defrayed from imperial 
 and colonial funds respectively. The mover disclaimed any desire to 
 invade the functions of the executive, but contended that the inter- 
 ference of Parliament in the settlement of this important question 
 had become necessary, in consequence of the failure of a depart- 
 mental committee, appointed by government in 1859, on colonial 
 military expenditure, to agree in any recommendations on the 
 subject. In reply, the under-secretary for the colonies deprecated 
 the proposed committee, on. the ground that the question being one 
 of opinion and principle, and not of facts, was not a fit subject for 
 enquiry by a parliamentary committee. He admitted that the 
 report of the departmental committee had not been free from objec- 
 tion, but contended that the only proper way to treat the question 
 was by negotiations, to be carried on by the imperial government 
 with each of the colonies in their turn. Further debate ensued 
 from which it was evident that the sense of the House was in favour 
 of the appointment of the committee. Accordingly, Lord Palmerston, 
 while he expressed his agreement with the constitutional objections 
 which had been urged against the motion, and felt bound to declare 
 that its tendency was ' rather to transfer to a committee of the 
 House duties and functions which properly belong to the responsible 
 advisers of the crown,' nevertheless consented to the appointment of 
 the committee.J After taking voluminous evidence, the committee 
 reported on July 11. Their labours were subsequently characterised 
 as being ' chiefly valuable in furnishing information, promoting dis- 
 cussion, and exhibiting the discordance and inconsistency of opinion 
 on the subject, not as recommending any practicable policy.' k On 
 
 ' Hans. D. v. 207, p. 679. Ib. v. p. 1 04, analysing the evidence and 
 
 215, p. 1407. pointing out the different views of 
 
 J Ib. v. 161, p. 1420. See the leading statesmen on this question, 
 
 analogous case of the committee on See observations of colonial secre- 
 
 the Board of Admiralty, noticed tary (Duke of Newcastle), in the 
 
 ante, p. 425. House of Lords, in Hans. D. v. 164, 
 
 k An article in Ed. Rev. v. 115, p.. 1579; and of the secretary for 
 
 P2
 
 4.36 THE ROYAL PREROGATIVE 
 
 Select March 4, 1862, on motion of .the chairman of this committee, the 
 ? m ~ House resolved, without division, ' That this House (while fully re- 
 
 Precs- cognising the claims of all portions of the British Empire to imperial 
 dents. aid in their protection against perils arising from the consequences 
 of imperial policy) is of opinion that colonies exercising the rights 
 of self-government ought to undertake the main responsibility of 
 providing for their own internal order, and security, and ought to 
 assist in their own external defence.' On March 21, following 
 another member of the committee, conceiving that this resolution 
 did not go far enough, proposed the adoption of a resolution con- 
 demning the erection and maintenance of fortifications, out of im- 
 perial funds, in self -governed colonies, not being great naval stations. 
 The administration, while acknowledging the correctness of this, as 
 a general principle, considered it to be subject to certain limitations, 
 rendering the assertion of the principle inexpedient. The motion 
 was accordingly withdrawn. 1 Between the years 1861 and 1870, 
 the principles contained in the report of 1861 were adopted as the 
 settled policy of the empire, and were gradually applied to the 
 Colonies of Ceylon, the Mauritius, Hong Kong, British Columbia, 
 Australia, New Zealand and Canada. Debates in the House of 
 Commons in the years 1867, 1868, and 1869, and in the House of 
 Lords on June 20, 1870, on this subject, proved that 'a judicious 
 and moderate adherence to the report (aforesaid), and a steady 
 endeavour to throw more and more upon the colonies the obligation 
 of defending themselves, was a policy which Parliament would sup 
 port ; m and one which eventually was accepted generally throughout 
 the empire as, ' the true policy both of England and the colonies.' n 
 So completely so that, in 1873, the under- secretary for the colonies 
 declared 'that the military expenditure for the colonies was now 
 almost entirely for imperial purposes. 
 
 Inclosures On March 3, 1863, a motion was made in the House of Commons 
 
 in royal or fae appointment of a select committee, ' to enquire into the 
 
 3 S ' legality of inclosures in Waltham, Epping, and other forests in 
 
 Essex, and to ascertain what steps ought to be taken to preserve the 
 
 war (Sir G. C. Lewis), on March 9, of Canada, see Hans. D. v. 176, p. 
 
 1863, showing 1 why the government 373. 
 
 had been hitherto unable to Ccirry m Hans. D. v. 187, pp. 1596-1002. 
 
 out the recommendations of the com- And see Ib. v. 188, pp. 5-15 ; v. 191 1 
 
 mittee, in effecting any material re- pp. 93-97. As to the delay in car- 
 
 duction in the number of troops in vying out certain recommendations 
 
 the colonies. Hans. D. v. 16!), p. of the Corn*', of 1861 in regard to 
 
 ] y 81 and Ib. pp. 1446-1457, 1776- military accounts, see Com. Pap. 
 
 1780 ; v. 170, p. 876. 1867, v. 10, pp. 690, 694. 
 
 1 For further debates in the House " Hans. D. v. 199, pp. 1162, 1192. 
 
 of Commons on the military defence Ib, v. 214, p. 1531.
 
 IN MATTERS OF ADMINISTRATION. 
 
 437 
 
 rights of the public, of the poorer foresters, and of the inhabitants Select 
 of the metropolis, within the forests, as well as to enquire into their . " 
 general management.' This motion was opposed by the attorney- p re . 
 general, on the ground that it would be a most inconvenient and cedents. 
 dangerous precedent to erect a select committee into ' a court of 
 judicature for the purpose of enquiring into and expressing an opinion 
 with reference to the rights of individuals and of the crown/ or 
 ' into any technical and strictly legal rights,' for which purposes a 
 parliamentary committee was a manifestly defective and improper 
 tribunal. Accordingly, at the suggestion of the attorney-general, 
 the motion was withdrawn, and instead thereof a committee was 
 appointed ' to enquire into the condition and management of the 
 royal forests in Essex, and into any inclosures which may have taken 
 place therein since the report of the commissioners of 1850 ; and to 
 consider whether it is expedient to take any steps for preserving open 
 spots in such forests.' P This committee reported on June 9. They 
 recommended the continuance of the inclosure of Epping Forest, 
 and that an adequate portion thereof should be set apart for the 
 public, for the purposes of health and recreation : also, that any path 
 encroachments on the forestal rights of the crown should be abated.i 
 
 On May 5, 1863, a private member moved, in the House of Com- Holyhead 
 mons, for the appointment of a select committee to enquire into the Harbour 
 state of Holyhead Harbour, with a view to securing safe and 
 efficient accommodation for vessels engaged in the Irish mail-service 
 and for passengers conveyed by them. On motion of the chancellor 
 of the exchequer, the debate was adjourned until papers in relation 
 "thereto were distributed to members. It was resumed on May 12, 
 when the motion was agreed to, notwithstanding the opposition of 
 the government, who contended that the committee was unnecessary 
 and inexpedient. 1 " On June 1, upon motion that the committee do 
 consist of certain specified members, the chancellor of the exchequer 
 took exception to the list proposed, alleging that it was ' as far as 
 possible from being an impartial committee.' He declined to take 
 the ' invidious and annoying course of proposing that some of the 
 names should be omitted, and replaced by others more impartially 
 selected ; ' but he felt ' bound to say, even before the committee sits, 
 that [the government] do not think the subject one that ought to be 
 referred to its consideration, and that we shall not be able to look 
 upon its finding as the verdict of an impartially constituted tribunal.' 8 
 The proposed list was nevertheless agreed to, without a division. But 
 on June 4, a member of the committee, who was personally ag- 
 grieved by Mr. Gladstone's remarks, characterised them as being 
 
 P Hans. D. v. 169, p. 1038. further, post, v. 2. 
 
 i Coin. Pap. 186.",, v. 6, p. 552. r Hans. D. v. 170, pp. 1243. 1660. 
 Hans. D. v. 172, p. 1055. See Ib. v. 17], p. 242.
 
 488 
 
 THE KOYAL PREROGATIVE 
 
 Select 
 Com- 
 mittees. 
 Pre- 
 cedents. 
 
 insulting and unparliamentary, and called upon tnat minister to 
 move that he be discharged from the committee in order to take the 
 sense of the House thereupon. An informal discussion then arose 
 as to the purport of Mr. Gladstone's observations, which were 
 further explained by himself. The Speaker, on being appealed to, 
 acquitted Mr. Gladstone of unparliamentary language, and the 
 subject was dropped.* The committee reported on July 14. u Their 
 report contained certain recommendations, to which, when discussed 
 in the committee, the president of the Board of Trade had expressed 
 his dissent. Wherefore, on July 23, the chairman moved to resolve, 
 that the recommendation of the committee ought to be adopted. 
 This motion was opposed by government, and negatived, without 
 a division. v 
 
 On June 22, 1869, on motion of Mr. Gladstone (the prime 
 minister), a select committee was appointed to enquire into the site 
 and charge of the new courts of law. The government desired to 
 associate the House of Commons with themselves in the settlement 
 of these points, as they had given rise to much controversy. w 
 
 In 1874, the select committee of the House of Commons on 
 public departments (purchases) made a special recommendation in 
 their report (clause 130), that, on a vacancy occurring in the office 
 of Controller of Stationery, it should be filled up by the appoint- 
 ment of a gentleman possessing technical knowledge and experience 
 of stationery and printing. Nevertheless, upon the retirement of 
 Mr. Greg, in 1877, the prime minister appointed to this post Mr. T. 
 D. Pigott, an able and practical man of business, who was previously 
 a junior clerk in the war office. 1 He gave a careful consideration to 
 the aforesaid report, but was of opinion that it was not desirable to 
 give effect thereto.y Accordingly, on July 16, 1877, the chairman 
 of the select committee above-mentioned moved to resolve, that in 
 view of the aforesaid recommendation, the recent appointment of 
 controller of the stationery office was calculated to diminish the 
 usefulness and influence of select committees of this House, and to 
 discourage the interest and zeal of public officers. The chancellor 
 of the exchequer defended the appointment on its own merits, and 
 asserted that the government had carried out various recommenda- 
 tions of the committee of 1874, but were not of opinion that it was 
 expedient to limit the choice of the controller of stationery to men 
 possessing technical knowledge of stationery and printing. Never- 
 theless, the motion was agreed to, by a majority of four. 2 On July 
 19, the Earl of Beaconsfield (the premier, who was personally 
 
 1 Hans. B. v. 171, pp. 325-331. 
 u Com. Pap. ]8G3, v. 7, p. 223. 
 T Hans. D. v. 172, p. 1330. 
 w Ib. v. 197, p. 458. 
 
 * Ib. v. 234, p. 1849. 
 y Ib. p. 1943. 
 
 Ib. v. 235, p. 1330.
 
 IN MATTERS OF ADMINISTRATION. 439 
 
 responsible for the selection of Mr. Pigott), explained to the House 
 of Lords his reasons for making the appointment, and for non- 
 compliance, in this particular, with the recommendations of the 
 select committee. He was followed by leading members on both 
 sides of the House, who testified to the special fitness of Mr. 
 Pigott for this position.* 1 On the following day, the chancellor 
 of the exchequer put the House of Commons in possession of 
 the foregoing explanations, and stated that the cabinet, collec- 
 tively, approved of Mr. Pigott's appointment, and being con- 
 vinced that it had been made on public grounds, agreed with the 
 premier in his refusal to accept Mr. Pigott's proffered resignation. 
 He left the course to be taken in regard to the Vote of Censure in 
 the hands of the House. Whereupon a private member gave notice 
 of a motion to withdraw the censure, upon the further explanations 
 that had been made. b Accordingly, on July 23, after full debate, 
 the motion to withdraw the censure expressed in the former resolution 
 was agreed to, without a division. 
 
 III. PRACTICE IN REGARD TO THE GRANTING OR WITH- 
 HOLDING BY THE EXECUTIVE OP INFORMATION DE- 
 SIRED BY EITHER HOUSE OF PARLIAMENT. 
 
 The rule which forbids any encroachment by Parlia- informa- 
 ment upon the executive authority of the crown has a toPariia- n 
 further application, to which our attention must now be m . ei ? t ' 1 j 
 
 1 withheld. 
 
 directed. 
 
 It is imperative that Parliament shall be duly in- 
 formed of everything that may be necessary to explain 
 the policy and proceedings of government in any part 
 of the empire ; and the fullest information is communi- 
 cated by government to both Houses, from time to 
 time, upon all matters of public concern. For it is in 
 Parliament that authoritative statements are made, or 
 information given, by ministers, upon public questions ; 
 and no action in Parliament should be based upon 
 declarations of policy made elsewhere. 3 
 
 Sometimes a statement, by the minister who is specially respon- 
 sible, is made in one House and not repeated in the other, ' the 
 
 Hans. D. v. 235, p. 1477. e Ib. p. 1727. 
 
 b Ib. p. 1569. d Ib. v. 230, p. 1814.
 
 440 THE ROYAL PREROGATIVE 
 
 ordinary channels of information, i.e. the newspapers, being relied 
 upon to give it general publicity. But such a course is inconvenient 
 and objectionable." Much inconvenience having been occasioned by 
 motions for papers having been agreed to in one House, and opposed 
 by government in the other chamber/ it is now understood that 
 when papers are presented to one House they shall also be laid on 
 the table of the other.* 
 
 informa- Considerations of public policy, and a due regard to 
 
 tion with- , Pin ti t i i 
 
 held. the interests ol the fetate, occasionally demand, how- 
 ever, that information sought for by members of the 
 legislature should be withheld, at the discretion and 
 upon the general responsibility of ministers. This prin- 
 ciple is systematically recognised in all parliamentary 
 transactions : were it otherwise, it would be impossible 
 to carry on the government with safety and honour. 
 Whenever it is declared, by the responsible servants of 
 the crown, that any information sought for in Parlia- 
 ment could not be supplied without inconvenience to 
 the public service, or for other sufficient reasons, the 
 House refrains from insisting upon its production. 11 
 
 In 1869, ministers agreed to an order for certain papers concern- 
 ing Fenianism, but finding on close inspection that ' their publication 
 could be attended with no public advantage,' and that ' they con- 
 tained matter which it is contrary to our public duty as ministers 
 to be parties to laying before the House,' they determined to ask the 
 House to rescind the order, 1 which was done on a di vision. J 
 
 informa- And if the government object to produce any docu- 
 
 tion given c ' . > 
 
 and with- ments, on the ground that they are 01 a private and 
 confidential description, it is not usual to insist upon 
 their being furnished, k except under peculiar and im- 
 perative circumstances. 1 
 
 e Hans. D. v. 219, pp. 272-313. J Ib. p. 1758. 
 
 f Ib. v. 173, p. 1054. k Mir. of Parl. 1834, p. 2774 ; 
 
 Ib. v. 232, p. 460. 1835, p. 1634 ; 1838, p. 6999 ; 1840, 
 
 h Mir. of Parl. 1828, p. 109 ; p. 1130 ; Hans. D. v. 163, p. 822. 
 
 1833, p. 626 ; 1836, p. 971 ; 1837-8, Ib. v. 230, p. 422. 
 
 p. 668. And see Ld. Derby in Hans. l See Ld. Hatherton's Memoir on 
 
 D. v. 173, p. 1055. the occurrences in 1834, pp. 93-95. 
 
 1 Hans. I), v. 195, p. 1469. Mir. of Parl. 1831, p. 524.
 
 IN MATTERS OF ADMINISTRATION. 441 
 
 [But it must always be remembered that all public transactions of 
 state are necessarily official ; and that no public officer would be 
 justified in withholding from official record and access, any document, 
 emanating from himself in his official capacity, in relation to public 
 affairs. m ] 
 
 This rule extends to private correspondence between 
 members of Parliament and a minister of the crown, 
 which ought not to be regarded as official documents. 11 
 Unless prepared to assert their want of confidence in 
 the minister who is answerable for the department con- 
 cerned, or in the government generally, the House 
 should not embarrass the ministry by insisting on the 
 production of documents which they feel it their duty 
 to refuse. 
 
 "When ' copies ' of correspondence, &c., are moved for by private 
 members, it is customary to add, ' or extracts ; ' leaving to ministers 
 a discretion as to despatches which it may be advisable to lay before 
 Parliament, and as to those which it may be expedient, in whole or 
 in part, to withhold.? 
 
 In like manner, if the government declare that a dis- p re judi- 
 cussion on any particular subject could not take place 
 .without inconvenient and injurious consequences to 
 the public service, q or without eliciting expressions of 
 opinion from the ministry, or from members generally, 
 which it would be premature and prejudicial to make 
 known, r the debate ought not to proceed. 
 
 It would, moroever, be highly irregular to commu- p remature 
 nicate to Parliament copies of despatches addressed by communi- 
 
 r. , ,, Ti i cation of 
 
 a secretary 01 state to the governor 01 any British des- 
 dependency, until the receipt thereof had been acknow- P atches - 
 ledged by the person to whom they were addressed. 8 
 
 m See the case of Ld. Chatham, r Mir. of Pad. 1831, pp. 1109, 
 
 ante, p. 267; and Parl. D.v.16, p.2****. 1184. Hans. D. v. 195, p. 1633. 
 
 n Mr. Gladstone, Hans. D. v. 204, s Mir. of Parl. 1838, p. 5824; 
 
 pp. 651, 657. 1840, p. 1710 ; Hans. D. v. 208, p. 
 
 Mir. of Parl. 1839, p. 799. 954. But see Ib. \. 87, p. 669. In 
 
 p Hans. D. v. 172, p. 575. Ib. v, 1854 the government consented to 
 
 204, p. 650. lay before Parliament copies of in- 
 
 Ib. v. 128, pp. U20-1429. struction that had been, ' or here-
 
 442 THE EOTAL PEEROGAT1VE 
 
 But it is contrary to the respect due to Parliament to 
 communicate, beforehand, to the public, through the 
 press, important information intended for the use of 
 Parliament. fc Although it is not unusual to furnish 
 the press with advance copies of official reports, 
 with a view to give early publicity to such docu- 
 ments. 11 For further particulars in regard to the com- 
 municating of despatches to Parliament, see the section 
 in the chapter concerning ' Intercourse with Foreign 
 Powers/ 
 
 Sentai" ' ^e svstem ^ ^ a 7 m g upon the table of the House 
 
 reports reports from officers addressed to particular depart- 
 fidentiai nients of the executive government is most objection- 
 able.' v And the House ought not to insist ' upon the 
 production of papers and correspondence which con- 
 cerned the preparation and preliminary consideration 
 of measures ; they would thereby put a stop to that 
 freedom of criticism which was always invited on such 
 occasions, and which contributed so much to the per- 
 jection of public measures. ' w If the House were to 
 insist upon the production of such documents, * instead 
 of the government getting what we get now, confi- 
 dential reports, containing the most minute details of 
 the opinions of officers, given frankly and freely, for 
 the heads of departments, we shall have a system of 
 reports framed for laying upon the table of the House 
 of Commons, and those will be accompanied by " con- 
 fidential reports for the head of the department alone." ' x 
 ' There have been cases in which reports of a confidential 
 character from officers of the government have been 
 laid upon the table of the House, to prepare the public 
 
 after might be issued,' to comman- " Ib. v. 231, p. 972. 
 ders of the Arctic Searching Expe- T Lord C. Paget (Sec. to the Ad- 
 dition. Ib. v. 132, p. 438. See also mir.), Hans. D. y. 177, p. 961. 
 Ld. Elleuborough's case iu 1858, w Mr. Disraeli, Hans. 1). v. 193, 
 ante, p. 228. p. 1273. 
 
 ' Ib. v. 131, pp. 637, 641, 759, Hans. D. v. 177, p. 1402; and 
 
 876. see p. 1455.
 
 IN MATTERS OF ADMINISTRATION. 443 
 
 mind, and also that of Parliament, to consent to some 
 large measure, or perhaps some considerable vote of 
 public money; but, generally, I think it is a course 
 which the House ought not to sanction.' y 
 
 The administration have refused to concur in mo- w* 1611 
 
 papers are 
 
 tions for the production of papers, whether by order refused by 
 
 or upon an address to the crown, on the ground that E 
 
 there was no public officer whose duty it was to furnish 
 
 the required information. 2 Under these circumstances, 
 
 ' it is particularly desirable that the House should make 
 
 no such orders without, at the same time, determining 
 
 by what means they shall be carried into execution.' a 
 
 Keturns are sometimes refused on account of their 
 voluminous character, and the length of time it would 
 take to prepare them. b In order to obviate this objec- 
 tion, ' it is very desirable that members, before moving 
 for very voluminous returns, should communicate with 
 the department possessing the information, when it 
 might be supplied in a much smaller compass.' c Some- 
 times, returns which are not of sufficient general im- 
 portance to be supplied at the public expense are 
 granted when the member asking for the return, or 
 others interested therein, undertakes to defray the cost 
 of obtaining, or of printing, the same, or both charges. 3 
 It is not customary, however, to object to motions for 
 returns merely on account of the trouble and expense Cost of 
 to individuals that would be occasioned by their pro- return""^ 
 duction, notwithstanding that there may be no funds Parlia - 
 
 mcnt. 
 
 available for the remuneration of the persons employed 
 in the execution of the order. In fact, it has been the 
 practice of Parliament to order from public officers, of 
 
 J Mr. Disraeli, ib. v. 178, p. 154. e Mir. of Par). 1830, Sess. 2, p. 
 z Mir. of Parl. 1830, p. 24; 1830- 501. To pay the expense of pre- 
 31, p. 50; 1831-32, p. 3254. paring returns to the sec. of state or 
 Ib. (The Speaker), 1836, p. 887. to Parliament out of county rates 
 * Ib. 1837, p. 601. has been declared to be illegal. Ib. 
 c Ib. 1829, p. 1900. 1834, p. 3331 : 1835, p. 245. Ib. 
 d Hans. D. v. 197, p. 1887. 1841, p. 2014.
 
 444 
 
 THE ROYAL PREROGATIVE 
 
 various grades, returns which they were not required 
 by law to furnish, and for which no remuneration was 
 provided, 'That might be considered a customary right 
 exercised in the public interests ; ' and although, upon 
 rare occasions, some remuneration has been given to 
 the parties employed, in order to accelerate their 
 labours, yet ' no public officer has any right to refuse 
 to obey an order of the House until he shall be paid ; 
 the question of remuneration must not be raised be- 
 tween him and Parliament.' ' Every public officer holds 
 his situation under the control of Parliament, and he is 
 bound to give information.' It is for the executive 
 government afterwards to decide whether he has any 
 claim for compensation for such a service.* 
 
 Prece- On February 22, 1859, Mr. Cowper called the attention of the 
 
 dents. House of Commons to a circular from the Education Committee of 
 
 the Privy Council, dated May 22, 1858, which directed that, instead 
 
 Education of the annual reports of the inspectors of schools being published in 
 Office: in- f u ll ( as had been done from 1844 to 1858), relevant extracts only of 
 such reports should be appended to a general report from the Edu- 
 cation Committee to her Majesty. The new regulation had been 
 made on account of certain objectionable matter which had appeared 
 in a report, and which had been complained of by members of the 
 House of Commons. Mr. Cowper contended that the Education 
 Committee ' had it in their power to lay down the strictest rules with 
 regard to the character and nature of the reports they desired to 
 have sent up to them,' but asserted ' the expediency of allowing the 
 original reports to appear unaltered and unabridged.' He concluded 
 by moving that an humble address be presented to her Majesty, 
 praying that the reports of school inspectors, when prepared in ac- 
 cordance with the instructions of the Committee of Council on 
 Education, should continue to be laid before Parliament unaltered 
 and unabridged. Mr. Adderley (vice-president of the Education 
 Committee) opposed the motion, on the ground that so much irrele- 
 vant matter had been introduced into these reports, that a new rule 
 on the subject had become imperatively necessary, for economical 
 reasons, as well as on the score of propriety. A specimen of the new 
 form of report would shortly be submitted to Parliament, when, if it 
 should appear objectionable, the House could ' agree to a resolution 
 
 specters' 
 reports. 
 
 f Mir. of Parl. 1841, p. 2190; 1835, p. 1700. Hans. D. v. 182, pp. 1644, 1775.
 
 IN MATTERS OF ADMINISTRATION. 445 
 
 requiring, on its own responsibility, that the reports furnished to the Pre 
 executive should be published by them in extenso.' After some fur- 
 ther debate, the motion was withdrawn, with the understanding that 
 government would endeavour to meet the views of the House in this 
 matter, s Accordingly, Mr. Adderley abandoned his plan of reducing 
 the inspectors' reports under specific heads, and thenceforth per- 
 mitted the reports to be printed without abridgment ; but he never- 
 theless insisted on his right to strike out therefrom all superfluous 
 and irrelevant matter. h [Subsequently, in his evidence before the 
 Commons' Committee 011 Education, in 1865, Mr. Adderley declared 
 that the sum of the instructions to the inspectors which were issued 
 up to the time he left office was, that their reports should be upon 
 the facts which came within their inspection, and that their sugges- 
 tions should be practical, and not abstract disquisitions upon edu- 
 cational philosophy : but he never meant to limit their suggestions 
 to one side of the question. 1 The inspectors were then, and still are, 
 at liberty to object to particular minutes," on the ground that they 
 did not work welU] But this concession failed to give complete satis- 
 faction. On March 27, 1863, enquiry was made in the House of 
 Commons, whether the reports of certain inspectors had been mate- 
 rially altered, or wholly suppressed, in the annual report from the 
 Education Office ; and if so, why so ; and whether there was any 
 objection to communicate such suppressed reports to Parliament. 
 Mr. Lowe (who had succeeded Mr. Adderley as vice president of the 
 Education Committee) replied that considerable difficulty had always 
 been experienced in confining these reports within proper limits ; 
 _ that a new minute had been lately issued embodying the substance 
 of previous instructions requiring the inspectors to confine their 
 reports to the state of the schools they had examined, and to prac- 
 tical suggestions for the management and improvement of the same : 
 that whenever a report contained irrelevant matter, it was sent back 
 to the inspector, with an intimation that, unless it was altered in 
 conformity to the minute, it would not be printed or laid before 
 Parliament (the particular passages objected to, however, were 
 never specially indicated) : that last year three reports had been 
 returned to their authors, who had declined to amend them to the 
 satisfaction of the Education Office, and therefore they had not been 
 printed with the report of the department. This year a similar 
 number had been sent back, including one from an inspector whose 
 report had been rejected in 1862. He could not consent to lay these 
 reports on the table, as this would be virtually offering a premium to 
 the inspectors to disregard the rules of the department, and would 
 
 Hans. D. v. 152, pp. 696, 702, ' Com. Pap. 1865, v. 6, pp. 73, 74 
 714. J Ib. p. 77. 
 
 h Ib. v. 171, p. 727.
 
 446 THE KOYAL TREKOGATIVE 
 
 rrfi - be subversive of all disciplined On June 11, 1863, a member com- 
 
 *_^' plained to the House of Commons of the suppression of several re- 
 Education ports from school inspectors, and enquired of the vice-president of 
 Office : in- the Education Committee upon what conditions he would allow the 
 publication of such reports for the information of the House. He 
 argued that the House had a right to full information, and should be 
 permitted to judge between the Education Office and the inspectors 
 as to the suitability of the reports for publication. Mr. Lowe replied 
 that it would be impossible to lay down any exact conditions under 
 which the reports might be printed, but that, whenever they con- 
 tained irrelevant or controversial matter in regard to questions 
 decided upon by the department itself, they could not be allowed 
 publicity. Mr. Adderley defended the conduct of the Education 
 Office, and urged that if objection was taken thereto by any member, 
 he should move for the particular report which he considered had 
 been too stringently dealt with, instead of laying down a general 
 proposition that would be disadvantageous to the public service. 
 After some further debate the subject was dropped. 1 But on 
 April 12, 1864, it was again revived, upon the motion of Lord R. 
 Cecil, to resolve, ' that in the opinion of this House, the mutilation 
 of the reports of her Majesty's inspectors of schools, and the exclu- 
 sion from them of statements and opinions adverse to the educational 
 views entertained by the Committee of Council, while matter favour 
 able to them is admitted, are violations of the understanding under 
 which the appointment of the inspectors was originally sanctioned 
 by Parliament, and tend entirely to destroy the value of their re- 
 ports.' His lordship cited, from a paper which was privately circu- 
 lated amongst members during the debate, m cases in support of his 
 position, and asked the House whether it could trust reports thus 
 expurgated. Mr. Lowe denied any knowledge of the cases referred 
 to, and repeated the arguments formerly adduced in justification of 
 the department. He said, ' It is quite open to the House to express 
 an opinion that the inspectors should report directly to Parliament, 
 and not to the Privy Council, and thus exonerate us from all respon- 
 sibility in the matter ; ' but so long as the present system prevails, 
 departmental discipline must be enforced. He rejoiced to add, that 
 the reports for the past year had all come in, and that it had not 
 been necessary to return one of them to the inspectors. Secretary 
 Sir George Grey said, that in the Home Office, and in other depart- 
 ments of state, similar regulations were enforced," and that he con- 
 sidered it absolutely necessary that the head of a department should 
 
 k Hans. P. v. 170, p. 24. Mr. Lowe's explanation, Il>. p. 1206. 
 
 1 Ib. v. 171, pp. 717-733. " As, for example, in the case of 
 
 m Lord Granville's speech in House factory inspectors. (See Huns. 1). 
 
 of Lords, II,, v. 174, p. 1183; and v. 174, p. 1501.)
 
 IX MATTERS OF ADMINISTRATION. 447 
 
 have such a power. Nevertheless, on division, the motion was Pre- 
 carried against the government by a majority of eight. On April 18, 
 Earl Granville (the president of the Committee of Council on Edu- 
 cation) called the attention of the House of Lords to the foregoing 
 resolution, and, as the official head of the department, assumed full 
 responsibility for Mr. Lowe's acts. Moreover, he gave explanations 
 of the routine pursued at the Education Office, which entirely corro- 
 borated Mr. Lowe's statements, and exonerated him from any sus- 
 picion of unworthy conduct. On the same day, Mr. Lowe informed 
 the House of Commons that, in vindication of his own honour, he had 
 felt it necessary to resign his office ; and at the same time he entered 
 into detailed explanations in disproof of the charges brought against 
 him. Mr. Lowe afterwards stated that he did not understand that 
 the sending back a report to an inspector, to be corrected according 
 to the regulations of the department, without marking any objection- 
 able passage, could be regarded as ' mutilation.' ' The House resolved 
 in a contrary sense, and I resigned my office, not because my depart- 
 ment was censured, but because I considered, in fact, that the House 
 gave me the lie in resolving, after the statement I had made, that I had 
 mutilated.' He added, that if he had supposed ' mutilation ' to mean 
 simply carrying out the official minute, according to his understanding 
 of it, ' I should not have thought it necessary to resign my office ; the 
 department was censured, but that would not have concerned me : 
 that would have been the government's look out. I considered that 
 my personal honour was struck at when, as I understood, the state- 
 ment which I had made appeared to be disbelieved by the House.' 
 _This view of the degree of official responsibility attaching to the office 
 of vice-president was afterwards confirmed by Lord Granville, who 
 declared that, as lord president of the council, he was technically 
 the one who was bound to resign ; whilst technically the vice- 
 president might have retained his office, notwithstanding the vote 
 of censure passed on the department. But, in fact, Mr. Lowe's 
 resignation was dictated by a sense of personal honour : Lord Gran- 
 ville wished to resign, but was induced by the premier to await the 
 result of the reconsideration of the question by the House of 
 Commons. p The marks on the reports which had been privately 
 circulated amongst members on the night of the adverse vote 
 had been made by subordinate clerks in the Education Office 
 without the knowledge or sanction of the official heads. They were 
 intended to direct the attention of the secretary to particular pas- 
 sages. He himself had never, in any instance, struck out anything 
 from an inspector's report, and had forbidden others to do so, or 
 
 Com. Pap. 1804, v. 0, p. 81. P Ib. 1865, v. G, p. 105.
 
 448 THE ROYAL PREROGATIVE 
 
 Pre- even to mark objectionable paragraphs. Lord R. Cecil expressed his 
 
 cedents. complete satisfaction with these explanations, and stated that, had 
 Education * ne ^ been given before the adverse vote was taken, it would not 
 Office : in- have been pressed, or agreed to by the House. Lord Palmerston 
 specters' passed a high eulogium on his retiring colleague, and intimated his 
 intention to move for a committee to enquire into the question of 
 fact involved in the charges which had been preferred against him ; 
 but the general feeling of the House appeared to be adverse to any 
 further enquiry, after the satisfactory explanations given by Mr. 
 Lowe. However, the resolution of April 12 being regarded by the 
 government as conveying a grave and serious censure on a public 
 department which was deemed unmerited, on May 12, upon motion 
 of Secretary Sir George Grey, a select committee was appointed to 
 investigate the matter, by enquiring into the practice of the Com- 
 mittee of Council on Education with respect to the reports of her 
 Majesty's inspectors of schools. In deference to the wishes of the 
 House, the government agreed that the committee should be nomi- 
 nated by the General Committee of Elections. On July 11 the 
 committee made a report, which briefly reviewed the matter at 
 issue, confirmed the statements made to the House by Mr. Lowe, 
 and entirely exonerated him from the imputation of personal mis- 
 conduct. After pointing out that the resolution of censure, which 
 led to the resignation of Mr. Lowe, was passed from a ' want of 
 information,' which ' was the cause of a double misunderstanding,' 
 the committee declared that they had ' carefully considered the 
 action of the department, and had come to the conclusion, that the 
 supervision exercised in objecting to the insertion of irrelevant 
 matter, of mere dissertation, and of controversial argument, is con- 
 sistent with the powers of the Committee of Council, and has, on 
 the whole, been exercised fairly, and without excessive strictness.' 
 ' Some such power is essential to the effectual working of the de- 
 partment, so long as it retains its present constitution and func- 
 tions.' In conclusion, the committee recommend, ' that all instruc- 
 tions which may hereafter from time to time be issued to the 
 inspectors, either as to their general or tabulated reports, should be 
 laid before Parliament.' 1 On July 25, Lord Palmerston moved that 
 it be resolved, that having considered the foregoing report, the 
 House was of opinion that the resolution of censure passed on 
 April 12 should be rescinded. After a debate, in which the pro- 
 
 i Com. Pap. 1864, v. 9, pp. 17, 18. unnecessary.' (Hans. D. v. 176, p. 
 
 The House was afterwards informed 1804.) For a decision in 1876 in re- 
 
 ' that it was the unanimous opinion gard to the future publication of In- 
 
 of the committee that the resignation spectors' Reports, see Hans. D. v. 230. 
 
 of Mr. Lowe was totally and entirely p. 615.
 
 IX MATTERS OF ADMINISTRATION. 449 
 
 moters of the vote of censure stated their willingness to agree to Prece- 
 this motion in the sense in which they understood it to be proposed dents- 
 namely, as acquitting the department of being influenced by im- 
 proper motives in the course it had pursued, whilst adhering to the 
 opinion that the course was improper the motion was agreed to 
 without a division. 
 
 On June 16, 1863, a resolution was moved, in the House of Rivers in 
 Commons, to declare the opinion of the House that it was the duty I relari "' 
 of the government to carry the law into effect by immediately re- 
 moving stake and hand weirs in certain rivers in Ireland ; but no 
 sufficient evidence of neglect of duty on the part of the authorities 
 having been adduced, the motion was withdrawn. r 
 
 The sovereign having determined, upon the advice of the Privy West 
 Council, and under the authority of the Act 3 & 4 Will. IV. c. 71, y^kStoJ 
 to constitute the West Riding of Yorkshire into a separate assize assize 
 district, of which Leeds should be the assize town, an attempt was town, 
 made in the House of Commons to obtain the nomination of the 
 town of Wakefield instead of Leeds, by a motion, made on February 
 19, 1864 (previous to the formal issue of the Order in Council in 
 favour of Leeds), for an address to the Queen, setting forth the 
 claims of Wakefield to be the assize town, and praying that it 
 might be selected for that purpose. The home secretary (Sir G. 
 Grey) did not deny the right of the House to address the crown 
 upon this subject, but urged that no sufficient cause had been given 
 to justify an interference with the ordinary course prescribed by 
 law, and to set aside the decision of the Privy Council. Upon a 
 _di vision, the motion was negatived. But on June 13, an address 
 was carried in the House of Lords (against ministers), praying that 
 the decision of the Privy Council, ordering the removal of the West 
 Riding Assizes from York to Leeds, instead of to Wakefield, might 
 be reconsidered. On June 17, the Queen's answer to this address 
 was reported. It set forth that the assizes for the West Riding had 
 been appointed to be held at Leeds 011 August 10, and that if it 
 should hereafter appear expedient to appoint some other place for 
 holding the said assize, the subject should be again referred for the 
 consideration and advice of the Privy Council. 8 
 
 On March 22, 1866, a resolution was carried in the House of Plans for 
 Commons, upon division, against the government : ' That in the Palace of 
 opinion of this House, it is not expedient that the competition for Justlce - 
 the building of the New Courts of Justice should be limited to six 
 architects only.' Subsequently the House was informed that, in 
 
 ' Hans. D. v. 171, pp. 981-984. 
 
 Ib. v. 176, p. 1598 ; and v. 193, p. 1823. 
 
 VOL. I. G
 
 450 THE ROYAL PREROGATIVE 
 
 Prece- consequence of this resolution, the number of competing architects 
 had been extended to twelve.* 
 
 On June 25, 1868, the House of Commons resolved, on a 
 division, against ministers, ' That in the opinion of this House, the 
 Peel statue ought to be removed from its present site in New 
 Palace Yard.' u 
 
 On June 29, 1868, a resolution in favour of the employment of 
 discharged soldiers in government situations was proposed and dis- 
 cussed in the House of Commons. But it being urged that ' it 
 would be a great mistake to endeavour to bind the judgment of the 
 House or of the government ' upon this question, it was withdrawn. v 
 
 On July 8, 1870, an address to the crown was carried in the 
 House of Commons against the government, praying that no build- 
 ings might be erected on that portion of the Thames Embankment 
 which is reserved to the crown, and which has been reclaimed from 
 the river at the cost of the metropolitan ratepayers. On July 19 
 her Majesty's answer to this address was reported. In the following 
 session, on motion of the prime minister, a select committee was 
 appointed to consider the use to which this reclaimed land should be 
 appropriated. This committee reported on August 3, 1871. w 
 
 On August 5, 1870, a resolution was moved in the House of 
 Lords, calling in question a recent change made by the Charity 
 Commissioners in the administration of their trust. But the Lord 
 Chancellor having pointed out the irregularity of this mode of pro- 
 ceeding the motion was withdrawn. x 
 
 On July 5, 1872, Mr. Ayrton (commissioner of works) referred 
 to a resolution passed by the House of Commons in 1867, y con- 
 demning the elevation for the London University, whereupon, though 
 the building had been partly erected, the Office of Works was com- 
 pelled to take it down and prepare a new elevation in deference to 
 the opinion of the House. If any similar resolution should be 
 passed, in regard to other designs for buildings, ' it would be the 
 duty of the Office of Works to reconsider the subject.' z 
 
 On April 21, 1874, a motion was submitted to the House of 
 Commons that ' abstracts and summaries ' of official correspondence 
 presented to Parliament ought to have the name of the selector or 
 editor appended, as a guarantee of accuracy and sound judgment 
 in their compilation. But the motion was negatived without a 
 division. 
 
 The Queen's ministers are not only the rightful 
 
 * Hans. D. v. 183, p. 181. See a w Ib. v. 225, p. 1927. 
 further discussion on this subject, Ib. * Ib. v. 203, p. 1572. 
 p. 1178. ^ Ib. v. 187, p. 1463. 
 
 u Ib. v. 192, p. 2149. * Ib. v. 212, p. 699. 
 
 * Ib. v. 193, pp. 314-323.
 
 IN MATTERS OF ADMINISTRATION. 451 
 
 guardians of the prerogatives of the crown in Parlia- Papers 
 
 -, -, i , concern 
 
 ment, but it also devolves upon them to protect the ingpri- 
 liberty of the subject, and the interests of private indi- ^^ 
 viduals and associations, who have no direct representa- 
 tion therein, from the assumption by Parliament of 
 arbitrary and unjustifiable authority.* On this principle 
 the government have uniformly resisted all attempts, on 
 the part of either House, to obtain, whether by their 
 own order or through an address to the crown, any 
 documents or information concerning the affairs of 
 private individuals, 1 * or to sanction the appointment of 
 committees to enquire into private and personal affairs," 
 unless presumptive proof of delinquency, calling for 
 parliamentary investigation, could be shown. d This 
 rule includes the case of private educational institutions 
 not being in the receipt of public money. 6 
 
 On July 24, 1862, it was stated in the House of Commons, by 
 the secretary for Ireland, that government had no authority to call 
 for a certain educational return from the Roman Catholic bishops 
 in Ireland/ 
 
 It has even been held to apply to the affairs of private Private 
 companies, and of ' public institutions which are not in panics, 
 receipt of assistance from public funds. ' g But it was &c- 
 distinctly laid down by Sir Eobert Peel and Lord John 
 
 * See the debate in the H. of p. 634. 
 
 Corns, on the Ancient Monuments e Hans. D. v. 201, p. 71. 
 
 Bill. Hans. D. v. 218, pp. 579-595. d Mir. of Parl. 1831-2, p. 1237; 
 
 For the constitutional doctrine in 1840, p. 2053. 
 
 the United States as to the sacred- e Ib. 1836, p. 873 ; 1840, p. 1772. 
 
 ness of private rights, see Judge f Hans. D. v. 168, p. 737. 
 
 Miller's decision, in 1874, 20 Wallace * Mir. of Parl. 1837-8, p. 3672 ; 
 
 Sup. Ct. Rep. p. 662. Hans. D. v. 73, p. 1759. See de- 
 
 b Mir. of Parl. 1830, p. 449 ; 1831, hates in the H. of Corns, on May 23, 
 p. 193 ; 1833, p. 1614 ; 1836, p. 125. 1876, on a motion for an address for 
 Hans. D. v. 199, p. 998. Ministers detailed statements of the property, 
 will often require motions asking for income, and expenditure of the City 
 information affecting a particular class of London Guilds or Companies ; and 
 of individuals to be made numeri- on April 10, 1877, on a motion in 
 cal, instead of nominal, in order to favour of the introduction, by minis- 
 screen private persons from unneces- ters, of some Bill to empower the 
 s'ary publicity. Hans. D. v. 169, p. crown to enquire into the same. 
 1581. Ib. v. 218, p. 2026; v. 232, 
 
 a a 2
 
 452 
 
 THE EOYAL PREROGATIVE 
 
 Pariia- Russell, in the case of the Royal Academy, that the 
 mentand inquisitorial jurisdiction of Parliament could not be 
 
 DriVJltG t/ 
 
 corpor- limited to such ' public institutions ' only as were the 
 atlon9 ' recipients of public money ; but that ' when an institu- 
 tion is established to assist in promoting the cultivation 
 of the arts, or other strictly public object, it could not 
 be denied that the House had a right to enquire into 
 its affairs, even though it did not receive public aid.' h 
 And on a later occasion it was declared, by Sir Eobert 
 Peel, that ' where Parliament has given peculiar privi- 
 leges to any body of men 1 [as, for example, banks or 
 railway companies], it has a right to ask that body for 
 information upon points which it deems necessary for 
 the public advantage to have generally understood.' 
 The great point to be aimed at in such enquiries, he 
 considered to be, ' that while you extract all the infor- 
 mation the public require to have, you should, at the 
 same time, avoid all vexatious interference in the details 
 of the business of the respective undertakings.' 3 
 
 On April 9, 1867, Sir Morton Peto moved for the appointment of 
 a select committee ' to enquire into the means adopted by the London, 
 Chatham, and Dover Railway Company for raising the share capital 
 and exercising their borrowing powers under the various Acts of 
 Parliament, authorising the construction of the main line and its 
 extensions and branches.' He did so professedly on public grounds, 
 but mainly for the purpose of obtaining a public scrutiny into his 
 own conduct, as a director of the said company, in order to refute 
 certain charges affecting his personal character, which had been 
 preferred against him in that capacity. The chancellor of the ex- 
 
 h Mir. of Parl. 1839, pp. 4238, 
 4503. Hans. D. v. 220, p. 295. 
 
 ' See the proceedings in the House 
 of Lords, iu regard to an order that 
 tlie Corporation of the City of Lon- 
 don should lay before the House a 
 detailed account of their income and 
 expenditure between certain years ; 
 the Corporation having applied to 
 Parliament for an Act to enable 
 them to increase their revenues, by 
 imposing a tax on coals. Mir. of 
 Parl. 1829, pp. 1803, 1834. 
 
 J Mir. of Parl. 1840, p. 4840. 
 And see Ib. 1828, p. 825. See 
 further, in regard to the principle in 
 question, showing the respect enter- 
 tained by both Houses for private 
 rights, H>. 1837, pp. 787, 997, 1030; 
 1838, p. 5400; 1839, p. 3421. Hans. 
 D. v. 74, p. 25 ; v. 131, pp. 135, 785 ; 
 V. 166, p. 1103. And on the general 
 question of the power of Parliament 
 to compel the production of docu- 
 ments, see Smith's Parl. Remem- 
 brancer, 1860, p. 29.
 
 IX MATTERS OF ADMINISTRATION. 453 
 
 chequer (Mr. Disraeli) objected to the motion as an unprecedented 
 attempt to obtain a parliamentary investigation into matters with 
 which the House of Commons has no connection or concern. Mr. 
 Gladstone agreed that the mover had no locits standi for such a pro- 
 position. He added, that the motion might perhaps be justified ' on 
 the ground that railway companies solicit special parliamentary 
 powers, and that Parliament itself claims greater powers over rail- 
 way companies than it does over other companies.' Still, as a 
 question of policy, he admitted that the objection was unanswerable, 
 and that, if the motion were acceded to, it would probably occasion 
 very considerable embarrassment, in the conduct of the enquiry, and 
 undoubtedly great future embarrassment as a precedent applicable to 
 other companies in positions more or less analogous. Whereupon the 
 motion was withdrawn. 11 
 
 Again, no motion for papers should contain argu- 
 mentative matter, or should assume facts of which the 
 House was not officially cognisant. 1 
 
 It is ' the rule of Parliament, that no papers shall be 
 
 t 
 
 laid on the table of either House, unless some sufficient ground for 
 reason have been stated for their production.' m It is 
 irregular to move for the production of papers merely 
 to further the interests or views of private persons, or 
 except for the purpose of founding, or facilitating, 
 " parliamentary proceedings. 11 Government have refused 
 to grant papers, ' unless it be intended to found some 
 proceedings upon them.' 
 
 The foregoing precedents, it is hoped, will serve to Summary 
 
 l i i j.1. i.-i i.- i *.' f in regard 
 
 explain more clearly the constitutional position 01 to this 
 Parliament in regard to the prerogative of administra- 7 e rosa " 
 tion. Without denying the abstract right of either 
 
 k Hans. D. v. 186, pp. 1339-1349. m Ld. Melbourne, Mir. of Parl. 
 
 And see the debate on a motion, 1838, p. 5387. 
 
 afterwards withdrawn, in relation to n Ib. 1831, p. 2248 ; 1833, p. 547. 
 the refusal of the Salters' Company Ib. 1839, p. 4422. But see the 
 to grant a site for a Roman Catholic following cases, wherein members of 
 church on one of their estates in Parliament, being in possession of 
 Ireland, upon the ground that they valuable statistical or other informa- 
 were obliged by their charter ' to tion, obtained orders, or addresses, 
 encourage Protestantism and to dis- for the production of the same, to 
 courage Popery in the North of Ire- one or other of the Houses of Par- 
 land.' Ib. v. 187, p. 891. liament. Ib. 1830, Sess. 2, p. 416 ; 
 
 1 Hans. D. v. 218, p. 2023. 1838, p. 5273 ; 1839, p. 4372.
 
 464 THE EOYAL PEEEOGATIVE 
 
 summary. House to address the crown, or to institute enquiries 
 by select committees, upon any matter, they will show 
 the great public inconvenience attending an attempt on 
 the part of Parliament to interfere with the ministers 
 of the crown in the details of government, the inexpe- 
 diency of applications for documents which the respon- 
 sible advisers of the crown consider it imperative to 
 withhold, and the unwarrantable nature of any intrusion 
 by Parliament into the private affairs either of indivi- 
 duals or of corporate bodies, without just cause. So 
 long as any existing government retain the confidence 
 of Parliament, it is unsafe and unwise, as a general 
 principle, to interfere with them in matters of adminis- 
 tration. Those who are directly responsible for the 
 conduct of public affairs are they who possess the 
 necessary information for the proper discharge of the 
 same. Parliament exercises a direct control over the 
 ministers by whom all public affairs are transacted. It 
 has a right to enquire into every grievance or abuse of 
 power, whether on the part of those ministers or of 
 any other public functionary. It may also express its 
 opinion in regard to any act of the government ; and 
 it not unfrequently happens that the mere declaration 
 of opinion in Parliament upon some objectionable de- 
 partmental regulation, unaccompanied by any formal 
 motion, suffices to induce the government to modify 
 their plans, conformably to the views entertained by 
 the House. p But all this is very different from an 
 attempt on the part of the legislature to usurp the 
 functions of the executive, or from the endeavour by 
 the House of Commons to compel the adoption of their 
 opinions upon a question of administration, irrespective 
 of those of the government or of the other Chamber; 
 
 p See the case of the Treasury discussed in the House of Lords on 
 Warrant respecting unpaid letters, February 22 and 24, 1869.
 
 IN MATTERS OF ADMINISTRATION. 456 
 
 a proceeding which must tend to destroy the harmony 
 which should exist between the different powers in the 
 state, and to transfer the executive authority from the 
 hands of responsible ministers into those of an irrespon- 
 sible and uncontrollable democracy.* 1 
 
 q See remarks on this head in Stockmar'e Mem. v. 2, pp. 449, 645.
 
 456 THE ROYAL PREROGATIVE 
 
 CHAPTEE VIII. 
 
 CIRCUMSTANCES UNDER WHICH PARLIAMENT HAS A RIGHT 
 TO INTERFERE, IN ORDER TO RESTRAIN THE ILLEGAL 
 EXERCISE OF EXECUTIVE AUTHORITY. 
 
 Abuse of WHILE Parliament is constitutionally debarred from 
 authority, interfering, by order or resolution, with the ordinary 
 routine of government, except for the purpose of ex- 
 pressing an opinion as to the expediency of any par- 
 ticular proceeding, or line of policy it is otherwise if 
 the crown itself attempts to encroach upon the func- 
 tions of Parliament, and endeavours to accomplish by 
 its own action that which cannot lawfully be effected, 
 except with the sanction and co-operation of Parliament. 
 It is then the duty of Parliament to interpose, and to 
 call to account the ministers of the crown who are 
 responsible for the abuse or excess of executive autho- 
 rity. In like manner, if any individual minister is 
 guilty, in his official capacity, of any illegal or oppressive 
 act, it is the privilege of the injured party to apply to 
 Parliament for redress; and the matter of complaint 
 being substantiated, Parliament will hold the offending 
 minister personally responsible for his misconduct. 
 
 There are certain forms of procedure, of ordinary 
 occurrence in the administration of public affairs by the 
 ministers of the crown, which need to be strictly con- 
 fined within constitutional limits, lest they should become 
 the instruments of oppression or misgovernment. These 
 are The Issue of Orders in Council and Eoyal Pro- 
 clamations ; and of Minutes of Committees of Council,
 
 IN MATTERS OF ADMINISTRATION. 457 
 
 and other Departmental Regulations; and (in the next 
 chapter) Legislation by Public Departments ; and the 
 entering into Contracts by Government Departments 
 for the public service. The proper limits of executive 
 authority in relation to each of these administrative 
 acts will be briefly explained. We shall then proceed to 
 define the responsibility which attaches to individual 
 ministers of state for personal acts of misconduct in 
 their official capacity. 
 
 Authority of the Crown in the Issue of Orders in Council 
 and Royal Proclamations. 
 
 The legislative function properly belongs to Parlia- Limited 
 ment, and no single branch thereof may legislate without of theTex- 
 the concurrence of the other two. 8 The executive has ecutive - 
 a limited power of legislation by Order in Council, arid 
 rules framed by departments of state, but only where 
 the exercise of such power has been authorised or 
 sanctioned by Parliament. It is a fundamental law of 
 the English constitution, that the sovereign can neither 
 alter, add to, nor dispense with, any existing law of the 
 realm. b 
 
 This important point was first established beyond Orders in 
 dispute in the reign of James I., by the proceedings in 
 Parliament upon the case of Bates, an English merchant, 
 who refused to pay a duty on currants imported into 
 the country from abroad, which duty was sought to be 
 levied by the sole authority of the king. The Court of 
 Exchequer, in 1606, sustained the claim of the crown; 
 but when the matter was discussed in the House of 
 Commons, it was shown that this decision was contrary 
 to the provisions of the Great Charter, and therefore 
 void. It was further alleged that the sovereign could 
 
 a See ante, p. 407. 
 
 b Thomas, Leading Cases in Con&t. Law, pp. 5, 11.
 
 458 THE ROYAL PREROGATIVE 
 
 Taxation not, without the assent of Parliament, impose a duty 
 on any article of merchandise imported into or exported 
 
 crown 
 
 illegal. from the country ; or, in fact, any duty whatsoever 
 either upon foreign or domestic commodities, whether 
 in time of war or peace. The conclusions arrived at 
 upon this occasion were embodied in a Petition of 
 Grievances, which was addressed by the House of 
 Commons to the king, in the year 1610, and favourably 
 received by his Majesty. 
 
 This important doctrine was confirmed, in the 
 following reign, by the celebrated case of Eex v. Hamp- 
 den, wherein, notwithstanding that the contrary doctrine 
 was asserted by a majority of the judges, Parliament 
 annulled the judgment, and by the Statute 16 Car. I. 
 c. 14 declared that the sovereign cannot, without the 
 consent of Parliament, assess or levy ship-money upon 
 the subject.* 1 
 
 The mode whereby the Stuart sovereigns sought to 
 enforce their unconstitutional claims of levying taxes 
 upon the people, in derogation of the legislative func- 
 tions of Parliament, was by the issue of royal procla- 
 mations and orders emanating from the Privy Council. 
 At that period the Privy Council was still the great 
 governing body in the state, by means of which the 
 will of the sovereign was promulgated and enforced. 
 The king's government was carried on through the 
 instrumentality of Orders in Council, and by the issue 
 of royal proclamations, which were put into execution 
 by the subordinate officers of the crown. 
 
 This ordaining power of the crown in council was the 
 ancient method whereby the crown exercised its legis- 
 lative functions; but as the functions of Parliament, as 
 sharing sovereign legislative power, gained recognition, 
 the constitutional principle was established, that the 
 king in council may not make any ordinance contrary 
 
 Broom's Const. Law, pp. 247-305. d See Ib. pp. 306-370, 401-408.
 
 IN MATTERS OF ADMINISTRATION. 459 
 
 to the common law, or the ancient customs of the realm, 
 and the statutes ordained in Parliament. The principle 
 has been distinctly recognised since the close of the 
 fourteenth century ; e and was subsequently reiterated 
 and confirmed by the Bill of Eights. The ancient pre- 
 rogative of the crown in legislating by orders in council 
 has been subjected to the control of Parliament, and is 
 now mainly exercised as a deputed and not as a preroga- 
 tive power. The crown still retains the right to regulate 
 various details of administration by its own prescriptive 
 authority, but it is an admitted principle that the 
 sovereign has no right, by a mere order in council, 
 either to sanction a departure from the requirements of 
 an existing law, or to interfere with the established 
 rights or privileges of any class of persons within the 
 realm. It is competent to the crown to declare and 
 enforce, by proclamation, the execution of any existing DI S - 
 law, but it is not within the power of the crown, pow 
 either to add to, alter, or dispense with any law of the 
 land. f 
 
 Following the example of the Church of Eome, the 
 sovereigns of England, from an early period, claimed 
 the right to dispense with the laws of the land, by the 
 issue of proclamations, and by making grants or decrees, 
 ' non obstante any law to the contrary.' In this way 
 they assumed a power, virtute coronce, to dispense with 
 existing laws, or with the penalties consequent upon a 
 breach of them ; or else they undertook to dictate to 
 the people in respect of matters indifferent, and in re- 
 gard to which perfect liberty of action ought to have 
 been allowed. g The current of authority indicates that 
 the prerogative of dispensing by non obstante with Acts 
 
 See Stubbs, Const. Hist. v. 2, see Ch. Just. Cockburn's charge in 
 
 pp. 572, 584. tha case of the Queen v. Nelson and 
 
 f See 1 Coke's Inst. 120A n, 4. Brand, p. 37. 8vo. L. 1867. 
 Broom's Const. Law, p. 374. And e Cases cited, Broom, pp. 375-396.
 
 4GO THE ROYAL PREROGATIVE 
 
 of Parliament was, subject to certain restrictions, re- 
 cognised in former times as vested in the crown, and 
 was repeatedly exercised during the sixteenth and 
 seventeenth centuries. The use and abuse of this 
 prerogative occasioned repeated conflicts between the 
 crown and Parliament and the courts of law, and 
 eventually cost King James II. his crown. 11 This branch 
 of the royal prerogative was finally annihilated by the 
 Bill of Eights, which declared that ' the pretended 
 power of suspending of laws, or the execution of laws, 
 by regal authority, without consent of Parliament, is 
 illegal ; ' and that ' the pretended power of dispensing 
 with laws, or the execution of laws, by regal authority, 
 as it hath been assumed and exercised of late, is illegal/ 
 ' Since then no one has presumed to advocate the exis- 
 tence of a dispensing power, under any circumstances 
 whatever, as inherent in the crown.' 1 
 
 Orders or From the epoch of the Eevolution of 1688, when- 
 fions. " ever the crown has ventured, upon occasions of public 
 emergency, to issue royal proclamations or orders in 
 council, which appeared to sanction any departure from 
 the laws of the land, the necessity for such a proceed- 
 ing on the part of government has been narrowly in- 
 vestigated by Parliament ; and when it has been shown 
 to have been illegal, although justifiable, acts of in- 
 demnity have been passed, to exonerate all persons 
 who have advised or carried into execution the same.* 
 Legislation of this kind is a parliamentary acknow- 
 ledgment of the principle that, in times of danger or 
 emergency, the crown, acting under the advice of re- 
 sponsible ministers, may properly anticipate the future 
 action of Parliament, by a temporary suspension of 
 certain classes of statutes. k Abstractly, the crown has 
 
 h Broom, pp. 494-507. Stubbs's J Ib. pp. 379, , 508, n. 
 Const. Hist. v. 2, p. 580. k Cox, Erig. Govt. p. 29. Camp- 
 
 1 Broom's Const. Law, pp. 507, bell's Chauc. v. 5. p. 267. 
 508.
 
 IN MATTERS OF ADMINISTRATION. 401 
 
 no constitutional right to issue any such orders or 
 proclamations ; but, in the words of Sir Eobert Peel, 
 * Governments have assumed, and will assume, in ex- 
 treme cases, unconstitutional power, and will trust to 
 the good sense of the people, convinced by the necessity 
 to obey the proclamation, and to Parliament to indem- 
 nify the issuers.' 1 
 
 Nevertheless, with the important limitations above orders in 
 referred to, considerable powers are still inherent in counci1 ' 
 the sovereign in council ; and express authority for the 
 issue of orders in council is frequently conferred upon 
 the crown by legislative enactment. ' A large propor- 
 tion of what may be called the details of legislation 
 rests upon the authority of orders in council, some of 
 which are issued by her Majesty in virtue of her pre- 
 rogative, while others derive their force from the pro- 
 visions of Acts of Parliament.' It is competent to a 
 court of justice to enquire into the validity or accu- 
 racy, in the statement of alleged facts of an order in 
 council, duly passed and gazetted. As examples of 
 the variety and importance of the subjects to which 
 "this form of quasi-legislation is applicable, it may be 
 stated that orders in council, or royal proclamations 
 which are usually issued in pursuance of the same, are 
 promulgated for the assembling, prorogation, and dis- 
 solution of Parli ament ; for declaring war ; for confirm- 
 ing or disallowing the Acts of Colonial Legislatures ; for 
 giving effect to treaties ; for extending the terms of 
 patents ; for granting charters of incorporation to com- 
 panies or municipal bodies ; for proclaiming ports, fairs, 
 &c, ; for deciding causes on appeal ; for creating eccle- 
 siastical districts or circuits for judicial purposes ; for 
 granting exemptions from the law of mortmain; for the 
 
 1 Peel's Mem. v. 2, p. 131. And see Judge Ritchie in Windsor 
 
 m Attorney-General v. Bishop of and Annapolis Ry. case, Nova Scotia 
 Manchester, L. R. 3 Eq. p. 436. Equity Decisions, v. 1, p. 307.
 
 4G2 
 
 THE ROYAL PREROGATIVE 
 
 When 
 they re- 
 quire the 
 sanction 
 of Par- 
 liament. 
 
 Proclama- 
 tions. 
 
 regulation of the Board of Admiralty, and of appoint- 
 ments to offices in the various departments of state; for 
 creating new offices, and defining the qualifications of 
 persons to fill the same ; and for declaring the period 
 at which certain Acts of Parliament (the operation of 
 which has been left by the legislature to the discretion 
 of the Queen in council) shall be enforced. 11 
 
 It is difficult to draw the line between what may 
 and what may not be accomplished by an order in 
 council, without special legislative sanction. As a 
 general rule, all orders in council restricting trade, un- 
 less issued under the authority of an Act of Parliament, 
 or justified by reference to cases coming within the pre- 
 rogative of war and all orders suspending the opera- 
 tion of any statute would require an Act of Indemnity. 
 But when duly informed by the crown of the proceed- 
 ings had upon any such occasion, Parliament has always 
 been willing to indemnify the government for the timely 
 exercise of authority for the public welfare, although it 
 may have led to an overstepping of the constitutional 
 limits of executive power. 
 
 So far as proclamations, as distinct from orders in 
 council, are concerned, it is an indisputable branch of 
 the royal prerogative to issue proclamations in refe- 
 rence to the existing state of the law, warning those 
 who may be likely to commit offences, encouraging 
 respect for the law, and offering rewards for the appre- 
 hension of offenders. These documents are regarded 
 as solemn expressions of the royal will, and are invari- 
 ably issued upon the advice of responsible ministers. 
 They are usually based upon orders in council, and are 
 
 n Rep. on the Privy Coun., Com. 
 Pap. 1854, v. 27, p. 253. Rep. on 
 
 limited to three years, with authority 
 to her Majesty in council to renew 
 
 it for another year without applying 
 to Parliament. This power was ex- 
 ercised by order in council in 1872. 
 Hans. D. v. 212, p. 340. And see 
 40 & 41 Viet. c. 38. 
 
 See cases cited in Lieber's Her- 
 meneutics, 3rd ed. 1880, p. 67 n.
 
 IN MATTERS OF ADMINISTRATION. 463 
 
 intended to promulgate decisions arrived at by the 
 sovereign in council. Their exact force has been a 
 matter of dispute, which even now cannot be precisely 
 determined, since it labours under the uncertainty 
 which affects all questions bearing on the limits of the 
 prerogative. It is clear, however, that while a pro- 
 clamation cannot make a law, it can add force to a 
 law already made. p When the sovereign declares war 
 against a foreign power, proclamations are usually 
 issued, materially altering the ordinary laws relating to 
 trade, and imposing rules for the conduct of trade with 
 neutrals or belligerents.* 1 Proclamations are also issued 
 to fix the mode, time, and circumstances of putting into 
 execution certain laws, the operation of which has been 
 left to the discretion of the executive government ; r or, 
 for the purpose of making formal declaration of exist- 
 ing laws and penalties, and of the intention of govern- 
 ment to enforce the same ; or, to appoint and direct 
 the keeping of a day of observance, whether as a fast 
 or thanksgiving. But 'proclamations have only a bind- 
 ing force when they are grounded upon and enforce 
 the laws of the realm.' 8 And to be valid in law they 
 must be published in the official gazette of the king- 
 dom.* The king cannot authorise by proclamation the 
 creation of an offence which is not a crime by the ex 
 isting law ; ' for if so, he might alter the law of the land 
 by his proclamation.' u 
 
 P See Forsyth, Const. Law, p. Coke, 3 Inst. 162. See Lords' 
 
 180, n. Hallam, Const. Hist. v. 1, p. Debates, May 2, 1876, on the terms of 
 
 337. the proclamation issued pursuant to 
 
 i See Cox, Inst. Eng. Govt. 28. the Royal Titles Act. 
 
 Ed. Rev. v. 100, p. 192. * Act. 40 & 41 Viet. c. 41. 
 
 T Ex. gra 6 Geo. IV. c. 78. Muni- u Bowyer, Const. Law, p. 173. 
 
 cip. Corp. Act of 1835. Health of Att.-Gen. Collier, Hans. D. v. 203. 
 
 Towns Act of 1848. Royal Titles p. 1370. 
 Act of 1876.
 
 404 THE ROYAL PREROGATIVE 
 
 Control of Parliament over the issue of Orders and 
 Minutes of Council, and other Departmental Regu- 
 lations. 
 
 Minutes The responsibility of ministers to Parliament neces- 
 
 01 ' sarily implies the right of either House to express its 
 opinion as to the legality or expediency of any particu- 
 lar act of administration ; and to proceed to call to 
 account any minister of state who may have exceeded 
 the limits of constitutional authority in the execution of 
 public duty. 
 
 See the debate in the House of Lords May 12, and in the House 
 of Commons June 25, 1817, upon the circular letter of the secretary 
 of state for the Home Department (Lord Sidmouth) to the lords 
 lieutenants of counties, respecting the authority and duties of magis- 
 trates, in regard to blasphemous or seditious libels ; which letter was 
 alleged to have been an interference with the ordinary course of 
 justice, and an assumption by the executive of legislative power. v 
 
 In the working of constitutional government, expe- 
 rience has proved that certain subordinate powers of 
 legislation must be entrusted to almost every leading 
 department of state. So long as these powers are 
 exercised with the knowledge of Parliament, and in 
 direct subjection to its control, they can be more ad- 
 vantageously discharged by responsible ministers than 
 if it were obligatory that they should emanate from 
 Parliament itself. w For all such regulations are framed 
 by a responsible minister, for the sanction of the crown. 
 And no premature interference therein ought to be 
 Depart- attempted by either House.* Minutes of council, de- 
 reguia- partmental regulations, and other authoritative di- 
 tions. rections emanating from the heads of the principal 
 
 v May, Const. Hist. v. 2, p. 188. before the Com 6 , on Education, Com. 
 
 See the Evid. of the Rt. Hon. Pap. 1866, v.6,pp. 54, 55,68,71,72, 
 
 R. Lowe, H. A. Bruce, and C. B. 76, 153. 
 
 Adderlcy, and of Earl Granville, ' Hans. D. v. 157, p. 842.
 
 IS MATTERS OF ADMINISTRATION. 465 
 
 executive departments, must needs be frequently issued 
 
 in regard to particular matters of administration, which 
 
 require to be determined by competent authority, but 
 
 it is essential that all acts of quasi-legislative authority Depart- 
 
 which may be performed by any department of state, Halation 
 
 shall be within the limits defined and prescribed by Sllbs f r ; 
 
 * vient to 
 
 parliamentary enactment ; and also that, whenever Pariia- 
 either the expenditure of public money, or other great 
 public interests, are concerned in the matters thus dis- 
 posed of, an opportunity should be afforded to Parlia- 
 ment of expressing its opinion upon the same, before 
 the government proceed to take action thereon. 
 
 Shortly after the adoption of the order in council of April 10, Prece- 
 1839, creating a separate department of the privy council as a body dents, 
 to superintend the distribution of the moneys voted by Parliament 
 for educational purposes, the proceedings of government in the matter 
 were called in question in both Houses. On June 1 4, an address was 
 moved in the House of Commons, praying for the revocation of the 
 said order. After several nights' debate, this motion was negatived 
 by a majority of 5 only, in a full House.? On July 5, in the House 
 of Lords, a series of resolutions were agreed to, and embodied 
 in an address to the Queen, deprecating the conferring of such 
 important powers upon the committee of council without the 
 consent of Parliament, and praying that no steps may be taken with 
 respect to the establishment of any plan of national education with- 
 out affording to their lordships an opportunity of fully considering 
 the proposed measure. 2 On July 11, an answer was returned to this 
 address, expressing her Majesty's regret that the House of Lords 
 ' should have thought it necessary to take such a step on the present 
 occasion ' ; and assuring their lordships that annual reports of the 
 proceedings of the newly appointed Committee of Education would 
 be laid before Parliament, ' so that the House would be enabled to 
 exercise its judgment upon them.' a 
 
 The Committee of Privy Council on Education, in 1861, framed Minutes 
 a revised code of rules for the administration of the parliameritary g,j uca . 
 grants for promoting education in England, which effected extensive tion Cone 
 alterations in the existing system of education as administered by mittee. 
 the Privy Council. The government laid before Parliament the 
 minute of council establishing the revised code on August 6, 1861> 
 
 Mir. of Parl. 1839, p. 3195, ' Ib. p. 3662. 2b. p. 3815. 
 
 VOL. I. H II
 
 406 THE ROYAL PREROGATIVE 
 
 being the very day of the prorogation,* but without giving any ex- 
 planations on the subject. However, as the new regulations were not 
 to come into operation until after the next meeting of Parliament, 
 when they were liable to be objected to by either House, it was pro- 
 bably deemed unnecessary to comment upon them on their first intro- 
 duction. During the recess, the new code was subjected to consider- 
 able criticism, and elicited formidable opposition in many quarters. 
 The complaints against it received full attention from the govern- 
 ment, who, shortly after the reassembling of Parliament, laid before 
 both Houses another minute, containing several modifications of the 
 code. These changes, however, were not sufficiently comprehensive 
 to satisfy the opponents of the measure. Accordingly, a discussion 
 took place in each House upon the subject, wherein exception was 
 taken, not merely to the re-revised code itself, but also to the mode 
 of its adoption by the government. In the House of Lords, on 
 February 17, 1862, Lord Derby called upon the ministry to embody 
 the principles and leading details of the scheme in a series of resolu- 
 tions, to be submitted to both Houses, in order to afford opportunity 
 for mature deliberation thereupon. But this they declined to do. 
 Mr. Walpole, who led the attack upon the code in the House of 
 Commons, condemned the government for not having submitted it 
 to Parliament in a series of distinct propositions, instead of as a 
 whole. He said that ' he wished to raise the question whether, when 
 any alteration is made in a system of education which the country 
 has adopted, accepted, and acted on, it is to be in the power of any 
 government, at any future period, by its own mere motion, and with- 
 out the concurrence and sanction of Parliament, to alter that system 
 fundamentally and entirely, in the manner they are now attempting 
 to do. In 1839, this question was much agitated, and discussed in 
 this House. There was then an attempt to introduce normal and 
 industrial schools. That attempt was defeated ; and one of the 
 great objections urged against it was the manner in which the 
 attempt was made. The House was told, and told truly, that the 
 power which the committee of council asserted to itself was a power 
 essentially beyond that which the constitution gave to any depart- 
 ment in the state. It was the assertion by a body necessarily politi- 
 cal in its character necessarily fluctuating in its nature, which 
 would be irresponsible, and therefore despotic of an authority and 
 power which does not belong to any minister, and which ought only 
 to be entrusted to both Houses of Parliament.' With these views 
 Mr. Walpole submitted to the House a series of resolutions, con- 
 demnatory of certain parts of the revised code, for the purpose of 
 obtaining, in committee of the whole House, a full discussion of the 
 
 b Com. Jour. 1861, p. 427.
 
 IN MATTERS OF ADMINISTRATION. 
 
 467 
 
 scheme, and the introduction of considerable changes therein. With 
 the general principle of the code as an endeavour to simplify the 
 machinery for administering the grants of public money for the pro- 
 motion of popular education, and an attempt to test the results of 
 such education he entirely concurred ; but he considered the mode 
 of effecting these objects, as set forth in the code, to be quite un- 
 palatable to Parliament and to the country. In asking the House to 
 adopt this course, he likened it to the proceeding in committee upon 
 a government bill, the principle of which has been agreed to by the 
 House, but which is subject to amendment of details at that stage of 
 its progress. And in order to prevent a proceeding so objectionable 
 as the present from being drawn into precedent by the government, 
 Mr. Walpole appended two resolutions to his series, requiring the re- 
 printing of the code in the January of each year, should any material 
 alteration therein be proposed, and in a form to point out distinctly 
 the intended changes ; and declaring that, in the event of any revision 
 or material alteration being proposed by the department at any time, 
 it shall not be lawful to take any action thereon until the same shall 
 have been submitted to Parliament, and laid on the table of both 
 Houses for at least one calendar month. [In order to bring the lan- 
 guage of the minutes in this particular ' in accordance with the sense 
 and spirit ' of Mr. Walpole's resolutions, the government subsequently 
 submitted to the Commons, February 17, 1865, a new rule to the same 
 effect, which while it recognised the power of the department to alter 
 the minutes, restrained any action upon such alterations until the 
 documents had been laid before Parliament. Supplementary regu- 
 lations on minor points, not included in the code, are laid on the 
 table every year, with the report of the Education Department. d ] 
 By these resolutions it was his object to maintain that the committee 
 of council, whilst entrusted with important administrative functions, 
 had no legislative authority, but must submit for the sanction of 
 Parliament all material changes in the national system of education 
 before attempting to enforce them. Secretary Sir George Grey, on 
 behalf of the government, acquiesced in the course suggested by Mr. 
 Walpole, and also in the principle involved in the last two resolu- 
 tions. 6 In compliance with the foregoing resolutions, the code was 
 reprinted January 1863 ; and a new minute of some importance 
 having been issued in the following May, the same was immediately 
 submitted to Parliament, to lie upon the table for one month before 
 it became law. f Whereupon the House went into committee on the 
 proposed resolutions. Three days afterwards, the vice-president 
 
 Educa- 
 tional 
 minutes to 
 be laid 
 before 
 both 
 Houses 
 of Parlia- 
 ment. 
 
 c As to the proper construction to 
 be given to these resolutions, see 
 Hans. D. v. 171, p. 1042. 
 
 d Ib. v. 177, p. 327. 
 
 Ib. v. 166, p. 52. 
 
 f Ib. v. 171, pp. 952-954. 
 
 11 H 2
 
 408 
 
 THE EOYAL PREROGATIVE 
 
 of the Education Committee announced that the government were 
 prepared to make important alterations in the new code, in order to 
 render it more acceptable to Parliament and to the country. To 
 afford time for the due consideration of these amendments, no 
 further action was taken in the House on the subject until May 5, 
 when Mr. Walpole stated that on account of the conciliatory and 
 satisfactory conduct of the government, he was prepared to abandon 
 his resolutions, and to accept the revised code in its amended shape. 
 Thus ended a severe and protracted contest, wherein the right of 
 Parliament to exercise a constitutional control over the executive 
 government, in g^tcm-legislative matters and in the settlement of 
 all important details of administration was amply recognised and 
 sustained. In 1870, this principle was embodied in the Elementary 
 Education Act, which provides (in sec. 97) that no minute of the 
 Education Department, which defines the conditions upon which an 
 elementary school shall be entitled to receive public aid shall be in 
 force until it has lain for not less than one month on the table of 
 both Houses of Parliament. By practice these thirty days are com- 
 puted from the day on which the code was circulated amongst 
 members, not from the day when it was formally laid upon the table 
 of the Housed 
 
 j t h as a } so b een acknowledged that the Education 
 
 -11 
 
 Department is bound to apply for the sanction of Par- 
 liament not merely to any minute which involves the 
 expenditure of public money, but to any minute which 
 modifies the departmental regulations previously sub- 
 mitted to Parliament. 11 
 
 And it is understood that no important changes in the system of 
 national education in Ireland should be introduced before they had 
 been communicated to Parliament, although it is entirely within the 
 province of the Irish Education Commissioners to alter or modify 
 their rules without any action on part of government. 1 
 
 To assist the judgment of the Commons in this matter 
 tElappro- it h as been customary for the member who represents 
 vai of the the department in the House to make a statement in 
 
 House of 1 A . 
 
 Commons, explanation ot the changes effected by the new minutes, 
 when he lays them upon the table. 3 ' At this stage, 
 
 Minutes of 
 
 Education 
 
 Commit- 
 
 HOW sub- 
 
 ' Hans. D. v. 232, p. 1216. 
 " Com. Pap. 1864, v. 9, p. 
 
 J Com. Pap. 1865, v. 6, pp. 55, 72, 
 369. 153. Hans. D. v. 185, p. 1147. Ib 
 
 . . . , . . 
 
 Ev.453,&c. Hans. D. v. 177, p. 327. v. 204, pp. 1813. 1827; v. 223, p. 
 ' Ib. v. 183, p. 1031. 226.
 
 IN MATTERS OF ADMINISTRATION. 
 
 however, no debate should take place, as there is no 
 question before the Chair. 
 
 The manner in which the sense of the House of ^tod 
 Commons is taken in reference to new minutes of the sense of 
 Committee of Council on Education, when they have H ouse. 
 been laid upon the table, may be seen from the follow- 
 ing cases. 
 
 On May 5, 1863, two resolutions were submitted to the House, 
 by a private member, to declare the expediency of modifying the 
 regulations of the code in certain particulars. After a long debate, 
 one of these resolutions was withdrawn and another negatived. On 
 March 10, and again on July 21, 1871, similar resolutions were pro- 
 posed, and negatived. On May 5, 1874, a similar resolution was 
 proposed, and negatived. On March 9, 1875, an address to a similar 
 effect was moved, and negatived. 
 
 On March 8, 1864, a resolution was proposed for the modification 
 of the rules in regard to aid to schools for the working classes. 
 After debate, the government agreed to accept this resolution. On 
 June 2 following, the mover, being of opinion that the new minute 
 which had been issued in conformity with the said resolution did not 
 meet the case, proposed another resolution, to declare the inadequacy 
 of the minute to remove the objections entertained against the 
 former minute ; but the motion was negatived. On June 30 another 
 resolution, condemnatory of the new minute, was proposed ; but the 
 Speaker ruled that it was out of order, being similar in substance to 
 the one previously negatived. k 
 
 [See a resolution, agreed to by the House of Commons and 
 accepted by ministers on March 4, 1873, denning and limiting the 
 operation of a treasury minute in relation to county court judges. 
 
 On July 2, 1877, certain War Office circulars were objected to, 
 in the House of Commons, on the ground that they had been issued 
 in contravention of certain Acts of Parliament ; but the secretary 
 for war was able to show that the complaint was untenable. 1 ] 
 
 k See the comments of Ld. R. Cecil Council on Education, Hans. D. T. 
 
 on this case, in his argument to show 177, p. 1309. 
 
 the inadequacy of the control of l Ib. v. 235, p. 618. 
 Parliament over minutes of Com. of
 
 470 
 
 LEGISLATION BY PUBLIC DEPARTMENTS. 
 
 Control of 
 Parlia- 
 ment 
 over exe- 
 cutive le- 
 gislation. 
 
 Inclosure 
 
 commis- 
 sioners. 
 
 CHAPTER IX. 
 
 LEGISLATION BY PUBLIC DEPARTMENTS. 
 
 THE constitutional control of Parliament over the exer- 
 cise of legislative powers by ministers of state, executive 
 departments, and other public bodies, being admitted, 
 it is evident that there is an undeniable advantage in 
 the practice itself. The proper limits within which 
 such powers may be exercised having been prescribed 
 by statute with directions that all such minor or pro- 
 visional legislation shall be duly submitted to Parliament, 
 either for tacit approval or direct ratification, it is 
 often expedient to entrust the settlement of the details 
 of practical legislation, requiring special or local know- 
 ledge, to the public department immediately concerned 
 therein. By this means the benefit of local experience 
 is obtained in the determination of such questions, and 
 especially where the consent of parties interested has 
 been freely given, Parliament is relieved from the con- 
 sideration of matters which may be troublesome to 
 decide, without infringing upon local interests. Within 
 the past thirty years numerous Acts have passed, to 
 confer and regulate the exercise of such powers, in sub- 
 ordination to general principles established by law. 
 
 Thus, in 1845, by the Act 8 & 9 Viet. c. 118, the Inclosure Com- 
 missioners were constituted, and empowered, in certain cases, to 
 complete inclosures, and in other cases to make provisional orders for 
 the inclosure of lands, to be ratified by public Acts of Parliament.* 
 A select committee of the House of Lords, in 1858, on private Bill 
 
 May, Parl. Prac. ed. 1883, p. 760.
 
 UNDER PARLIAMENTARY CONTROL. 471 
 
 legislation, took much evidence in favour of an application of this 
 principle to other measures of local improvement, but they refrained 
 from any specific recommendation on the subject. b 
 
 Thus, by the Contagious Disorders of Animals Act of 1848, the 
 Privy Council were empowered to make orders and regulations to 
 carry out the intent of the Act, the same to be laid before both 
 Houses of Parliament within a specified time. c 
 
 Again in 1866, upon the outbreak of the cattle plague in Great 
 Britain, endeavours were made to frame an Act of Parliament to 
 arrest the progress of the disorder, without injuriously affecting 
 local interests. But, after much debate, the attempt proved un- 
 successful. It was then determined to enlarge the powers conferred 
 upon the Privy Council by the Act of 1848, and to empower any 
 two lords of the council to frame orders to meet the emergency in 
 particular parts of the country, such orders to be afterwards com- 
 municated to Parliament. Under this authority nearly 150 separate 
 orders in council were issued. d The Act was continued in the 
 following session, with enlarged powers. 8 
 
 The orders issued under the authority of the statutes Question- 
 
 . ing orders 
 
 aforementioned, though enjoined to be laid before Par- 
 liament, were not required to be directly or indirectly 
 sanctioned by either House. But this did not prevent 
 them from being questioned. 
 
 The mode of questioning these orders is shown by 
 a proceeding in the House of Commons on June 21, 
 1867, when, as an amendment to going into committee 
 of supply, it was moved to resolve that a particular 
 order respecting the importation of cattle ' is inexpe- 
 dient. ' f But after an explanation by a minister the 
 motion was withdrawn. 
 
 It is customary to provide that orders in council, Should be 
 departmental regulations, representations, rules of court, toParUa- 
 or tables of fees, framed and issued under the authority ment - 
 of particular Acts of Parliament, shall be laid before 
 both Houses within twenty, thirty, or forty days (as the 
 case may be), after the making thereof, or after the 
 
 b Com. Pap. 1857-8, v. 12, pp. 12, 29 Viet. c. 15. Com. Pap. 1866, v. 
 
 36, 45. 59, pp. 213-297. Ib. 1867, v. 59, p. 1. 
 e 11 & 12 Viet. c. 107, sees. 4-6. 30 & 31 Viet. c. 125. 
 d Hans. D. v. 187, p. '864. Act { Hans. D. v. 188, p. 349.
 
 472 
 
 LEGISLATION BY PUBLIC DEPARTMENTS. 
 
 Parlia- 
 ment the 
 trustee of 
 endow- 
 ments. 
 
 re-assembling of Parliament, should they have been 
 issued during a recess g (it is usually added), before 
 they become operative and binding. But sometimes 
 this restriction is omitted h and it is sometimes ex- 
 pressly enacted that in the event of an order, or rule, 
 being annulled in consequence of the disapproval there- 
 fore, by either House of Parliament, the rescinding 
 thereof shall be ' without prejudice to the validity of 
 any proceedings which may in the meantime have been 
 taken under the same.' ! If a scheme has been upon the 
 table of both Houses for the prescribed time, without 
 any address against it, it passes out of the hands of 
 government, who can no longer delay its operation j 
 Sometimes direct provision is made as to the mode of 
 objection thereto. 
 
 A noticeable example of this is afforded by the Oxford and Cam- 
 bridge University Reform Acts, passed in 1854 and subsequent years, 
 which empowered the executive commission, or governing body, of 
 the university, to frame ordinances, regulations, and statutes which 
 should be laid before both Houses of Parliament, and, if not objected 
 to by an address to be presented by either House within ' forty 
 days,' be approved, by order of the Queen in council. k 
 
 It was laid down as a principle by the commis- 
 sioners appointed in 1864, to enquire into the manage- 
 ment of endowed schools in England * that Parliament 
 is the only body that can be considered as the supreme 
 trustee of endowments, and that in some form or other 
 the approval of Parliament ought to be obtained to all 
 schemes for the re-settlement of educational trusts. 1 
 
 Pursuant to this report, the Act of 1869 was passed, 
 which provided for the appointment of a small commis- 
 
 Acts 20 & 29 Viet. c. 112, sec. 3 ; J Hans. D. v. 234. p. 857. 
 
 c. 124, sec. 11 ; c. 125, sec. 26 ; 32 & k Oxford, Acts 17 & 18 Viet. c. 81, 
 
 33 Viet. c. 42, sec. 8 ; 38 Vic. cc. 5 sec. 36 ; 25 & 26 Viet. c. 26, sec. 7. 
 
 and 28. And see 32 & 33 Viet. c. 20. Cara- 
 
 h See 39 & 40 Viet. c. 57, and 40 bridge, Act 19 & 20 Viet. c. 88, 
 
 & 41 Viet. c. 23. sec. 40. 
 
 1 38 & 39 Viet. c. 77, sec. 25, and > Com. Tap. 1867-8, v. 28, pt. 1, 
 
 c. 91, sec. 7. p. 635.
 
 PARLIAMENTARY CONTROL. 473 
 
 sion to draw up schemes and trust deeds for the 
 re-constitution of the endowed schools. These draft 
 schemes to be submitted to the governing bodies of the 
 particular schools, and after due enquiry, to the com- 
 mittee of council on education, for their sanction. An 
 appeal is allowed, in certain cases, to the Privy Council. 
 Finally, all such schemes (unless objected to, by a peti- 
 tion) must be laid before both Houses of Parliament for 
 ' forty days ' 
 
 [Extended to ' four months ' in the case of certain specified schemes 
 which were submitted to Parliament in 1873 by Act 36 & 37 Viet. 
 c. 7 ; amended and extended to ' two months ' in all other cases by 
 Act 36 & 37 Viet. c. 87, sec. 15]. 
 
 If within that time either House address her Majesty to 
 withhold her consent from any scheme, or any part withhoi 
 thereof, the Crown can only assent to so much of the afent yal 
 same as may not have been objected to. m 
 
 On June 30, 1871, an address was moved to the Queen, in the 
 House of Lords, that for certain reasons therein stated her Majesty 
 would withhold her assent from the proposed scheme of the Endowed 
 School Commissioners for the management of Emanuel Hospital 
 Charity School, heretofore governed by the Corporation of the City 
 of London. 11 The motion was opposed by ministers, but agreed to 
 on " division. Immediately afterwards another address was moved 
 praying that the royal assent might also be withheld from the 
 schemes relating to St. Margaret's Hospital and the Greycoat 
 Hospital, Westminster. No reason was assigned for the request in 
 the motion ; but the mover stated that these schemes were open to 
 the same objections that had been urged against the first-mentioned 
 scheme. Notwithstanding the opposition of ministers, this motion 
 was agreed to. On July 3 her Majesty's answer was reported, 
 ' That she would withhold her assent from the several schemes 
 objected to in these addresses.' P Subsequently the commissioners 
 prepared a second scheme for Emanuel Hospital, which was more 
 acceptable to the governors of that institution. On May 13, 1873, 
 an address to the Queen was moved in the House of Commons, that 
 
 m Act. 32 & 33 Viet. c. 56. sec. 41. against the proceedings of the corn- 
 Hans. D. v. 207, p. 300. Ib. v. 213, missioners in this case, Coin. Pap. 
 p. 551. 1871, v. 55, p. 871. 
 
 n The Corporation of London had Hans. D. v. 207, pp. 862-902. 
 petitioned Parliament, protesting v 2b. p. 962.
 
 474 LEGISLATION BY PUBLIC DEPARTMENTS. 
 
 the royal assent might be withheld therefrom. After a long debate 
 the motion was negatived. 
 
 General Inclosure Act of 1845, q first empowered 
 orders. commissioners to issue provisional orders for authorising 
 the inclosure of commons, subject to the ratification of 
 Parliament, instead of the method previously resorted 
 to, of obtaining private Acts for such a purpose. In 
 the execution of their powers, however, the commis- 
 sioners did not sufficiently consider the general conve- 
 nience and comfort of the neighbourhood interested in 
 the preservation, as commons, of the lands in question, 
 but were too ready to grant all applications for in- 
 closures, on compliance with certain fixed conditions. 
 Accordingly, in 1869, the House of Commons appointed 
 a committee to investigate the matter, which recom- 
 mended that no further inclosures should take place 
 until a revised Inclosure Act had been passed . Where- 
 upon, several years elapsed before the House again 
 passed an Act to give effect to provisional orders for 
 inclosures. And, in 1872, the inclosure commissioners 
 reported that they had suspended their operations, until 
 Parliament should have agreed upon a definite policy 
 in regard to inclosures, the government, meanwhile, 
 making repeated attempts to pass a new Inclosure Act, 
 but without success. 1 At length, on February 10, 1876, 
 General the home secretary brought in a General Inclosure Bill, 
 ^closure wn i c ] 1 was a g ree d to by Parliament. Under this Act 
 provisional orders may be issued for the regulation or 
 inclosure of commons, after affording to all parties 
 interested an opportunity of being heard for or against 
 the proposal : such provisional orders to be afterwards 
 subjected to the investigation of a standing parliamentary 
 committee, who shall consider the details of the schemes, 
 report thereon, and remit for the consideration of the 
 
 > 8& 9 Viet, c. 118. 
 ' Hans. D. v. 212, p. 488 ; v. 216, p. 433 ; v. 225, p. 1941.
 
 UNDER PARLIAMENTARY CONTROL. 475 
 
 inclosure commissioners any proposed modifications 
 therein. Then the Bill to confirm the orders is to be 
 introduced and passed.' Such a committee was first 
 appointed by the House of Commons (upon the first 
 report of the inclosure commissioners under the new 
 Act) on February 26, 1877. It reported in favour of 
 the confirmation of the proposed inclosures, subject to 
 certain conditions, but not requiring the reconsideration 
 of the schemes by the commissioners.* 
 
 The select committee on commons (to consider 
 reports of the inclosure commissioners) appointed in 
 1877, was nominated in part by the House, and in part 
 by the committee of selection. The inclosure com- 
 missioners appeared before the committee, and explained 
 their course of proceedings under the new Act, and the 
 mode in which their reports are investigated and dealt 
 with by this committee. 11 All the necessary forms to be 
 used under the Act are appended to the report of this 
 committee/ 
 
 In 1877 ministers having proposed that rules to be prisons' 
 made pursuant to the Prisons' Act should not come into Act- 
 operation until they had been laid for forty days before 
 both Houses of Parliament an amendment was moved 
 to require such rules to be distinctly approved by reso- 
 lution of each House. It was urged that, in the present 
 pressure of business, it would be difficult for an unofficial 
 member to get an opportunity of moving adverse reso- 
 lutions to these rules. On the other hand, it was stated 
 that if special approval was obligatory, the House might 
 be the whole session discussing rules on very trivial 
 points. After much debate, the amendment was nega- 
 tived and the ministerial proposal agreed to. w 
 
 By the Electric Lighting Act, 1882, the Board of 
 
 Han. D. v. 229, p. 1533 ; v. 230, T Ib. Appx. Nos. 1, 2, 3. 
 
 p. 1034. Act. 39 & 40 Viet. c. 56. w Hans. D. v. 233, pp. 515-528. 
 
 * Cora. Pap. 1877, v. 10, p. 39. And see v. 234, p. 1801. 
 Id. Evid. p. 7.
 
 476 LEGISLATION BY PUBLIC DEPARTMENTS. 
 
 Trade is empowered to grant provisional orders autho- 
 rising the supply of electricity for any public or private 
 purpose, at their discretion, subject to confirmation by 
 Parliament. x 
 
 This Act has given occasion to much criticism on the 
 provisional order system. It is evident ' that the system 
 can only be worked efficiently in conjunction with 
 thoroughly comprehensive general acts applicable to 
 each object for which provisional orders are recog- 
 nised.' y 
 
 Report on I n vo l. 7 of the Journal of the Statistical Society of Ireland 
 tioi^by (P- 138 ) wiU be found a Report of a Committee of the Society on 
 means of Legislation by means of Provisional Orders, in England, Scotland, and 
 pro- Ireland, made on February 20, 1877. This report points out the pro- 
 
 orders gress and result of the provisional order system, during the thirty years 
 in which it has been in operation, and the extent of its application, 
 in each of the three kingdoms. Also, the extent to which a direct re- 
 sponsibility to Parliament has been introduced, both for the general 
 principles and the details of such legislation, in particular cases. It 
 suggests a larger application of the system to Ireland, as well as for 
 reasons of economy, and to relieve the Irish people ' of the grievous 
 burden ' of legislation by local Bills, as also to secure a more general 
 harmony in the local jurisdiction and local legislation of the different 
 parts of the United Kingdom. 
 
 On February 25, 1881, an address to the Crown was moved in the 
 Lords that the order in council for reducing number of divisions 
 of High Court of Justice, and abolishing titles of lord chief justice 
 of Common Pleas and lord chief baron, might not come into oper- 
 ation. This motion had been previously made, and withdrawn : it 
 was therefore opposed, as unprecedented : and a motion to adjourn 
 the House was carried. 
 
 Irish The Irish Coercion Act of 1881 requires that every 
 
 Coercion warrant i ssue d under it for the apprehension of offenders 
 shall be laid before Parliament. This is ' a novel and 
 mischievous attempt to control the exercise ' of the 
 powers intrusted to government, and it will give rise to 
 discussions in particular cases which will be a serious 
 hindrance to legislative work. * The tendency of Par- 
 
 * See also the Educational Endowment (Scotland) Act, 1882. 
 ' See further L. T. v. 7.">, p. 251.
 
 UNDER PARLIAMENTARY CONTROL. 477 
 
 liament to attempt an impossible supervision over the 
 details of executive and judicial business is one of the 
 causes of its increasing difficulties in overtaking its 
 arrears of work.' a 
 
 On July 28, 1871, a member of the House of Lords moved an St. Kath- 
 address to the Queen, requesting that in any scheme to be agreed |*r ine . s 
 upon in regard to St. Katharine's Hospital, formerly situated near 
 the Tower, but since transferred to Regent's Park, ' due attention 
 may be paid to the spiritual and educational necessities of the 
 parishes adjacent to the old precincts of the hospital ' (a royal com- 
 mission of enquiry into the charitable foundation having advised 
 that no local claims should be recognised in relation thereto). b The 
 motion was opposed by ministers, but carried on division. Her 
 Majesty replied that she would take this address into consideration 
 together with the report of the commission." 1 
 
 On July 26, 1872, three several addresses were passed by the House 
 of Lords praying that the royal assent might be refused to certain 
 schemes of the Endowed School Commissioners. On August 1, her 
 Majesty replied, ' That she would withhold her assent from these 
 schemes.' 
 
 Much dissatisfaction having arisen in regard to the Endowed 
 proceedings of the commissioners under the Endowed School 
 Schools Act of 1869, the vice-president of the Educa 
 -tion Board moved, on February 11, 1873, for the ap- 
 pointment of a select committee to enquire into the 
 operation of that Act before renewing the powers of 
 the commissioners, which were about to expire. He 
 stated that the information to be elicited by this com- 
 mittee would be of much service to the government in 
 determining upon the work to be done in future. Never- 
 theless, the government would act under a full sense of 
 their own responsibility in the matter. The motion was 
 agreed to. e The committee reported on June 17. They 
 recommended the continuance of the Act, which would 
 shortly expire, for three years, with power to the Privy 
 Council to further extend it, for one or two years. 
 
 L. T. v. 70, p. 310. d Ib. p. 943. 
 
 b Com. Pap. 1871, v. 16, p. 371. Ib. v. 214, p. 289. 
 
 e Hans, D. v. 208, p. 384.
 
 478 LEGISLATION BY PUBLIC DEPARTMENTS. 
 
 su gg este d some important amendments, chiefly 
 report on to facilitate alterations, by the Education Department, 
 schools. a * the instance of persons interested, to schemes sub- 
 mitted thereto by the commissioners. Also, that the 
 period of consideration by Parliament of opposed 
 schemes should be extended from forty days to two 
 months, and that such period shall be within the same 
 session. Unopposed schemes to be approved and en- 
 forced without being laid before Parliament.* Effect 
 was given to these recommendations by the Act 36 & 37 
 Viet. c. 87, excepting that the Act of 1869 was extended 
 for one year only, and not three years, as recommended 
 by the committee. This necessitated renewed discus- 
 sion in the ensuing session, when an Act was passed 
 transferring the powers of the Endowed School Com- 
 missioners to the Charity Commissioners (37 & 38 Viet. 
 c. 87). Accordingly on December 31, 1874, the En- 
 dowed School Commissioners presented a final report, 
 which recapitulated all that they had done during their 
 term of office. The special powers of the Endowed 
 School Commissioners were further prolonged under a 
 new commission by an Act 1875, c. 29. 
 
 In Mr. Gladstone's address to the electors of Green- 
 wich on January 23, 1874, announcing the dissolution 
 of Parliament, and again offering himself for re-election, 
 he remarks that, ' the duties of Parliament have reached 
 a point where they seem, for the present, to defy all 
 efforts to overtake them. I think we ought not only to 
 
 CJ */ 
 
 admit, but to welcome, every improvement in the organi- 
 sation of local and subordinate authority which, under 
 the unquestioned control of Parliament, would tend to 
 lighten its labours and to expedite the public business.' g 
 By the Public Schools (England) Act of 1 868, the 
 governing bodies of the seven great public schools 
 enumerated therein, are empowered to make or amend 
 
 ' Com. Pap. 1873, v. 8, p. 299. London Times, Jan. 24, 1874, p. 8.
 
 UNDER PARLIAMENTARY CONTROL. 479 
 
 any existing statutes or regulations relating to such Bowers 
 school, under certain restrictions and limitations de- Public 
 
 TI Schools 
 
 fined by the Act. These statutes to be approved by Act . 
 the special commissioners appointed under this Act, and 
 afterwards by the Queen in council, before going into 
 operation. If within a certain time the governing bodies 
 of any of those schools shall fail to make the necessary 
 statutes and regulations for the management of the 
 same, the commissioners shall frame them, and submit 
 them for the approbation of the crown ; but with this 
 proviso, that the approval or disapproval of the crown 
 to any statute, &c., made by the commissioners shall not 
 be signified until the same ' has been laid before both 
 Houses of Parliament for not less than forty days.' So 
 that if the governing body and the commissioners agreed 
 as to a particular scheme it would not be necessary to 
 submit the same to Parliament ; but if they did not 
 agree, any scheme framed by the commissioners must 
 be laid before the two Houses. h 
 
 Pursuant to the statute aforesaid, two of the great schools (Eton 
 and Westminster) re-constituted themselves. But the five other 
 schools failed to do so. Consequently the power to frame their 
 statutes devolved upon the special commissioners. Accordingly in 
 February, 1870, the commissioners framed statutes, providing therein 
 that the governing bodies of these schools should be exclusively 
 taken from members of the Church of England. 1 Exception was 
 taken to this restriction in the House of Commons ; J and on April 5, 
 1870, an address was moved therein to her Majesty, requesting that 
 the same might be expunged from the statutes, because in the En- 
 dowed Schools Act, passed in 1869, the principle of that limitation 
 had been abandoned by Parliament. 11 Ministers consented to this 
 address, but suggested an alteration in its terms, expressive of a desire 
 that the statutes of the said five schools should be framed in accord- 
 ance with the principle adopted in the Endowed Schools Act, viz., 
 that, except in certain cases, religious opinion should not be a dis- 
 qualification for membership in the governing body of a public school. 1 
 
 b Act 31 & 32 Viet. c. 118, sec. 19. J Hans. D. v. 199, p. 1143. 
 
 And see Hans. D. v. 201, p. 188 ; v. k Ib. v. 200, p. 1379. 
 
 203, p. 1047. * Ib. v. 201, pp. 176-193. 
 
 1 Com. Pap. 1870, v. 54, p. 529.
 
 480 LEGISLATION BY PUBLIC DEPARTMENTS. 
 
 Public Afterwards Mr. Russell Gurney (a commissioner under the Act) pro- 
 posed an amendment, that the statutes should be referred back by 
 the crown to the commissioners, ' in order that they might have 
 an opportunity of reconsidering ' the same, ' with reference to the 
 principles applied in the Endowed Schools Act to other endowed 
 schools.' This amendment was agreed to, and the address passed. 
 Her Majesty replied that she would give directions accordingly. 11 
 
 Thereupon, the Public Schools Commissioners re-considered the 
 matter, and removed the restriction objected to, as respected three of 
 the schools, but retained it on behalf of Harrow and Winchester. 
 The new statutes were laid upon the table. It was afterwards moved 
 to resolve, that the continuance of the restriction in respect to the 
 governing bodies of the aforesaid schools is inexpedient. The 
 motion was opposed by Mr. Gladstone (the premier) and others, on 
 the ground that the commissioners were bound by the law and could 
 not act on a principle of expediency, and that ' any resolution of the 
 House against their determination would not be operative.' It was 
 tnerefore negatived on division.? Meanwhile ministers brought in a 
 short Bill, to continue the powers of the governing bodies of the 
 seven schools, and of the special commissioners, for a further period. 
 In committee thereon an attempt was made to add a clause, requiring 
 any statutes made by the governing bodies of these schools to be laid 
 before Parliament, before they should receive the royal sanction. But 
 this was negatived, and the Bill passed. 1 
 
 Subsequently by order in council of February 8, 1871, her Majesty 
 disallowed the statutes framed by the special commissioners in Feb- 
 ruary 1 870, on behalf of the five great schools, but did not disallow 
 the amended statutes in relation thereto, because it appeared they 
 had been made in error, inasmuch as the crown had no right, upon 
 the recommendation of the House of Commons, to send back the 
 original statutes to the commissioners for reconsideration, but could 
 only ' allow or disallow them.' At the same time, another Act was 
 passed, prolonging the powers of the governing bodies of the seven 
 schools, under the Act of 1868, to August 25, 1872, until when they 
 should have the sole right to frame statutes for the government of 
 the said schools. They could now take the initiative in the recon- 
 sideration of the whole question. 1 " [By the Act 35 & 36 Viet. c. 54, 
 their powers were further prolonged for another year.] 
 
 Notwithstanding the passing of this Act, the House of Commons 
 on June 13, 1871, agreed to an address (on division) requesting the 
 Queen to disallow the statute, laid upon the table, as above stated, 
 
 m Hans. D. v. 201, p. 1683. 
 Ib. v. 202, p. 676. 
 Ib. v. 203, p. 078. 
 v Ib. p. 988. 
 
 " Ib. p. 1047. 33 & 34 Viet. c. 
 84. 
 ' 34 & 35 Viet. c. 60. Hans. D. 
 T. 204, p. 749.
 
 UNDER PARLIAMENTARY CONTROL. 481 
 
 whereby membership in the Church of England was made obligatory 
 in appointments to the governing body of Harrow School. On July 7 
 the Queen's answer was reported : That she would signify her disap- 
 proval of that proviso.' The action of government in this case was 
 condemned in the House of Lords by the archbishop of York, one of 
 the commissioners under the Act of 1868.* 
 
 By the Act 32 & 33 Viet. c. 39, provisional orders for the 
 government of hospitals, and other endowed institutions, in Scotland, 
 after being drafted by the local authorities, approved by the parties 
 interested, and issued by the secretary of state, may not go into 
 operation until they have been laid before both Houses of Parlia- 
 ment for forty days, and no address has been presented by either 
 House objecting to the same. 
 
 By the Act 32 & 33 Viet, c, 86, the Treasury may by a minute 
 direct that certain statements, or returns, heretofore required to be 
 laid before one or both Houses of Parliament, shall be discontinued, 
 as being no longer necessary, provided that every such minute shall 
 be laid before both Houses of Parliament for at least thirty days, 
 and shall be inoperative if, within that time, a resolution against its 
 coming into operation is passed by either House. 
 
 The two following cases deal with public funds, ap- Consent 
 propriated by Parliament, so the consent of both Houses Houses 
 is necessary to confirm or annul the order. necessary. 
 
 By the Elementary Education Act, 33 & 34 Viet. c. 75, 20, 
 . compulsory purchases of land for sites of school-houses may be made Precs- 
 by the School Boards, with consent of the Education Department ; dents, 
 but no such order shall be valid unless confirmed by a special Act of 
 Parliament. 11 
 
 By the Act 32 & 33 Viet. c. 110, 16, the Treasury are em- 
 powered to fix a scale of fees to be charged by the Board of Charity 
 Commissioners. But the same must be laid before both Houses of 
 Parliament for thirty days, and if it ' be disapproved of by both 
 Houses within one month,' such fees, or such parts thereof as shall 
 be disapproved of, shall not be imposed. 
 
 The War Office having issued a circular of instructions to volun- 
 teers, defining their duty in affording aid to the civil power in cases 
 of riot, a copy of the same was presented to both Houses of Parlia- 
 ment, on June 13, 1867. A debate arose in the House of Commons 
 on June 28, upon a motion designed to express disapprobation of 
 certain parts of this circular. Ministers denied that it was intended 
 to bear the objectionable construction placed upon it, but expressed 
 
 5 Hans. D. v. 206, p. 2044 ; v. 207, - For an Act to confirm such 
 
 pp. 347, 1314. orders, see 37 & 38 Viet. c. 90. 
 * /*. v. 207, p. 1279. 
 
 VOL. I. I I
 
 482 LEGISLATION BY PUBLIC DEPARTMEXTS. 
 
 themselves willing to reconsider the terms thereof. The motion was 
 then put and agre,ed to. v A similar discussion arose in the House of 
 Lords, but assurances being given that the circular would be re- 
 considered, no motion was made. w 
 
 By the Act 36 & 37 Viet. c. 48, 29, general orders made by 
 the railway commissioners for regulating proceedings before them 
 must be submitted to the lord chancellor for his approval, and 
 afterwards submitted to both Houses for ' two months, 'during which 
 they are liable to be disapproved, in whole or in part by either House, 
 in which case the order so objected to shall have no force or effect. 
 A depart- In further illustration of parliamentary interference in a case 
 
 mental where the requirements of law appear to have been disregarded by a 
 1 ^ n mere departmental regulation, see the discussion in the House of Corn- 
 in House mons on April 3, 1865, upon a member calling attention to the con- 
 of Com- duct of the chief commissioner of police in refusing to allow the metro- 
 politan police to flog juvenile offenders under the order of magistrates, 
 although they were required to inflict such punishment by law." 
 
 These examples will suffice to show that the practice 
 of entrusting legislative powers, under certain restric- 
 tions and limitations, to executive departments is in- 
 creasingly resorted to by Parliament. But admitting 
 its obvious advantages, it is liable to serious abuse. It 
 has been well observed that there ' is no modern inno- 
 Necessary vation which needs to be watched with more jealousy 
 Parii than the practice of delegating the authority of Parlia- 
 ment in men t (even in small and local matters), with no better 
 
 entrusting V 
 
 legislative check than the chance that some unusually vigilant 
 legislator may move an address to reject the scheme of 
 law before it has had time to mature into an indefeas- 
 ible enactment. The whole scope and genius of our 
 legislative system is to afford by the forms of Parlia- 
 ment every possible security that no law shall be made 
 which has not been deliberately and repeatedly affirmed 
 in all its details, and it would be alien to the essence of 
 free government to substitute for this a system in which 
 the relations of the crown and Parliament should be re- 
 versed, and statutes should be octroyes by the govern- 
 ment, and nothing but a bare veto left to the Lords and 
 Commons.' y 
 
 T Hans. D. v. 188, pp. 728-744. * Sat. Kev. May 7, 1870, p. 602. 
 
 * Ib. p. 751. Ib. \. 178, p. 7J9. And see Hans. D. V. 187, p 69.
 
 UNDER PARLIAMENTARY CONTROL. 483 
 
 In 1870 the lord chief justice of England and all the judges Curtail- 
 unanimously concurred in protesting against the powers proposed to m ent of 
 be conferred, by the High Court of Justice Bill, upon a committee Fu^ia] 
 of the Privy Council to make or alter the law relating to the consti- tribunals, 
 tution, procedure, or practice of the court, notwithstanding that the 
 new rules were to be afterwards laid before Parliament. They con- 
 tended that ' subordinate rules of procedure and practice ' should be 
 left to be settled by the judges of the new court, and that ' the more 
 important matters of procedure ought to be considered and deter- 
 mined by Parliament,' and ' certain fixed guiding principles and 
 rules' thereupon embodied in the Bill, so as to maintain 'the prin- 
 ciple that the judicature should be in all respects independent of the 
 executive.' a Similar objections were made in the House of Lords to 
 conferring such large quasi-legislative powers upon the Privy Coun- 
 cil, as giving to the executive government great and unconstitutional 
 preponderance in dealing with matters that ought to be determined 
 by Parliament. 1 * In deference to these opinions, ministers agreed 
 that the proposed rules should have the direct sanction of Parliament 
 before the Bill came into operation. In this shape the Bill passed 
 the Lords, but it was withdrawn in the House of Commons before 
 the second reading. In 1871 these measures were not reintroduced, 
 though preparations were made for introducing them in an improved 
 shape. 
 
 In 1872 Lord Chancellor Hatherley introduced a Bill entirely 
 confined to the final appellate jurisdiction as exercised by the House 
 of Lords and Judicial Committee of Privy Council. 
 
 In 1873 Lord Chancellor Selborne brought in a Bill for consti- 
 tuting a supreme Court of Judicature, and to refer part of the juris- 
 diction of the said Judicial Committee to it. He embodied in his 
 Bill the main points of procedure, so that this important matter 
 should not be left to an external authority, but be dealt with by 
 Parliament itself. But power was also given to supplement these 
 rules by order in council. The said rules to be subject to objection 
 by either House of Parliament, to be signified by an address passed 
 within forty days, in which case their operation would be annulled.* 1 
 The new Bill, which became law, broadly and intelligibly laid down 
 the principles upon which the courts should proceed in carrying out 
 the new law reforms. 6 Nevertheless, 1 in 1875, Lord Chancellor 
 Cairns proposed a Bill to amend the Judicature Acts, and to allow 
 the rules to be enacted by order in council, on the recommenda- 
 tion of the judges ; f all such rules, however, to be laid before both 
 
 Com. Pap. 1871, v. 58, p. 259. 37 Viet, c. 65, 68. 
 
 Hans. D. v. 201, pp. 1564-1589. e Ib. v. 216, p. 643. 
 
 Ib. p. 1922. f Sat. Rev. Feb. 20, 1875, p. 240. 
 
 Ilaus. D. v. 214, p. 348 ; 36 & Haus. D. v. 22, p. 148. 
 
 I r2
 
 484 LEGISLATION BY PUBLIC DEPARTMENTS. 
 
 Houses for forty days, and if disapproved by either House to be 
 annulled, but without prejudice to the validity of past proceedings 
 under the same.* One hundred days were allowed for objections to 
 rules under the Irish Judicature Act, 40 & 41 Yict. c. 57, 69. 
 
 Growth The system of authorising matters of local concern 
 
 of pro- . " 
 
 visional to be dealt with by the issue of provisional orders 
 tkm! la ~ under the general authority of Parliament originated in 
 1845, in the case of inclosures of lands, pursuant to the 
 Act 8 & 9 Viet. c. 118. At first the orders issued 
 under this Act did not require parliamentary confirma- 
 tion. But by the Act 15 & 16 Viet. c. 70, passed in 
 1852, all such provisional orders must be confirmed by 
 Parliament before the inclosures are proceeded with. 
 Since then there has been a gradual and successful 
 extension of the principle of provisional legislation to 
 other matters of local concern. 11 This has contributed 
 very materially to relieve the Imperial Parliament from 
 the great and growing pressure of local business, 
 and to ensure the determination of such questions 
 after previous enquiry by tribunals more competent 
 for their satisfactory settlement. 1 By various Acts 
 of Parliament authority has been given to the Home 
 Office, the Board of Trade, the Local Government 
 Boards, the Inclosure Commission, the Charity Com- 
 mission, the Commissioners of Public Works (Ireland), 
 the Education Department, and other departments 
 of state, to grant provisional orders or certificates, 
 and to approve of schemes for the construction, im- 
 provement, or management of particular works, or 
 local affairs, which have hitherto required the direct 
 sanction of Parliament ; or else have been undertaken 
 by the executive government upon its own responsi- 
 bility. j 
 
 * 38 & 39 Viet. c. 77, 25. May, Parl. Prac. ed. 1883, pp. 
 
 h Com. Pap. 1877, v. 68, p. 169. 760-767, 787. Mr, Bruce, Hans. D. 
 
 ' Fitz James Stephen on Parl. v. 2 JO, p. 320. 
 Govt. in Cont. Rev. v. 23, p. 1.
 
 UNDER PARLIAMENTARY CONTROL. 485 
 
 By the use of such machinery legislation is simplified, s ""j-!| lfie 
 while the supervision and control of Parliament is main- mentary 
 tained. For the enabling statutes invariably require lafion. 
 the departments from whence a provisional order, certi- 
 ficate, or scheme may issue, to lay the same before both 
 Houses of Parliament for confirmation.* 
 
 There will always remain a large number of applica- Advan- 
 
 L i 1,4. i. tagesof 
 
 tions, e.g. where compulsory powers are sought, or where pro- 
 there are strong competing interests, which must neces- ^derlf 1 
 sarily be initiated and proceeded with in the ordinary 
 manner by Bill ; but it is a manifest advantage to 
 permit the promoters of schemes locally approved, and 
 involving no serious principle, to have recourse to pro- 
 visional orders which can be obtained at a compara- 
 tively moderate cost thereby lightening materially the 
 burden of private business before parliamentary com- 
 mittees, while the hearing and adjudication of all im- 
 portant questions, and the final decision in all cases, are 
 still reserved to Parliament. 1 The sanction of Parlia- 
 ment is given to provisional legislation by an act which 
 in its progress through Parliament is treated as a public 
 Bill. Such Bills either (as in the case of provisional 
 orders under the Public Health Acts or Inclosure Acts) 
 refer to the particular orders in the body of the confirming 
 Act, and enumerate them in a schedule ; or (as in the 
 case of orders issued in relation to fisheries, harbours, 
 or railways) set them out at length in the schedule of 
 the confirming Act. 
 
 For a complete list of all public general Acts of Parliament to 
 confirm provisional orders, schemes, &c., passed up to 1874, see 
 Appendix to Chronological Index to the Statutes, published by 
 
 k For a return of the several Acts And see the evidence of Mr. Wyatt, 
 
 authorising the issue of provisional an experienced Parly, agent, as to 
 
 orders, &c., by any public depart- the working of the provisional order 
 
 ment, see Com. Pap. 1871, v. 68, pp. system, with suggestions for au 
 
 397, 403. ameuded procedure, Ib. 1877, v. 16, 
 
 1 Com. Pap. 1872, v. 54, p. 314. pp. 581, 638.
 
 486 LEGISLATION BY PUBLIC DEPARTMENTS. 
 
 Pro- authority in 1874. Since 1866, however, such confirming Acts are 
 
 orders 1 no * i nvar i a bly printed in the public general statutes. 
 
 When the orders are merely referred to in the Acts, 
 and not set out, they are rarely discussed in detail, but 
 are confirmed or rejected without change. 
 
 All persons aggrieved by any provisional orders have 
 a right to petition Parliament against them, as they 
 would against a private Bill. Their objections will be 
 carefully considered by the House wherein the petition 
 is presented, before the order is confirmed. 11 
 
 Ample power is thus secured to Parliament to con- 
 trol and amend all provisional legislation ; a power which 
 is sometimes exercised to alter or to reject particular 
 orders. 
 
 On June 26, 1871, in committee on a Bill to confirm certain pro- 
 visional orders of the Board of Trade in relation to tramways, all 
 the orders for constructing tramways in London were struck out, on 
 the ground that the requirements of the metropolis as a whole ought 
 to be deliberately considered by Parliament, and not in a fragmentary 
 manner.? 
 
 In 1872, a joint committee of both Houses was appointed to 
 enquire into the question of metropolitan tramways, which reported 
 on June 17. On July 3 resolutions were agreed to by the House of 
 Commons, authorising the suspension of further proceedings with 
 reference to any metropolitan tramway Bills of the present or 
 previous session, in order that the same might be reintroduced next 
 session, at the discretion of the promoters."! 
 
 But even if no formal confirmation by Parliament is 
 required on behalf of a local scheme, authorised by 
 executive authority, a mere direction in the enabling 
 
 m Com. Pap. 1867-8, v. 28, pt. 1, power committees on Bills confirm- 
 
 p. 635. ing provisional orders, to award 
 
 n See Mr. Coates' evidence before costs and examine witnesses on oath. 
 
 Com. Com e . on the Tramways Bill, And see Acts 27 <fe 28 Viet. cc. 58 
 
 Com. Pap. 1870, v. 10, p. 691 ; S.O. and 03 ; 28 & 20 Viet. c. 50. 
 
 H. of Com. 1871, No. 146 ; Act 35 & P Hans. D. v. 207, p. 639. And 
 
 36 Viet. c. 79, 45. And see Mr. see Act 34 35 Viet. c. 69. 
 
 Wyatt's evidence before Com. Corn*. > Hans. D. v. 212, p. 682. Act 
 
 on Tramways in Com. Pap. 1877, v. 35 & 36 Viet. c. 43 was passed to 
 
 16, p. 581. authorise the Board of Trade to give 
 
 See Act 34 Viet. c. 3, to em- effect to these resolutions.
 
 UNDER PARLIAMENTARY CONTROL. 487 
 
 statute, that the same shall be laid before both Houses 
 
 of Parliament will justify legislative interposition, if orders. 
 
 need be, to ratify or amend it. r 
 
 For some valuable notes on the Provisional Order System, point- 
 ing out certain serious defects in the working of it, see a paper by 
 J. Norwood (on Private Bill Legislation). 8 Also Theodore Martin's 
 pamphlet on Private Bill Legislation for similar objections.* 
 
 Hitherto the provisional orders made by government 
 departments have dealt only with matters in which the 
 capital at stake was small, the parties affected generally 
 agreed, and the opinion of the locality specially interested 
 could be easily ascertained. But on March 15, 1872, Mr. 
 Dodson (the chairman of committees) submitted to the 
 House of Commons a series of resolutions, to provide for 
 substituting, as far as possible, an extended and improved 
 system of provisional orders for the present system of 
 legislation on local and personal Bills. Such orders to be 
 obtained on application to a permanent tribunal of a judi- 
 cial character, which should hold its sittings in various 
 parts of the United Kingdom, and before which promoters 
 and opponents should be heard in open court ; the deci- 
 sions of this tribunal to be submitted for the confirma- 
 tion of Parliament. In case of either House admitting an 
 appeal against any decision of this tribunal, the same to 
 be referred to a joint committee of both Houses, to be 
 composed in the manner recommended in 1869, by the 
 joint committee on the despatch of business in Parlia- 
 ment. After a brief debate on these resolutions, their 
 further consideration was adjourned. 11 Upon a resump- 
 tion of the debate, it appeared that, while members were 
 generally in favour of a further extension of the system 
 of provisional orders, they were scarcely prepared to 
 depute to any body outside of Parliament the determi- 
 nation of such questions. Finally, the House agreed to 
 
 r See the Huddersfield Burial ' Irish Stat. Soc. Journ. v. 6, p. 430. 
 Ground Act, 15 & 16 Viet. c. 41. * L. 1872. 
 May, Parl. Prac. ed. 1883, p. 788. Haiis. D. v. 210, pp. 17-30.
 
 488 
 
 LEGISLATION BY PUBLIC DEPARTMENTS. 
 
 orders. 
 
 Public 
 contracts. 
 
 resolve, that the system of private legislation calls for 
 the attention of Parliament and of government, and 
 requires reform/ 
 
 Meanwhile, on June 13, Mr. F. S. Powell proposed a series of 
 resolutions on private Bill legislation, with a view to the limitation 
 of the same ; but after a brief discussion the debate was adjourned. 
 It was resumed on July 4, again adjourned, and not resumed. On 
 June 17 the president of the Board of Trade (Mr. Chichester 
 Fortescue) stated that the question was still under the considera- 
 tion of government, although his own responsibility was mainly 
 limited to an endeavour to ascertain how far the system of pro- 
 \isional orders could be improved and extended. w On June 17, 1873, 
 the president of the Board of Trade stated that the various depart- 
 ments were steadily increasing the number of provisional orders 
 issued by them ; and the Board of Trade might reasonably extend 
 the system by enabling local authorities to obtain such orders for 
 the erection of gas and water works, instead of their being com- 
 pelled to proceed by Bill. But he had failed to discover any other 
 method by which government could extend the system.* In "1874, 
 Mr. Dodson was asked whether he intended to reintroduce his 
 above-mentioned resolutions of 1872. He replied that he preferred 
 to leave the matter in the hands of the government.? 
 
 Meanwhile, in 1872, Mr. Theodore Martin, a parliamentary agent, 
 published a pamphlet, in which he expressed his conviction, shared 
 in, he believed, in the main by all his professional brethren, that the 
 existing system of private Bill legislation is satisfactory to the 
 suitors in Parliament, and that the reforms therein proposed by Mr. 
 Dodson were objectionable. 
 
 Contracts entered into by Public Departments. 
 
 An important question akin in principle to that 
 which has been just considered has arisen of late years 
 with regard to contracts, to be entered into between 
 any department of the executive government and other 
 parties, for the performance of any work or service, the 
 undertaking of which has been, or may afterwards be, 
 authorised by Parliament. It is manifest that the re- 
 sponsibility of entering into such contracts properly 
 rests upon the executive alone. But it is equally clear 
 
 Hans. I), v. 210, pp. 507-529. 
 ' 2b. v. 211, p. 1854. 
 
 Ib, v. 217, p. 498. 
 i Ib. v. 218, p. 339.
 
 UNDER PARLIAMENTARY CONTROL. 489 
 
 that the government have no constitutional authority to Public 
 make a contract which shall be binding on the House of 
 Commons," by whom the necessary funds for carrying on 
 the contract must be supplied ; and that the consent of 
 Parliament should be first obtained to all new contracts. 
 
 1 It would not be wise to lay down the general and inflexible rule 
 with regard to all our public departments, that it should be abso- 
 lutely necessary before a contract for any service is entered into 
 that a vote of Parliament should be taken for that particular sum.' 
 Where the service is continuous, well defined, and involves no 
 novelty, either in principle or action, it is customary to permit 
 contracts to be entered into on the discretion of responsible depart- 
 ments before a vote is taken. b 
 
 On June 28, 1869, an amendment was proposed, in Committee 
 of Supply, to reduce a vote for works on the Houses of Parliament 
 by 2,500, with a view to censure the Office of Works for under- 
 taking a new kind of decoration (with mosaics) in the Central Hall, 
 because it had been contracted for previously to its being sanctioned 
 by a parliamentary vote. After a short discussion, the amendment 
 was negatived. But on July 8, on the report of the resolutions, an 
 amendment was again moved, to reduce the vote by 5,500 in order 
 to prevent certain structural alterations of the Central Hall, as well 
 as to condemn the decoration thereof with mosaic work. Another 
 amendment was then offered by the commissioner of works (Mr. 
 Layard) to reduce the vote by 3,000 only, as a guarantee that the 
 proposed structural alterations in the Central Hall should not be 
 undertaken until approved by Parliament. With regard to the 
 mosaic work, for which contracts had already been made, he admitted 
 that he had acted prematurely, and threw himself upon the indulg- 
 ence of the House. His amendment was then agreed to. d On July 
 26 the matter was again brought forward, by a motion for the ap- 
 pointment of a select committee to enquire into the circumstances 
 under which a contract had been made by the Office of Works with 
 a private company for the decoration of the Central Hall of the 
 Westminster Palace ; but upon satisfactory explanations being 
 afforded by Mr. Layard the motion was withdrawn. 6 
 
 Furthermore, that if any contract be entered into by 
 
 See Smith's Parl.Rememb. 1860, d Ib. pp. 1429-1445. 
 
 p. 75. Judgment of the Court of e Ib, v. 198, pp. 708-720 ; v. 201, 
 
 Queen's Bench in the Churchward p. 394. It was afterwards deter- 
 
 case, 1865, cited post, p. 772. mined by the Board of Works to 
 
 b Mr. Gladstone, Hans. D. v. 197, abandon the mosaic decorations, Ib. 
 
 p. 1439. v. 203, p. 916. 
 
 c Hans. D. v. 197, p. 683. ]
 
 490 LEGISLATION BY PUBLIC DEPARTMENTS. 
 
 executive department for work to be performed, 
 the cost of which will exceed the amount already voted 
 by Parliament for the service to be contracted for, such 
 contract should expressly state that payments on behalf 
 of the same would be made ' out of moneys to be voted 
 by Parliament ; ' and that application should be made 
 to Parliament for a further appropriation to cover such 
 increase of expenditure. This would afford an oppor- 
 tunity to the House of Commons to express its disap- 
 proval of the matter, if it should think fit to do so. 1 
 
 The principle of the control of Parliament, and 
 especially of the House of Commons, over contracts, 
 was first established, in the years 1859 and 1860, by 
 a committee of the House of Commons appointed to 
 enquire into certain transactions arising out of existing 
 contracts for postal and telegraphic services. The pro- 
 ceedings of this committee, and of the House upon its 
 reports, will come under review, in another part of 
 this work (p. 767, &c.), in connection with the pri- 
 vileges of Parliament in matters of Supply. It will 
 suffice here to state the conclusions arrived at, as the 
 result of this enquiry, for the purpose of ensuring that 
 due notice shall be given to Parliament of any contracts 
 to be hereafter entered into by government, which may 
 involve prospective expenditure to an amount beyond 
 that which has been actually voted by Parliament for 
 any specified service. 
 standing gy a standing order, adopted by the House of 
 
 Order con- ~ m*-ij-ir>/i- -\ t ^ ^ 
 
 cerning Commons on March 4, Ibol, it is provided that 'the 
 contracts. c h a i rman of the Committee of Ways and Means shall 
 make a report to the House previously to the second 
 reading of any private Bill, by which it is intended to 
 authorise, confirm, or alter any contract with any depart- 
 ment of the government, whereby a public charge has 
 been or may be created; and such report, together 
 
 ' Hans. D. v. 217, p. 1100.
 
 UNDER PARLIAMENTARY CONTROL. 491 
 
 with a copy of the contract, and of any resolution to 
 be proposed in relation thereto, shall be circulated with 
 the votes two clear days at least before the day on 
 which the resolution is to be considered in a committee 
 of the whole House, which consideration shall not take 
 place until after the time of private business ; nor shall 
 the report of any such resolution be considered until 
 three clear days at least after the resolution shall have 
 been agreed to by the Committee.' g 
 
 Moreover, in all new contracts for the conveyance Mail and 
 of mails by sea, or for the purpose of telegraphic com- contorts. 
 munications beyond sea, it has been resolved by the 
 House of Commons that a condition shall be inserted 
 that they shall not be binding until they have been 
 approved of by a resolution of the House. h 
 
 It is understood that all contracts should come 
 before the House in such a state as that the House 
 should be free to express its opinion thereupon, without 
 incurring any pecuniary responsibility to the contrac- 
 tors. 1 But it is undesirable to fetter the government, 
 or the House, by the adoption of an abstract resolution 
 in regard to the terms upon which all postal subsidies 
 shall be granted hereafter. 3 
 
 In the years 1863 and 1867 special resolutions were 
 passed by the House of Commons, approving of contracts 
 which had been laid upon the table, before the expira- 
 tion of the month. k But this was done under peculiar 
 and exceptional circumstances. As a general rule, it 
 has been agreed that ' the House should not be asked 
 to share in the responsibility of the details of mail con- 
 tracts,' and that it is ' far better that they should come 
 into legal force on the sole responsibility of the execu- 
 tive, after an opportunity of rejecting them (by their 
 
 s Com. Jour. ]861, p. 89. S. O. China, and Australia mails, Hans. D. 
 
 H. of Com. 1862, No. 78. v. 189, pp. 658-702, 1561. 
 
 h Com. Jour. July 13, 1869. J Hans. D. v. 190, pp. 2010-2020. 
 
 ' See debates on a proposed con- k Com. Jour. 1863, pp. 389, 4.04. 
 
 tract for the conveyance of the India, Hans. D. v. 190, p. 450.
 
 492 LEGISLATION BY PUBLIC DEPARTMENTS. 
 
 Contracts, remaining for one month upon the table) had been 
 afforded to the House, than that the House should be 
 called upon to affirm them by a positive vote.' 1 
 
 In the event of any such contract being disapproved 
 of, it is of course necessary that a substantive resolution 
 should be proposed in relation thereto. 
 
 Thus, on March 20, 1863, a resolution was moved to declare that 
 the House was not prepared to grant a sum of money to the Galway 
 Packet Company, whose contract had expired, but was proposed to 
 be renewed. The motion was negatived, on division. On July 21, 
 on the motion of the secretary to the Treasury, it was resolved 
 (without debate) that the new contract with this company be ap- 
 proved. On March 12, 1869, on motion of a private member, the 
 contracts entered into by the postmaster-general with Messrs. 
 Cunard & Co. and Mr. Inman, for the conveyance of mails to the 
 United States, were referred to a select committee, ministers con- 
 senting thereto. 111 The committee reported in April, and on June 1 
 resolutions to enforce a more stringent rule in the submission of 
 contracts to the judgment of the House were moved, but after long 
 debate were withdrawn ; the government having announced their 
 intention to amend the present rule by substituting a plan whereby 
 the judgment of the House should be distinctly taken upon every 
 contract that might be hereafter laid upon the table. n [This pledge 
 was carried out by an amendment of the rule, which was agreed to, 
 and made a standing order, on July 13, 1869.] Another resolution, 
 in regard to negotiations with the United States Government for a 
 reduced rate of postage, which was proposed at the same time, being 
 amended at the suggestion of ministers, was agreed to.P 
 
 Though confined, in the letter, to a particular class 
 of contracts, the above-mentioned resolution, requir- 
 ing that Parliament shall be notified of the intention 
 of the government to enter into contracts which involve 
 prospective expenditure, not limited to the service of 
 the current financial year, embodies a principle which 
 is susceptible of general application. In the proceedings 
 
 1 The chanc. of the ex. (Mr. 1883, p. 655. For the Canadian law, 
 
 Gladstone). Uaus. D. v. 172, p. 1201. requiring all postal service contracts 
 
 m Hans. D. v. 194, p. 1281. to be laid before both Houses of Par- 
 
 Ib. v. 196, pp. 1128, 1 156. liament, see 29 Viet. c. 5. 
 
 See also May, Parl. Prac. ed. ' Hans. P. v. 106, p. 1159.
 
 UNDER PARLIAMENTARY CONTROL. 493 
 
 of the House of Commons, in the years 1862 and 1863, 
 in granting supplies for the purpose of constructing 
 fortifications on the British coast, this principle was 
 emphatically asserted, and notwithstanding the opposi- 
 tion of government, a clause was introduced into the What con- 
 Bill for providing funds for this purpose, declaring that q^rlYhe 
 whenever a contract shall be entered into by govern- approval 
 
 . -, . * of the 
 
 ment which involves the expenditure of a greater House of 
 amount than had been actually granted for such service, 
 such contract shall not be binding until it has lain for 
 one month on the table of the House of Commons with- 
 out disapproval, or has been formally approved of by 
 resolution, within that period. This clause was agreed 
 to by both Houses, and forms part of the statute. q 
 
 But, in 1874, ministers declined to present to Parlia- 
 ment a copy of the contract for building the new courts 
 of justice, on the ground ' that it would be injurious to 
 the public service and unjust to the contractor.' 1 But 
 in reply to a question, the House was informed of the 
 amount of the contract. 9 
 
 The remedy against illegal or oppressive acts by 
 Ministers of the Crown. 
 
 If a minister of the crown be guilty of any abuse Responsi- 
 of authority, or dereliction of duty, he is personally minsters 
 liable, under the law and constitution, for his conduct.* for me e a i 
 
 ftCtfl 
 
 But, in determining the liability of a pubhc functionary 
 for damage caused by his act to a fellow-subject, a" 
 seeming conflict between principles is noticeable, and 
 an anxiety in the breast of the law on the one hand to 
 assist the suitor, who perchance complains of wrong, 
 
 i 25 & 26 Viet. c. 78, 2. See in the H. of Corns, in regard to the 
 
 Smith's Parl. Rememb. 1862, p. 149. erection of the Law Courts, see Hans. 
 
 And see further on this subject, post, D. v. 210, v. 216, and v. 217. 
 p. 767. * Att.-Qen. in Hans. D. v. 176. p. 
 
 ' Hans. D. v. 218, p. 345. 2121. . 
 
 Ib. p. 628. For previous debate?
 
 494 
 
 LEGISLATION BY PUBLIC DEPARTMENTS. 
 
 Immunity 
 of minis- 
 ters in 
 courts of 
 law. 
 
 General 
 warrants. 
 
 Unity of 
 responsi- 
 bility 
 in the 
 Cabinet. 
 
 and on the other to protect the officer who, inflicting 
 an apparent injury, has perchance but done his duty. u 
 Any direct infringement of the law of the land by a 
 minister or officer of the executive government would 
 render the offender liable, in a court of justice, to pre- 
 cisely the same consequences as if he were a private 
 person. Nor would it be any justification, in an English 
 court of law, to plead the command of the sovereign 
 as the warrant for an unlawful act/ It may be stated, 
 as a general principle, that in assuming on behalf of the 
 crown a personal responsibility for all acts of govern- 
 ment, ministers are privileged to share, with the crown, 
 in a personal immunity from vexatious proceedings, by 
 ordinary process of law, for alleged acts of oppression 
 or illegality in the discharge of their official duties, 
 and are responsible to Parliament alone for acts of mis- 
 conduct in their official capacity. Nevertheless, the 
 courts of law have established certain rules which, so 
 far as they go, afford protection to the subject against 
 the irregular exercise of executive authority. Thus it 
 has been determined that general warrants, issued by a 
 secretary of state to search for and seize the author 
 or the papers of an author (not named) of a seditious 
 libel, are illegal. 1 Also, that a warrant issued by a 
 secretary of state, to seize the papers (generally) of the 
 author (named) of a seditious libel, is illegal. 7 
 
 By a decision of the Superior Court of Lower 
 Canada, in 1875, it was ruled, that an act of govern- 
 ment cannot be set aside in a court of law, on the 
 allegation that a majority of cabinet ministers had 
 sanctioned it, upon the representation and influence of 
 particular ministers, and (as it was afterwards alleged) 
 
 u Broom, Const. Law, p. 625. * Entick v. Carrington, Ib. 1030. 
 
 r See ante, p. 265. Broom's Const. Law, 525-617. See 
 
 w See ante, p. 343. the proceedings in relation to General 
 
 * Leach v. Money ; 19 State Trials, Warrants, P'arl. Hist. v. 16, p. 207. 
 
 p. 1001. Wilkes v. Wood, Ib. p. Hans. D. v. 77, pp. 905, 960. 
 
 1153.
 
 UNDER PARLIAMENTARY CONTROL. 495 
 
 upon insufficient grounds ; for ' there is no division of 
 responsibility in a cabinet,' and ' the crown must be held 
 to have known what it was about.' z 
 
 This was an attempt, on behalf of a new ministry, to set aside a 
 transaction in real estate, authorised by their predecessors in office. 
 The court dismissed the action, for the reason stated above. ' The 
 irresponsibility of ministers of the crown in a provincial govern- 
 ment to a court of law for advice given to the crown, and' acts 
 consequent thereupon, was further maintained by the superior 
 court, in December 1877, in another action growing out of the same 
 case. a 
 
 Apart from the security afforded to the subject by Protee- 
 these decisions, the law accords to persons who are officials, 
 clothed with an official character a peculiar protection. 
 On grounds of political expediency all such persons are 
 preserved from liability to actions at law. Whether 
 the alleged liability arises out of contract or out of 
 tort, or from any matter of private and individual com- 
 plaint against a minister of the crown, for acts done, 
 or directed to be performed by him, in his official capa- 
 city, the ordinary tribunals of justice will afford him 
 special immunity and protection. b But if ministers of 
 the crown think fit, for reasons of public policy, to take 
 upon themselves the responsibility of directly infringing 
 an existing law, they are bound to apply to Parliament 
 for an Act of Indemnity, to relieve themselves, and 
 those who have followed their directions in the par- 
 ticular matter, from the legal consequences of their 
 conduct. On the same principle, the government is 
 bound to compensate all subordinate officers for losses 
 
 * Att.-Gen. v. Middlemlss, L. Can. to be held liable at law for an act 
 
 J. v. 19, p. 263. done by him in his official capacity 
 
 L. Can. J. v. 21, p. 319. See Irish L. T. Rep. v. 6, p. 25; Hans, 
 
 also Molson v. Chapleau and Lynch, D. v. 236, p. 611. Also Palmer v. 
 
 Montreal Legal News, v. 6, p. 222. Hutchinson, before the Privy Council 
 
 b Broom, Const. Law, pp. 617-623, on appeal from Natal, 6 L. R. App. 
 
 726. See also the case of Sullivan p. 619. And see cases cited in 
 
 v. Earl Spencer, showing that the Forsyth, Const. Law, pp. 84-88. 
 Lord-Lieutenant of Ireland was not
 
 496 
 
 LEGISLATION BY PUBLIC DEPARTMENTS. 
 
 Their re- 
 sponsi- 
 bility to 
 Parlia- 
 ment. 
 
 incurred, or damages awarded against them, in the 
 execution of their duties. 
 
 Admitting the civil irresponsibility of the supreme power (includ- 
 ing ministers of state) for tortious acts, it cannot be denied that its 
 agents, the minor functionaries of government, are responsible to the 
 law for illegal proceedings, beyond the legitimate scope of their 
 derived authority, just the same as they are indictable for corrupt 
 practices or misdemeanour in office. But the government is morally 
 bound to indemnify its agent for the consequences of its own acts, 
 otherwise a public servant might have to answer to the law for acts 
 bond fide done by him, on behalf of the public, which, in contempla- 
 tion of law, injuriously affected others. 
 
 The constitutional remedy against an executive 
 government, for political crimes, or misdemeanours, 
 which may operate injuriously to private individuals 
 or against a minister of state who may be guilty of 
 injustice or oppression in the exercise of his administra- 
 tive functions is by an appeal to Parliament ; and 
 more especially to the House of Commons. Attempts 
 to obtain redress, under such circumstances, by resort 
 to the courts of law are unavailing ; inasmuch as such 
 complaints are not properly cognisable by these tri- 
 bunals, which have no jurisdiction to coerce or other- 
 wise control high public functionaries. d Whereas, the 
 House of Commons, as the grand inquest of the nation, 
 is fully competent to investigate every case of ministerial 
 abuse or misconduct, and to visit upon the offender 
 the consequence of his misdeeds. 6 
 
 In theory of law, the judgment and decision upon 
 every matter of state is that of the sovereign, who acts, 
 
 ' See Broom's Const. Law, pp. 
 243,619-623,719. Also Clode, Mili- 
 tary Forces, v. 2, pp. 148, 177. 
 Hans. D. v. 218, p. 488 ; v. 219, p. 
 449. Thomas, Const. Law, p. 71. See 
 alsp Canada Supreme Ct. Rep. v. 7, 
 p. 570; v. 8, p. 1. 
 
 d See Cooley's article in Inter. 
 Rev. v. 3, p. 326. 
 
 See Judgment of Court of Queen's 
 
 Bench in case of The Queen v. The 
 Lords of the Treasury. L. T. Rep. 
 N.S. v. 26, p. 65; and debates 
 theeron in Hans. D. v. 210, pp. 61- 
 72 ; v. 211, pp. 504, 1868. And see 
 Wallace et al v. Ross. 2 Russell 
 and Chesley, N. Scotia Rep. p. 190. 
 See Hans. D. v. 180, pp. 1019-1022 ; 
 and see post, v. 2.
 
 UNDER PARLIAMENTARY CONTROL. 497 
 
 according to his discretion, upon advice given him by a 
 responsible minister, who is sworn to keep the king's king's 
 counsel secret, and who may not disclose elsewhere the 
 nature of the advice given, without his sovereign's ex- 
 press permission. Nor is this secrecy enjoined merely 
 as a personal privilege or protection to the sovereign 
 or the minister, to be waived as they may think fit ; it 
 is founded upon constitutional principle and public 
 policy which unite in recognising the importance of 
 entire and unfettered freedom in any advice to be given 
 to the sovereign, and the necessity for preserving the 
 king's counsellors from being harassed by actions on 
 false pretences of malice or corruption.* 
 
 Every minister is directly responsible to Parliament 
 for his conduct in office, and for the advice he tenders 
 to his sovereign ; but he is responsible to no other 
 tribunal. If he be put upon his trial by Parliament, it 
 is right that he should be at liberty to disclose the 
 secrets of the council chamber, so far as they may 
 affect his personal responsibility for the acts under Council 
 review ; and permission to that end is invariably ac- 
 corded by the sovereign. But it is not right for a vul ged in 
 minister to disclose before a jury, or before an ordinary law. 
 court of law, the counsels of the crown, because these 
 tribunals have no power to follow up the matter, and 
 to sit in judgment upon the advice given to the sove- 
 reign by her ministers, or upon the acts of the sovereign 
 consequent upon such advice. Arid even if, on any 
 particular occasion, permission to divulge the advice 
 given by a minister should have been granted by the 
 sovereign, for the purpose of evidence in a court of law, 
 it is very doubtful whether the court would be justified 
 in allowing the disclosure to be made. In the case of 
 Irwin v. Grey, where the secretary of state for the 
 home department had been summoned as a witness, the 
 
 1 See the American practice, to the same effect, in Am. Law. Rev 
 T. 11, p. 164. 
 
 VOL. I. K K
 
 498 LEGISLATION BY PUBLIC DEPARTMENTS. 
 
 court would not permit him to be questioned as to the 
 advice he had given to his sovereign ; and the case was 
 stopped by the judge, with the concurrence of the 
 court. g 
 
 On the same principle, public officers, summoned to give evidence 
 in a court of law, may attend with official documents in their 
 custody ; but if in the opinion of the secretary of state it should not 
 be for the benefit of the public service that the documents should be 
 produced, instructions are given to the officer to state that circum- 
 stance to the judge, who then invariably refuses to allow the pro- 
 duction of the documents. 11 
 
 In the case of Dickson v. Combermere and others, General Peel, 
 the secretary of state for war, who was one of the defendants, 
 attended, and gave evidence before the Court of Queen's Bench in 
 defence of an official act of his own, which had led to the removal of 
 the plaintiff from the lieutenant-colonelcy of a regiment of militia. 
 This evidence involved the disclosure of advice he had tendered to 
 the Queen in regard to the removal of Colonel Dickson ; and he in- 
 formed the court that he had obtained her Majesty's permission to 
 divulge the same. But after he had given his testimony, the chief 
 ega im- j us t,j ce i n f orm ed the jury that the secretary of state was responsible 
 cabinet to his sovereign and the country for the recommendations he had 
 ministers, made to the sovereign in this matter, and not to them ; and that, 
 unless they were of opinion that he had dishonestly and corruptly 
 abused the power entrusted to him, they could not hold him account- 
 able for his conduct. The plaintiff's lawyer at once admitted the 
 correctness of this decision, and withdrew the case so far as General 
 Peel was concerned. 1 In charging the jury upon the case of the 
 other defendants, who were high military functionaries, acting under 
 the immediate direction of the secretary of state for war, the chief 
 justice stated that unless the jury were of opinion that the matters 
 of complaint against Colonel Dickson, which occasioned his removal 
 from office, had been maliciously and unreasonably put forward, 
 with a view to his oppression and injury, and without probable 
 cause, they must find for the defendants. And that even if they 
 thought that General Peel, in recommending the sovereign to dis- 
 place Colonel Dickson, had acted harshly and wrongfully, they could 
 not on that account set Colonel Dickson right by returning a verdict 
 in his favour. Accordingly, a verdict was returned for the defend- 
 ants. The reporter, in commenting upon this case, points out very 
 forcibly that according to the analogy of the decision arrived at in 
 
 See ante, p. 346. 3 Post, and 225, p. 874. 
 
 Fin. p. 636. ' Dickeon v. Visct. Combermere, &c. 
 
 h Home Sec. Cross. Hane. I), v. 3 Post, and Fin. pp. 578-685.
 
 UNDER PARLIAMENTARY CONTROL. 409 
 
 the above-mentioned case of Irwin v. Grey, as well as upon general Estab- 
 grounds of constitutional reasoning, the court ought not to have lished 
 permitted the disclosure by General Peel of the advice he had ten- 
 dered to his sovereign in his capacity of privy councillor. The 
 arguments adduced by the reporter in support of this position are 
 elaborate and convincing, and amply justify his conclusion that ' the 
 secretary of state, by reason of his high office and dignity and the 
 proximity of his position to that of the sovereign, is protected from 
 all liability by action and all responsibility save to his sovereign or 
 to Parliament, for acts done by him in his office as secretary, or by 
 way of advice to the sovereign as cabinet minister.J Further, in the 
 case of Cowing and others, against the secretary of state for war, 
 in July 1876, and January 1877, when the master of the rolls 
 refused an injunction, and decided against a petition of right sought 
 for upon frivolous grounds, alleging that there can be no injunction 
 against the crown, because the sovereign is the fountain of justice, 
 and ' even if the crown could commit a trespass, a subject could not 
 sue for it.' k 
 
 This view of the immunity which attaches to privy Legal i 
 
 councillors and high functionaries of state, in the per- 
 
 formance of their official duty, is corroborated and 
 
 T i n M i / T i officers of 
 
 applied to all responsible ministers of the crown, who state. 
 are entrusted with the direction of any particular de- 
 partment of government, by the decision in the case of 
 Oidley v. Lord Palmerston. 
 
 This was an action brought to recover, from the secretary-at- 
 war, a certain sum of money claimed by a retired clerk of the War 
 Office, as a part of his annual retired allowance, and which, though 
 voted by Parliament for such service, had been withheld by Lord 
 Palmerston, the secretary-at-war, for the purpose of liquidating 
 certain liabilities incurred by the said Gidley, to persons for whom 
 he had acted as agent. The court gave judgment for the defendant, 
 declaring that ' on principles of public policy, an action will not lie 
 against persons acting in a public character and situation, which, 
 from their very nature, would expose them to an infinite multi- 
 plicity of actions ; that is, to actions at the instance of any person 
 who might suppose himself aggrieved ; and though it is to be pre- 
 sumed that actions improperly brought would fail, and it may be 
 said that actions properly brought should succeed, yet the very 
 
 J Dickson v.Viscount Combermere 271. Hans. D v. 231, pp. 826, 829- 
 c. 3 Fost. and Fin. pp. 533, 534, n. 16. v. 235, p. 600. 
 k Com. Pap. 1877, v. 69, pp. 267,
 
 500 LEGISLATION BY PUBLIC DEPARTMENTS. 
 
 liability to an unlimited multiplicity of suits would, in all proba- 
 bility, prevent any proper or prudent person from accepting a public 
 situation at the hazard of such peril to himself.' 1 Also in the case 
 of T. G. Tufnell, who sought, by petition of right, to be indemnified 
 for the loss of a permanent military appointment in consequence of 
 his being compulsorily retired on half-pay. The petition was dis- 
 missed on the ground that the crown had an absolute right of 
 dismissal in all such cases. m 
 
 Seeing then that it is an established principle in our 
 constitutional system that ministers of the crown are 
 accountable to Parliament, alone for personal acts of mis- 
 conduct, or dereliction of duty, in the discharge of their 
 official functions, we shall hereafter explain the course 
 to be pursued to substantiate before Parliament any 
 just ground of complaint against an individual minister, 
 and investigate the principles which have heretofore 
 governed Parliament in the determination of such 
 questions. 
 
 1 3 Bro. and Bingharo, p. 287. L. T. Rep. N. S. v. 34, p. 838. 
 And see the comments on this de- n See post, v. 2. 
 cUion, in 3 Fost. and Fin. p. 535, n.
 
 ROYAL PREROGATIVE IN MATTERS ECCLESIASTICAL. 601 
 
 CHAPTER X. 
 
 ROYAL PREROGATIVE IN MATTERS ECCLESIASTICAL. 
 
 THE next prerogative to engage our attention is that Prerogr.- 
 
 tive in 
 
 which provides for the supremacy of the crown in matters 
 matters ecclesiastical. 
 
 This prerogative is exercised in three ways : (1) By 
 the enactment of laws, with the consent of Parliament, 
 to determine matters affecting the Church as a national 
 institution, and by convening and licensing in certain 
 cases the proceedings of Convocation. (2) By the 
 appointment of bishops and other principal dignitaries 
 of the Established Church. (3) By the jurisdiction of 
 the crown over all ecclesiastical causes in the last resort.* 
 
 'All jurisdiction within the realm, spiritual as well 
 as temporal, is derived from the sovereign alone ' ; that 
 is to say, all jurisdiction which is of a coercive cha- 
 racter, and which can be enforced by an appeal to any 
 tribunal or court of justice. Spiritual authority which 
 is exercised merely in fora conscientice cannot be enforced 
 in a court of law. Moreover, ' the power of pronounc- 
 ing judgment in foro exteriori, coactive judgments, 
 having effects recognised by the temporal law, depends 
 always (for its exercise by an ecclesiastical tribunal) on 
 the temporal power.' b 
 
 * See Cripps, Laws of Church and ment by Dr. Phillpotts, Bishop of 
 
 Clergy. Petersdorff New Abridge- Exeter, in his corresp. with the Rt. 
 
 ment, v. 6, p. 214. Ed. Rev. v. 128, Hon T. B. Macaulay, pub. by Murray 
 
 p. 251. Dr. Phillpotts, in Welln. in 1861, p. 7. See "also Ed. Rev. v. 
 
 Corresp. 3rd S. v. 5. pp. 201,220, 121, p. 153, Hans. D. v. 182, pp. 304- 
 
 243. 307. 
 
 " Stat. 26 Geo. III. c. 84. State-
 
 602 THE ROYAL PREROGATIVE 
 
 Our remarks in regard to this prerogative will 
 admit of the following arrangement : (1) A considera- 
 tion of the position of the Church of England in the 
 mother-country. (2) Its position in the colonies. (3) Its 
 position in foreign countries. (4) The obligations of 
 the Act of Uniformity. 
 
 I. The position of the Church of England in the Mother- 
 
 country. 
 
 Legal The crown is the legal head of the Church esta- 
 
 positionof ,,.,,. , , ,, T-T i i 
 
 the Estab- bhslied in the realm of England ; the interpreter of the 
 ctmrch meaning intended to be conveyed by the Thirty-nine 
 Articles, the Liturgy, and other recognised formularies 
 of the Church ; and the depository of the ultimate 
 appellate jurisdiction in all causes and matters eccle- 
 siastical. All appellate authority which, previous to 
 the Reformation, was exercised over members of the 
 Established Church by the Pope, is now by statute 
 vested in the Crown of England ; and every court, 
 ecclesiastical or civil, held in England must be held in 
 the name and under the authority of the sovereign. 3 
 
 The kingdom of England and Wales is divided into 
 thirty-two dioceses, including that of Sodor and Man ; 
 the respective limits of which have been defined by Acts 
 of Parliament. 6 By the laws of the realm no person 
 can be consecrated to the office of bishop in the Esta- 
 blished Church of England without the license of the 
 crown to the dean and chapter for the election to that 
 office of the person named in a letter missive accom- 
 panying the same. A royal mandate, under the great 
 
 'Royal Declaration prefixed to p. 226. The Bishop of Oxford's speech, 
 
 the Thirty-nine Articles. lb. v. 184, p. 518. And Ld. Chanc. 
 
 d 25 Henry VIII. c. 19. 1 Eliz. Cairns and Ld. Westbury, on the 
 
 c. 1. 16 Charl. I. c. 11. 13 Charl. Supremacy of the Crown, lb. v. 
 
 II. c. 12. See debate in II. of Lords, 193, pp. 1227-1233. Montagu Bur- 
 Hans. D. v. Ill, p. 598, on the Bishop rows, Parliament and the Church of 
 of London's Bill on Appeals to the England, 1875. 
 
 Privy Coun. from Keel. Courts. The Act 6 & 7 Will. IV. c. 77 
 Ld. Chan, speech, in Hans. D. v. 168, 38 & 39 Vic. c. 34 ; 41 & 42 Vic. c. 68.
 
 IN MATTERS ECCLESIASTICAL. 603 
 
 seal, for the confirmation and consecration of the 
 proposed bishop is also necessary. And if the dean church, 
 and chapter defer or delay their election above twelve 
 days from the receipt of the license, letters patent may 
 be issued by the crown, conferring the episcopal office 
 upon the nominee of the crown. The confirmation of 
 the election of a bishop by the archbishop is simply 
 ministerial, and merely a matter of form.* The crown 
 has no power, by its mere prerogative, to create new 
 dioceses, in any part of the kingdom. It must have 
 recourse, for such a purpose, to the supreme authority 
 of parliament. The crown, as legal head of the Church, 
 may command the consecration of a bishop to an exist- 
 ing see, but it has no right to create a new ecclesiastical 
 corporation, whose status and authority should be re- 
 cognised by the community at large. Accordingly, when 
 four new bishoprics were constituted by Henry VIII., 
 the assistance of Parliament was invoked to give effect 
 thereto. g In 1836, when the bishoprics of Manchester 
 and Eipon were constituted, and in 1875 upon the 
 establishment of the see of Saint Albans, and ecclesias- 
 tical jurisdiction conferred upon the bishops, it was 
 under the provisions of an Act of Parliament. 11 Suffra- 
 gan bishops also are appointed under authority derived 
 from parliament ; and though the selection of two 
 candidates for the office is vested in the particular 
 archbishop or bishop on whose behalf a suffragan is to 
 be nominated by the crown, it is not compulsory on 
 the crown to choose either of them. Government may 
 enquire as to the persons intended to be proposed as 
 
 ' 25 Henry VIII. c. 20, .14. See 31 Henry VIII. c 9. This Act 
 
 the case of Bishop Hampden, Q. B. is not found in the ordinary ed. of 
 
 Rep. N.S. v. 11, p. 483. And Ar- the statutes, but it is cited in the judg- 
 
 nould, Life of Oh. Justice Denman, v. ment of the Privy Council in the case 
 
 2, p. 237. And see J. W. Lea, on The of Bishop Colenso. 
 
 Bishops' Oath of Homage, Riving- h 6 & 7 William IV. c. 77. 38 & 
 
 tons, 1875. And see Com. Debates 39 Viet. c. 34. 
 on the Conge" d'elire Bill in 1877.
 
 504 
 
 THE ROYAL PREROGATIVE 
 
 Supre- 
 macy 
 of the 
 crown. 
 
 Convoca- 
 tions. 
 
 Diocesan 
 ynods. 
 
 suffragans in any given case before consenting to enter- 
 tain the question at all. 1 
 
 The sovereign of this realm, as being the ' supreme 
 governor on earth of the Church of England,' has 
 authority to control its ' external policy.' 
 
 In the Acts of Henry VIII. and of Edward VI., the king is 
 styled ' the supreme head in earth,' next under Christ, of the 
 Church ; but as this phrase gave offence to many, and was rejected 
 by Queen Elizabeth, it was changed, in her reign, to that of 
 1 supreme governor. 'J 
 
 All ecclesiastical synods or convocations of the Church 
 must be convened, prorogued, dissolved, restrained, and 
 regulated by the Queen. No convocation of the bishops 
 and clergy of the Church of England can assemble 
 except by the express authority and command of the 
 crown. Such authority has usually been given at the 
 summoning of every session of Parliament, and it is now 
 agreed that the Convocations, or provincial synods, of 
 the two provinces of York and Canterbury (which are 
 the ancient ecclesiastical councils of the archbishops) 
 are of right to be assembled concurrently with Parlia- 
 ment. By writs directed to the archbishops, respec- 
 tively, the crown exercises the right of summoning and 
 of proroguing Convocation. 16 But by the Act of Sub- 
 mission passed in 1532, the clergy have renounced the 
 right to enact any new canons, constitutions, or ordi- 
 nances, ' unless the king's most royal assent and license 
 may to them be had, to make, promulgate, and execute 
 the same.' l It has, indeed, been claimed, on behalf of the 
 bishops of the Church of England, that they are at full 
 liberty to assemble ordinary diocesan synods, to delibe- 
 rate upon questions of faith and practice, but not to 
 proceed to enact new canons, &c., without the previous 
 
 1 26 Henry VIII. c. 14. Mr. 
 Gladstone, Hans. D. v. 200, p. 
 987. 
 
 J Browne on the Articles, ed. 1864, 
 p. 7!>4. Hans. D. v. 207, p. 1213. 
 
 k Trevor on Convocations, pp. 126 
 155. 
 
 1 Stat. 25 Henry VIII. c. 19. See 
 Hans. D. v. 179," p. 1269 ; v 180, 
 p. 1160.
 
 IN MATTERS ECCLESIASTICAL. 605 
 
 license of the crown. m But this is very doubtful ; n at 
 any rate, * it is admitted that diocesan synods, whether 
 lawful or not, unless with the license of the crown, 
 have not been in use in England for above two cen- 
 turies.' 
 
 So far, at least, as convocation is concerned, all juris- Conv 
 diction that may be exercised by Convocation must be 
 subject to the authority and control of the sovereign. 
 By virtue of the Queen's writ of summons, Convocation 
 is empowered to deliberate upon matters affecting the 
 interests of religion and of the Church. It is well 
 known that, from the time of George I. (1717) until a 
 very recent period, it was a regular practice for the 
 crown to interpose and stop the deliberations of Convo- 
 cation by a prorogation, immediately after they had 
 formally assembled. But of late years a different policy 
 has prevailed, and it has been deemed expedient that 
 an opportunity should be afforded to the Church in 
 Convocation to enter upon the free discussion of all 
 ecclesiastical questions. If the crown wishes particular 
 subjects to be discussed in convocation, a ' letter of 
 * business ' is issued, directing the Consideration of Con- 
 vocation to be applied to the subjects specified therein. 
 But another instrument, namely, a ' royal license,' is 
 required by the Act of Submission to warrant Convo- 
 cation in enacting a new canon, or, as it is termed, 
 ' alleging or putting in use any existing ordinance or 
 canon ; ' in other words, passing any judgment, opinion, 
 or sentence upon the question that has been debated. 
 
 Upon the assembling of the Convocations of Canterbury and 
 York in February 1872, pursuant to the Queen's writ, royal letters 
 of business, and a royal license, were severally issued for the pur- 
 pose of enabling them to consider and report upon the matters 
 contained in the Fourth Report of the Ritual Commission, and the 
 
 m Joyce's Sabred Synods, p. 40 ; Melbourne's Memorial, Com. Pap. 
 
 Pro. Church Congress.' York, 1866. 185H, v. 44, p. 142. 
 
 See arguments in Moore's P. C. Moore, P. C. C., N. S. v. 1, p. 
 
 C., N. S. v. 1, p. 434 ; and Bishop of 464.
 
 606 THE ROYAL PREROGATIVE 
 
 Convocations reported thereon.P A Bill was afterwards passed 
 through Parliament to give effect to certain recommendations of the 
 Ritual Commissioners, but in the House of Commons the preamble 
 was amended, by striking out words which implied that the existing 
 law was altered ' in pursuance of a report made by Convocation.' 
 It being undeniable that Parliament is competent to legislate upon 
 ecclesiastical questions without the assent of Con vocation. 1 In 
 June, .1874, this letter of business was renewed, so as to enable Con- 
 vocation to consider further upon the matters aforesaid. This 
 renewal was necessary because the original letter ceased to be 
 operative after the dissolution of Parliament, in January 1874. r 
 The question remained in abeyance until 1879, when Convocation 
 agreed upon a draft Bill to be submitted to Parliament in a future 
 session. 
 
 No ordinance or sentence agreed upon in Convocation 
 has any legal validity until it has received the sanction 
 of the crown ; and if any attempt be made to enforce 
 the same without such sanction, the parties concerned 
 would incur the penalties of a prsemunire. 8 
 
 2. The position of the Church of England in the Colonies. 
 Church of The principle of constitutional law which requires 
 
 England . . ? . 
 
 in the that the prerogative ot the crown in matters ecclesias- 
 >ionies. tical shall be exercised within the limits prescribed by 
 Parliament, applies with equal force to the erection of 
 episcopal sees in the colonies of the United Kingdom. 
 The Church of England, however, cannot be regarded 
 as an Established Church in any British colony. 
 
 In crown colonies, that is to say, colonies which 
 have been acquired by conquest or cession, and which 
 do not possess separate legislative institutions the legis- 
 lative power being exercised by the crown, through 
 orders in council bishoprics may be constituted, and a 
 measure of ecclesiastical jurisdiction conferred, by the 
 sole authority of the crown. This has been done in the 
 
 Com. Pap. 1872, v. 46. p. 39. Hans. D. v. 204, p. 1069. Ld. 
 
 * Hans. D. v. 211, pp. 889-897, Chanc. "Westbury, in Hans. D. v. 
 
 1088. 176, p. 1544. Att. Gen. (Sir R. 
 
 ' lb. v. 220, p. 513. Palmer) Ib. v. 180, p. 600.
 
 IN MATTERS ECCLESIASTICAL. 507 
 
 crown colonies of Ceylon, Sierra Leone, St. Helena, colonial 
 and the Mauritius, and also at Gibraltar. In all these Cnurcht 
 places episcopal sees have been established by the 
 authority of the crown, which had a legal connection 
 with the Church in the mother-country. But even in 
 the case of crown colonies, it should be remarked, that 
 since the repeal of the Act, 1 Eliz. c. 1,* which enabled 
 the sovereign to appoint persons who could execute all 
 manner of ecclesiastical jurisdiction in any country be- 
 longing to the English crown, there is no power in the 
 crown alone to create any new or additional ecclesiastical 
 tribunal with coercive jurisdiction within the realm. 
 4 It is a settled constitutional principle or rule of law, 
 that although the crown may by its prerogative esta- 
 blish courts to proceed according to the common law, 
 yet that it cannot create any new court to administer 
 any other law ; and it is laid down by Lord Coke in the 
 Fourth Institute, that the erection of a new court, 
 with a new jurisdiction, cannot be without an Act of 
 Parliament.' v 
 
 The Church of England in a crown colony is pro- 
 hibited from making any regulation which is at all at 
 variance with the ecclesiastical law of the Church in the 
 mother-country. w Moreover, the power of the crown 
 in any such colony must be exercised within the limits 
 prescribed by constitutional law. Notwithstanding the 
 opinion which has been expressed by some eminent 
 authorities, 1 that the position of episcopal sees in the 
 crown colonies is not affected by the judgment of the 
 Privy Council in Bishop Colenso's case, it may be 
 
 ' By the Act 16 Car. I.e. 11. And Colonies, in Forsyth, Const. Law, 
 
 see 13 Car. II. c. 12. pp. 65-63. 
 
 u Judgmt. of P. Coun. in re the T Judgmt. of P. Coun. in Bishop 
 
 Bishop (Colenso) of Natal. Moore's Colenso's case. 
 
 P. C. C., N.S. v. 3, p. 115. Ib. v. 1, p. w Case of the Diocese of Colombo, 
 
 436. Arguments in case of Long v. Com. Pap. 1866, v. 49, p. 228. 
 
 the Bishop of Cape Town. And see x Bishop of London, Hans. D. v. 
 
 a digest of all cases and opinions 184, p. 511. Ld. Carnarvon (col. 
 
 on Eccles. Law applicable to the secretary), Ib. p. 803.
 
 508 THE ROYAL PREROGATIVE 
 
 assumed that the power of the crown in such colonies 
 is shown by this decision to be limited to the issue of 
 letters patent, 7 sufficient in law to establish personal 
 relations between the bishop and his clergy, as eccle- 
 siastics, and which merely confer powers that can be 
 enforced by mutual agreement ; and that no bishop so 
 appointed, under the provisions of his letters patent, 
 possesses any coercive legal authority whatsoever. 
 
 The contrary opinion was maintained by Bishop Colenso, in his 
 argument before the Supreme Court of Natal, in September, 1867, 
 in the case of the Bishop v. the Dean of Maritzburg. But the judg- 
 ment of the court, in January following, disallowed the act of the 
 bishop in depriving the dean of his office, though it allowed him to 
 assume control over the Church buildings in the diocese.* 
 
 Any bishop appointed by the sole authority of the 
 crown to any colonial diocese, unless he has obtained 
 from the Imperial Parliament, or from the local legis- 
 lature, power to enforce his decrees, must resort to the 
 civil tribunals for that purpose ; and they will give or 
 withhold their assistance accordingly, as they are satis- 
 fied that he has rightly exercised his episcopal func- 
 tions in the particular instance. 
 
 In the case of new settlements (not being crown 
 colonies) and colonies which have received legislative 
 institutions,* it is clear that the crown (subject to the 
 special provisions of any Act of Parliament) stands in 
 the same relation to such a settlement or colony as 
 it does to the United Kingdom ; and although it may 
 authorise the consecration of a bishop in and for the 
 benefit of the Church of England in any such colony, 
 and thereby establish * personal relations ' between the 
 
 1 For copies of letters patent here- were authorised to be established by 
 
 tofore issued, creating colonial bi- the imperial Acts, 53 Geo. III. c. 
 
 Bhoprics, with or without metropo- 155, 49, and 3 & 4 Will. IV. c. 
 
 litan powers. See Com. Pap. 1866, 86, 03. See also 6 & 6 Viet, 
 
 v. 49. p. 181. c. 119, and 34 & 35 Viet. c. 62. 
 
 * Com. Pap. 1867-8, v. 48, p. 465. The Enst India bishops are still ap- 
 
 * See Act 6 & 7 Viet. c. 13. Cer- pointed by the Queen, by letters 
 tain bishoprics in the East Indies patent. Com. Pap. 1871, v. 60, p. 739.
 
 IN MATTERS ECCLESIASTICAL. 609 
 
 said bishop and his clergy, it has no power to assign 
 him any diocese, with diocesan jurisdiction, or coercive 
 legal authority therein, without a special Act being first 
 passed by the imperial or colonial legislature, autho- 
 rising the issue of letters patent for that purpose. 
 
 In 1824 a bishop was appointed in Jamaica by letters patent, 
 but his legal status and authority were defined and established by 
 an Act of the colonial legislature, which was confirmed by the 
 crown. And there are bishoprics in Antigua, Barbados, and 
 Guiana, which have been recognised and confirmed by Acts of the 
 Imperial Parliament, or of the local legislatures. 6 
 
 For ' no metropolitan, or bishop, in any colony 
 having legislative institutions can, by virtue of the 
 crown's letters patent alone (unless granted under an 
 Act of Parliament, or confirmed by a colonial statute), 
 exercise any coercive jurisdiction, or hold any court or 
 tribunal for that purpose. Pastoral or spiritual autho- 
 rity may be incidental to the office of bishop, but all 
 jurisdiction in the Church, where it can be lawfully 
 conferred, must proceed from the crown, and be exer- 
 cised as the law directs ; and suspension or deprivation 
 ~of office is a matter of coercive legal jurisdiction, and 
 not of mere spiritual authority.' c 
 
 Our definition of the legal status of a bishop of the Case of 
 Church of England, in a colony or dependency of the 
 British crown, is taken from a judgment of the Privy 
 Council in March, 1865, in che case of Dr. Colenso, 
 bishop of Natal, who was deprived of his episcopal 
 functions after a formal trial and condemnation for 
 heretical opinions, before a synod of the Church in 
 South Africa by his metropolitan, Dr. Gray, the bishop 
 
 b Papers relating to Church of this judgment, see Hans. D. v. 185, 
 
 England in the Colonies. Com. Pap. pp. 386, 392. Ib. v. 186, p. 383. And 
 
 1867, v. 48, p. 855. see Long v. the Bp. of Capetown, in 
 
 < Privy Coun. Judgt. Bp. of Natal Moore's P. C. C., N. S., v. 1., p. 411. 
 
 v. Bp. of Capetown. Judgment of And see Ex parte C. A. Jenkins, 
 
 Master of the Rolls, on Bp. Colenso's Clerk, and Att.-Gen. of Bermuda, L. 
 
 salary, Nov. 6, 1866. Jurist Rep. N. T. Rep. N. S., v. 19, p. 583. 
 S. v. 12, p. 971. For comments on
 
 510 
 
 THE ROYAL PREROGATIVE 
 
 Bishop O f Capetown. Upon the appeal of Bishop Colenso to 
 the Privy Council, the decision of the metropolitan was 
 set aside, upon the ground of want of the necessary 
 authority and jurisdiction to determine upon the case. 
 In reviewing the legal position of the parties concerned, 
 the Privy Council declared that while the sovereign had 
 undoubted right, by virtue of her prerogative, to give 
 style, title, dignity, and precedence, in all parts of her 
 dominions, yet that she had no power to issue letters 
 patent professing to create episcopal sees, or to confer 
 diocesan jurisdiction, or coercive legal authority, in 
 colonies that were in possession of legislative institu- 
 tions, or wherein the Church of England had not been 
 established by law, without express legislative sanction. 
 Eepresentative institutions had been granted to Natal in 
 1847, and to Capetown in 1850, consequently the letters 
 patent of Drs. Gray and Colenso, which were issued in 
 1853, without the necessary authorisation, were null 
 and void for any legal purpose whatever. 
 
 This vexed question was still further complicated by a decision 
 of the Supreme Court of Natal, in January 1868 (in the case of 
 Bishop Colenso v. Mr. Green), to the effect that Natal was a crown 
 colony, at this period, whilst the Privy Council based their judgment 
 on a contrary assumption. The home government afterwards 
 submitted the matter to the law officers of the crown for their 
 opinion. d 
 
 Effect of Adverting to this judgment it was stated by the 
 
 ment U oF Attorney-General in the House of Commons on March 27, 
 the Privy 1865, that the Privy Council thereby determined (1), 
 
 Council . IT 111 
 
 that no legal dioceses are created by letters patent in 
 the colonies possessing representative institutions, or in 
 which the Church of England had not been previously 
 established by law ; (2) that the letters patent hereto- 
 fore illegally issued for the erection of episcopal sees in 
 
 d Hans. D. v. 106, p. 468. On this 1883, p. 313 : reprinted in his para- 
 point see Ld. Blachford's Letter in phlet on 'The Legal Development of 
 the London ' Guardian' of Feb. 28, the Colonial Episcopate.'
 
 IN MATTERS ECCLESIASTICAL. 511 
 
 such colonies do not create any legal identity between Colonial 
 the Episcopal Church presided over by these bishops, l 
 and the United Church of England and Ireland ; (3) 
 that these letters patent do not introduce into those 
 colonies any part of the English ecclesiastical law ; (4) 
 that they confer on the bishops no legal jurisdiction or 
 power whatever ; and add nothing to any authority which 
 the bishops may be legally capable of acquiring by the 
 voluntary principle, without any letters patent or royal 
 sanction at all. The maximum operation of these letters 
 patent seems to be, to incorporate the bishops and their 
 successors, not as an ecclesiastical corporation in the 
 colony, whose status, rights, and authority the colonies 
 would be required to recognise ; but simply as a 
 common legal corporation, which it is in the ordinary 
 prerogative of the crown to create, and for which no 
 statutory powers are required. 6 On May 30, the colo- 
 nial secretary informed the House of Commons that, 
 upon the advice of the law officers of the crown, the 
 government had decided that, under existing circum- 
 stances, no letters patent to bishops ought to be issued 
 ~to colonies having representative institutions. 
 
 The phrase employed in the Privy Council judgment, was ' legis- 
 lative ' institutions, which includes a nominated crown council, such 
 as actually existed at Natal, at the time that Bishop Colenso's 
 patent was issued/ Letters patent continue to be issued for the 
 consecration of bishops to sees in the East Indies.^ 
 
 In filling up a then-existing vacancy in the diocese of 
 Eupert's Land, the following course was pursued ; a 
 letter was addressed by the Archbishop of Canterbury 
 to the colonial secretary, upon which her Majesty was 
 pleased to issue a mandate to the archbishop authorising 
 him to consecrate a bishop, but no letters patent were 
 issued purporting to convey jurisdiction conferred by 
 the crown. h ' 
 
 The Queen v. Eton College, 8, London Guardian, Dec. 6. 1876 
 Ell. and B. p. 635. p. 1593. 
 
 * Hans. D. v. 185, p. 397. h Hans. D. v. 178, p. 276; v. 179,
 
 612 THE ROYAL PREEOQATIVE 
 
 It was afterwards decided by the colonial secretary, with the 
 advice of the crown law officers, that ' a mandate from the crown is 
 not necessary to enable colonial bishops to perform the act of conse- 
 cration.' Case of the bishop of Niagara. 1 
 
 The authority presumed to have been conferred upon 
 
 a colonial bishop, by his letters patent, ' to perform all 
 
 Colonial the functions appropriate to the office of a bislfop in a 
 
 diocesan A 
 
 synods. colony, did not ' confer power to convene a meeting of 
 clergy and laity, to be elected in a certain manner pre- 
 scribed by him, for the purpose of making la\vs binding 
 upon churchmen.' ' Such a meeting/ it was held, was 
 * not a synod, and its acts are illegal, if they purport, 
 without the consent of the crown or the colonial legis- 
 lature, to bind persons beyond its control, and to 
 establish new courts of justice. ' j 
 
 Episcopal In Canada, so early as the year 1855, application 
 Canada. m was m &de to the Imperial Parliament, by a joint address 
 from both Houses of the Canadian legislature, for the 
 repeal of such imperial statutes as impeded the clergy 
 and laity of the colonial church from meeting in synod, 
 and from electing their own bishops ; but after con- 
 sulting the law officers of the crown, the secretary of 
 state for the colonies recommended that the powers 
 sought for should be conferred by an Act of the Cana- 
 dian legislature, as had already been done in the colony 
 of Victoria. Whereupon the Act 19 & 20 Viet. c. 141 
 was passed to enable the members of the Church of 
 England in Canada to hold synods, and to elect their 
 own office-bearers. Being reserved for the signification 
 of the royal pleasure thereon, this Bill was disapproved 
 by the crown law officers, who were of opinion that, 
 in order effectually to legalise the election of Canadian 
 
 p. 1100. See the Correspondence, Colonies) 1867, v. 48, p. 866. Hans, 
 
 and form of mandate in Corresp. rel. D. v. 185, pp. 387-391. 
 
 to Colonial Bishoprics, No. 1, 1866, J Case of Long v. the Bishop of 
 
 p. 19. Capetown, in Brodrick's Judgments 
 
 ' Com. Pap. (Ch. of Eng. in the of the P. Coun. p. 294.
 
 IN MATTERS ECCLESIASTICAL. 513 
 
 bishops an imperial statute would be requisite. The 
 Bill, however, was referred to the Judicial Committee of 
 the Privy Council, who, after hearing counsel on the 
 matter, advised that it should receive the royal assent. 
 Whereupon it was specially ratified by the Queen in 
 council. k Since the passing of this Act, the crown has 
 deliberately surrendered the right of nominating bishops 
 in Canada, and of approving the choice thereof by the 
 clergy and laity. 1 
 
 In view of the altered position of the Church of England in the New Zea- . 
 colonies of Great Britain, by reason of the aforementioned judgment land epis- 
 of the Privy Council in the case of the Bishop of Natal, which c P a te. 
 denies that the Church is a part of the constitution in any colonial 
 settlement, and repudiates its claim to be recognised by the law of 
 any colony otherwise than as ' the members of a voluntary associa- 
 tion,' the five bishops of the Anglican Church in New Zealand 
 petitioned the Queen, in the year 1865, that they might be per- 
 mitted to surrender their letters patent (which had been issued by 
 the crown after the colony had received representative institutions), 
 and allowed to rely in future upon the powers inherent in their 
 office for perpetuating the succession of their order within the 
 colony, and securing the due exercise of their episcopal functions, in 
 conformity with a church constitution agreed upon in 1857, 'by 
 voluntary compact ' between the bishops, clergy, and laity of the 
 United Church of England and Ireland in New Zealand. 
 
 The bishops stated, in their petition, that their church constitu- 
 tion had been recognised by an act of the New Zealand legislature, 
 in 1858, which sanctioned the assembling of a general synod, and 
 made regulations in regard to the holding of church property. That 
 a general synod had since assembled triennially, and had framed 
 rules for enforcing discipline within their body, and had established 
 a tribunal to determine whether such rules had been violated or not, 
 and what should be the effect of their violation ; in conformity 
 with the judgment of the Privy Council in the case of Long v. the 
 bishop of Capetown, which declared that the members of the 
 Church of England in a colony ' may adopt rules for enforcing dis- 
 cipline within their body which will be binding on those who, 
 expressly or by implication, have assented to them.' m 
 
 k See Journal Leg. Assy. Can. 1850, doubts in regard to the representa- 
 
 pp. 259-266. Com. Pap. 1856, v. tion of the laity in the synods, by the 
 
 44, p. 129. .Ib. 1857, 2, v. 28, p. Act 22 Viet. c. 139. 
 
 97. The Canadian statute was after- ' Mac. Mag. v. 18, p. 456. 
 
 wards amended, in order to remove m Brodrick's Judgments, p. 310. 
 
 VOL. I. L L
 
 614 THE ROYAL PREROGATIVE 
 
 In order to prevent any failure of justice, as the result of this 
 
 new relation between the Church authorities and the parties who 
 
 may be subject to them, the bishops submit that the course of pro- 
 
 The cedure, in all questions that may arise between any of the members 
 
 Church in o j ^e Anglican Church in New Zealand, whether bishops, clergy, 
 
 land. or l a ity wn o have bound themselves by voluntary compact, under 
 
 the authority of the general synod, should be that which was pointed 
 
 out by the judgment of Lord Lyndhurst, in 1835, in the case of Dr. 
 
 Warren," viz. : 
 
 1. That the question be tried and decided according to the rules 
 of the synod, as agreed to by the bishops, clergy, and laity. 
 
 2. That on petition of either party the Supreme Court of the 
 colony would have authority to inquire into ' the regularity of the 
 proceedings, and the authority of the tribunal, and, on those grounds 
 merely,' to affirm or annul the decision. 
 
 3. That from any such decision of the Supreme Court of the 
 colony an appeal would lie to the Privy Council, upon the same 
 grounds. 
 
 The bishops are of opinion that such a mode of procedure would 
 satisfy all the ends of justice, and secure the liberty of the subject, 
 without its being necessary to appeal direct to the crown, in any 
 litigated case, as had been done with such unsatisfactory results in 
 the controversy between the bishop of Capetown and the bishop of 
 Natal. 
 
 In order, 'therefore, that all doubts as to their status, both eccle- 
 siastical and temporal, may be removed, the bishops pray : 
 
 1. That the surrender of their letters patent, now declared to be 
 null and void, may be accepted. 
 
 2. That the royal mandate under which they were consecrated 
 may be declared to have been merely permissive, and to have no 
 further effect or legal consequence. 
 
 3. That the inherent right of the bishops in New Zealand to fill 
 up vacancies in their own order by the consecration of persons 
 elected in conformity with the regulations of the general synod, 
 without letters patent, and without royal mandate, may be recog- 
 nised : following therein the precedent already established in the 
 case of the missionary-bishop for the islands of the Western Pacific, 
 who was consecrated by the bishops of New Zealand, without 
 letters patent or royal mandate, after communication with the 
 secretary of state for the colonies, and the attorney -general of 
 New Zealand. 
 
 On April 24, 1866, the colonial secretary (Mr. Cardwell) in- 
 formed the House of Commons, in reply to a question from a mem- 
 
 " See Brod. and Frem's. Jud-rments of the Coiu c . P. C. ,308 n, 311.
 
 IN MATTERS ECCLESIASTICAL. 515 
 
 fcer, that the foregoing memorial of the New Zealand bishops had 
 been accompanied by a minute from the New Zealand ministry, ob- 
 jecting to the creation of corporations within the colony by the act 
 of the crown without their advice, and also to any arrangement by 
 which any g"it<m-jurisdiction of the bishops in New Zealand should 
 receive any authority from the crown. On the other hand, the 
 archbishop of Canterbury approved of the petition from the New 
 Zealand bishops, but was of opinion that, since the judgments of 
 the Privy Council therein cited, 'the qiiasi-judici&l decisions of the 
 governing powers in the colonial churches could only be regarded as 
 proceedings " in foro domestico" which ought not to be liable to 
 be reviewed, on appeal, by the Judicial Committee of the Privy 
 Council.' Under these circumstances, and considering the diffi- 
 culties arising out of the decision of the Privy Council in the ease 
 of the "bishop of Natal, the government had decided to consult 
 Parliament before any further action was taken. Meanwhile, they 
 were unable to recommend the filling up of a vacancy in the see of 
 Nelson, New Zealand, although such vacancy had existed for several 
 months. 
 
 On May 15, the promised Colonial Bishops Bill was introduced. P Colonial 
 It permitted the surrender of his letters patent from the crown by jJf, P 3 
 any bishop exercising episcopal functions in any of the British 
 colonies. It rendered valid ordinary episcopal acts done by any 
 bishop, lawfully chosen, and consecrated, by the free and voluntary 
 consent of his clergy and people, without the necessity for any 
 letters patent, royal mandate, or license. It authorised any bishop 
 of the Church of England to consecrate, within the United King- 
 dom, a bishop for the Church in the colonies, or elsewhere beyond 
 the limits of the United Kingdom, upon receiving a royal license 
 in lieu of a mandate for that purpose : and declared that no such 
 mandate or license shall be necessary for any such consecration 
 elsewhere than within the United Kingdom. All questions of law 
 respecting the status, rights, and duties of a colonial bishop to be 
 determinable, where there is no ecclesiastical court, by ordinary 
 courts of law in the colonies. The remaining clauses of this Bill 
 related to the relations between the Established Church in the 
 mother- country and the colonial bishoprics, so far as regards the 
 performance of episcopal acts or clerical functions by persons 
 ordained in the United Kingdom, or in any of its dependencies. 
 Owing to the change of ministry in the latter part of this session, 
 the Colonial Bishoprics Bill was unavoidably withdrawn. But, on 
 
 See the petition, minute of New Bishoprics,' presented to Parliament, 
 
 Zealand Cabinet thereon, and the in May 1866, No. 1, p. 1. 
 
 archbishop's letter, &c., in the ' Cor- P Hans. I), v. 183, p. 1032. 
 reppondence relative to Colonial 
 
 L L
 
 510 THE ROYAL PREROGATIVE 
 
 July 13, the new colonial secretary expressed his general agreement 
 with the principle of this Bill, and intimated that the government 
 would be prepared to submit a similar measure to Parliament in the 
 ensuing session. 1 
 
 3. The position of the Church of England in Foreign 
 Countries. 
 
 church of Inasmuch as the whole collective legal powers of a 
 abroad d bishop of the Church of England, as distinguished from 
 his spiritual powers, are derived from the crown, in con- 
 junction with Parliament, it follows that no such autho- 
 rity and jurisdiction can be granted out of the Queen's 
 dominions, except as the result of a special arrangement 
 with the governing power of a foreign country ; and that 
 the authority of Parliament must be invoked to enable 
 the crown to dispense with the requirements indispen- 
 sable to the ordinary appointment and consecration of 
 bishops within the realm. Thus, in 1786, after the in- 
 dependence of the revolted American colonies had been 
 established, an act was passed empowering the arch- 
 bishop of Canterbury or York, with such other bishops 
 as they shall think fit to assist, to consecrate citizens or 
 subjects of foreign states to the episcopal office, according 
 to the form of consecration in the Church of England. 
 This act dispensed with the necessity for the royal license 
 for the election, and of the royal mandate for the confir- 
 mation and consecration of such bishops ; but it forbad 
 any such consecration without the royal license having 
 been first obtained for the performance of the same/ 
 Subsequently, in the year 1841, the provisions of this 
 Act were extended so as to admit of bishops so appointed 
 to exercise spiritual jurisdiction over the ministers of 
 British congregations of the Church of England in foreign 
 countries, as well as over such other Protestant congre- 
 gations as may be desirous of placing themselves under 
 
 < Hans. IX v. 184, p. 805. ' 26 Oeo. III. c. 84.
 
 IN MATTERS ECCLESIASTICAL. 517 
 
 their authority. 8 In 1862, the bishop of Oxford submitted 
 a Bill to the House of Lords, to authorise the appoint- 
 ment and consecration of bishops for heathen and 
 Mahomedan countries, with a view to the spread of the 
 Gospel among the heathen, and to dispense with the 
 necessity for any license from the crown,, to enable 
 the archbishops to proceed to consecrate such bishops. 
 The Bill was opposed by the lord chancellor, as being 
 an attempt to * assail and remove the supremacy of the 
 crown ; ' and because it was necessary, in order ' to 
 maintain the constitution of the country in Church and 
 State, that no act should be done by which dignity is 
 conferred, except under special authority emanating 
 from the sovereign, as the source of all authority, tem- 
 poral and spiritual.' Moreover, there was no necessity 
 for the Bill, as the power and authority required had 
 been already given by the Aces of 26 Geo. III. and 5 
 Viet, aforesaid ; and there was no difficulty in obtaining 
 the license of the crown to proceed under those statutes. 
 The Bill was accordingly withdrawn.* 
 
 In 1861, the bishops of the Anglican Church in New 
 Zealand, after communication on the subject with the 
 secretary of state for the colonies, and the attorney- 
 general for New Zealand, consecrated a missionary- 
 bishop for the islands of the Western Pacific, without 
 letters patent, or any mandate from the crown, a prece- 
 dent which has since been followed, without objection. 11 
 
 4. The obligations of the Act of Uniformity. 
 
 By the Act 14 Car. II. cap. 4, commonly called the Act of 
 Act of Uniformity, the use of the 'Book of Common mity^" 
 Prayer thereunto annexed is made binding upon the 
 clergy of the Church of England ; and they are ex- 
 
 The Jerusalem Bishopric Act, 5 Stat., v. 2, p. 2150, n. 
 Viet. c. 6, and see the form of license ' Hans. D. v. 168, pp. 223, 234. 
 from the crown in Stephen's Eccl. u Ib. v. 185, p. 380.
 
 518 THE ROYAL PREROGATIVE 
 
 pressly forbidden to make use of any other form or 
 order than what is prescribed and appointed to be used 
 in and by the said book. A declaration of assent and 
 consent to the said Book of Common Prayer is required 
 to be made by all officiating ministers of the Church, 
 together with other declarations for the maintenance of 
 the established religion and government in church and 
 state. This Act, however, is limited in its operation 
 to the ' kingdom of England, dominion of Wales, and 
 town of Berwick-on-Tweed.' v A similar Act was passed 
 by the Irish Parliament. w 
 
 In conformity with the general spirit of liberality, 
 and increased freedom of action in regard to ecclesi- 
 astical questions, which characterises enlightened public 
 opinion at the present day, it would appear that Parlia- 
 ment is not inclined to insist upon the literal observance 
 of this statute. Thus, on August 7, 1862, inquiry being 
 made of the government, in the House of Commons, 
 whether a certain injunction issued by the bishop of 
 Oxford to his clergy was in conformity with the Act 
 of Uniformity, the attorney-general evaded a direct 
 answer to the question, and inclined to regard the sub- 
 ject matter of the injunction ' as one that concerned 
 .the bishop and his clergy, and not the government.' x 
 Newterms In 1865, pursuant to the recommendations of a 
 subscript royal commission appointed to consider the terms of 
 tion. subscription to the articles and liturgy of the Estab- 
 lished Church by persons admitted to holy orders 
 therein, which were previously of a very stringent 
 character, Parliament adopted a new form of sub- 
 scription, couched in general terms, y professedly in order 
 to quiet the conscientious scruples of a large .body 
 
 T But see the previous Act on the w 17 & 18 Car. II. c. 6. 
 
 same subject, of 1 Eliz. c. 2, which * Hans. D. v. 168, p. 1213. But 
 
 applies to the whole of ' the Queen's see a valuable note on this point in 
 
 dominions,' and which has not been Smith's Parl. Rememb. 1862, p. 180. 
 
 repealed. By Act 28 & 29 Viet. c. 122.
 
 IN MATTERS ECCLESIASTICAL. 519 
 
 of the clergy, and to admit of a greater latitude of 
 opinion, in regard to many questions of faith and prac- 
 tice, concerning which the Church has not pronounced 
 authoritatively, or upon which she does not consider 
 it to be of essential importance tnat her ministers 
 should be entirely agreed/ The Act of Uniformity was 
 amended in 1871, by the Act 34 & 35 Viet. c. 37, 
 which directed the use of a revised Table of Lessons, 
 in lieu of the one previously sanctioned. It was again 
 amended in 1872, by the Act 35 & 36 Viet. c. 35, 
 which authorised the use of certain shortened forms 
 of divine service. 
 
 Hans. D. v. 179, p, 963 (arch- 104, 109, for constitutional changes 
 
 bishop of York). Ib. v. 180, p. 656 involved in modern legislation upon, 
 
 (Attorney-General Palmer). See ecclesiastical questions, 
 Amos, Fifty Years Eng. Const, pp.
 
 520 THE ROYAL PREROGATIVE 
 
 CHAPTER XL 
 
 ROYAL PREROGATIVE CONCERNING THE ARMY AND NAVY, 
 
 in relation THE next branch of the royal prerogative that will 
 
 to the , J , . f 
 
 army and engage our attention is that which concerns the main- 
 tenance and control of the army and navy. The exist- 
 ence of a military force, of greater or less extent, for 
 purposes of protection and defence against the enemies 
 of the state is essential to the well-being of every com- 
 munity. But ' the navy is the characteristic and con- 
 stitutional force of Britain ; the army is a new force 
 arising out of the exigencies of modern times.' 8 Par- 
 liament has rarely, if ever, objected to increase the 
 navy, or the militia, for internal security, while the 
 augmentation of the army has usually been regarded 
 with jealousy and subjected by the House of Commons 
 to divers constitutional restraints. b The Crown has an 
 inherent right to the service of all men to defend the 
 realm ; and can lawfully impress seafaring men to man 
 the fleets, and other able-bodied men to defend the 
 coast or shores. But Parliament has very jealously 
 watched the exercise of this prerogative. 
 
 All military authority and command within the 
 realm is necessarily centred in the sovereign ; a prero- 
 gative which, by the declaratory Act 13 Car. II. c. 6, 
 was expressly confirmed. 
 
 Sir A Wellesley (Duke of Wei- p. 143, & c. Rpt, of Com" on 
 
 lin^ton), Parl. Deb. v. 11, p. 814. Manning the Navy, 1859. Mem. on 
 
 b Clode, Mil. Forces, v. 1, c. 13 ; Army (Militia Ballot) Com. Pap. 
 
 v. 2, p. 180. 1875, v. 43, p. 511. 
 
 Stephens, Com. Ed. 1874, v. 3,
 
 CONCERNING THE ARMY AND NAVY. 521 
 
 The dependence of the army upon the crown, abso- 
 lutely and without any qualification, is essential to the 
 safety of the monarchy, and has ever been regarded as 
 the undisputed right of the occupant of the English 
 throne. d Nevertheless, at the revolution of 1688, such 
 limitations were imposed upon this prerogative as have 
 rendered it impossible that it should be exercised to the 
 detriment of English liberty. It was declared by the 
 Bill of Eights ' that the raising or keeping a standing 
 army within the kingdom in the time of peace, unless 
 it be with consent of Parliament, is against law.' e 
 
 Parliamentary consent to the continued existence of 
 a standing army is given only for the period of one 
 year at a time, by a formal resolution of the House of 
 Commons fixing the number of men of which the army 
 shall consist. This resolution is embodied in the pre- 
 amble of the annual Mutiny Act, which recites the 
 aforesaid provision of the Bill of Eights, and enacts 
 that ' whereas it is adjudged necessary by her Majesty 
 and this present Parliament that a body of forces should 
 be continued for the safety of the United Kingdom, 
 the defence of the possessions of her Majesty's crown, 
 [and the preservation of the balance of power in 
 Europe ' f ] the said force shall consist of such a num- 
 ber of men. Having declared the assent of Parliament 
 to the existence of an army, to be composed of a limited 
 number of soldiers, the Act proceeds to provide for the 
 discipline of the force by authorising military offenders 
 to be punished according to military law, instead of by 
 the slow and complex process of the civil courts. 
 
 In time of war ' the crown has absolute power to 
 legislate for the government of the army, ' g though, as 
 
 d See Cox, Inst. Eng. Govt. 594. See charge of Ch. Just. Cockburn, 
 
 e Clode, Mil. Fore. v. 1, c. 5. in the Queen v. Nelson and Brand, 
 
 1 The words between brackets pp. 69, 87-91. In time of war, the 
 
 which were first inserted in 1727, and crown acts out of the limits of its 
 
 continued thenceforth until 1868 dominions as regards the Army, by 
 
 have been since omitted. Hans. D. virtue of its prerogative. Barwis, v. 
 
 v. 191, pp. 326, 557. Keppel, 2 Wilson, p. 314.
 
 522 THE KOYAL PREROGATIVE 
 
 we shall presently notice, that power has fallen into 
 desuetude. In time of peace the crown can only frame 
 laws and regulations for the government of the army 
 and navy by express authority of Parliament. Thus, 
 the articles of war for the discipline and government of 
 the army are made in pursuance of the annual Mutiny 
 Act, the first section whereof authorises the crown to 
 frame those articles. But it is expressly declared that 
 this supplemental legislation shall be legal only so far 
 as it is in accordance with the provisions of the Mutiny 
 Act. h 
 
 The first Mutiny Act was passed in 1689. It has 
 since been renewed every session, with the exception 
 of the interval between 1698 and 1701, when it was 
 not re-enacted. 1 
 
 In the years immediately following the revolution, 
 the Mutiny Acts dealt exclusively with the matter of 
 discipline, and the parliamentary sanction to the con- 
 tinuance of the army itself was given by resolution of 
 the House of Commons in committee of supply, deter- 
 mining the number of men to be employed, and voting 
 the money required for their maintenance and support. 
 On two occasions during the reign of William III., the 
 House of Commons reduced the number of the stand- 
 ing army by their resolutions in this committee, and 
 one of these instances occurred at the time when there 
 was no Mutiny Act in operation^ By modern practice, 
 the numbers of men to be employed both in the army 
 and navy are annually fixed by resolutions in committee 
 of supply, and afterwards included, in respect to the 
 army in the Mutiny Act, and in respect to the navy in 
 the Act of Appropriation ; thus obtaining, for the reso- 
 lutions of the Commons in limitation of the amount of 
 
 h Queen v. Nelson and Brand, p. ! Clode, v. 1, pp. 153, 389. 
 69. "M Viet c. , J . J Hallam, v. 3, pp. 189, 190
 
 CONCERNING THE ARMY AND NAVY. 623 
 
 force to be in the hands of the crown, the consent of 
 the other branches of the legislature.* 
 
 It is a direct infringement of the constitution, and a violation 
 both of the Bill of Rights and of the Mutiny Act, for the govern- 
 ment to raise more men for the land and sea forces than have been 
 voted by Parliament. ' It is the practice of the War Office, how- 
 ever, to regard the number of men voted, not as a maximum number 
 for any time during the year, but for an average upon the whole 
 year ; considering that if they made the average correct for the 
 whole year, the vote of the House had been complied with. 1 Upon 
 occasions of great emergency the government have assumed the 
 responsibility of increasing the army or navy beyond the numbers 
 actually voted, and have afterwards applied to Parliament to make 
 good the deficiency in the supplies granted for this service. In 
 1858, when the government of India was assumed by the British 
 crown, clauses were inserted in the new India Bill to prevent the 
 use of the Indian army out of India, except upon sudden emergency; 
 and requiring that, whenever it should be so made use of, the ex- 
 pense thereof unless ' both Houses of Parliament ' should consent 
 to the contrary should be defrayed out of moneys to be voted by 
 Parliament, and not out of the Indian revenues." On November 28, 
 1867, a resolution was submitted to the House of Commons, by the 
 government, to authorise part of the revenues of India to be applied 
 for the ordinary pay of troops chargeable on said revenues, but 
 about to be employed in the expedition against Abyssinia. This 
 resolution was agreed to, and was concurred in by the House of 
 Lords on December 5. 
 
 In lieu of the annual Mutiny Act, Parliament passed ,. 
 
 A i oi-rv nil * -rx- T n T-T i Discipline 
 
 an Act in 1 o7 called the Army Discipline and liegula- and 
 tion Act, which embodied various customs and rules 
 which had gradually been adopted. Further regulations 
 
 k Clode, Mil. Forces, v. 1, pp. 86, Ib. v. 172, p. 1291. Ib. v. 177, p. 
 
 104 Second Rpt. Courts Martial 1821. Smith's Parl Rememb. 1863. 
 
 Comms. Com. Pap., 1868-9, v. 12. p. p. 40. Martin's Life P. Consort, v. 4 
 
 408. p. 233, n. On the constitutional ques- 
 
 1 Sir G. Lewis, Hans. D. v. 165, p. tion of the employment of troops 
 
 974. on the Indian establishment in other 
 
 m Ib. v. 164, pp. 1481-1493. But countries, see the Rep. of Com 6 , on 
 
 see Smith, Parl. Rememb. 1860, p. Mortality of Troops (China). Com. 
 
 254, and 1862, p. 39. And Rpt. on Pap. v. 15, p. 11. See recommenda- 
 
 Pub. Accts. 1862, Com. Pap. v. 11, tions of Sel. Com e . H. of C. in 1868, 
 
 Evid. 976, and Ib. 1864, and 8, Kvid. on employment of native Indian 
 
 1009-1029. troops in other dependencies of the 
 
 n 21 & 22 Viet. c. 106, . 55, 56, crown, Com. Pap. 1867-8, v. 6. 
 
 Hans. D. v. 161, pp. 1007,1696, 2008. Hans. 13. v. 190, p. 359.
 
 524 THE ROYAL PREROGATIVE 
 
 were afterwards made, and in 1881 another Act was 
 passed in which these were consolidated, whilst the 
 former statute was revised and re-enacted. The Eegu- 
 lation of the Forces Act and the Army Act of 1881 
 now include all previous laws and regulations on the 
 subject. In 1882 these acts were amended by the 
 Army (Annual) Act, by the Military Manoeuvres Act, 
 and by the Eeserve Forces Act, all passed in that year. 
 An act to consolidate the law relating to the militia 
 was also passed in 1882. 
 
 standing It is worthy of remark that the declaration of the 
 
 Bills of Eights, as to the illegality of maintaining a 
 standing army without the consent of Parliament, is 
 expressly confined to ' the time of peace.' Moreover, 
 the Mutiny Act, in conferring extraordinary powers 
 for the discipline of the army, is construed to imply 
 that, except 'in time of peace,' the enforcement of 
 martial law upon military men is not illegal. Ac- 
 cordingly, the royal prerogative, in respect to the em- 
 bodiment and control of an army and generally for the 
 defence of the realm in times of rebellion or foreign 
 
 o 
 
 invasion in time of war, remains unimpaired by these 
 constitutional restrictions, and is still the same as it was 
 by the common law. p What that law allowed is, how- 
 ever, no longer material to enquire, inasmuch as the 
 monarchs of England, ever since the revolution, have 
 been satisfied to rely upon the authority of the Mutiny 
 Act for the enforcement of discipline in the army both 
 in war and peace, and have been equally dependent at 
 all times upon the necessity of obtaining from Parlia- 
 ment, year by year, the supplies required for the 
 prosecution of any war in which Great Britain might 
 be engaged. q During the American war, the question 
 was raised in Parliament whether it was legal to allow 
 
 i- Clode's Military Forces of the 1 Sat. Rev. Oct. 25, 1862, pp. 50- 
 Crown, v. 1, pp. 1-6, 10, 507..
 
 CONCERNING THE ARMY AND NAVY. 525 
 
 regiments to be levied and maintained by individuals, 
 without the sanction of Parliament. The weight of 
 authority was against the practice, though ministers 
 inclined to justify it. The principal objection that was 
 urged was a formidable one, namely, that it is of the very 
 essence of Parliament to judge of the necessities of 
 the state, and make provision accordingly ; and that any 
 measure to that end, without the previous concurrence 
 of Parliament, tended to supersede its authority and 
 strip it of its rights/ 
 
 It is, however, one of 'the ancient rights and liber- The 
 ties/ of Englishmen to ' have arms for their defence, milltia - 
 suitable to their condition, and as allowed by law ' ; and 
 the fundamental laws of the kingdom have repeatedly 
 affirmed the obligation of every Englishman to have a 
 knowledge of the use of arms, in order that he may 
 assist in preserving the public peace. 8 Hence the militia 
 halTalways been regarded as the constitutional force for 
 the defence of the realm, and one of the earliest Acts of 
 Parliament after the restoration of the monarchy in 
 1660 was for the settlement of the militia upon a con- 
 stitutional basis. By the Militia Laws Consolidation 
 Act, passed in 1786, it is declared that ' a respectable 
 military force, under the command of officers possessing 
 landed property within Great Britain, is essential to the 
 constitution of this realm.'* 
 
 Upon a similar principle, the formation of Volunteer Volunteer 
 rifle corps in Great Britain has taken place under the 
 direct authority of Acts of Parliament, which permit 
 the sovereign to accept offers of military service from 
 the people, under certain conditions. 11 The volunteer 
 
 r Parl. Hist., v. .19, p. 625. Camp- dified in practice by the Army Re- 
 bell's Chanc. v. 5, p. 463. gulation Act, 1871. Hans. D. v. 207, 
 
 s Smith's Parl. Rememb. 1859, pp. p. 1560. 
 
 108-112. Corresp. \Vill. IV. with u Stats. 44 Geo. HI. c. 64; 60 
 
 Earl Grey. v. 1, pi 416. Geo. III. c. 1. Clode, Mil. Forces, v. 
 
 ' Clode, Mil. Forces, v. 1, c. 3 & 1, pp. 86, 333. 
 1 4. But this principle has been mo-
 
 626 THE ROYAL PREROGATIVE 
 
 Volunteer movement, which has since assumed such important 
 dimensions, originated in the spring of 1859, when 
 General Peel, the then secretary for war, issued two 
 circulars, the first of which declared the readiness of 
 government to accept the service of volunteer corps, 
 offered under the old Volunteer Act of the 44 George III., 
 and the other set forth the circumstances under which 
 the government was prepared to accept, the same. 
 
 In 1862, a royal commission was appointed to enquire into the 
 condition of the volunteer force, and to report whether any mea- 
 sures were necessary in order to ensure its stability, and increase its 
 efficiency as an auxiliary arm of national defence. In reporting 
 various recommendations for this purpose, the commissioners lay 
 down the constitutional rule, that ' if it be desirable that any 
 positive limit should be placed upon the total number of the force, 
 the duty and responsibility of deciding that question must rest ex- 
 clusively with the responsible advisers of the crown.' y In con- 
 formity with this principle, the secretary of state for war shortly 
 afterwards -issued a circular forbidding the enrolment of additional 
 volunteer corps. Though in 1873, an Act was passed to provide for 
 the establishment of a Royal Naval Artillery Volunteer Force, 
 36 & 37 Viet., c. 77. 
 
 MHitaiy Military law is a branch of the law of the land 
 
 applicable only to certain acts of a particular class of 
 persons, and administered by special tribunals. It is 
 based upon rules for the government of the army and 
 navy which have been framed or sanctioned by succes- 
 sive Acts of Parliament. Courts-martial for the trial 
 of military offences are, therefore, a part of the recog- 
 nised judicatures of the realm, whose jurisdiction is 
 confined to the military and naval forces of the crown . w 
 The Mutiny Act passed in 1877, provided, for the 
 first time pursuant to the recommendations of a War 
 Office committee in November 1876, on the Militia 
 Acts that officers of the militia, yeomanry and volun- 
 teer corps, should be subjected to the operation of that 
 
 * Com. Pap. 1862, v. 27, p. 9G. 
 
 " Forsyth, Const. Law, pp. 208, 210.
 
 CONCERNING THE ARMY AND NAVY. 527 
 
 Act, and of the Articles of War not only when em- 
 bodied and out for training, but at other times. x 
 
 Such being the well-ascertained rights of the crown 
 in regard to the levy, direction, and maintenance of a 
 military force for the protection and defence of the 
 empire, it remains to consider how far the Houses of 
 Parliament are constitutionally competent to interfere 
 therein. 
 
 We have already seen y that the control of the army Responsi- 
 and navy was the last of the prerogatives to be surren- ministers 
 dered into the custody of responsible ministers. Even ^trol of 
 of Jate years there have been those who have con- the army 
 tended that the administration of the military and 
 naval forces of the kingdom should remain altogether 
 
 o o 
 
 in the hands of the executive ; without any interference 
 with the same, by either House of Parliament. 2 But 
 sound doctrine forbids a distinction to be drawn be- 
 tween the exercise of the royal authority over the army 
 and navy, and over other branches of the public ser- 
 vice ; upon all alike it is equally competent for either 
 House of Parliament to tender its advice, and there can 
 be nothing done in any department of state for which 
 some minister of the crown is not accountable to Par- 
 liament. Were an exception to be allowed in the case 
 of the army and navy, it would necessarily follow that 
 the responsibility for their management would fall upon 
 the sovereign directly ; but this would be contrary to 
 the constitutional maxim which declares that the king 
 can do no wrong, and is not personally amenable to 
 any earthly tribunal whatsoever.* It has also been 
 suggested that the coinmander-in-chief, and not the 
 advisers of the crown, should be held singly responsible 
 for all acts of military administration. But, as Lord 
 
 * Hans, D. v. 232, pp, 1401, 2019, Hans. D. v. 75, p. 1289. Clode, 
 
 v. 233. p. 817; Act, 26 & 27, Viet. Mil. For. v. 1, p. 84. 
 c. 65, . 21. 40 Viet, c. 7, . 2. See ante, p. 263. 
 
 y Ants, p. 121.
 
 528 THE ROYAL PREROGATIVE 
 
 Grey pertinently remarks, this would not materially 
 lessen the inconvenience. 
 
 com- ' The holder of that office would stand in a most 
 
 oTtheT unsa fe position, if he could not depend upon the sup- 
 forces, port of the ministers of the crown in case of his measures 
 being questioned in Parliament ; and they cannot be 
 expected to give this support unless the officer who 
 trusts to it communicates with them in the performance 
 of his duties, in such a manner as to enable them to 
 guard against his taking, or omitting to take, any step 
 for which they will not be prepared to defend him.' b 
 The mismanagement of our forces during the early part 
 of the war withEussia in 1854-5, evinced the necessity 
 for a more direct and undivided responsibility than had 
 previously been recognised in the conduct of interests 
 of such importance to the security of the empire. On 
 the other hand, the advantages accruing from con- 
 stitutional oversight on the part of the House of 
 Commons, into the manner in which the military de- 
 partments were organised and controlled, were demon- 
 strated by the vigorous if not altogether successful 
 
 v O 
 
 attempts for the reform of the army administration 
 which resulted from the investigations of Parliament 
 into the conduct of the Crimean war. 
 
 . The complete responsibility of ministers for the 
 control of the military force having been established 
 beyond dispute, it follows that they must be held 
 accountable to Parliament for their proceedings in this 
 as in other matters. But as the command of the army 
 and navy is the peculiar privilege and strength of the 
 executive power, and cannot be surrendered to Parlia- 
 ment without a virtual overthrow of the monarchy, it 
 is essential that the scrutiny of Parliament into military 
 
 b Grey, Parl. Govt. 8-10, n. See and Ld. Palmerston. Hans. D. v. 
 
 debate in the II. of C. on military 150. pp. 1849, 1357. 
 
 organisation, on June 1, 1858; and c Clode, Mil. Fore. v. 2, p. 69. 
 observations of Mr. Sidney Herbert
 
 CONCERNING THE ARMY AND NAVY. 529 
 
 affairs should be cautiously and sparingly exercised, 
 lest the constitutional limits of enquiry and counsel 
 should be overstepped, and the functions of executive 
 authority be encroached upon. d The constitutional 
 security against an abuse of this prerogative is found in 
 the general responsibility of ministers, and the necessity 
 for the sanction of Parliament to the continued existence Pariia- 
 of the army and navy, by the annual appropriations for control 7 
 the support of these services, and the annual renewal of over thi9 
 
 -/r A preroga- 
 
 the Mutiny Acts. 6 tive. 
 
 Parliament has an unquestioned right to interfere, 
 by enquiry, remonstrance, and censure, in all cases of 
 abuse, whether on the part of individual military offi- 
 cers or of executive departments/ It has a right to 
 enquire into the causes and consequences of any disas- 
 ters that may befall our arms in the prosecution of 
 contests against the Queen's enemies. 
 
 Select committees to enquire into the miscarriages of the war 
 in Ireland were appointed by both Houses of Parliament in 1689, 
 and the Commons addressed the king for the trial of Colonel 
 Lundy for alleged treason on this occasion.? Similar enquiries 
 were instituted by the two Houses of Parliament during the 
 American revolutionary wars and the subsequent naval and military 
 operations in Europe. h 
 
 It may call ministers to account for placing any offi- 
 cers upon half pay, otherwise than as a reward for 
 past services, and a retainer for future services, if 
 required. 1 It has a right to discuss and advise upon 
 all general questions affecting the well-being of the 
 army and navy, their internal economy or efficiency ; 
 
 d Clode, Mil. Fore. v. 2, p. 422. years, is inexpedient. 
 
 e Ib. v. 1, p. 1 90. May, Parl. Prac- Hallam's Const Hist. v. 3, p. 195, 
 
 tice, 1883, p. 659. ed. 1829. 
 
 f See Hans. D. v. 180, pp. 369-400, " Hans. D. v. 136, pp. 1811-1816, 
 
 on a motion to resolve that the prac- 1857. 
 
 tice of appointing naval officers as ' Clode, Mil. Fore. v. 2, p. 98. 
 
 dockyard superintendents, and of Hans. D. v. 224, p. 1428. 
 limiting their term of office to five 
 
 VOL. I. MM
 
 630 THE ROYAL PREROGATIVE 
 
 although great discretion and forbearance are necessary 
 in the exercise of this right. 1 
 
 It is essential to the constitution of a military body 
 that the crown should have the power of appointing, 
 promoting, or reducing to a lower grade, or of alto- 
 gether dismissing, any of its officers or men k from 
 service in the army or navy at its own discretion, and 
 without assigning any reason for the act ; such power 
 being always exercised through a responsible minister, 
 who is answerable to Parliament for the same, if it 
 should appear to have been exercised unwarrantably, 
 and upon an insufficient ground. 1 
 
 It was decided by the Court of Queen's Bench, in the case of 
 Dickson v Yiscount Combermere and others, 111 that the discretionary 
 power of the crown to remove officers of the army or militia is so 
 absolute, that even if an officer had been tried by a court of enquiry 
 and acquitted, the crown was justified in removing him from office 
 upon the advice of a minister responsible to Parliament. 11 
 
 But it would be a dangerous assumption of power 
 for either House of Parliament to interfere in a matter 
 affecting the discipline or command of the army or navy, 
 in any individual instance ; or, to institute an enquiry 
 into the causes which affect the promotion of particular 
 officers ; p or, to revise the decision of the War Office 
 
 J Hans. D. v. 89, p. 1069. Ib. And see Hans. D. v. 230, p. 1315, on 
 
 (Ld. Stanley) v. 167, p. 211. Ib. removal of Capt. Sulivan from naval 
 
 v. 164, p. 625. Ib. (Ld. Palmerston), command without a court-martial. 
 
 v. 169, p. 751. See observations in H. of 0. on con- 
 
 k As to authority for dismissing duct uf Board of Admiralty in cen- 
 
 private soldiers, see Hans. D. v. 186, suring a naval officer after he had 
 
 p. 732. been fully acquitted by a court-mar- 
 
 I Hans. D. (Ld. Hardwicke) v. 170, tial, Ib. v. 167, p. 793. 
 
 p. 382. Ib. (Ld. Palmerston) v. 180, Mir. of Parl. 1837, p. 861. Ib. 
 
 p. 456. Ib. (Gen. Peel) v. 189, p. 1841, p. 835. Hans. D. v. (Ld. 
 
 1017. Lucan's case) v. 137, p. 1333. Ma- 
 
 m 3. Fost. and Fin. p. 627. caulay's speech, Ib. v. 84, p. 890. 
 
 II Broom, Const. Law, p. 728. Gen. Peel's speech, 76. v. 174, p. 
 Clode,Mil. Fore. v. 1, p. 168; v.2, 36. 
 
 pp. 118-124. And as to dismissal of P Mir. of Parl. 1837, p. 574. Ib. 
 
 lords-lieutenant, see Ib. v. 1, p. 282. 1839, p. 2810. Proposed address for 
 
 See also discussions in H. of 1, and retirement of old naval officers with 
 
 H. of C. Hans. P. v. 170, pp. 381, a view to promotion of young and 
 
 1969, on Naval Courts of Enquiry, active men. Hans. D. v. 69, p. 483 ;
 
 CONCERNING THE ARMY AND NAVY. 531 
 
 or of the Admiralty as to the pay, pension, allowances, 
 or retirement of individual officers ; q or, into the be- 
 stowal of military rewards or punishments to particular 
 persons ; r or, to review the decisions of courts-martial, 
 and the action of the military or naval authorities in 
 relation thereto ; s except in cases where either malver- 
 sation, corrupt motives, or gross violation of the law is 
 distinctly chargeable. 
 
 In 1863, the House of Commons were induced, under peculiar 
 circumstances, to require papers to be laid before them touching the 
 court-martial upon Colonel Crawley, for alleged cruelty to Sergeant- 
 Major Lilley ; but on March 15, 1864, it was resolved, after a long 
 debate, that the production of any further papers in this case was 
 inexpedient.* The legal immunity of commanding officers in the 
 army or navy in bringing their subordinates to trial by court- 
 martial is established by the case of Sutton v. Johnstone." 
 
 ' There is no precedent, either in the army or navy, 
 for producing [to Parliament] a copy of the report of a 
 Court of Enquiry/ Neither should either House of Parlia - 
 
 THGn.tr5.rv 
 
 Parliament assume the right of enquiring into the most investiga 
 suitable and efficient weapons for use in the army and control. 
 
 and see Ib. v. 137, p. 1191 ; v. 164, p. 974, 1045. And discussions on Lt.- 
 
 876; y. 232, p. 1261. But in 1853 a Col. Dawkins' case, Ib. v. 179, pp. 
 
 committee of enquiry was appointed 642, 879 ; v. 180, p. 456. L. J. Hep. 
 
 by the H. of C. into the case of Lieut. N.S. v. 34. p. 841. Thomas, Const. 
 
 Engledue, it being alleged that he Law. p. 69. Hans. D. v. 193, pp. 
 
 owed his restoration to the service to 920,958. Clode, Mil. Fore. v. 1, pp. 
 
 corrupt influences. Com. Pap. 1852-3, 188-190. 
 
 v. 25, p. 471. Hans. D. v. 189, p. * As to the injurious effect of the 
 
 333. interference of Parliament in this 
 
 ' Palmerston, Hans. D, v. 145, p. case, see Clode, v. 1 , p. 175, n Hans, 
 
 477. Clode, Mil. Fore. v. 1, p. 97. D. v. 189, p. 1026. And see Ib. Aug. 
 
 Hans. D. v. 203, p. 116. 6, in regard to the sentence on Capt. 
 
 1 Macaulay, in Mir. of Parl. 1841, Jervisby the court-martial at Simla, 
 
 p. 1687. Wellington, Hans. D. v.82, Also Com. Pap. 1867, v. 42, pp. 343, 
 
 p. 720. Clode, Mil. Fore. v. 2, pp. 553. And see debate on the Roberts' 
 
 326-330. Case of Capt, King (Army court-martial, Hans. D. v. 235, p. 
 
 prize money), Parl. D. v. 23, p. 1046. 923. 
 
 Hans. D. v* 74, p. 58 ; v. 164, p. 994; u 1. Term Rep. p. 493. Broom, 
 
 v. 167, p. 793. Const. Law, p. 650. 
 
 Mir. Parl. 1831-2, p. 2955. Ib. ' Mr. Hunt (1st Ld. Admiralty), 
 
 1834, p. 2121. Ib. 1835, p. 2344. Hans. -D. v. 232, p. 1976. 
 Ib. 1841, p. 835. Hans. D. v. 171, pp. 
 
 M M 2
 
 632 THE EOYAL PREEOGAT1VE 
 
 navy, unless invited by the government to institute such 
 an investigation.* 
 
 In 1854, the House of Commons appointed a select committee 
 on the cheapest, most expeditious, and efficient mode of providing 
 small arms for the service ; and in 1863 a committee to enquire into 
 the results of recent experiments in various kinds of improved 
 ordnance. These committees were appointed with the sanction of 
 government ; nevertheless, the result of their labours was most 
 unsatisfactory. See a debate in the Commons, on March 2, 1865, 
 on a motion for a committee to consider of navy armaments, which 
 was negatived ; and on June 13, 1867, on a motion for a committee 
 to consider the present condition of the ordnance department, which, 
 being opposed by ministers, was withdrawn. 
 
 It has also been repeatedly held that Parliament has 
 no right to ask for information as to the distribution or 
 movement of troops, whether in times of peace or of 
 war ; but such information has been occasionally com- 
 municated, and- since 1865 has been regularly supplied 
 through the monthly army lists. 1 
 
 And here it may be observed that, prior to the 
 establishment of the railway system, all the highways 
 in the kingdom were assumed to be vested in the 
 sovereign, for the free use of the crown and people. 
 And the sovereign had a prerogative right to the use 
 of these highways, and of carriages and horses in the 
 vicinity, at statutory rates, for the passage of troops or 
 military stores thereon. The actual rights of the crown 
 in the use of railways in peace or on occasions of public 
 emergency are defined in a War Office memorandum on 
 the subject, dated April 1876. y 
 
 Parliament has a right to call for full information in 
 regard to military matters, for the purpose of enabling 
 it to vote with discretion and intelligence upon the 
 naval and military estimates. But this right must not 
 be held to justify an unseasonable interference in respect 
 to the details of military administration. For example, 
 
 w Hans. D. v. 163, pp. 1669-1581. 
 * Clcde, Mil. Fore. v. 2, pp. 331 333. ' Com. Pap. 1877, v. 60, p. 749.
 
 CONCERNING THE ARMY AND NAVY. 633 
 
 it is an ' invariable rule, founded on the best possible 
 reasons, never to publish instructions sent to naval and 
 military officers, until the operations to which they 
 referred were completed, and not often in that case : ' z 
 or, to present papers concerning a rebellion or war in 
 which the country is engaged, until peace is restored : a 
 or, to make public reports from military officers in the 
 colonies to the military authorities at home, except at 
 the discretion of the government : b or, to give informa- 
 tion as to the mode in which honours are distributed in 
 the army. 
 
 If it be necessary at any time to institute minute 
 enquiries into matters connected with the internal 
 economy of the army or navy, such enquiries, it has 
 been authoritatively stated, ' ought to be made by a com- 
 mission emanating from the crown and reporting to the 
 crown, which report might afterwards be communicated 
 to the House of Commons for any purposes which the 
 House might require. But I think this House is not 
 the authority which ought properly to institute any 
 enquiries of this kind.' d It is perfectly competent, 
 however, for Parliament to address the crown to appoint 
 a commission for such a purpose. 6 
 
 Occasionally, the administration will avail itself of 
 some formal motion to explain to Parliament the circum- nations ou 
 stances attending the exercise of the royal prerogative thls head * 
 in particular matters connected with naval or military 
 administration. 
 
 Thus, on June 7, 1861, on motion for going into committee of 
 
 Ld. Palmerston, Hans. D. v. 172, promotion and retirement in the navy. 
 p. 659. Ib. v. 169, p. 749.] This opinion was 
 
 * Hans. D. v. 102, pp. 1185, 1333. afterwards corroborated by Mr. Dis- 
 " Mir. of Parl. 1837-8, p. 1528. raeli. Ib. v. 161, p. 1868 ; v. 170, p. 
 
 And see ante, p. 443. 875. See a debate on a change in 
 
 c Mir. of Parl. 1837, p. 603. But the system of promotion among army 
 
 verbal explanations may be asked for medical officers. Ib. v. 183, p. 585. 
 
 on such points; see Hans. D. v. 178, Hans. D. v. 172, p. 794. But 
 
 p. 1598. Ib. v. 179, p. 47. see the rules applicable to the ap- 
 
 d Ld. Palmerston, Hans. D. v. 137, pointment of .Royal Commissions, 
 
 p. 1241. [And see his speech on post, v. 2.
 
 534 
 
 THE ROYAL PREROGATIVE 
 
 Prece- 
 dents of 
 enquiries 
 by Parlia- 
 ment. 
 
 Kempen- 
 feldt ex- 
 pedition. 
 
 Conduct 
 of the 
 Board of 
 Admi- 
 ralty. 
 
 supply, the attention of the House was directed to the recent 
 appointment of an officer to the colonelcy of a regiment, whose 
 claims to such a distinction appeared to have been quite insufficient. 
 The under secretary for war explained the circumstances of the 
 appointment, and justified it. After a few remarks from other 
 members, the subject was dropped/ Again, on June 5, 1862, en- 
 quiry was made in the House of Commons why a certain officer 
 had been permitted to retire on half -pay, contrary to the Queen's 
 Regulations. It was replied, that it was competent for the crown 
 to dispense with its own rules when an exceptional case occurred, 
 and that in any such case the secretary for war was responsible 
 to Parliament.^ And see on April 20, 1863, a debate in the House 
 of Lords, on a question put to the first lord of the Admiralty in 
 regard to the proceedings of a naval court of enquiry, which resulted 
 in the censure of Lord Elphinstone, the captain of H.M.S. Vigilant, 
 for alleged neglect of duty. On May 19, a similar (informal) dis- 
 cussion took place on the same subject in the House of Commons. 
 
 Having endeavoured to define the rights of the two 
 Houses of Parliament in regard to the exercise of this 
 branch of the royal prerogative, the following pre- 
 cedents are submitted in further illustration of the 
 subject: 
 
 In 1782, after the failure of the Kempenfeldt expedition, the 
 causes thereof were discussed in both Houses of Parliament. On 
 January 24, on motion of Mr. Fox, a committee of the whole House 
 was appointed, with the concurrence of ministers, ' to enquire into 
 the causes of the want of success of his Majesty's naval forces 
 during this war, and more particularly in the past year.' After this 
 committee had examined various papers laid before them, Mr. Fox, 
 on February 7, moved, 'That it appears to this committee that 
 there was gross mismanagement in the administration of naval 
 affairs in 1781.' This was intended as a direct censure upon the 
 Earl of Sandwich, the first lord of the Admiralty, and was to 
 have been followed up by an address for his removal from office, but 
 the motion was negatived. It was again proposed, in the House 
 itself, on February 20, but was again rejected. 11 
 
 In 1788, the Board of Admiralty, having, in their discretion, 
 promoted certain captains to the rank of admiral, passing over 
 others whom they adjudged to be disqualified for promotion, the 
 House of Lords was moved, 011 February 20, to address the king on 
 
 { Hans. T). v. 163, p. 7G4. see Ib. v. 160, pp. 1606, 1785. 
 
 11. v. 167, pp. 405), 429; and h Parl. Hist. v. 22, pp. 878-946.
 
 CONCERNING THE AKMY AND NAVY. 635 
 
 behalf of the naval captains who were thus neglected. The motion Prece- 
 was opposed by the ministry, on the ground that Parliament ought dents. 
 to ' place a due confidence in the first lord of the Admiralty, and 
 suffer him to exercise the discretion that belonged to his situation, 
 unmolested by their interference. The responsibility lay with that 
 officer and the Board, and there the discretion ought to rest like- 
 wise. Whenever a complaint was formally made of breach of trust, 
 or of improper conduct in any responsible member of the adminis- 
 tration, the House had a right to institute an enquiry, and, upon 
 sufficient proof of the facts alleged, to address his Majesty to re- 
 move the minister so misconducting himself. That was the con- 
 stitutional power of Parliament, and one of its most important and 
 salutary privileges ; but it was widely distinct from that or the other 
 House taking upon themselves to exercise the functions of executive 
 government.' i The mover disclaimed any intention of interfering 
 with the prerogative, which he admitted would be ' highly indecent 
 and improper,' but founded his motion on the assumption that the 
 merits of deserving officers 'had been overlooked.' Nevertheless, 
 the motion was negatived without a division. On the following 
 day, Mr. Bastard moved, in the House of Commons, an address to 
 the king to be pleased to confer some mark of royal favour on 
 Captains Balfour and Thompson, two of the officers in question, 
 and who had already received the thanks of the House for gallant 
 conduct. This was resisted by the ministry as an attempt to 
 transfer the patronage of the navy from the crown, by whom it was 
 exercised through responsible ministers, to the Commons, by whom 
 it would be exercised without responsibility or control ; ' for who 
 shall call to account the representatives of the people.' Such a 
 usurpation would be destructive to public liberty, and to our free 
 institutions, ' for no axiom is more obvious than that this constitu- 
 tion is dissolved from the instant that executive authority is assumed 
 by the representatives of the people. 'J The sense of the House 
 being manifestly against the motion, it was withdrawn. On April 
 18, however, Mr. Bastard renewed it in another shape. He moved 
 for the appointment of a committee to enquire into the conduct of 
 the Admiralty, in the late promotion of admirals. Mr. Pitt, the 
 premier, fully acknowledged the constitutional right of the House 
 to enquire into the conduct of any department of government, with 
 a view either to censure or punishment, ' whenever a case was made 
 out strong enough to warrant suspicion of abuse ; ' but he denied 
 that sufficient grounds for enquiry had been adduced in the present 
 instance. Mr. Fox expressed his concurrence in this view of the 
 constitutional position of Parliament, and observed that ' no one 
 
 1 Par!. Hist. v. 27, p. 16. i Ib. p. 28.
 
 636 THE ROYAL PREROGATIVE 
 
 Prece- held more sacred the power of the prerogative, with regard to the 
 dents. distribution of military honours and rewards, than he did ; nor was 
 any one more aware that the House of Commons was by no means 
 a proper place for canvassing military promotions. Had this motion 
 been for an address to the crown, he could not have voted for it ; 
 but being for enquiry into alleged abuse, in a case in which he saw 
 very strong grounds for suspecting partiality and oppression on the 
 part of the first lord of the Admiralty, he should vote for it. 
 Nevertheless, the question was negatived. Undeterred by his 
 second defeat, Mr. Bastard once more renewed the subject, by 
 moving, on April 29, to resolve ' that it is highly injurious to the 
 naval service of Great Britain to set aside, in promotions of flag 
 officers, officers of distinguished merit and approved service, who 
 are not precluded from such promotion by any orders of his Majesty 
 in council.' The mover declared his object to be to induce the 
 House to lay down a permanent rule for the guidance and protec- 
 tion of naval officers, and to prevent arbitrary and capricious pro- 
 motions. The motion was characterised as being an uncalled for 
 attempt to fetter the discretion of the Admiralty Board, and an 
 implied censure on the first lord, which had neither been shown to 
 be merited, nor substantiated by evidence. The previous question 
 was put thereon, and negatived. 
 
 Wai- Our next precedent refers to an event which is very memorable 
 
 cheren ex- i n English history ; namely, the disastrous expedition to Walcheren, 
 in 1809. This expedition had been sent out in order to divert the 
 attention of Napoleon from the reinforcement of his armies on the 
 Danube, which had hitherto proved too powerful for the resistance 
 of Austria, and also for the purpose of attacking the naval arma- 
 ments and establishments in the Scheldt, which were daily be- 
 coming more formidable to the security of Great Britain. The chief 
 command of the expedition was given to Lord Chatham, a cabinet 
 minister. Although partially successful, in the demolition of the 
 docks and arsenals at Flushing, such gain was more than counter- 
 balanced by the unfortunate occupation of the island of Walcheren. 
 This island proved exceedingly unhealthy, and after sustaining 
 severe losses and privations, the troops were obliged to evacuate it, 
 and the remains of this ill-fated expedition were brought back to 
 England. At the ensuing session of Parliament, resolutions of 
 censure upon ministers, for the military operations of the preceding 
 year, were moved, as amendments to the address, in both Houses. 
 It was pertinently remarked, however, that ministers ought not to 
 be condemned without previous enquiry ; and these motions were 
 negatived. But, on January 26, 1810, Lord Porchester moved, in 
 the House of Commons, that a committee of the whole House be 
 appointed to enquire into the policy and conduct of the late expedi-
 
 CONCEKNING THE AEMY AND NAVY. 537 
 
 tion to the Scheldt. It was contended, by ministers, that this Prece- 
 enquiry should not be instituted until the papers on the subject had 
 been communicated to Parliament. But the House would admit of 
 no delay, and the motion was agreed to by a majority of nine. Soon 
 afterwards, the papers relating to this expedition were laid before 
 Parliament. [The discovery among the documents of a narrative of 
 the expedition, which had been privately submitted by Lord Chatham 
 to the king, led to interesting discussions on the constitutional ques- 
 tions involved in this proceeding ; and ultimately to the censure of 
 his lordship, and his consequent resignation of office. But this point 
 has been fully considered in a former chapter, page 267.] The enquiry 
 then proceeded, by the examination of witnesses at the bar. After 
 its termination, Lord Porchester, on March 26, submitted a series of 
 resolutions, setting forth the principal facts adduced in evidence, 
 and declaring ministers responsible for the heavy calamities which 
 had attended the failure of the expedition, and which called for the 
 severest censure of the House upon them. After protracted debates 
 the resolutions were negatived, and counter-resolutions, proposed by 
 General Craufurd, were agreed to, on divisions which gave ministers 
 a majority of from 23 to 51. k This result was unexpected, and was 
 attributed, not so much to the exertions of the government in in- 
 fluencing votes, as to the preponderance of their arguments in 
 debate. 1 
 
 On August 4, 1835, Mr. Hume complained to the House of Secret so- 
 Commons of the conduct of Field-Marshal H.R.H. the Duke of the army. 
 Cumberland, for having, contrary to the express orders of the 
 commander-in-chief, taken part in promoting the establishment of 
 Orange lodges in the army. Whereupon the House agreed to 
 certain resolutions on the subject, and to an address to the king 
 directing his Majesty's attention thereto. In reply, the king assured 
 the House that he would take the most effectual means to discourage 
 and prevent every attempt to introduce secret societies into the army. 
 The home secretary (Lord John Russell) also informed the House 
 that he had communicated copies of the address and reply to the 
 Duke of Cumberland, and had been assured by his royal highness 
 that he had taken steps to bring about the immediate dissolution of 
 the Orange institution in Great Britain and Ireland." 1 
 
 In 1835, various petitions were presented to Parliament, com- 
 plaining of illegal and oppressive conduct on the part of General 
 Darling, whilst governor of New South Wales. Among the charges 
 preferred was one on behalf of a Captain Robinson, who had been 
 dismissed from the army on account of the findings of a military 
 court of enquiry, and of a court-martial against him, General 
 
 " Parl. D. v. 16, p. 422. m Com. Jour. v. 90, pp. 534, 552 ; 
 
 1 Lewis, Administr. p. 322. Hans. D. v. 70, p. 519.
 
 538 THE ROYAL PREROGATIVE 
 
 Darling being held responsible for the manner in which these en- 
 quiries were conducted, and for the arbitrary and unjustifiable 
 dismissal of Captain Robinson. On July 30, Mr. Maurice O'Connell 
 moved the House of Commons to appoint a select committee to en- 
 quire into the conduct of Governor Darling in the several matters of 
 complaint alleged against him. Sir G. Grey (the colonial -secretary) 
 opposed the motion on general grounds, and Mr. Cutlar Fergusson 
 (the judge advocate general) defended the finding of the court- 
 martial. He said that ' before the House could pass so grave a 
 censure on that tribunal, as to refer it to a committee to enquire 
 whether their decision was just or not, they ought to be satisfied, 
 not only that the judgment of the individuals composing it was 
 wrong, but that they had been actuated by corrupt or unworthy 
 motives in coming to their decision.' Nevertheless, on a division, 
 the motion for enquiry was carried against ministers. 11 On August 7, 
 after the nomination of this committee, Lord John Russell moved 
 that it be an instruction to them, ' that they do not include in their 
 enquiry or take cognisance of the proceedings, finding, or sentence 
 of the court-martial held on Captain Robinson.' Admitting that 
 ' there might arise cases requiring the great constitutional superin- 
 tendence of the House of Commons,' their interference should only 
 take place under ' very grave circumstances,' and the House should 
 then proceed, not by appointing a committee of their own, before 
 which the case should be tried over again, ' but rather by asking for 
 the minutes of the court-martial, and then addressing his Majesty 
 to take further steps, if necessary, in consequence of the injustice, 
 partiality, or illegality of the proceedings of the court-martial.' 
 These arguments prevailed, and, after some further debate, the 
 House agreed to the instruction. 
 
 On August 6, 1867, Mr. Brett moved to address her Majesty, 
 that she would be pleased to reconsider the sentence of the court- 
 martial held at Simla, on Captain Jervis, with a view to reinstate 
 that officer in his rank in the army, and in his regiment. This 
 officer, who was aide-de-camp to Sir W. Mansfield, the commander- 
 in-chief in India, had been tried for fraud and insubordination, 
 at the charge of Sir W. Mansfield. Though acquitted of fraud, he 
 had been found guilty of the other offence, but had been recom- 
 mended to mercy on account of extenuating circumstances. Never- 
 theless, the Indian commander-in-chief sentenced Captain Jervis to 
 be dismissed the service. This sentence was afterwards confirmed 
 by the commander-in-chief at the Horse Guards, after consultation 
 
 n Mir. of Parl. 1835, pp. 2198- Mil. Forces, v. i p. 175. The com- 
 
 2209. mittee afterwards made a report, ex- 
 
 2b. pp.. 2344-2348 ; Sir H. Har- culpating Gen. Darling, 76. p. 2875. 
 dinge's speech, Ib. p. 2658 ; Clode,
 
 CONCERNING THE ARMY AND NAVY. 639 
 
 with the secretaries of state for war and for India. But a gratuity Prece- 
 of 1,800. was tendered to Captain Jervis, which he refused to dents, 
 accept. At first the government declined to lay the proceedings at 
 this court-martial before the House of Commons, on the ground it 
 would be ' very unusual ' to do SO.P But, on July 2, they acceded to 
 a motion for an address for a copy of this paper, without debate. 
 It was accordingly presented to the House. q Then followed Mr. 
 Brett's motion, above mentioned. General Peel, who was secretary 
 for war when these transactions took place, strenuously opposed the 
 interference of the House on this occasion. He asserted that the 
 House ' were every day assuming a power which the constitution 
 never intended that they should exercise,' and ' in no case could that 
 be more detrimental than when they interfered with the command 
 and discipline of the army.' Sir John Pakington (secretary for war) 
 resisted the motion, first, because of ' the grave impropriety of 
 making the House of Commons a court of appeal from a grave and 
 serious decision of a military tribunal.' Secondly, because ' full 
 justice had been done in the matter.' After further debate, Mr. 
 Otway moved an amendment that the address should pray her 
 Majesty ' to give effect to the recommendation to mercy contained 
 in the sentence of the court martial held at Simla on Captain Jervis.' 
 Mr. Brett agreed that Mr. Otway 's motion should be substituted for 
 his own. Whereupon the House divided, and Mr. Otway's motion 
 was negatived by a majority of eighteen. 1 " Mr. Brett afterwards 
 informed the House that he had referred the matter to the com- 
 mander-in- chief, ' believing that he will do Captain Jervis ample 
 justice.' s 
 
 On August 8, 1870, the first lord of the Admiralty, in reply 
 to a question put to him in the House of Commons, declined to lay 
 before the House papers concerning the trial by court-martial of a 
 sergeant of the marines. 1 
 
 On June 1, 1874, Mr. W. M. Torrens moved in the House of 
 Commons for an address to the Queen, ' that before her royal sanc- 
 tion in time of peace is asked for the permanent removal from 
 active service of any officer under the rank of major-general, who 
 shall have held a commission in the army for three years, Her 
 Majesty may be graciously pleased to direct that an option may be 
 given him of having his case heard, and adjudicated upon by court- 
 martial.' It was opposed by ministers, on the ground that such a 
 rule would be an unnecessary interference with the royal preroga- 
 tive, and was negatived on division. On June 4, 1875, Mr. Torrens 
 
 P Hana. D. v. 188, p. 606, and see ' Hans. D. v. 189, pp. 1004-1040. 
 p. 770, lb, p. 1100. 
 
 o Com. Pap. 1867, v. 42, p. 343. ' Ih. v. 203, p. 1696. And see
 
 640 
 
 THE ROYAL PREROGATIVE 
 
 Prece- 
 dents. 
 
 Conduct 
 of com- 
 mander 
 of the 
 forces. 
 
 Crimean 
 expedi- 
 tion. 
 
 renewed his motion ; but after some debate the House was counted 
 out. 
 
 On May 3, 1836, Sir William Molesworth moved for the appoint- 
 ment of a committee to enquire into the conduct of the commander 
 of the forces, in appointing Lord Brudenell to the lieutenant- 
 colonelcy of the llth Light Dragoons. His lordship, it seems, had 
 about two years previously been removed from the command of a 
 regiment, on account of his having been censured by a court-martial 
 before which he had appeared as prosecutor. Under these circum- 
 stances, it was assumed that his re-appointment to a similar position 
 was improper. In reply, it was shown that the military authorities 
 were of opinion that Lord Brudenell had been sufficiently punished 
 for his past conduct, and that there were no objections to his being 
 reinstated ; that there was no cause for imputing misconduct to the 
 commander of the forces, and therefore no parliamentary ground for 
 the proposed enquiry. It was also urged that the re-appointment of 
 this nobleman was simply an act of discipline, not of patronage, and 
 that any interference in such an act by the House of Commons 
 would be unprecedented and unwarrantable. After some further 
 debate the motion was withdrawn." 
 
 The disasters which befell the British expeditionary force in the 
 Crimea, at the commencement of the war with Russia, in 1854, were 
 of such magnitude that the state of the army, and the general con- 
 duct of the war, engaged the serious attention of Parliament at its 
 next meeting, and animated debates took place in both Houses. On 
 January 26, 1855, Mr. Roebuck moved, in the House of Commons, 
 for the appointment of a committee to enquire into the condition of 
 our army before Sebastopol, and into the conduct of those depart- 
 ments of the government whose duty it had been to minister to the 
 wants of the same. This motion, although of a very stringent 
 character, and involving a censure on the government for their 
 management of the war, was strictly within the limits of constitu- 
 tional enquiry. v Before the debate commenced, Lord John Russell, 
 the president of the council, and leader of the House of Commons, 
 announced his resignation of office, on account of his inability to 
 
 debate on case of Lieut. Tribe, Ib. 
 v. 213, p. 382; v. 214, p. 490. 
 
 Mir. of Parl. 1836, p. 1306. 
 
 T See Hans. I), v. 136, pp. 1811- 
 ]816, 1857. On June 17,1864, Sir 
 J. D. Hay moved to resolve that her 
 Majesty's government in landing 
 forces on the Gold Coast for the pur- 
 pose of waging war against the King 
 of Ashantee, without making any 
 sufficient provision for preserving the 
 
 health of the troops to be employed 
 there, have incurred a grave respon- 
 sibility ; and that this House laments 
 the want of foresight which has 
 caused so large a loss of life. The 
 government regarded this motion 
 as a vote of censure, and opposed it 
 accordingly. After a long debate, it 
 was negatived by a majority of seven. 
 See also post, p. 547.
 
 CONCERNING THE ARMY AND NAVY. 641 
 
 resist the proposed investigation. He admitted that the inquisitorial Prece- 
 power was a most valuable parliamentary privilege, and acknow- denls - 
 ledged that the motion for enquiry could only be opposed on one of 
 two grounds, either that existing evils were not of sufficient magni- 
 tude to call for investigation, or that means had been taken to remedy 
 them. As he could assert neither of these propositions, he had de- 
 termined to resign his office. w After these explanations, the debate 
 began. The motion was opposed by the ministry, on the ground that 
 it went beyond mere enquiry, and was an unconstitutional attempt 
 to take the control of the expedition out of the hands of the govern- 
 ment ; that to grant the committee would be detrimental to the 
 public interests, and would tend to paralyse the action of the execu- 
 tive, both at home and abroad, at a most critical period.* Being 
 thus strenuously opposed by government, the question virtually 
 assumed the shape of non-confidence in the ministry, and when by a 
 large majority the House affirmed the necessity for enquiry, the 
 ministry resigned.? They were succeeded by a ministry under the 
 premiership of Lord Palmerston, who had filled the post of home 
 secretary in the previous (Lord Aberdeen's) administration, and 
 who, retaining the objections he had formerly expressed to the pro- 
 posed committee of enquiry, urged upon the House to abandon it, 
 and to repose confidence in the new executive, who would pledge 
 themselves to introduce such administrative improvements as were 
 necessary for the vigorous prosecution of the war. 2 The House of 
 Commons, however, having agreed to appoint the committee, were 
 unwilling to forego the enquiry ; and at length Lord Palmerston re- 
 luctantly consented to its being nominated, without any limit to its 
 original scope and purport.* The first report of the committee was 
 a recommendation that they should be made a committee of secrecy, 
 but this proposition, not meeting with general acceptance, was dis- 
 agreed to by the House. b After a protracted investigation, the com- 
 mittee made several reports, disclosing grievous mismanagement on 
 the part of the authorities at home and abroad, in the conduct of the 
 war, and making several recommendations for the improvement of 
 the military organisation, &c. On July 17, 1855, Mr. Roebuck 
 moved the following resolution, based upon the information elicited 
 before the committee : ' That this House deeply lamenting the suf- 
 ferings of our army during the winter campaign in the Crimea, and 
 coinciding with the resolution of their committee, that the conduct 
 of the administration was the first and chief cause of the calamities 
 
 w See ante, p. 223. a Ib. p. 1865. Martin, Life of 
 
 * Hans. D. v. 136, pp. 960, 999, P. C. v. 3, p. 211. 
 
 1051, 1202,1225. b Ib. p. 218. Hans. D. v. 136, p. 
 
 f Ib. p. 1234. 2088; v. 137, pp. 18-63. 
 
 * Ib. p. 1424.
 
 542 
 
 THE ROYAL PREROGATIVE 
 
 Prece- 
 dents. 
 Crimean 
 expedi- 
 tion. 
 
 which befell that army, do hereby visit with severe reprehension 
 every member of that cabinet whose counsels led to such disastrous 
 results.' The government met this motion by proposing the previous 
 question, contending that the House had not the means of judging 
 correctly of the Crimean expedition ; that the result of the enquiry 
 had been inconclusive, and confessedly incomplete, inasmuch as the 
 committee were precluded, from motives of state policy, from more 
 thorough investigations and criticisms, owing to the war having been 
 conducted in concert with our ally, the Emperor of the French ; and 
 that the present ministry were not responsible for the original dis- 
 asters, which occurred before their acceptance of office, and had since 
 been remedied, at least to a very considerable extent. In reply, 
 Mr. Whiteside urged that, according to the doctrine of ministerial 
 responsibility, Lord Palmerston, having been a member of Lord 
 Aberdeen's government, and having, since the recent ministerial 
 changes,, consented to the present enquiry, was in fact still responsi- 
 ble for the past transactions ; and that he, in common with the other 
 members of the late government who could be shown to have been 
 concerned in such mal-administration (and who were now out of the 
 ministry), ought to suffer the penalty of exclusion from office. This 
 view of the position of Lord Palmerston was denied by Lord John 
 Russell, the attorney-general, Sir G. Grey, and others, who con- 
 tended that the responsibility for the acts complained of lay with the 
 ministry of Lord Aberdeen, which having been virtually condemned 
 by the House of Commons, had resigned office, and that Lord Pal- 
 merston was now the head of an entirely new administration, and 
 could not be held responsible for the conduct of his predecessors. It 
 was admitted by Lord John Russell that, agreeably to the dictum of 
 Macaulay, the member of an existing cabinet who differs from the 
 rest on a vital point is bound to resign : but that ' while he retains 
 his office, he is responsible even for the steps which he has tried to 
 dissuade his colleagues from taking.' c Further than this, he was 
 of opinion the doctrine of ministerial responsibility could not be 
 applied, and it certainly did not justify the condemnation of the 
 head of one ministry for the acts of a preceding ministry, because lie 
 happened to form part of the same. In this view the House con- 
 curred, and after two nights' debate, the motion for the previous 
 question was carried by a large majority. d Reviewing the question 
 dispassionately, it is evident that the decision of the House was 
 correct, and that the responsibility of Lord Aberdeen's administra- 
 tion terminated upon their enforced resignation of office. If, as the 
 result of parliamentary investigation, further proceedings against 
 any particular member of that ministry should have appeared to be 
 advisable, they should have taken the shape of a parliamentary im- 
 
 c Hans. D. v. 139, p. 1080. 
 
 d Ib. July 17 and 19, 1865.
 
 CONCERNING THE ARMY AND NAVY. 643 
 
 peachment, or of a criminatory address to the crown, against the Prece- 
 offending individual, and not that of an endeavour to affix a con- dents, 
 tinuance of ministerial responsibility for past acts upon a member of 
 a new administration. 
 
 On July 24, 1860, Sir John Pakington moved, in the House of Board 
 Commons, for an address to her Majesty for the appointment of a f Ad- 
 royal commission to consider the existing system of promotion and 
 retirement in the royal navy ; and the pay and position of the several 
 classes of naval officers. The motion was opposed by government on 
 the ground that, admitting grievances to exist, it would be better to 
 trust to the Board of Admiralty, as the responsible department, to 
 effect the necessary improvements, rather than to unsettle the navy 
 by a pointing an irresponsible commission, whose recommendations 
 might excite hopes that could not be realised. The motion was 
 negatived on division. On June 12, previous, Admiral Duncombe 
 had moved for the appointment of a select committee to enquire into 
 the constitution of the Board of Admiralty, and the various duties 
 devolving thereon. Being opposed by government, the motion had 
 been withdrawn, but with the declared intention, on the part of the 
 mover, to renew it in the following session. Accordingly, on March 
 1, 1861, the motion was again made. Meanwhile, on February 28, 
 a discussion had arisen upon a series of resolutions in favour of a 
 reform in the naval administration, and a reorganisation of the Board 
 of Admiralty, which were proposed by Sir J. Elphinstone, but, after 
 a short debate, were withdrawn. Anxious to conciliate the House 
 upon the question, the government decided to agree to the appoint- 
 ment of a committee on the Board of Admiralty ; not because they 
 anticipated that an enquiry would prove any great change in the 
 composition of the Board to be necessary, but because it might ' pos- 
 sibly detect faults,' and ' prove that many misconceptions exist with 
 regard to this great branch of the public service.' e They undertook, 
 moreover, to 'give every possible assistance, in order that the enquiry 
 might reach every detail and branch of the Admiralty.'* The com- 
 mittee was accordingly appointed. Four days afterwards, Sir J. 
 Elphinstone moved for the appointment of another committee to 
 consider the question of promotion and retirement in the royal 
 navy, and the pay and position of naval officers. This motion was p r omo- 
 agreed to by a small majority, notwithstanding the opposition of tion and 
 government.^ But a week afterwards, this order was rescinded, with- retire " 
 out a division, upon the motion of Lord Palmerston (the premier), the navy, 
 the House being ' fully agreed as to the inexpediency ' of referring 
 the question of paying the navy to a select committee. So far as 
 concerned the other portion of the enquiry, Lord Palmerston moved 
 
 Hans. D. v. 161, pp. 1265. 1267. ' lb. p. 1248. 
 
 * lb. pp. 1458-1480.
 
 544 THE ROYAL PREROGATIVE 
 
 Prece- that it be an instruction to the committee on the Board of Admiralty 
 to consider the present system of promotion and retirement in the 
 royal navy, and to report their opinion thereon : which was agreed 
 to. h The committee, however, after examining a number of wit- 
 nesses, merely reported the evidence, without expressing any 
 opinion upon the matters referred to them. 1 No motion for the re- 
 appointment of the committee was made in the following session,J a 
 circumstance which has been generally attributed to a growing im- 
 pression that the administration of naval affairs had become more 
 satisfactory within the last two years, and that no radical errors 
 existed which called for the interference of Parliament. 1 * On June 
 9, 1863, however, the reappointment of the committee was moved 
 for ; but being opposed by government, the motion was withdrawn, 
 on an adjourned debate, upon June 24. But on February 24, 1863, 
 Sir John Hay moved for an address to the Queen on the position of 
 officers of the navy in respect to promotion and retirement, declaring 
 the same to be unsatisfactory at present, and setting forth the prin- 
 ciples upon which it should be amended. Lord Palmerston opposed 
 the motion, asserting it to be ' not altogether consistent with a proper 
 regard for the legitimate functions of the House ; ' first, because ' it 
 was a dangerous course for the House to assume to itself adminis- 
 trative functions,' and also because 'it is not expedient for the 
 House to address the crown to make an increase in any department 
 of the public expenditure. It is for the executive government, upon 
 its own responsibility, if it should see fit so to do, to propose to 
 Parliament such additions to that expenditure as they may deem 
 necessary for the public service, and it is for this House to adopt 
 or reject them, as it pleases.' The noble lord, however, contented 
 himself with proposing, as an amendment to the question, a resolution 
 that this House, having on March 13, 1861, instructed a select com- 
 mittee to consider the present system of promotion and retirement 
 in the royal navy, is of opinion that its decision should be suspended 
 until the subject shall have been accordingly considered and reported 
 upon ; and that a select committee be appointed to consider the said 
 system, and to report their opinion thereon to this House. Sir John 
 Hay accepted this alternative, and the amendment was agreed to 
 without a division. 1 
 
 On June 11, 1861, a motion was made in the House of Commons 
 for an address to the Queen, to be pleased to take into considera- 
 
 b Hans. D. v 161, pp. 1885-1889. And see post, v. 2, ch. on The Board of 
 
 1 Com. Pap. 1861, v. 5. Admiralty. 
 
 J Hans. D. v. 165, pp. 626-638, ' Hans. D. v. 169, pp. 751-784. 
 
 1263. See a further motion, by Sir L. Palk, 
 
 k Ib. p. 630; v. 169, p. 754; y. 171, on the subject of pay, &c. of naval 
 
 p. 667. But see v. 169, pp. 663, 769. officers, on June 8, 1864.
 
 CONCERNING THE ARMY AND NAVY. 645 
 
 tion the position of certain army colonels who had been promoted Prece- 
 to that rank for distinguished services during the Crimean war, dents, 
 but whose case had been overlooked in the framing of some new Regimen- 
 regulations in respect to regimental promotions, ' whereby their tal promo- 
 prospects in the service had been materially injured.' This motion 
 was agreed to without a division, the government having admitted 
 that the claims of these officers had been unintentionally overlooked, 
 and consented to appoint an official departmental committee to 
 consider the same. m This committee reported against the claims of 
 these officers, and the government confirmed their decision. The 
 question was still pressed upon the attention of government by 
 questions and motions in the House of Commons," and on April 28, 
 1863, a motion for an address to the crown to issue a royal com- 
 mission for the further investigation of the matter was proposed. 
 Lord Palmerston deprecated the interference of the House with 
 the detailed management of the army, because that is no part of the 
 constitutional functions of the House of Commons, ' and was calcu- 
 lated to lead to very objectionable results ; ' but he promised, if the 
 motion were withdrawn, that a commission should be issued. Mr. 
 Disraeli defended the motion as strictly regular, and as being no 
 infringement of ' the constitutional practice, entirely recognised, 
 that it is not the business of Parliament to interfere with the govern- 
 ment of the army,' inasmuch as the proposed proceeding was by an 
 address to the crown. The motion, however, was withdrawn, in 
 faith of the promise made by the premier. But in 1869 and 1870, 
 the attention of the House of Commons was called, by a private 
 member, to certain hardships inflicted on colonels of the British 
 army in consequence of their supersession by colonels of the Indian 
 army, and on June 29, 1870, ministers consented to the appoint- 
 ment of a select committee to enquire into the matter.? 
 
 On May 15, 1863, a motion for papers relating to the condition Q uar ^ er - 
 of regimental quartermasters, ' though to a certain extent connected 
 with the discipline of the army,' was admitted to be very proper for 
 the consideration of the House of Commons, ' involving as it did 
 essentially a financial question.' <i On June 21, 1864, an address was 
 agreed to by the House of Commons (with the consent of the govern- 
 ment) for an enquiry into the condition, pay, and allowances, of 
 regimental quartermasters. 
 
 On March 3, 1864, a resolution was proposed in the House of Yeomanry 
 Commons to declare that the discontinuance of the assembling of cava ^ rv - 
 the yeomanry cavalry for the customary training, during the present 
 year, was inexpedient, and would be detrimental to the efficiency of 
 
 m Hans. D. v. 163, pp. 938-944. " Ib. v. 197, p. 1888; v. 202, p. 
 
 " Ib. v. 169, pp. 26^, 1947. 1168. 
 
 ^b. v. 170, pp. 873-876. Ib. v. 170, p. 1779. 
 
 VOL. I. K N
 
 646 THE EOYAL PREROGATIVE 
 
 Prece- the force. The assistant secretary for war declared that the govern- 
 dents. merit had been obliged to take this step, in order to reduce the 
 
 army estimates ; but that they did not consider it would have the 
 effect of materially diminishing the efficiency of the force. Upon 
 division, the motion was negatived by a majority of one. r But the 
 government, having been enabled to effect an unexpected saving 
 upon the estimate for the cost of prosecuting the war in New 
 Zealand, afterwards submitted to the House a vote for the training 
 of the yeomanry, which was agreed to by a large majority. 8 
 Indian On May 2, 1865, a member called the attention of the House of 
 
 army Commons to petitions from certain officers of the late East India 
 
 Company's army, complaining of a breach of faith on the part of 
 the government, in the reduction of that force, and its amalgamation 
 with the army of the Queen. The case of these officers had been 
 already discussed in Parliament ; upon a motion for a committee of 
 enquiry, the government had agreed to appoint a royal commission, 
 who had reported upon the alleged grievances. The government 
 had undertaken to redress such grievances as might be substantiated 
 before the commissioners. Nevertheless, it appeared that the result 
 of their decision upon the several matters of complaint was regarded 
 by many as being partial and inadequate. Accordingly, an address 
 to the crown praying for the redress of all the grievances admitted 
 to exist by the commissioners, which had arisen by a departure from 
 the assurances contained in certain Acts of Parliament was pro- 
 posed and carried (against ministers) ; the secretary of state for India 
 contending that, as a whole, the condition of the officers of the Indian 
 army had been considerably benefited by the action of government. 
 On May 9, an answer was received to the aforesaid address, stating 
 that directions should be given for further enquiry into this matter, 
 in order that ' ample redress ' should be afforded wherever it might 
 appear to be necessary. On May 15, the case of the officers of the 
 late Indian army was fully debated in the House of Lords, upon 
 the presentation of a petition from an officer in a Bombay regiment. 
 It was then stated by the secretary of state for war that, in defer- 
 ence to the opinion of the House of Commons, it was the inten- 
 tion of the government to appoint a new commission to investigate 
 whether the grievances pointed out by the first commission had, or 
 had not, been removed. 1 On June 29, the House of Commons was 
 informed that the new commission had been appointed, and had 
 commenced their labours." Their report, dated September 14, 1865, 
 was laid before Parliament in the following session. On August 6, 
 
 r Hans. D. v. 173, pp. 1876-1888. informed of the intention to appoint 
 
 Ib. v. 175, p. 45. this commission. Ib. p. 297. 
 
 1 Ib. \. 17U, p. 286. On the same u Ib. v. 180, p. 926. 
 day the House of Commons was
 
 CONCERNING THE ARMY AND NAVY. 647 
 
 1866, Lord Cranborne, the secretary of state for India, informed Prece- 
 the House of the conclusions arrived at by the new Derby admiiiis- dents, 
 tration, for the remedy of the grievances under which the officers of 
 the local army of India had so long laboured. These conclusions 
 were afterwards embodied in two despatches from the secretary of 
 state to the government of India, dated August 8, 1866. v But on 
 June 28, 1870, the House of Commons again addressed the crown 
 in respect to these grievances, and at the same time a committee 
 was appointed by the House to consider counter- complaints of hard- 
 ships urged on behalf of colonels of the British army, owing to 
 their supersession by Indian army colonels. This committee re- 
 ported in July. w On February 8, 1875, another select committee 
 was appointed by the House of Commons on this subject, which 
 reported on March 23. x 
 
 On March 20, 1866, with the consent of the government, a select Mortality 
 committee was appointed by the House of Commons 'to enquire P'^pP 8 
 into the mortality of the troops in China, the causes which led to 
 it, and into the conduct of those departments of the government 
 whose duty it has been to administer to the wants of those troops.' 
 This was no party question, but arose out of certain unfortunate 
 occurrences, in regard to which the under-secretary for war stated 
 that the government, whilst they were willing to take the respon- 
 sibility upon themselves, considered it more advisable that the 
 subject should be investigated by a committee.? This committee 
 reported, on July 24, the evidence they had taken on this subject, 
 together with their opinion upon the facts before them. The main 
 conclusion at which they arrived was to the effect that, during the 
 summer of 1865, the troops stationed in China were overcrowded 
 in barracks, and had very defective hospital accommodations, which 
 occasioned much sickness and loss of life. They acquitted the War 
 Department of blame in regard to these unfortunate occurrences, 
 but recorded their belief that fuller instructions explanatory of the 
 views of the imperial authorities respecting the needful arrange- 
 ments for the proper care of the troops, ' so far from limiting the 
 discretion of the general officer in command, would have enlightened 
 and strengthened him in its exercise.' * 
 
 On February 14, 1867, explanations were given to the House of 
 Commons of the circumstances attending a certain naval promotion, 
 whilst the reasons for the same were withheld, lest ' it might create 
 misunderstanding,' a Dissatisfied with these explanations, a member 
 moved, on March 21, that 'the promotion by the first lord of the 
 
 r Com. Pap. 1866, v. 52, p. 157. Com. Pap. 1875, v. 10, p. 247. 
 
 w Hans. D. v. 202, p. 1147 ; v. 210, " Hans. D. v. 182, p. 647. 
 
 p. 969. Com. Pap. 1870, v. 5, p. * Com. Pap. 1866, v. 15, p. 1. 
 
 739. Hans. D. v. 185, p. 343. 
 
 y x 2
 
 548 THE ROYAL PREROGATIVE 
 
 Prece- Admiralty of a junior lieutenant in the navy, without any special or 
 dents. distinguished service, over the heads of hundreds of meritorious 
 lieutenants senior to him in the service, is prejudicial to the public 
 interest.' Ministers opposed the motion on the ground that, while as 
 a general rule promotions were ' by selection, based on seniority,' a 
 discretion had been usually exercised by first lords, in particular 
 cases, which was not inconsistent ' with the interests of the naval 
 service.' Several such cases having been referred to in the debate, 
 the motion was withdrawn until the House should be in possession 
 of further information on the subject. b The subject was not again 
 resumed. 
 
 On July 16, 1868, a select committee was appointed by the House 
 of Commons to enquire into certain allegations of complaint against 
 the royal gun factories. 
 
 On July 6, 1877, ministers successfully' resisted an attempt to 
 refer to a select committee the question of the best mode of con- 
 structing war vessels, on the ground that it would be an undue inter- 
 ference with the responsibility of the Admiralty in such matters." 1 
 
 Martial Since the publication of the first edition of this volume 
 
 the popular and hitherto generally accepted definition 
 of martial law has been brought to the test of judicial 
 determination, and has been utterly repudiated and 
 disallowed. 
 
 Sir Alexander Cockburn, lord chief justice of the 
 Court of Queen's Bench, in his charge to the grand jury 
 at the Central Criminal Court in the case of Kegina v. 
 Nelson and Brand, 6 establishes the important fact that 
 martial law, as popularly understood, is unknown to the 
 law of England. This charge, though not law, defines 
 what in the opinion of the learned judge is the state of 
 the law. The crown itself, he asserts, has no preroga- 
 tive to proclaim a state of martial law, which shall 
 place the civil courts in abeyance, and subject all per- 
 sons within the district immediately concerned to the 
 jurisdiction of the military power. 
 
 The army is governed by a military law, applicable 
 
 b Hans. D. v. 186, pp. 293-311. d Jb. v. 235, p. 909. 
 
 Return presented, Com. Pap. 1867, e Published and edited by iIr. F. 
 
 v. 44, p. 569. Cockburn, London, 1867. 
 
 Hans. D. v. 193, pp. 1254-1261.
 
 CONCERNING THE ARMY AND NAVY. 649 
 
 only to soldiers, but which is definite, precise, and legal, 
 having been framed by experienced military authorities, 
 and ratified by the sanction of Parliament/ 
 
 Martial law is a very different thing. It is the assump- 
 tion of arbitrary power over all persons in any district 
 wherein martial law has been proclaimed, for the pur- 
 pose of quelling an armed insurrection against the 
 constituted authorities. And it is conclusively shown, 
 in this luminous and elaborate charge, that the crown, 
 in its constitutional capacity, has no inherent prerogative 
 to proclaim martial law, as applicable to the inhabitants 
 of the country generally, or to any particular district 
 thereof, under any circumstances or conditions whatso- 
 ever, and that martial law cannot be enforced within the 
 realm of England except by authority of Parlfament. 
 
 In case of riot or insurrection the magistrates are 
 authorised, by the Eiot Act, to call in the aid of the 
 military power to act in aid of and under the civil 
 power, for the suppression of the same. 
 
 The legality of the employment of troops, under the authority 
 of the civil magistrate, and upon the responsibility of the secretary 
 of state for the Home Department, has been sometimes impugned, 
 as being equivalent to the introduction of martial law and military 
 government. But this doctrine has found no favour with the best 
 constitutional authorities, and it is quite inapplicable to an army 
 which, like that of Great Britain, owes its very existence to Parlia- 
 ment, and is directly subordinated to the control of the civil power. 
 It has been held, moreover, that, in cases of emergency, the executive 
 government may issue a proclamaUOTiempowering the military 
 authorities to act for the suppression of riots, without waiting for 
 directions from a civil magistrate.^ The extent to which it is 
 allowable to employ volunteers for suppression of riots is regulated 
 by circulars from the War Office. These circulars were at first 
 
 f See ante, p. 521. 127. Forsyth, Const. Law, p. 214. 
 
 * Parl. Hist. v. 9, p. 1294. Queen's The whole question is discussed, and 
 
 Regs, and Orders for Army, ed. 1883, the authorities reviewed in Clode's 
 
 p. 222. Prendergast, Law of Army, Mil. Fore. v. 2, ch. 17, and Stephen's 
 
 p. 13. Finlason, Martial Law, pp. Hist. Grim. Law, v. 1, pp. 207-216; 
 
 v. 26. May, Const. Hist. v. 2, p. eee also Hans. D. v. 212, pp. 3, 285.
 
 550 THE ROYAL PREROGATIVE 
 
 severely criticised in both Houses of Parliament, and were after- 
 wards re-issued with more explicit directions. 11 
 
 If a rebellion or invasion occurs, the crown has a 
 common-law right and is imperatively required to put 
 it down by military force. But all prisoners who are 
 taken at such times must be tried before the ordinary 
 tribunals ; unless Parliament has interposed, at this 
 particular juncture, by passing a law authorising a 
 summary mode of procedure against persons implicated 
 in these grave offences. 
 
 The chief justice (Cockburn) admits that ' where 
 illegal force is resorted to for the purpose of crime, you 
 may meet that illegal force by force, and may repress 
 and prevent it by any amount of force that may be 
 necessary for the purpose ; ' as, for example, ' if a mutiny 
 breaks out on board ship, immediate force may be re- 
 sorted to ; you may quell the mutiny if necessary by 
 killing those engaged in it.' ' But this is not what can 
 properly be called martial law.' It is ' the law of 
 necessity,' which ' is part and parcel of the law of Eng- 
 land.' The question really is, ' whether for the suppres- 
 sion of a rebellion, you may subject persons not actively 
 engaged in it, and whom you therefore cannot kill on 
 the spot, to an anomalous and exceptional law, and 
 try them for their lives without the safeguards which 
 the law ought to afford.' ' To aay that ' the necessity of 
 suppressing rebellion is what justifies the exercise of 
 martial law ' in the sense of an arbitrary, illegal, and 
 irregular interposition of authority is a ' fearful and 
 odious doctrine. There are considerations more im- 
 portant even than the shortening the temporary dura- 
 tion of an insurrection. Among them are the eternal 
 and immutable principles of justice, principles which 
 
 h Com. Pap. 1867. v. 41, pp, 819- p. 1936 ; v. 188, pp. 744, 751. 
 621. Hans. D. v. 185, pp. 371,919, ' Cockburn's Nelson v. Brand, pp. 
 1551 ; v. 186, pp. 457, 728; v. 187, 85, 86.
 
 CONCERNING THE ARMY AND NAVY. 551 
 
 can never be violated without lasting detriment to the 
 true interests and well-being of a civilised community. >j 
 The weighty arguments contained in this charge k 
 induced the grand jury in a presentment in this case to 
 express a hope that martial law, as it is called, might be 
 more clearly defined by legislative enactment. 1 
 
 But the Law Magazine for August, 1867 (pp. 222-239), in an 
 able article epitomising the charge of the chief justice, questions the 
 wisdom and expediency of any further legislation on the subject, 
 and is of opinion that the principles of constitutional law which 
 have been so accurately set forth in this memorable charge will 
 hereafter suffice to meet any future contingencies of the kind that 
 may hereafter arise. This opinion has been virtually accepted by 
 the House of Commons, in a debate on July 2, 1867, upon a motion 
 to resolve that the crown had no power to suspend the law or to 
 proclaim so-called ' martial law ' without the assistance of Parlia- 
 ment. The sense of the House was against the motion ; and it was 
 truly remarked that ' the House in passing such a resolution would 
 be doing something beyond its functions, and to which no court of 
 law would pay the least attention.' If the proclamation of martial 
 law ' were legal, what power had the House, being only one part of 
 the legislature, to make it illegal ? If it were illegal, what advantage 
 would there be in the resolution ? ' m The motion was accordingly 
 withdrawn. 
 
 On May 6, 1867, enquiry was made of ministers 
 whether they proposed in any manner to act upon this 
 recommendation. It was replied that, previous to the 
 aforesaid presentment, the secretary of state for the 
 colonies had directed a circular to colonial governors,, 
 which expresses the views of her Majesty's government 
 on the subject of martial law. n 
 
 By this circular, which is dated January 30, 1867, 
 an extract is communicated of a despatch addressed; 
 to the Governor of Antigua, in reference to an act ix* 
 that colony, l which purports to invest the executive 
 government with a permanent power of suspending the 
 
 * Cockbura's Nelson v. Brapdi p. l L. T. v. 42, p. 474. 
 108. ra Haus. to. v. 188, p. 915. 
 
 " Ib. pp. 85, 86, 108. a /&. Y, 187, p. 3.
 
 652 THE ROYAL PREROGATIVE 
 
 ordinary law of the colony, of removing the known safe- 
 guards of life and property, and of legalising in advance 
 such measures as may be deemed conducive to the esta- 
 blishment of order by the military officer charged with 
 the suppression of disturbances,' and which is declared 
 to be ' entirely at variance with the spirit of English 
 law/ Instructions are given to cause to be submitted 
 to the legislature an act for the repeal of this law, 
 because ' in no colony ' should the power given by the 
 said law ' be suffered to continue.' 
 
 The circular adds that, in giving these instructions, 
 1 her Majesty's government must not be supposed to 
 convey an absolute prohibition of all recourse to mar- 
 tial law, under the stress of great emergencies, and in 
 anticipation of an act of indemnity. The justification, 
 however, of such a step must rest on the pressure of 
 the moment, and the governor cannot by any instruc- 
 tiomTbe relieved from the obligation of deciding for 
 himself, under that pressure, whether the responsibility 
 of proclaiming martial law is or is not greater than that 
 of refraining from doing so.' 
 
 This despatch has probably led to the repeal of all 
 colonial acts under which a standing power is conferred 
 upon the governor to proclaim martial law. Such acts 
 were in existence in Antigua and Bermuda, and pre- 
 sumably in Jamaica also. p This will materially diminish 
 the opportunities for the abuse of this power in the 
 event of sudden outbreaks, and necessitate an imme- 
 diate recourse to the local legislature, either for the 
 purpose of obtaining authority to proclaim martial law, 
 or for indemnity for acts done in anticipation of such 
 authority. Moreover, in addition to the above-men- 
 tioned despatch, confidential instructions q have been 
 
 Circular despatch to colonial in the case of Gov. Eyre, in June 
 
 governors, Com. Pap. 1867, v. 49, p. 1868. 
 
 3 ( J. r ,. Queen v. Nelson and Brand, p. P Hans. D. v. 188, p. 904. 
 74, n. Mr. Justice Blackburn's charge 1 Ib. v. 188, p. 1724.
 
 CONCERNING THE ARMY AND NAVY. 663 
 
 sent out by the Colonial Office to colonial governors 
 for their guidance in case of insurrection or emergency 
 beyond the reach of ordinary law. But it is thought 
 that it will be necessary to have some further legisla- 
 tion on the subject, in the way of giving larger powers 
 of arrest in cases of necessity/ 
 
 Forsyth, in his ' Cases and Opinions on Constitutional 
 Law,' after reviewing the confused and conflicting 
 opinions that have been expressed on the subject, 8 says : 
 4 The right conclusion of the whole matter seems to be 
 this : martial law may be justifiably imposed as a ter- 
 rible necessity, and an act of self-defence ; under it 
 there is a suspension of civil rights, and the ordinary 
 forms of trial are in abeyance. Under it a man in 
 actual armed resistance may be put to death on the 
 spot by anyone acting under the orders of competent 
 authority ; or, if arrested, may be tried in any manner 
 which such authority shall direct. l3ut if there be an 
 abuse of the power so given, and acts are done under 
 it, not bond fide to suppress rebellion, and in self-defence, 
 but to gratify malice, or in the caprice of tyranny, then 
 for such acts the party doing them is responsible.'* 
 
 All ministers of the crown, through whose instru- Ministers 
 
 1-1-111-in respon- 
 
 mentality resort should be had under any circumstances sibie for 
 to martial law, are responsible to Parliament for their t 
 conduct, and must be able to justify the necessity for 
 their acts under penalty of censure, removal from office, 
 or impeachment, if it should prove upon investigation 
 that their proceedings had been uncalled for or un- 
 warrantably severe." 
 
 ' Hans. D. p. 268. For precedents strictions upon the crown in pro- 
 of tbe proclamation of martial law in claiming martial law, see Law. Mag 1 , 
 the colonies from 1805 to 1863, see v. 12, p. 170, on Martial Law in 
 Clode, Mil. Fore. v. 2, p. 481. Australia ; and articles on Jamaica 
 
 5 Pp. 188-214. case, in The Jurist, for Jan. 6, April 
 
 * Ib. p. 214. See Clode, Mil. Fore. 7, June 30, July 21 and 28, 1866. 
 
 v. 2, ch. 18. And see the evidence given by the 
 
 u Hans. D. v. 184, pp. 1803, 1893. Attoy.-Gen. for Jamaica. Com. Pap. 
 
 For arguments on constitutional re- 1866, v. 31, p. 331.
 
 654 
 
 THE ROYAL PREROGATIVE 
 
 Jamaica 
 case. 
 
 Preroga- 
 tive of 
 mercy. 
 
 In 1865, a royal commission was appointed to enquire into the 
 circumstances under which martial law was proclaimed by Governor 
 Eyre upon the breaking out of an insurrection in the island of 
 Jamaica. In consequence of the report of this commission, Governor 
 Eyre, who had previously been suspended, was removed from office, 
 on account of his having sanctioned an excessive and unjustifiable 
 severity in the suppression of the insurrection ; although, at the 
 same time, praise was awarded to him for the skill, promptitude, 
 and vigour he had manifested during its early stages. This report 
 was laid before Parliament ; and met with general approval/ 
 
 Ministers afterwards assured the House of Commons that en- 
 quiry, with a view to punishment, should be made into any grave 
 excesses of severity, by any officers, civil, naval, or military, who 
 were engaged in suppressing this insurrection. They agreed at the 
 same time to a resolution ' that this House deplores the excessive 
 punishments which followed the suppression ' of the said distur- 
 bances, ' especially the unnecessary frequency with which the punish- 
 ment of death was inflicted. ' w The steps taken by ministers in 
 fulfilment of the foregoing pledge were explained to the House early 
 in the ensuing session. * Her Majesty, by the advice of successive 
 ministers, declined to confer on Mr. Eyre the Order of the Bath, 
 and he was refused another appointment.* But he was allowed the 
 usual pension for past service. 2 
 
 Royal Prerogative of Mercy. 
 
 We have next to consider the prerogative of mercy, 
 which is a peculiar attribute of royalty, and is vested, 
 by statute, in the sovereign of England.* All criminal 
 offences are either against the Queen's peace or against 
 her crown and dignity. She is, therefore, the proper 
 person to prosecute for all public offences and breaches 
 of the peace. Hence her prerogative of pardon, 
 whereby she is empowered to remit or mitigate the 
 sentence against a criminal or criminals, who have been 
 guilty of treason or other felonies ; for it is reasonable 
 that that person only who is injured should have the 
 
 T Rpt, of Jamaica Com", Com. 1872, v. 43. 
 
 Pap. J866, v. 30, 31; Hans. D. v. 
 184, p 1763; v. 189, p. 1437. 
 
 Hans. D. v. 225, p. 813. 
 
 27 Henry VIII. c. 24, 7 & 8 
 
 Hans. D. v. 184, pp. 1794, 1 839. Geo. IV. c. 28, 13. See Holt, King 
 * Ih. v. 186, p. 275. v. Parsons. 1 Shower's Rep. p. 283. 
 
 ' lb. v. 212, p. 827. Com. Pap.
 
 IN PARDONING OFFENDERS. 655 
 
 power of forgiving. But this, like every other prero- 
 gative of the British crown, is held in trust for the 
 welfare of the people, and is exercised only upon the 
 advice of responsible ministers. 1 * It is, moreover, sub- 
 ject to the control of Parliament, which has more than 
 once interfered by statute to limit and restrain the 
 effects of a royal pardon. 
 
 Inasmuch as the corruption of blood, and the con- 
 sequent disability of the heirs of an attainted person to 
 inherit property, which results from an attainder, can 
 only be removed by Parliament, it has been sometimes 
 necessary for the sovereign to invoke the assistance of 
 Parliament to give effect to the royal clemency towards 
 political offenders, or their descendants ; or to sanction 
 the introduction of particular Bills into either House 
 for that purposed But a general act of grace and 
 pardon for political offences originates with the sove- 
 reign, by whom it is first transmitted to the House of 
 Lords. It is received with peculiar marks of respect 
 by the Houses of Parliament. It is only read once by 
 each House, and cannot be amended, but must be either 
 rejected or accepted altogether. 6 
 
 A Bill of indemnity, or of general pardon and 
 oblivion for political offences, may by invitation of 
 the crown be initiated in either House of Parliament, 
 proceeded upon as an ordinary Bill, and afterwards 
 submitted for the royal sanction.' The sanction of 
 Parliament is necessary to remove the effects of attain- 
 ders ; otherwise it is customary since the establishment 
 of parliamentary government for Parliament to refrain 
 from direct interference with this prerogative. 81 
 
 b Martin, Life P. Consort, v. 1, p. Stat. 12 Viet. c. 13. 
 
 141. f Macaulay, Hist, of Eng. v. 3. pp. 
 
 c Petersdorff, Abridg'. ed. 1864, v. 398, 575. Parl. Deb. v. 40, pp. 1423, 
 
 6, p. 43. Macknight's Life of Lord 1536; Ib. N.S. v. 11. pp. 815, 1318. 
 
 Bolingbroke, pp. 517, 558. Stephen, Com. Ed. 1868, v. 4, p. 
 
 d Com. Jour. v. 23, p. 56. 670. Kept, of precdts. in Lords' Jour. 
 
 e Ib. 17 June, 1747. See Canada v. 66, pp. 286, 425. See post, p. 56(5.
 
 556 THE EOYAL PREEOGATIVE 
 
 is con- The exercise of the prerogative of pardon is strictly 
 
 criminal confined to criminal offences, wherein the crown is a 
 offences, prosecutor, and does not extend to cases of private 
 wrong. b Hence Parliament has no right to address the 
 crown for the release of a prisoner confined in gaol on 
 a civil suit, or for non-payment of damages, or for con- 
 tempt of court, as it is beyond the power of the crown 
 to discharge such persons. Any such application by 
 Parliament would be invoking the exercise of an un- 
 constitutional and arbitrary power, in violation of law 
 and order. 1 Undue severity in such cases, if not capable 
 of being redressed by the ordinary legal tribunals, can 
 only be remedied by a special Act of Parliament^ 
 Royal Formerly all royal pardons were granted under the 
 
 ' ns ' great seal, upon the advice of the Privy Council. In 
 compliance, generally, with the recommendation of the 
 judge who presided at the trial, the Privy Council 
 assembled to deliberate upon the case. Occasionally 
 discussions arose on the question whether the crown 
 should be advised to remit the sentence or not, in 
 which the king himself took part. But since the com- 
 mencement of the present reign, this practice has fallen 
 into desuetude, and the administration of the preroga- 
 tive of mercy has devolved upon the secretary of state 
 for the Home Department, who is considered as being 
 directly and exclusively responsible for the same in 
 Great Britain ; and the Lord Lieutenant in Ireland. k 
 
 h Bowyer, Const. Law, p. 172. p. 94 ; Hans. D. v. 224, p. 1131 ; v. 
 
 Cox, Tnst. 615, n. 226, pp. 598, 691 ; 22 Viet. c. 32, 38, 
 
 1 Case of J. Thorogood, Mir. Parl. and 39 Viet. c. 80 ; and Art Unions 
 
 1840, pp. 4898, 4901, 4935, 5008. Acts, 9 & 10 Viet, c. 48. _ In Canada 
 
 Broom, Leg. Max. 4th ed. p. 65. the Gov.-Gen 1 . can exercise this pre- 
 
 Hans. D. v. 189, p. 1560; v. 194, p. rogative, pursuant to the terms of his 
 
 768 ; v. 223, p. 102. commission. Can. Sess. Pap. 1869, 
 
 J May, Const. Hist. v. 2, pp. 275- No. 16. 
 
 278. As to the right of the crown k Hans. D. v. 174, p. 1483. Ib. v. 
 
 to remit penalties and forfeitures im- 175, p. 252. Mr. Gladstone's letter 
 
 posed by law, and recoverable by par- to T. Sexton, M.P., of Sept. 6, 1882. 
 
 ties other than the crown; i.e. in See an article m the West. Rev. v. 25, 
 
 suits by action of debt, as well as in p. 398, on the Prerogative of Pardon, 
 
 criminal proceedings, see L. T. v. 69, See a disquisition on Executive Par-
 
 IN PARDONING OFFENDERS. 657 
 
 The agreement of the Privy Council having become 
 unnecessary, this body is no longer consulted ; but the 
 practice is now regulated by the Act 6 Geo. IV. c. 25, 
 under which pardons, whether free or conditional, may 
 be granted by a warrant under the sign-manual, counter- 
 signed by a secretary of state, without the necessity for 
 a more formal instrument. 1 Thus the Home Office, 
 which was originally employed as a medium of enquiry, 
 for the information of the sovereign, has gradually de- 
 veloped into a court of review in criminal cases, when- 
 ever a formal application is made for the remission of 
 a sentence. But the office acts rather as a court of 
 mercy than as a court of appeal, because the cases 
 wherein the secretary of state sits as a court of review 
 to re- try the prisoner, and to set aside verdicts, are 
 exceedingly rare. For the most part the facts of the 
 trial are not re-opened, there being seldom any doubt 
 of the correctness of the verdict. The question gene- 
 rally is, whether it is a fit case for the interposition of 
 the prerogative of mercy as a matter of grace. This 
 is a question that no mere legal tribunal could decide, 
 and it is one that suitably belongs to the crown, acting 
 upon the advice of a responsible minister to determine. 111 
 
 In the exercise of this prerogative, the secretary of Exercise 
 state is called upon to pay regard to the moral aspect of JJero^a- 
 the case, as contrasted with the legal ; and he is also tive - 
 obliged to consider, to some extent, the popular feeling 
 in the community at large. 11 The royal prerogative may 
 be exercised more than once in reference to the same 
 case ; thus, where a person has been sentenced to death 
 for a capital crime, and the punishment has been com- 
 
 dons in Rpt. of Massachusetts Board Sec y .. before Com" on Capital Punish', 
 
 of State Charities, Jan. 1871, pp. 46- Com.' Pap. 1866, v.' 21 ; Hans. D. v. 
 
 79. Stephen, Hist. Crim. Law of 196, p. 1616. 
 
 Eng. 1883, v. 1, c. 10. n Lord Chancellor and others on 
 
 1 Parl. D. N. S. v. 12, p. 1163. Hall's case, Hans. D. v. 174, pp. 862- 
 
 Evid. of Sir G. Grey, Home Sec- 866. 
 retary, and of Mr. Walpole, ex-H.
 
 558 THE ROYAL PREROGATIVE 
 
 muted to one of penal servitude for life, the prerogative 
 may be subsequently interposed for the mitigation of the 
 sentence. But this is only done in cases of an exceptional 
 character. And the crown can only deal with the whole 
 punishment ; it has no power to remit a portion of the 
 sentence merely . p But the crown may extend its mercy 
 on what terms it pleases, and consequently may annex 
 to its pardon any condition that it thinks fit, whether 
 precedent or subsequent, on the performance whereof 
 the validity of the pardon will depend. But the consent 
 of the felon must be given to a change of punishment ; 
 for the crown cannot compel a man, against his will, to 
 submit to a different punishment from that which has 
 been awarded against him in due course of law. q 
 
 In 1849, after W. Smith O'Brien, and others concerned in the 
 rising in Ireland, in 1848, had been convicted of high treason, the 
 Queen was pleased to commute their sentence to transportation for 
 life. But the prisoners refused this act of mercy, and insisted that 
 their own assent was required to the commutation of the sentence. 
 They based their claim, not upon general principles, but upon the 
 wording of certain statutes affecting Ireland. The law officers of 
 the crown protested against this argument ; nevertheless, the govern- 
 ment introduced a Bill into Parliament to remove all doubts upon 
 the point, which became law. r 
 
 Whenever the crown is memorialised, through the 
 home secretary, for the remission of a capital sentence, 
 if any circumstances are stated in the memorial which 
 ought to have an influence upon the decision, or any new 
 facts alleged, apparently in favour of the prisoner, it is 
 invariably sent to the judge, unaccompanied by any 
 expression of opinion, for his report thereon. 8 
 
 ' Where the judge has recommended the commutation of the 
 
 Hans. D. v. 184, p. 463. p. 148. 
 
 P Ld. Cairns, Hans. D. v. 194, p. r Hans. D. v. 106, p. 395; 12 & 13 
 
 1326. Viet. c. 27. 
 
 > Hawkins, P. C. bk. 2, c. 37, sec. ' Home Sec y . Hardy, Hans. D. v. 
 
 45. Forsvth, Const. Law, pp. 460, n. 190, p. 567. 
 403. Stephen, Com. Ed. 1874, v. 1,
 
 IN PARDONING OFFENDERS. 559 
 
 sentence, there is no precedent for the home secretary standing in 
 the way.' 1 But, in remitting the sentences of certain Fenian con- 
 victs in 1869, the government, in conjunction with the lord lieu- 
 tenant, acted upon their own responsibility, and without consulting 
 the judges." 
 
 Frequently the home secretary and the judge confer 
 together upon the case. Besides which the secretary 
 has always the benefit of the ability and experience of 
 the permanent under-secretary of state, in addition to 
 the depositions, the judge's notes at the trial, and any 
 other information he may require to assist him in finally 
 adjudicating upon the case. With this aid he is in a 
 position to assume full and sole responsibility for the 
 advice he may tender to the sovereign in every such 
 instance ; and although dissatisfaction is occasionally 
 expressed in regard to the decisions of the Home Office 
 when the prerogative of mercy is invoked, the current 
 of enlightened opinion is decidedly opposed to any 
 change in the present practice/ 
 
 And here it should be observed that criminal cases 
 only come under the notice of the home secretary upon 
 an application for a remission or mitigation of sentence 
 by the mercy of the crown, and are never submitted to 
 his consideration on the ground that the sentence was 
 too lenient. The conduct of a judge under such cir- 
 cumstances can only be reviewed by Parliament^ It is 
 estimated that not less than one thousand memorials 
 in relation to sentences of penal servitude and capital 
 punishment are annually presented to the Home Office. 1 
 The general principles which influence the home secre- 
 tary in advising the remission of sentences of penal 
 servitude, whether such sentences were for life or for a 
 
 Hans. D. v. 189, p. 1514; v. 199, 1866, v. 21, pp. xvii-xix. 
 
 p. 856 ; v 229, p. 35. w Hans. D. v. 199, p. 1629. Ib, v. 
 
 " Ib. v. 194, p. 311 . 200, p. 1430. 
 
 T See summary of evid. in Rpt. of * Ib, v. 190, p. 566. 
 Com" on Capital Punish 1 , Com. Pap.
 
 560 THE ROYAL PEEROGATIVE 
 
 term of years, were explained to the House of Commons 
 by Mr. Secretary Walpole, on March 15, 1867. y 
 
 , Lord Brougham, in his treatise on the ' British Con- 
 
 Brougham & 
 
 on this stitution,' dwells at considerable length, and with great 
 sagacity, upon the principles which should influence 
 the executive government in the exercise of the prero- 
 gative of pardoning or commuting the sentences of crimi- 
 nals. He sums up his observations with the following 
 weighty words : ' It seems hardly necessary to add that no 
 interference of parties interested, politically or personally, 
 should ever be permitted with the exercising of this 
 eminent function of the executive government. Absolute 
 monarchies offer to our view no more hideous features 
 than this gross perversion of justice. Nor do popular 
 governments present a less hateful aspect when they 
 suffer the interference of the multitude, either by violence, 
 or through the press, or the debate, or any other channel 
 in which clamour can operate, to defeat the provisions 
 of the law.' z 
 
 The issue of a proclamation of amnesty, or oblivion 
 for past offences against the crown and government of 
 the realm, is within the acknowledged prerogative of 
 the crown, and an amnesty or pardon may thus be 
 granted by the crown either before or after attainder 
 or conviction,* and also by a colonial governor acting 
 under royal instructions. b Although, ordinarily, the 
 exercise of the power of pardon is limited to the case of 
 individual criminals, after conviction. But in Upper 
 Canada, after the insurrection of 1837, an Act of the 
 provincial parliament was passed, which empowered the 
 
 y Hans. D. v. 185, p. 1929; v. 174, Australian Governors in 1871, Com. 
 
 p. 1270. And in regard to capital Pap. 1875. v. 63, p. 027. 
 
 punish', see Ib. v. 186, p. 734 ; v. 198, b Ex. gra. Sir G. Grey in N. Zea- 
 
 p. 869. land, in 1865 ; Ld. Durham in L. 
 
 z Brougham,Brit.Const. p. .330-332. Canada, in 1838 ; SirG. F. Bowen in 
 
 1 Inst. 120 a, note 4. 3 Inst. N. Zealand, in 1871 ; Ld. Dulferin in 
 
 233. Bishop, Crim. Law, c. 59, < Par- Canada, in 1875. 
 
 don.' But see Colonial practice in c Jls.N. Zealand, H. of Rep. 1872. 
 
 Ld. Kimberley's circular despatch to App. v. 1, A. No. 1, a, p. 10.
 
 IN PARDONING OFFENDERS. 5GL 
 
 lieutenant-governor, upon the petition of any person 
 charged with high treason, before his arraignment, 
 praying to be pardoned, to grant him (by and with the 
 advice of the Executive Council) a conditional pardon, 
 which pardon should, nevertheless, have the effect of an 
 attainder for high treason, so far as forfeiture of property 
 is concerned. 3 But since confederation, the exercise of 
 the prerogative of mercy has been withdrawn from 
 the lieutenant-governors of the Canadian provinces, 
 because they are no longer appointed by the crown, 
 and is resident only in the governor-general of Canada 
 in virtue of his commission. 6 
 
 No interference by either House of Parliament with when 
 the exercise of this prerogative is justifiable, except m^ntTmay 
 under extraordinary circumstances. It was said by interpose. 
 Macaulay, that ' he would rather entrust it to the hands 
 of the very worst ministry that ever held office than 
 allow it to be exercised under the direction of the very 
 best House of Comnions ;' f and by Sir Robert Peel, that 
 he would leave this prerogative in the hands of the 
 executive, considering that it was the right and duty of 
 -the House to interfere only ' if there be a suspicion that 
 justice is perverted for corrupt purposes. >g 
 
 But while direct interference with the discretion of the 
 crown in the exercise of the pardoning power is only 
 warranted in extreme cases of manifest injustice, it is 
 competent for Parliament to receive petitions from or on 
 behalf of criminals under sentence, and, if sufficient cause 
 is shown to justify enquiry, to appoint committees for that 
 purpose. A Mr. Palmer, who was condemned for seditious 
 
 d Stat. Can. 1 Viet. c. 10. And 2, p. 625. As to powers of colonial 
 
 see Lt.-Gov. Arthur's despatch of governors in exercise of this prerog. 
 
 20 Aug. 1838, in relation to this sta- see Forsyth, Cases and Op. pp 76- 
 
 tute, commenting on apparently con- 82, 460. 
 
 flicting claims of the Gov. Gen. of ' Can. Sess. Pap. 1869, No. 16. 
 
 Canada, and Lieut.-Gov. of U. C., in ' Hans. D. v. 84, p. 892. 
 
 the exercise of prerog. of mercy. * Mir. of Parl. 1835, p. 1581. 
 Jls. Ass^. U. C. 1839. App. v. 2, pt. 
 
 VOL. 1. O O
 
 662 THE ROYAL PREROGATIVE 
 
 practices, by the High Court of Justiciary, in Scotland, in 
 1794, petitioned the House of Commons complaining of 
 the illegality and undue severity of his sentence. The 
 reception of his petition was at first opposed by Mr. Pitt, 
 as being irregular and unjustifiable, but, after an ad- 
 journed debate on the question, it was agreed to with- 
 out a division. 11 Since then no objection has been offered 
 to the reception of petitions from or on behalf of pri- 
 soners complaining of their sentences, of their treatment 
 by the court, or in prison, and praying relief, or for the 
 remission of their sentences. 1 And every facility is 
 allowed to prisoners to memorialise Parliament, or the 
 Home Office for redress of grievances. j 
 
 Enquiries It has not been unusual for enquiries to be made of 
 tcrs. the administration in Parliament as to the circumstances 
 attending the imposition or remission of sentences im- 
 posed either at the assizes or by local criminal courts 
 having summary jurisdiction, so as to afford the minis- 
 try an opportunity of explaining erroneous impressions 
 in the public mind. k The government exercise their 
 own discretion as to whether they deem it expedient to 
 reply to such questions or not. But it has been stated 
 by ministers, in both Houses, in reply to questions on 
 the subject, that, ' as a general principle, it would be 
 inconvenient and unusual to lay before the House the 
 grounds on which that discretion proceeds which dic- 
 tates leniency or severity on the part of the responsible 
 advisers of the crown.' 1 
 
 On March 28, 1862, enquiry was made in the House of Lords in 
 the case of Watson and others, convicted for a criminal offence, as 
 
 " Parl. Hist. v. 30, pp. 1449-1461. 1840, p. 3534. 
 
 1 See Index, to Pub. Pets. II. of 0. J Hans. I), v. 180, p. 1217. 
 
 and see proceed, on motion for an k Mir. of Parl. 1835, p. 2511. Ib. 
 
 address to the crown for removal of 1837-8, p. 239. Hans. I), v. 163, pp. 
 
 a state prisoner from one place of con- 1324, 1325; v. 164, pp. 1734, 1824. 
 
 linement to another, ' where he may ' Mir. of Parl. 1840, p. 1702. Hans, 
 
 not be subjected to the treatment D. v. 168, p. 1187. Ib. v. 200, p. 
 
 which ho now endures.' Mir. of Parl. 421.
 
 IN PARDONING OFFENDERS. 568 
 
 to whether, under the peculiar circumstances attending it, the home 
 secretary was disposed to recommend the prisoners to the royal 
 clemency. It was replied that the newspaper report of the trial was 
 not strictly correct, and that ' up to that time no petition on behalf 
 of those men had been received by the secretary of state.' m 
 
 For the same reason, it is not usual to communicate 
 to Parliament memorials or other papers on the subject 
 of the exercise of this prerogative in particular cases. 11 
 
 On April 24, 1863, a debate arose in the House of Commons on 
 a motion for papers touching the remission of the sentence of Jessie 
 Maclauchlan for the Glasgow murder. The home secretary, Sir 
 George Grey, was willing to produce the papers, but feared that 
 thereby ' a dangerous precedent might be established.' He added, 
 that it would ' be highly inconvenient for the public interest, if this 
 House is to become a court of appeal in criminal cases.' The 
 motion was withdrawn, but afterwards the government laid the 
 papers on the table.? 
 
 The following additional precedents illustrate the ? ce - 
 
 & . . r , . dents. 
 
 doctrine and practice on this subject. 
 
 In 1794, upon the conviction of Muir, Palmer, and others, for Muir, Pal- 
 seditious practices in Scotland, under a law peculiar to that kingdom, "Jf r ' am * 
 and which was more stringent than the English law on the same 
 subject, they were sentenced to transportation for fourteen years. 
 Their case was warmly espoused by the Whig party, and Lord 
 Stanhope, in the House of Lords, moved for an address to the 
 king, representing that it was the intention of the House to proceed 
 at once to examine into the circumstances of the condemnation and 
 sentence, and praying that meanwhile execution of the sentence 
 might be stayed. This motion was characterised by the lord 
 chancellor and other law lords as being unprecedented and un- 
 warrantable, an improper interference with the course of criminal 
 justice, and a departure from the constitutional course which per- 
 mitted persons aggrieved by a sentence themselves to petition the 
 
 m Hans. D. v. 166, p. 231. But on 189, pp. 871-876. Ib. v. 234, p. 
 
 March 26, 1867, Mr. Sec y . Walpole 1441. In Hall's case, in 1812, papers 
 
 explained his reasons for advising the were granted by government, but no 
 
 commutation of punishment of Wager, further proceedings took place. Parl. 
 
 who had been sentenced to death for Deb. v. 23, pp. 467, 934. 
 
 murder, Ib. v. 186, p. 567. Debates Hang. I), v. 170, p. 695. 
 
 on Toomer's case, Ib. p. 1203, and P Com. Pap. 1863, v. 49, pp. 265, 
 
 on Scott's case, Ib. v. 189, p. 1509. 271 , 403. 
 
 n Case of Greenland. Hans. D. v. 
 
 o o 2
 
 504 
 
 THE ROYAL PREROGATIVE 
 
 Prece- 
 dents. 
 
 Frost, 
 Williams, 
 and 
 Junes. 
 
 crown for redress. The motion was negatived on division, the 
 mover alone voting for it.i Soon afterwards, the question was 
 submitted to the House of Commons, by Mr. Adam, a learned 
 Scotch advocate, who, in a most elaborate speech, attempted to 
 prove the illegality of the trials, and contended that the sentences 
 imposed had been unjustifiable and excessively severe. He moved 
 for various documents in support of his allegations, and also for an 
 address to the king, in which he recapitulated his reasons for 
 regarding the sentences as illegal and oppressive, and prayed that, 
 in consideration thereof, his Majesty would be graciously pleased to 
 exercise the royal prerogative of mercy on behalf of the prisoners. 
 This was opposed by the ministry, who maintained the legality and 
 propriety of the sentences, and defended the conduct of the judges. 
 On division the motions were negatived by large majorities. 1 " 
 
 In 1840 a similar case occurred. Messrs. Frost, Williams, and 
 Jones, having been convicted of treason, were sentenced to trans- 
 portation. It was contended by some that the law had been strained 
 against the prisoners, and that they were entitled to pardon, as an 
 act of right and justice. Accordingly on this ground, and irrespec- 
 tive of any reference to the prerogative of mercy, the House of 
 Commons was moved to address the crown to grant them a free 
 pardon. This view was declared, on the part of the government, 
 to be wholly unfounded, and proof was adduced of the legality of 
 the sentence ; whereupon the motion was negatived by a large 
 majority. 8 
 
 On December 3, 1867, the House of Commons was moved to 
 address the crown to furnish, periodically, to Parliament, copies of 
 memorials for remission of penal sentences, and received at the 
 Home Office, and of the replies thereto ; with a view to enable 
 Parliament to judge of the operation of the criminal law, and of the 
 general practice in the exercise of the prerogative of mercy. The 
 home secretary (Mr. Hardy) opposed the motion, on the ground 
 that such a return must be necessarily partial, unfair, and a great 
 impediment in the exercise of the prerogative. The motion was 
 withdrawn. 1 But in 1869 Mr. Bruce (home secretary), in answer 
 to a question, explained his reasons for recommending remissions 
 of sentences during his tenure of office." 
 
 On March 22, 1870, a private member introduced into the 
 House of Commons a Bill to alter and amend the law in regard to 
 
 i Parl. Hist. v. 30, p. 1298. 
 
 r Ib. pp. 1486-1576. Com. Jour. 
 v. 49, pp. 31 3-31 5. Arnould, Life of 
 Deninan, v. 2, p. 76. 
 
 Mir. of rarl. 1*40, pp. 1687- 
 1697. 
 
 1 Hans. D. v. 190, pp. 551-572 ; v. 
 227, p. 1712. 
 
 " Ib. v. 195, p. 1358; v. 200, pp. 
 1148, 2104. And the complaint of 
 the release of the Whitehaven Rioters. 
 Ib. v. 2 11, pp. 949, 1725.
 
 IN PARDONING OFFENDERS. 565 
 
 the revision and commutation of capital sentences. But the Bill Prece- 
 was thrown out at its second reading/ dents, 
 
 On April 4, 1870, a motion, in the House of Lords, for a return 
 of cases of the exercise of the prerogative of mercy within the 
 past three years being opposed by ministers, as contrary to practice 
 and a dangerous precedent, was withdrawn. 
 
 On July 8, 1873, an amendment was proposed to the Supreme 
 Court of Judicature Bill, to empower the crown to refer petitions 
 for the remission or alteration of sentences, in cases of persons con- 
 victed of treason or felony, to the new Court of Appeal, for 
 consideration and advice : but after a short debate the motion was 
 withdrawn. w 
 
 In 1881 a return was made to an address from the House of 
 Commons, of the cases since 1860 in which appeal had been made 
 to the home secretary from England and Wales, for the remission 
 or commutation of capital sentences, with the result of the same. x 
 
 On July 11, 1820, Lord John Russell moved an address to the Sir M 
 king, for the liberation of Sir Manasseh Lopez, then in prison under L P ez - 
 sentence of the Court of King's Bench, for bribery and corruption, 
 at the suit of the House of Commons.? The home secretary (Lord 
 Castlereagh) opposed the motion, saying that ' whether the law 
 should have its execution was the peculiar prerogative of the crown, 
 and the responsible servants of the crown could not be justified in 
 recommending the interposition of the royal mercy upon the mere 
 suggestion of that House (he spoke it with perfect respect) any 
 more than upon the application of the humblest individual of the 
 land.' z After some discussion the motion was withdrawn. Never- 
 theless, the strong expression of feeling in the House in favour 
 of Lopez, on account of his advanced age, and the extenuating 
 circumstances attending his case, led to the mitigation of his sen- 
 tence, and he was shortly afterwards released, having been in cus^ 
 tody only eight months, instead of the two years for which he was 
 condemned.* 
 
 On April 13, 1829, the Earl of Clancarty moved, in the House of Lord 
 Lords, for certain documents in the case of Mr. Macdonnell, who had : . 
 
 been sentenced to imprisonment for libel, but had been pardoned, in j re an( j. 
 the king's name, by the lord lieutenant of Ireland, under circum- 
 stances which, it was currently reported, did not warrant any 
 abridgment of his term of imprisonment. The papers asked for 
 would explain the facts of the case. The Duke of Wellington (the 
 premier) opposed the motion. He stated that cases of this kind, 
 
 T Hans. D. v. 200, p. 423 ; v. 202, * Com. Pap. 1881, v. 70, p. 391. 
 
 p. 727. y Com. Jour. v. 74, p. 690. 
 
 " Ib. v. 217, p. 41. Amos, Fifty * Parl. D. N.S. v. 2, p. 871. 
 
 Years Bug. Const, p. 435. * Mir. Parl. 1841, p. 1894.
 
 566 
 
 Prece- 
 dents. 
 
 Lord 
 Urough- 
 am's re- 
 solutions. 
 
 Chartist 
 prisoners. 
 
 though not entirely exempt from the inquisition of Parliament, 
 ought to be least liable to enquiry by either House of any of the 
 royal prerogatives ; that, in the present instance, no sufficient par- 
 liamentary ground had been shown to warrant the House in de- 
 parting from its ' usual practice and principles not to enquire into 
 the exercise of this branch of his Majesty's prerogative.' The duke 
 was followed by the lord lieutenant himself, who justified his con- 
 duct towards Mr. Macdonnell, alleging that the matter had been 
 thoroughly investigated before the royal clemency had been ex- 
 tended to him. The motion, for papers was negatived without a 
 division. 15 
 
 On August 6, 1839, Lord Brougham proposed, an the House of 
 Lords, some resolutions respecting the administration of criminal 
 justice in Ireland, more particularly in respect to the principles 
 which should guide the exercise of the prerogative of mercy, and 
 declaring the mode in which this prerogative ought to be ad- 
 ministered. Notwithstanding the opposition of government, these 
 resolutions were agreed to. On the following day, Lord John 
 Russell (the premier) adverted to this vote, and stated that the 
 proposed practice in the mode of exercising the prerogative of mercy 
 was utterly inconsistent with that which had been hitherto pursued 
 by secretaries of state in their recommendations to the crown, and 
 from which it would be exceedingly inconvenient to depart ; and 
 that it was not his intention to make any alteration whatever. If, 
 instead of resolutions, a Bill had been passed, then of course he 
 would be bound to obey the law. Meanwhile he should consider 
 himself justified in adhering to the present practice. Accordingly 
 upon an enquiry being made of the ministry, at the next session, 
 whether a certain commutation of sentence had taken place in con- 
 formity with principles set forth in the aforesaid resolutions, they 
 declined to give any answer. At the same time it was observed 
 that, if a formal motion were made on the subject, the government 
 would be prepared to discuss the question. d 
 
 On May 25, 1841, Mr. Duncombe proposed an address to the 
 Queen, praying her to take into her merciful consideration the cases 
 of all persons confined in England and Wales for political offences ; 
 referring specially to those misguided men who had been led astray 
 by Chartist leaders (now undergoing sentence of banishment), and 
 were suffering the penalties of the law. Viewing the object of the 
 motion to be an attempt to obtain from the crown, through the 
 interposition of the House of Commons, a remission of the sen- 
 tences of these prisoners, Sir Robert Peel (although at the time in 
 
 JNJir. Parl. 1829, p. 1255. Ib. 1839, p. 4803. 
 
 " Ib. 1840, pp. 1702, 1717.
 
 IN PARDONING OFFENDERS. 
 
 567 
 
 Opposition) strenuously opposed it. He urged that the considera- 
 tion of such cases should be left ' exclusively with the crown ; ' that 
 the government, in exercising the prerogative of mercy, ' ought not 
 to be influenced by any opinion which the House of Commons 
 might express'; ' and he asserted it to be a dangerous precedent for 
 the House to ' fetter the discretion and judgment of the crown by 
 expressing any recommendation on such subjects.' Acting on this 
 principle, when secretary of state, he had himself resisted a motion 
 for an address for the remission of the remaining term of Mr. 
 Hunt's imprisonment in Ilchester gaol ; which was an attempt to 
 induce the House to depart from that which had been its unvaried 
 practice ever since the Revolution, namely, ' that nothing but ' cir- 
 cumstances of an overwhelming nature should tempt the House to 
 interfere with this most important prerogative.' 6 Lord John 
 Russell (the colonial secretary) also opposed the motion, and 
 pointed out the general ill effects of such an interference on the part 
 of the House, although admitting that there might be exceptional 
 cases. The motion for the address was negatived by the casting 
 vote of the Speaker, who stated that he considered the proposed 
 vote was an interference with the royal prerogative. 1 
 
 On March 10, 1846, Mr. Duncombe proposed an address to the 
 Queen, that she would be graciously pleased to consider the recent 
 petitions to Parliament in favour of a restoration from exile of the 
 state prisoners Frost, Williams, and Jones ; but Macaulay, Sir 
 Robert Peel, Lord John Russell, and other leading statesmen, while 
 admitting the abstract right of the House to advise as to the exer- 
 cise of this or any other prerogative, all concurred in opposing the 
 motion, as being of a dangerous tendency, and a departure from 
 the rule imposed upon themselves by the discretion of former 
 Houses of Commons, of non-interference with the exercise of certain 
 prerogatives, which should be left to the unfettered discretion of the 
 executive government. The address was negatived by a large 
 majority.^ 
 
 On June 30, 1864, it was moved in the House of Lords, to 
 resolve that, considering the extent to which agrarian outrages pre- 
 vail in certain counties in Ireland, and the difficulty which exists 
 in obtaining convictions for such offences, this House is of opinion 
 that the power of the lord lieutenant of Ireland to remit the whole 
 or a portion of the sentences of persons convicted of such crimes 
 should be exercised with greater care and circumspection ; and this 
 House observes with regret that the lord lieutenant ordered the 
 
 Prece- 
 dents. 
 
 Frost, 
 Williams, 
 and Jones. 
 
 Lord 
 Lieu- 
 tenant of 
 Ireland. 
 
 e Parl. D. N.S. v. 7, p. 34. Case of the Dorchester prisoners, Mir. 
 
 f Mir. Par!. 1841, pp. 1894-1903. Parl. 1835, p. 1568. Case of the 
 
 11. 1839, p. 1715. Canadian prisoners, Hans. D. v. 6G, p. 
 
 Hans. D. v. 84, pp. 881-921. 23?
 
 563 THE ROYAL PREROGATIVE 
 
 Prece- release of certain prisoners (therein named) under sentence for an 
 agrarian offence, upon grounds which appear to be insufficient. The 
 motion was opposed by the government, on the ground that nothing 
 should induce the House to agree to such a motion unless it could 
 be distinctly shown ' that there had been a very gross want of dis- 
 cretion in the administration of the prerogative of mercy, or that 
 the person exercising it had been influenced by some corrupt 
 motives.' 11 The sense of the House was evidently against the 
 motion, and it was withdrawn. 
 
 Thorn's In 1838, however, a case occurred of sufficient gravity and im- 
 
 case. portance to give rise to discussions, in both Houses of Parliament, 
 
 as to the circumstances under which the prerogative of mercy had 
 been exercised, and which led to the appointment of a committee 
 of enquiry by the House of Commons. A person of the name of 
 Thorn had been convicted of perjury, and sentenced to transporta- 
 tion for six years. Shortly after conviction, it was discovered that 
 he was insane j he was thereupon transferred to a lunatic asylum, 
 where he remained four years, when he received a free pardon, and 
 was discharged. Not long afterwards, his insanity assumed a more 
 violent aspect, and he became concerned in a riot, which led to 
 serious loss of life, he himself also being killed. This sad cata- 
 strophe was brought under the notice of Parliament, and documents 
 explanatory of the case were called for in both Houses. A motion 
 for the appointment of a committee of enquiry into the circum- 
 stances attending the discharge of Thorn was submitted to the 
 House of Commons, the mover commenting severely upon the con- 
 duct of the secretary of state (Lord John Russell) in exercising 
 the prerogative of mercy in favour of such a dangerous character. 
 His lordship made a satisfactory explanation, but acquiesced, on 
 the part of government, in the appointment of a committee of en- 
 quiry. 1 The committee reported merely the minutes of evidence 
 they had taken, which sufficed to acquit the government of any blame 
 in the transaction^ and no further discussion or proceedings took 
 place in the matter. 
 
 On August 13, 1867, Mr. Reardon moved an address to the 
 Queen, that she would be pleased to extend her most gracious pardon 
 to all persons now in prison in the United Kingdom and the colonies 
 for political offences. After a few words from Mr. Secretary Hardy, 
 the motion was negatived without a division. 15 
 
 On July 19, 1870, a member moved in the House of Commons 
 
 h Hans. D. v. 176, p. 489. Courtenay, see Knight Hist, of Eng. 
 
 1 Mir. Parl. 1838, pp. 4562, 6117, v. *, pp. 412-417. 
 
 &c. " Hans. D. v. 189, p. 1516. Ib. 
 
 3 Com. Pap. 1837-8, v. 23, p. 353. v. 222, p. 1759. 
 For career of Thorn alia* Sir Wm.
 
 IN PARDONING OFFENDERS. 569 
 
 that an address should be presented to her Majesty that she would Prece- 
 be pleased to grant a free pardon to Richard Fennelly, who had dents. 
 been convicted of bribery at an election, and had been refused a 
 certificate of indemnity by the election commissioners. After a 
 defence of the sentence by the attorney-general and home secretary, 
 the motion was negatived on a division. 
 
 On August 1, 1876, and on July 20, 1877, Mr. O'Connor Power 
 moved resolutions in favour of pardoning certain persons who are 
 and have been for many years undergoing punishment for offences 
 arising out of insurrectionary movements in Ireland ; but after 
 debate the motions were negatived. The form of this motion being 
 for a resolution, and not for an address to the crown, was objected 
 to by leading members as unconstitutional. Nevertheless, the ob- 
 jection was not pressed, and the motion was negatived on its 
 merits. 1 
 
 In January 1882, the home secretary (Sir W. Harcourt), in jj ev ]y lr 
 reply to a petition from Oxford University for the release of the Green. 
 Rev. Mr. Green, stated that he had been advised by the law officers 
 of the crown ' that the powers of the crown to discharge persons 
 from custody would not be rightfully, or even constitutionally, exer- 
 cised in the case of a person imprisoned for contempt of court, 
 committed by persistent disobedience to the lawful command of a 
 competent tribunal.' 
 
 1 Hans. D. v. 235, pp. 1603-1626.
 
 570 
 
 THE ROYAL PREROGATIVE 
 
 Preroga- 
 tive in ad- 
 minister- 
 ing justice 
 and pre- 
 serving 
 the public 
 peace. 
 
 Co-opera- 
 tion of 
 Parlia- 
 ment 
 therein. 
 
 CHAPTER XII. 
 
 ROYAL PREROGATIVE IN MATTERS OP JUSTICE. 
 
 THE next prerogative which claims our attention is that 
 which appertains to the king as the fountain of justice,* 
 and general conservator of the peace of the realm. 
 
 So far as the maintenance of the public peace is 
 concerned, the appointment and jurisdiction of officers 
 to preserve the same are principally regulated by sta- 
 tutes, which are administered under the general super- 
 vision and responsibility of the home secretary. 11 
 
 'By the fountain of justice, the law does not mean 
 the author or original, but only the distributor. Justice 
 is not derived from the king, as from his free gift, but 
 he is the steward of the public, to dispense it to whom 
 it is due. He is not the spring, but the reservoir, from 
 whence right and equity are conducted by a thousand 
 channels to every individual.' Though justice flows 
 from the king as its fountain, he cannot administer it 
 personally, or authorise any deviation from the laws. c 
 It is an undoubted prerogative of the crown to erect 
 courts of judicature ; nevertheless, the crown alone 
 cannot erect a court, or enable it to proceed, otherwise 
 than according to the common law. Thus the co- 
 operation of Parliament is indispensable to enable the 
 crown to erect a court of civil law, a court of equity, or 
 a new court with a new jurisdiction/ 1 Moreover, the 
 
 " Palgrave, Eng. Const, v. ] , p. p. 21 5. Ante, p. 271 . 
 
 282. d Bowyer, Const, Law, pp. 170, 
 
 b Cox, Inst. p. f>92. See posf.,\.2. 171, 496. Forsyth, Const. Law, p. 
 
 c Petersdorfl, New Abrdmt. v. 6, 180.
 
 IN THE ADMINISTRATION OF JUSTICE. 571 
 
 expense attending the administration of justice must 
 necessarily be defrayed out of moneys which have been 
 voted by Parliament. When any new courts of justice 
 are required, it is usual to establish them by statute, so 
 that Parliament, having concurred with the crown as 
 to the necessity for the same, is morally bound to 
 appropriate the needful supplies for their establishment 
 and support. 6 
 
 The great function of Parliament has been declared 
 to be ' the maintenance of the law and the redress of 
 grievances.' f Thus it is ' one of their principal duties 
 and functions to be observant of the courts of justice, 
 and to td'ke due care that none of them, from the 
 lowest to the highest, shall pursue new courses un- 
 known to the laws and constitution of this kingdom, or 
 to equity, sound legal policy, or substantial justice.' g 
 By the theory of our constitution, those to whom the 
 administration of justice is entrusted are not respon- 
 sible to Parliament, except for actual misconduct in 
 office. Otherwise, they occupy a position of complete 
 -independence ; and necessarily so, for they are bound 
 to administer the law without fear or favour, and it 
 may become their duty to pronounce judgments, and to 
 take proceedings, of which the House of Commons 
 itself may disapprove. 11 The express power which is 
 given to the two Houses of Parliament by the Acts 
 12 & 13 Will. III. c. 2, and 1 Geo. III. c. 23, to address proceed- 
 the crown for the removal of judges from office, who ^"ILst 
 are otherwise declared to be irremovable, is indicative judges, 
 of the duty that devolves upon Parliament to watch the 
 course of the administration of justice. 1 And Parlia- 
 
 e Hans. D.v. 161, pp. 510-512; and p. 517. Stubbs, Const. Hist. v. 2, 
 
 see Smith's Parl. Rememb. 1861, p. 605. 
 
 p. 18. h Mr. Childers' evid. before Legal 
 
 f 4 Inst. 9, 11. Hot. Parl. 1 Hen. Depts. Comm., Com. Pap. 1875, v. 
 
 IV. 36. 30, p. 659. 
 
 g Rpt. on Lords' Proceed, on Mr. ' Smith's Parl. Reuiemb. 1860, 
 
 Hastings' Trial. Com. Jour. v. 49, p. 232.
 
 672 
 
 THE KOYAL PREROGATIVE 
 
 ment ' has not only the right to address the crown for 
 the removal of a particular judge, but, in cases of mis- 
 conduct, it has the right of exercising a superintending 
 control over the manner in which they discharge their 
 duties, and to institute enquiries relative thereto.' 3 
 * The judges of the land act under responsibility ; and 
 any misconduct of which they may be guilty may be 
 enquired into, and animadverted upon, by either House 
 of Parliament.' Such enquiries ordinarily begin, by 
 questions addressed in either House to members of the 
 administration, for information in regard to the matter 
 of complaint.* 
 
 But in the discharge of these high inquisitorial 
 functions, Parliament has prescribed for itself certain 
 tion rp S1 " cons titutional rules and limitations, to prevent undue 
 encroachment upon the independence of the judicial 
 office, which is in itself one of the main bulwarks of 
 English liberty. And it devolves upon the advisers of 
 the crown, as those who are peculiarly responsible for 
 preserving the purity of justice inviolate, to be fore- 
 most in vindicating the independence of the judges by 
 whomsoever it may be assailed, and in guarding against 
 the intrusion of party influences in any proceedings of 
 Parliament in matters affecting the administration of 
 the law. 1 
 
 Limits of 
 
 J Hans. D. v. 67, p. 1006. See 
 discussions in Parliament in regard 
 to the fitness of Cli. Just. Lefroy to 
 continue to preside over Court of 
 Q. B. in Ireland, when over ninety 
 years of age. (Ib. v. 182, p. 1629 ; 
 v. 183, pp. 853, 778.) His lordship 
 resigned his seat on the bench very 
 Boon afterwards, when the Derby 
 administration took office. (Tb. v. 
 184, p. 835.) 
 
 k Ld. Chan. Campbell, Hans. D, 
 v. 163, p. 824. Amos, Fifty Years 
 Eng. Const, p. 443. See discussions 
 in II. of C. on certain expressions 
 used in public by Irish judges. (Mir. 
 Parl. 1833, pp. 3925-3927, and Hans. 
 D. v. 178, p. 190. Ib. v. 227, p. 
 
 1871.) Enquiry respecting the lan- 
 guage and demeanour of a Vice-Chan, 
 in open court. (Hans. D. v. 172, p. 
 871.) Enquiry respecting the undue 
 severity of certain sentences passed 
 by the Dy. Asst. Judge of the 
 Middlesex Sessions. (Ib. v. 175, p. 
 1061 .) Enquiry respecting the great 
 inequality of sentences frequently 
 passed at assizes on criminals. (Ib. 
 v. 198, pp. 1373, 1530). Debate upon 
 an alleged improper exercise of the 
 power of judges to punish for con- 
 tempt of court. (Ib. v. 224, p, 1743. 
 Ib. v. 226, p. 375.) 
 
 1 Hans. D. v. 215, p. 1297. L. T. 
 v. 63, p. 58. Post, v. 2.
 
 IN THE ADMINISTRATION OF JUSTICE. 573 
 
 Upon this principle, it is inexpedient for ministers Cnmina- 
 to sanction the reception by Parliament of motions or charges 
 petitions complaining of the judges, unless under cir- 
 cumstances which would justify enquiry into the matter 
 of complaint, and where there is a bond fide intention of 
 proceeding thereon. And it is the invariable practice 
 of Parliament never to entertain criminative charges 
 against anyone, except upon the ground of some dis- 
 tinct and definite basis. The charges preferred should 
 be submitted to the consideration of the House in 
 writing, whether it be intended to proceed by impeach- 
 ment, by address for removal from office, or by com- 
 mittee, to enquire into the alleged misconduct, in order 
 to afford full and sufficient opportunity for the person 
 complained of to meet the accusations against him. n 
 
 It is also highly irregular to bring into discussion, in 
 
 ^ > ' subjvdice. 
 
 either House ol Parliament, any matters, whether they 
 relate to civil or criminal cases, which are undergoing 
 judicial investigation, or are about to be submitted to 
 courts of law; as it leads to the imputation of a desire 
 to interfere with the ordinary course of justice. This 
 observation applies with additional force to the House 
 of Lords, which, being itself the highest court of judi- 
 cature, should carefully refrain from prematurely and 
 prejudicially discussing the merits of a case that has 
 been assigned, by law, to the consideration of another 
 tribunal. 1 * If, upon grounds of public policy, it should 
 
 m Disraeli, Hans. I), v. 223, p. 463. 523. Hans. D. v. 164, p. 566 ; v. 
 
 Atty.-Gen. Baggallay, Ib. v. 225, 165, p. 135; v. 166, p. W'j. Case 
 
 p. 90. Post, v. 2. of the seizure of the Alexandria, Ib. 
 
 n Case of the Bishop of Bath and v. 170, p. 709 ; Ib. v. 208, p. 433 ; v. 
 
 Wells, 1852. Hans. D. v. 122, pp. 213, p. 852. Parliament cannot con- 
 
 465, 613, 948-953. Case of Ch. Just, etitutionally entertain matters which 
 
 Monahan. Hans. D. v. 163, pp. come within the province of a jury 
 
 823, 898, 984 ; and again, Ib. v. 178, to determine. Fost. and Fin. N. P. 
 
 p. 196. See Mr. Wynn's observa- C. v. 3. p. 560, n. Hans. D. v. 208 
 
 tions in Parl. D. N.S. v. 13, p. 1249. pp. 1786, 1869. 
 Rpt. Sel. Comm e . on Corrupt Prac- p Mir. of Parl. 1831, p. 623 
 
 tices. Com. Pap. 1870, v. 6, p. 17. 1831 2, p. 1161. 
 
 Mirl. of Parl. 1831, pp. 239,
 
 574 
 
 Conduct 
 of judges 
 not to be 
 lightly 
 impugned. 
 
 Interfer- 
 ence with 
 prosecu- 
 tions. 
 
 be expedient to institute a debate on a question of this 
 kind ; the House should nevertheless refrain from ask- 
 ing for papers to be laid before them, in -any case that 
 is waiting for trial or undergoing judicial investigation^ 
 
 Furthermore, it is not customary to communicate to 
 Parliament the evidence adduced in trials before the 
 ordinary legal tribunals, unless some special reasons 
 should justify the calling in question of any portion of 
 their proceedings. 1 
 
 Complaints to Parliament in respect to the conduct 
 of the judiciary, or the decisions of courts of justice, 
 should not be lightly entertained. * If there is a failure 
 in the administration of justice, from whatever cause, 
 affecting any judge, both Houses of Parliament may 
 address the crown, to remove that judge from office.' 8 
 But 'nothing could be more injurious to the administra- 
 tion of justice than that the House of Commons should 
 take upon itself the duties of a court of review of the 
 proceedings of an ordinary court of law ; ' or of the 
 decisions of a competent legal tribunal, or, that it 
 should ' tamper with the question whether the judges 
 are on this or that particular assailable,' and endeavour 
 ' to inflict upon them a minor punishment Jt by subjecting 
 their official conduct to hostile criticism. Parliament 
 should abstain from all interference with the judiciary, 
 except in cases ' of such gross perversion of the law, either 
 by intention, corruption, or incapacity, as make it neces- 
 sary for the House to exercise the power vested in it of 
 advising the crown for the removal of the judge.' 11 The 
 proper proceedings in such a case are explained in a 
 
 i Case of the so-called ' Con- 
 federate Rams.' Hans. D. v. 173, 
 p. 9G5. 
 
 r Earl Derby. Hans. D. v. 187, 
 p. 308. Case of Fulford and Well- 
 stead. 2b. v. 188, p. 1147; Ib. v. 
 208, p. 420. 
 
 Sir G. Grey, Ib. v. 183, p. 793. 
 
 * -Mr. Gladstone, Hans. D. v. 209, 
 
 p. 757 ; Ib. v. 224, p. 585 ; v. 220, 
 p. 501 ; v. 228, p. 905 ; v. 234, p. 
 1558. 
 
 11 Ld. Palmerston, Hans. D. v. 
 140, p. 1501 ; Sir R. Peel's speeches 
 in the case of Baron Smith, Mir. of 
 Parl. 1834, pp. 13'?, 312; and debate 
 on Dr. Kenealy's motion in regard to 
 trial of Queen v. Castro.
 
 IN TUB ADMINISTRATION OF JUSTICE. 675 
 
 chapter of the second volume of this treatise. In like 
 manner the government should not be called upon to 
 make a representation to the lord chancellor in respect 
 to decisions or conduct of magistrates, unless they are 
 satisfied that a case has been made out to justify such a 
 proceeding/ 
 
 By the Act 26 Viet. c. 29, 9, considered in Corrupt 
 connection with the Act 31 & 32 Viet. c. 125, 16, practices 
 it is understood that the duty of considering a 
 report from the judge who has tried a controverted 
 election, or from a royal commission, wherein certain 
 persons are charged with bribery, treating, or other 
 corrupt practices, is assigned to the attorney- general, 
 who is empowered, at his discretion and on his own 
 responsibility, to institute the necessary proceedings 
 against the offending parties. w In proceedings in cases 
 of bribery and other misconduct arising out of parlia- 
 mentary elections, it had been usual heretofore for the 
 House of Commons to take the initiative, and to order , 
 the attorney-general to prosecute offenders ; x but since 
 the passing of the Acts the initiative has been left to the 
 attorney- general. 7 When that officer is about to insti- 
 tute a prosecution against individuals for offences against and other 
 the purity of election, under the statute, the House is at 
 liberty to interpose with an address to the crown, praying 
 that such a prosecution may be relinquished. 2 But under 
 other circumstances, as where there is ground for believ- 
 ing whether from public notoriety or from investiga- 
 tions of parliamentary committees that indictable 
 offences have been committed, the initiative in criminal 
 
 T Hans. D. v. 216, p. 1497, and Mir. of Par!. 1841, pp. 2277-2282; 
 
 see post, v. 2. Hans. D. v. 63, pp. 819-843 ; v. 126, 
 
 w See Hans. D. v. 171, p. 1048 ; p. 1051. Com. Jour. v. 86, p. 779. 
 Ib. v. 183, p. 1460 ; v. 193, p. 1746 ; Attv.-Gen., Hans. D. v. 212, pp. 
 
 v. 214, p. 1041. 1628, 1635, 1810. But in regard to 
 
 1 See the principles which governed motions for an address for the issue of 
 
 the House in ordering such prosecu- commissions of enquiry, see post, v. 2. 
 tions, as explained by Mr. AVynn, in z Hans. D. v. 158, pp. 1752-1756.
 
 57G 
 
 THE ROYAL PREROGATIVE 
 
 proceedings should be left to the executive government. 
 And the House should not interfere with their discretion, 
 except in very extreme cases. a This rule applies with 
 equal force to all cases wherein the attorney-general is 
 called upon to exercise quasi- judicial functions. 15 For the 
 House has no right ' to constitute itself into a court of 
 appeal from any description of judicial authority,' or to 
 interfere, by resolution, with the course of judicial pro- 
 ceedings ; even in matters arising out of parliamentary 
 elections. Otherwise, it would be impossible to avoid 
 the suspicion that the administration of justice had 
 been encroached upon for political purposes, 
 informa. Parliament, however, has a right to demand full 
 
 laid before information upon all matters affecting the administration 
 of justice, including the appointment of magistrates 
 and other judicial officers ; and papers on this subject, 
 when moved for, are usually granted as a matter of 
 course : unless the application should involve an irre- 
 gular and unconstitutional interference with the ordinary 
 course of law, or is for information which it would be 
 prejudicial to the public service to supply." 1 
 
 But it is not the practice of either House of Parlia- 
 ment, as a general rule, to ask for copies of legal 
 opinions given by the law officers of the crown to the 
 executive government (or furnished to a public cor- 
 poration 6 ), or cases submitted to the law officers for 
 their opinion/ nor is it customary for government to 
 communicate them to Parliament should they be applied 
 
 ment. 
 
 Confiden- 
 tial com- 
 munica- 
 tions. 
 
 See May, Parl. Prac. ed. 1883, 
 p. 728. Case of Directors, &c., of 
 the West Hartlepool Harbour and 
 Railway Co., Hans. D. v. 171, pp. 
 1294-1302; and see debates as to 
 the mode of conducting the prosecu- 
 tion in the case of Regina v. Overend, 
 Ourney & Co., Ib. v. 197, pp. 821, 
 975, 1194. 
 
 " Hans. D. v. 221, p. 1404. 
 
 e Ib. v. 158, p. 1752; v. 159, pp. 
 145, 201 ; v. 234, p. 584. 
 
 d Mir. of Parl. 1837, p. 2182. 
 Hans. D. v. 1G5, pp. 372, 543 ; Ib. 
 v. 232, p. 1358; v. 234, p. 1440. 
 
 Hans. D. v. 102, p. 1169. 
 
 f Rep. Com. Thames Embankment, 
 Corns. Pap. 1871, v. 12, p. 415. 
 Hans. D. v. 233, p. 1305.
 
 IN THE ADMINISTRATION OF JUSTICE. 577 
 
 for. g A similar doctrine was laid down in Lower Canada, Legal 
 as appears by the reply of his Excellency Governor P inion3 * 
 Gosford to an address of the House of Assembly, on 
 December 11, 1835, for copies of legal opinions, wherein 
 he states that such communications were ' confidential,' 
 and, ' except in peculiar cases, should be held sacred.' 
 They are considered as confidential. 11 
 
 But it is not even usual for a minister to state to the House the 
 substance of an opinion given by the crown law officers ; though 
 this may be done at the discretion of the government. 1 But on 
 May 9, 1867, Earl Derby (the premier) read to the House of Lords 
 the opinion given by the then law officers of the crown, in 1856, 
 and the opinion given by the law officers of the crown under his 
 own administration, in 1866, for the guidance of the government 
 in regard to the legal right of prohibiting the holding of public 
 meetings, or of preventing the gathering together of large assem- 
 blies of people (not behaving in a disorderly manner) in the metro- 
 politan parks. He read these opinions to justify the proceedings 
 of government in attempting to prevent the holding of political 
 meetings in Hyde Park. Earl Russell declared this to be ' a most 
 unusual course, and one which may be productive of injury at a 
 future time.'J 
 
 On August 28, 1866, Sir C. Darling, ex-governor of Victoria, 
 applied to the colonial secretary for copies of opinions of the crown 
 law officers, in reference to the alleged illegality of some of his pro- 
 ceedings as governor of that colony, with a view to his own defence 
 and justification. In reply, he was informed that consistently with 
 the practice of the public service he could not be furnished with 
 ' copies of the opinions given to the secretary of state by the 
 crown lawyers in their capacity of the confidential advisers of the 
 government.' k 
 
 The like rule applies with respect to communications 
 between law officers of the crown concerning particular 
 
 Mir. Parl. 1830, pp. 387, 1877 1831, p, 2111; Hans. D. v. 184, 
 
 -1879; 1840, p. 2120. Hans. D. p. 49. 
 
 v. 74, p. 568; Ib. v. 161, p. 542; ' Hans. D. v. 172, pp. 250, 434; 
 
 Ib. v. 169, pp. 1328-1393; Ib. v. 2b. v. 194, pp. 621, 828, 831. 
 
 208, p. 1649; v. 218, p. 493. J Hans. D. v. 187, pp. 220, 228; 
 
 h Hans. D. v. 201, p. 1853; v. also see p. 235. 
 
 231, p. 257. Under peculiar circum- k Corresp. rel. to recall of the late 
 
 stances opinions have been presented Gov. of Victoria. Com. Pap. 1807, 
 
 to Parliament, the law officer him- v. 49, p. 609. 
 self acquiescing therein. Mir. Parl. 
 
 VOL. I. P P
 
 578 THE ROYAL PREROGATIVE 
 
 trials ; or the judge's notes taken at a trial ;* or 
 coroner's notes, which, as they partake of a judicial 
 character, can only be produced with the consent of 
 the officer hiniself. m Opinions given by judges to the 
 government on a Bill pending in Parliament ought not 
 to be produced for the purpose of influencing the House 
 in its legislative capacity, or to form the groundwork 
 of legislative enactment n 
 
 By ancient usage, the sovereign, as well as the House 
 of Lords, whether acting in their judicial or in their 
 legislative capacity, have a right to require the opinions 
 of the judges of England upon abstract questions of 
 law, upon which correct advice is deemed to be 
 necessary. 
 
 The duty of Parliament in reference to abuses which 
 may occur in the administration of justice, will receive 
 Prece- further illustration from the following precedents. 
 
 dents. 
 
 On July 17, 1828, Mr. Hume presented to the House of Com- 
 
 Preroga- mons a petition complaining of abuses in the Prerogative Court, and 
 ' especially of the misconduct and malversation in office of the pre- 
 siding judge. He went into a detailed account of the alleged abuses, 
 and concluded by remarking that it was doubtful whether the 
 government should not themselves institute an enquiry therein, in 
 preference to an investigation by a committee of the House, During 
 the debate which ensued, it was shown that the charges in the 
 petition were destitute of foundation, whereupon the motion that 
 the petition do lie on the table was negatived.? On the following 
 day, upon motion of Mr. Hume, a return of the amount of fees 
 allowed and received in this court, during certain periods, was 
 ordered, with a view to determine the existence of certain of the 
 abuses attributed to the officers of the court.i 
 
 Police On June 27, 1833, a petition was presented to the House of 
 
 Commons from the inhabitants of two villages near London, com- 
 
 1 Mir. Parl. 1830, pp. 527, 1667- dents in the opinion of the Supreme 
 
 1688. In another case, however, Court judges of Massachusetts, given 
 
 copies of 'judge's notes' were or- to the Legislature on money bills in 
 
 dered, Ib. 1834, p. 1243. But see 1878 (Pub. Docts. 1879) ;' and for 
 
 Hans. D. v. 171, p. 809; v. 186, p. later precedents, see Denison and 
 
 904 ; v. 206, p. 1980. Scott, Lords' Practice on Appeals, 
 
 - Mir. Parl. 1841, p. 2207. pp. 19-26. 
 
 " Ib. 1833, p. 2569. P Ib. 1828, pp. 2584-2697. 
 
 See historical notes and prece- * Ib. p. 2623.
 
 IN THE ADMINISTRATION OF JUSTICE. 579 
 
 plaining of the employment of the metropolitan police force as spies, Prece- 
 and asking protection against the evils resulting from such a prac- dents, 
 tice. The petition was referred to a select committee, which on 
 August 6 reported to the House three resolutions, declaring that 
 the conduct of a certain policeman named Popay had been deserv- 
 ing of ' most grave and decided censure ; ' also, ' solemnly deprecating 
 any approach to the employment of spies, in the ordinary accepta- 
 tion of the term, as a practice most abhorrent to the feelings of the 
 people, and most alien to the spirit of the constitution.' Whereupon 
 Popay, who had been heard, by counsel, before the select committee 
 in his own defence, was dismissed from the service. 1 " 
 
 On June 12, 1868, a motion was made in the House of Commons 
 for the appointment of a select committee to enquire into the causes 
 of the dismissal of Police-Sergeant Stone from the force ; but after 
 debate, wherein this dismissal was explained and justified, the motion 
 was withdrawn. 8 
 
 On February 13, 1834, Mr. Daniel O'Connell brought before the Baron 
 House of Commons a complaint against Sir William Smith, one of Smith, 
 the barons of the Court of Exchequer in Ireland, for ' neglect of 
 duty as a judge, and for the introduction of political topics in his 
 charges to grand juries.' In proof of these accusations, he quoted 
 from various returns on the table of the House, and from certain 
 of the judge's charges ; and concluded by moving that a select 
 committee be appointed to enquire into the conduct of Mr. Baron 
 Smith in respect to these accusations, which was agreed to.* On 
 February 21, however, it was represented to the House that a primd 
 facie case, sufficient to justify the removal of Baron Smith from the 
 bench, by a proceeding under the statute, had not been made out ; 
 and that Parliament had no constitutional right to institute an 
 enquiry into the conduct of a judge with any other view than that 
 of addressing the crown, under the provisions of the statute for his 
 removal ; else ' would the independence of the judicial bench be a 
 mockery, and the Act of 1 Geo. III. no better than waste paper.' u 
 It was accordingly moved, that the order for the appointment of the 
 committee be discharged ; which, after a long debate, was concurred 
 in by the House. 
 
 On March 23, 1841, Lord Mahon submitted to the House of Hulk 
 Commons a resolution, ' That in the opinion of this House the large system. 
 increase in the number of convicts to be permanently confined in 
 the hulks of Great Britain, although sentenced to transportation, in 
 
 ' Com. Jour. 1833, pp. 537, 641. v. 232, p. 826; v. 234, p. 1846. 
 
 Com. Pap. 1833, v. 13, p. 401. May, * Mir. Parl. 1834, p. 123. 
 
 Const, Hist, v. 2, p. 292. Ib. p. 304 ; and see Ld. Chelras- 
 
 5 Hans. D. v. 192, pp. 1478-1483. ford's observations in Hans. D. v. 
 
 And see case of Const. Maloney, Ib. 182, p. 1636. 
 
 P p 2
 
 680 THE ROYAL PREROGATIVE 
 
 Prece- pursuance of the minute of the secretary of state for the Home 
 dents. Department, dated January 2, 1839 [which declared, that convicts 
 sentenced to seven years' transporation shall be, as far as practic- 
 able, employed in the hulks and dockyards at home and at Ber- 
 muda], is highly inexpedient.' This resolution was chiefly intended 
 to restrain an ' undue entension of the prerogative of the crown,' 
 which nevertheless was exercised in accordance with the letter of 
 the law. The secretary of state was by law empowered, at his dis- 
 cretion, to retain in confinement at home any persons who might be 
 sentenced to transportation. But this authority had been con- 
 fessedly granted for the purpose of enabling the secretary to ' dis- 
 tinguish between particular cases ; that in cases of early youth, of 
 extreme old age, or any other special circumstances, he might inflict 
 imprisonment at home upon those to whose offences the law had 
 affixed the punishment of transportation.^ Moreover, the hulk 
 system, as a mode of secondary punishment, had proved injurious 
 to the criminal, and had been expressly condemned by a committee 
 of the House of Lords in 1835. With a view to prevent an undue 
 extension of the hulk system, Lord Mahon asked the House to 
 adopt the above resolution. In reply, Lord John Russell (colonial 
 secretary) admitted that the hulk system was objectionable, but did 
 not think it advisable that the House should come to any resolution 
 on the subject ; he therefore moved the previous question. After a 
 debate, Lord Mahon determined to press his motion, when it was 
 carried, against the government, by a majority of twenty-one.* A 
 month afterwards. Lord John Russell intimated that it was the 
 intention of government to continue, to a limited extent, the trans- 
 portation of criminals ; and to establish penitentiaries for criminals 
 retained in this country, instead of sending them to the hulks.* It 
 was subsequently stated, in the House of Lords, that the hulk system 
 had been abandoned, in consequence of the foregoing resolution.? 
 Baron On May 11, 1843, Mr. Buncombe presented to the House of 
 
 Gurney. Commons a petition from W. Jones, a prisoner in the Leicester 
 county gaol, complaining of the conduct of Baron Gurney, during 
 his trial before that judge, on a charge of sedition, whereby Jones 
 alleged that he had been deprived of an opportunity of vindicating 
 his innocence to the jury. In such a case the law afforded no 
 
 T Mir. Parl. 1841, p. 909. epect of all but military convicts, 
 
 w ^b. p. 982. has been brought to an end. Fras. 
 
 Ib. 1841, p. 1280. Mag. v. 79, p. 001 ; Hans. D. v. 194, 
 
 y Hans. D. v. 109, p. 859; and see p. 333. 'Penal servitude,' either at 
 
 a debate in the II. of C. on March 9, home or abroad, has been substituted 
 
 1863, on Transportation and Penal by law for transportation. Stephen, 
 
 {Servitude. By the closing, in 1807, Hist. Grim. Law, ed. 1883, v. 1, p. 
 
 of Western Australia against any 482. 
 more convicts, transportation, in re-
 
 IN THE ADMINISTRATION OF JUSTICE. 681 
 
 remedy, and an application to the crown for a remission of the Prece- 
 ssntence had been unsuccessful. Wherefore Mr. Duncombe moved dents, 
 that an address be presented to her Majesty, to be pleased to take 
 this case into her merciful consideration. In reply, the home 
 secretary (Sir James Graham) showed that there was no sufficient 
 ground for impugning the conduct of the judge, and that it was 
 inexpedient for the House to advise the crown in regard to the 
 exercise of its prerogative of mercy, ' unless circumstances strongly 
 warranted the adoption of such a course.' After some further 
 debate, the motion was withdrawn. 1 
 
 On February 28, 1856, a motion was made in the House of Irish 
 Commons for a copy of a judgment recently delivered in an Irish J ud g e - 
 court of law, and papers showing further proceedings consequent 
 thereupon. The mover alleged that the judge had manifested in- 
 capacity at this trial, which had led to grievous consequences to the 
 parties interested therein. In reply, Lord Palmerston denied that 
 there had been any abuse in the administration of the law in this 
 case, which could justify interference on the part of Parliament. 
 He stated that the judgment complained of had been confirmed by 
 a superior court, and ' was at this moment the subject of a judicial 
 proceeding pending in the highest court of appeal.' The question 
 was negatived, without a division.* 
 
 The point involved in the preceding case had already been de- The 
 cided by the House of Commons in the case of the Deacles, in 1831. eac *e s - 
 These parties had a grievance against a magistrate, which had been 
 submitted to the examination of a court of law. The decision of 
 the court was adverse to the Deacles ; whereupon they petitioned 
 the House of Commons for the appointment of a committee to in- 
 vestigate their complaint. Although both parties were desirous of 
 a parliamentary enquiry, the House refused to grant the committee, 
 on the ground that it was not according to usage to enquire into 
 a matter which had already undergone judicial examination, and 
 could be submitted, on appeal, to a higher court. b 
 
 On May 6, 1844, a motion was made in the House of Lords to Irish 
 condemn the appointment of a certain person to the office of stipen- magis- 
 diary magistrate in Ireland, on account of his having published trates - 
 intemperate and extreme opinions upon public political questions. 
 This motion was regarded as a censure upon the lord lieutenant, 
 for having made this appointment, and upon the imperial government 
 for having acquiesced therein. But the charge of unfitness for office 
 
 1 Hans. D. v. 69, pp. 189-206. motion on March 15, 1832, for a 
 
 a Ib. Case of Talbot v. Talbot. committee to enquire into the loss of 
 
 Hans. D. v. 140, pp. 1551-1561. life at the Manchester riots, in 1819; 
 
 b JMir. Parl. 1831, pp. 2213, 2344, which, for a similar reason, was op- 
 
 2463 ; see also debate on Mr. Hunt's posed by government, and negatived.
 
 582 
 
 THE ROYAL PREROGATIVE 
 
 Prece- 
 dents. 
 
 Mr. 
 
 O'Dris- 
 
 coll. 
 
 Irish 
 
 magis- 
 trates. 
 
 not having been substantiated, the motion was negatived without a 
 division. 
 
 On July 16, 1844, a motion was made, in the House of Lords, for 
 copies of memorials addressed to the Irish government, recommending 
 the restoration of Mr. Alexander O'Driscoll to the commission of the 
 peace, who had been dismissed therefrom on account of violent and 
 unbecoming conduct, and yet, within six months afterwards, had 
 been reinstated. At first, the government opposed this motion, 
 defending the right of the Irish lord chancellor to act as he had 
 done in this case ; but on hearing the facts elicited in debate, in 
 proof of Mr. O'Driscoll's unfitiiess for office, acquiesced in the motion 
 for papers. No further proceedings, however, took place in the 
 House of Lords, in reference to this appointment ; but on July 23, a 
 motion was made in the House of Commons, for an address to her 
 Majesty, praying for the removal of Mr. O'Driscoll from the Com- 
 mission of the Peace. In reply, the government admitted that this 
 subject ' was a very proper one for the House to consider ; ' and that 
 ' there might be circumstances in which it would be the duty of the 
 House to address her Majesty to remove a magistrate from the Com- 
 mission of the Peace,' but the Irish secretary said, ' he thought that 
 when a member called upon the House thus to interfere with the 
 prerogative of the crown, exercised by its highest law officer, he 
 ought to be prepared to show that the power had been exercised 
 either corruptly or mischievously.' After some further debate, the 
 motion was negatived. Having soon afterwards again misconducted 
 himself, further enquiry was instituted by the Lord Chancellor of 
 Ireland into Mr. O'Driscoll's conduct, which led to his final dismissal 
 from the magistracy. 3 
 
 In 1861, a case occurred in reference to an Irish magistrate, 
 which gave rise to much discussion out of the walls of Parliament, 
 and which strikingly exemplifies the limits of parliamentary inter- 
 ference in matters affecting legal rights. Mr. Adair, an Irish land- 
 lord, and a magistrate for the county of Donegal, evicted a number 
 of tenants from his estate, in punishment for the murder of his 
 steward, being unable to discover the perpetrator of the deed. The 
 attention of the Irish government having been directed to this high- 
 
 Hans. D. v. 76, pp. 1319-1329. 
 
 * Ib. v. 80, pp. 827, 857, 1106. 
 See also discussion in H. of C. Feb. 
 25, 1845, on -motion for papers 
 respecting dismissal of Ld. Lucan 
 from the Commission of the Peace, 
 and his subsequent restoration there- 
 to, and appointment to lord-lieu- 
 tenancy of county of Mayo. The 
 government defended the conduct of 
 
 the Irish authorities, but agreed to 
 the production of the papers, that the 
 facts might be fully known. See 
 correspondence relative to dismissal 
 of Mr. Havens from Commission of 
 the Peace, Com. Pap. 1862, v. 44, p. 
 347. Also case of Mr. Madden, 
 Hans. D. v. 200, p. 908. Also case 
 of three Irish magistrates, Ib. v. 236, 
 p. 409.
 
 IN TUE ADMINISTRATION OP JUSTICE. 688 
 
 handed proceeding, a correspondence ensued with Mr. Adair, in Prece- 
 which he defended the course he had pursued, in the interests of life dents> 
 and property, denying that he had done anything that could not be 
 justified. The government remonstrated with him for what he had 
 done, but admitted that he had not transgressed the limits of the 
 law, or exceeded his rights as a landlord. The case excited a strong 
 feeling of indignation throughout Ireland, and great sympathy for 
 the suffering tenantry. During the progress of these events, the 
 attention of the House of Commons was called to the subject, on two 
 occasions, by enquiries of the ministry as to whether they were cog- 
 nizant of what had occurred, and whether they intended to recom- 
 mend the removal of Mr. Adair from the Commission of the Peace. 
 To this the government replied, that while they had not hesitated to 
 express to Mr. Adair their disapproval of his conduct, they did not 
 feel justified in removing him from the magistracy, as he had not 
 exceeded his legal rights. 6 Not satisfied with this explanation, a 
 motion was made on June 24, in the House of Commons, for an 
 address to the Queen, for an enquiry into the conduct of Mr. Adair, 
 in reference to these transactions, ' with a view to consider whether 
 it is fitting he should continue to hold her Majesty's commission.' 
 The government opposed the motion (waiving the 'technical plea 
 that it was beyond the province of the House ') on the ground that 
 nothing had occurred which would justify the exercise of the prero- 
 gative in the dismissal of Mr. Adair from the magistracy ; and the 
 question was negatived/ A few days afterwards another member 
 moved to resolve ' that it is expedient that a full and efficient enquiry 
 should be instituted into all the circumstances attending these trans- 
 actions.' Lord Palmerston, however, while admitting that it was 
 right to discuss the matter, in order to elicit the opinions of the 
 House upon the case, resisted the motion, as being an attempt to 
 induce the House to exercise its powers in a manner not justified by 
 constitutional principles. He asserted that ' it would be a most 
 dangerous and outrageous abuse of the power of the House if it 
 interfered with the private transactions of any individuals, within 
 the limits of their legal rights. If they have done anything beyond 
 the limits of the law ; if, from any motives whatever, they may have 
 exceeded their power, the law itself will correct the evil. But it is 
 not necessary for this House to interfere unless the government has 
 had a duty to perform, and has neglected to perform it.'e Or 
 division, the motion was negatived by a large majority. Undeterred 
 by this defeat, the general question was soon afterwards revived, in 
 a different shape. On July 5, it was moved that a committee be 
 appointed to enquire into the causes and circumstances of certain 
 
 e Hans. D. v 162, pp. 523, 845. * Ib. v. 163, p 1513. 
 
 Ib. v. 164, pp. 243-252.
 
 584 
 
 THE ROYAL PREROGATIVE 
 
 Prece- 
 dents, 
 
 Jurors. 
 
 Treat- 
 ment of 
 prisoners. 
 
 Captain 
 Cooto. 
 
 evictions which had lately taken place in another part of Ireland. 
 These evictions, unlike those at Derryveagh, had not resulted from a 
 suspicion of Ribbonism, but were apparently owing to religious dis- 
 sensions; it being alleged, on the one hand, that they had all occurred 
 because the tenants refused to send their children to the Protestant 
 schools, while by others this statement was denied upon oath. The 
 chief secretary for Ireland opposed the motion, on general principles, 
 without entering into particulars concerning it. He remarked that 
 every argument that had been urged against the interference of the 
 House in the Derryveagh case, was still more applicable to the pre- 
 sent. ' Such an enquiry would be wholly without profit ; it would 
 not tend to elevate the character of the House ; but it would make 
 the House for the first time usurp the functions of the tribunals in 
 a way that had undoubtedly never been done before. The powers of 
 this House are without limit ; but they are limited by our own sense 
 of discretion, and guided by the precedents of former generations, 
 and I believe that no precedent can be produced of the House having 
 acted in a manner so contrary to its functions, and so inconsistent 
 with its prudence.' Whereupon, without further debate, the question 
 was negatived. 11 
 
 On June 20, 1862, a motion was made in the House of Commons 
 for the appointment of a committee to enquire into certain irregu- 
 larities concerning jurors at the last assizes at Tyrone. The govern- 
 ment admitted that the conduct of the high sheriffhad been blamable, 
 but did not think that a sufficient case had been made out to justify 
 the proposed enquiry. The question was accordingly negatived. 
 
 On April 9, 1869, a similar enquiry concerning a jury panel in 
 the county of Monaghan, which had been quashed on the ground that 
 it had been partially and improperly arranged by the sheriff 1 was 
 made in the House of Commons ; but on a satisfactory reply being 
 given by the Irish attorney-general, the matter was dropped. 1 
 
 On June 15, 1866, it was moved to resolve, that the treatment of 
 prisoners in the Limerick gaol, under the Habeas Corpus Suspension 
 (Ireland) Act, has been unnecessarily severe and unconstitutional ; 
 and that it is the duty of the government to prevent the continuance 
 of the same. After explanations offered by the chief secretary for 
 Ireland, which were deemed satisfactory by the House, the motion 
 was withdrawn. J 
 
 On March 14, 1870, it was moved in the House of Commons to 
 resolve, that, in the opinion of this House, the conduct of the govern- 
 ment in the dismissal of Captain Coote from the shrievalty of the 
 county of Monaghan, and the appointment of his successor, has been 
 unconstitutional, and calculated to impede the due performance of 
 
 h JIans. D. pp. 413-435. ' Ib. v. 195, p. 497. 
 
 Ib. v. 184, p. 494.
 
 IN THE ADMINISTRATION OF JUSTICE. 585 
 
 public duty. But after a long debate, the motion was negatived on Prece- 
 division. 
 
 On May 30, 1870, enquiry was made in the House of Commons 
 in regard to the continuance for nine months of a vacancy in the 
 office of Lord Justice of Appeal ; the delay in filling up which was 
 explained and justified by the attorney-general. 11 
 
 On March 8, 1872, a debate arose in the House of Commons on a 
 motion complaining of the appointment of a county-court judge in 
 Wales,who was unable to speak Welsh. The motion was withdrawn. 
 But on March 11, the House resolved that it was desirable that such Necessary' 
 judges should be able to speak and understand Welsh, whenever that qualifi- 
 language was generally spoken in their district. Subsequently, on 
 June 26, 1874, a member again called the attention of the House to 
 the practice of appointing to the office of county court judge per- 
 sons unacquainted with the Welsh language. The home secretary 
 undertook that this special qualification should be borne in mind, in 
 future appointments. 1 
 
 On April 10, 1877, the House of Commons resolved, notwith- Lord 
 standing the opposition, on technical grounds, of the chancellor of CocLrane. 
 the exchequer, to appoint a select committee to enquire and report 
 upon the petition of the grandson and legatee of the late Lord 
 Cochrane, afterwards Lord Dundonald, who in 1814 was dismissed 
 from the royal navy upon his being found guilty of complicity in a 
 fraud upon the Stock Exchange, for the purpose of raising money. 
 His innocence of this charge being afterwards admitted, he was in 
 1832 reinstated in the rank in the navy which he would have held 
 ~had he not been dismissed from the service. In 1847, the Order of 
 the Bath was restored to him. The only reparation still due was 
 the refunding of his half- pay from 1814 to 1832, which injustice to 
 his memory, and to complete the gracious act of the sovereign in the 
 restoration of this old veteran to his rank and honours, was now- 
 sought for. m The committee reported on July 16, reviewing the 
 whole case, and declaring that it is deserving of her Majesty's most 
 gracious and favourable consideration. 11 
 
 In 1881, two men, named Clows and Johnson, recently liberated 
 on proof of unjust conviction, severally received 500. compensa- 
 tion. 
 
 In the administration of justice it is unavoidable but Erroneous 
 that erroneous convictions will sometimes occur, and * G ~ 
 that circumstances afterwards brought to light will 
 
 k Hans. D. v. 201, p. 1597. m For the petition see Com. Pap. 
 
 1 Ib. v. 220, p. 524. Com. Pap. 1877, v. 68, p. 10. 
 
 1874, v. 54, p. 405. Hans. D. v. Ib. v. 10, p. 1. 
 
 222, p. 1394. The Colonies, Feb. 10, 1882, p. 4.
 
 586 THE ROYAL PREROGATIVE 
 
 prove that an innocent person has been unfortunately 
 condemned. While the government are bound to afford 
 every facility to enable one who has thus unjustly suf- 
 fered to re-establish his innocence, the principle has 
 never been acknowledged that such persons are entitled 
 to claim pecuniary compensation, either from the go- 
 vernment or from Parliament. 5 
 
 In 1858, however, a case occurred of extraordinary hardship. In 
 the year 1843, Mr. W. H. Barber was convicted of forgery, and 
 transported to Norfolk Island, where, it appears, he was subjected 
 to peculiar indignities by the authorities. It was afterwards proved 
 that he was wholly innocent of the charges brought against him, and 
 he was released. He then petitioned the House of Commons, setting 
 forth his sufferings, and soliciting redress. On June 15, 1858, with 
 the consent of the crown, this petition was referred to a select com- 
 mittee, ' to consider and report whether any, and what steps should 
 be taken in reference thereto.' The committee unanimously agreed 
 that every allegation in the petition was true, and that Mr. Barber 
 had endured incredible hardships and persecutions, which entitled 
 him to the favourable consideration of the government. Whereupon 
 a sum of 5,OOOZ. was included in the estimates as a compensation to 
 this gentleman. Shortly afterwards, a change of ministry ensued ; 
 but the new administration retained this item in the estimates, in 
 deference to the judgment of their predecessors in office, and the 
 money was voted by Parliament. This amount, however, did not 
 satisfy Mr. Barber. He considered himself entitled to a further sum 
 of 3,7001., to indemnify him for his personal expenses in proving his 
 innocence before the courts of law, and in regaining his original posi- 
 tion. Accordingly, on June 11, 1861, the member who formerly 
 introduced the matter to the notice of the House of Commons sub- 
 mitted another motion, to declare that the strong claims of Mr. 
 Barber to the favourable consideration of the crown, referred to in 
 the aforesaid report of the committee in 1858, have not been satis- 
 fied ; and that the circumstances set forth in a recent petition from 
 himself to the House of Commons are entitled to the consideration 
 of the government. But the home secretary (Sir George Grey) 
 opposed the motion, on the ground that Parliament was not bound 
 
 v Case of J. Bell, Hans. D. v. 198, afterwards proved that he was inuo- 
 
 p. 1294. But see case of S. G. cent, and in respect of which he had 
 
 Merrett, Ib. v. 234, p. 1308. And received the royal pardon, was 
 
 in 1881, W. Galley, who forty years granted 1,000/. as compensation, 
 
 before had been convicted and trans- Lond. Guard. Sept. 21, 1881, p. 1315. 
 ported for murder, of which it was
 
 IN THE ADMINISTRATION OF JUSTICE. 587 
 
 to award pecuniary compensation to persons who had been im- 
 properly convicted ; and that it was only the exceptional circum- 
 stances of Mr. Barber's case which had induced the government to 
 consent to the grant already made to him, and which was sufficient 
 to cover every reasonable demand he had against the public. The 
 question was accordingly negatived.^ 
 
 On April 28, 1863, a petition was presented to the House of Erroneous 
 Commons by Mr. W. Bewicke, representing the loss and injury he ^^ Ctaon 
 had sustained in consequence of having been tried and convicted of Bewicke. 
 firing a loaded pistol at four sheriff's officers, with intent to kill or 
 do bodily harm, and sentenced to four years' imprisonment. His 
 accusers were afterwards found guilty of having conspired falsely to 
 charge Mr. Bewicke with the crime ; whereupon he received the 
 Queen's pardon. But meanwhile his property had become forfeited, 
 as that of a felon, and had been sold by auction. The net produce 
 of the sale was afterwards paid over to him, but Mr. Bewicke's loss 
 on the property had been very considerable, and he had also been 
 at great expense in prosecuting and bringing to justice his false 
 accusers. He therefore prayed the House to grant him relief and 
 compensation. On July 21, Mr. H. Berkeley moved, that in the 
 opinion of the House, the grievances suffered by Mr. Bewicke are 
 such as entitle him to the consideration of government. The home 
 secretary (Sir George Grey) opposed the motion. He admitted that 
 it was a case deserving of commiseration, but the law provided no 
 means of indemnity, and it would be an injurious precedent to vote 
 compensation from the public purse. On division, the motion was 
 negatived by a majority of two. r On April 29, 1864, Mr. Berkeley 
 moved for a committee to consider of an address to the Queen, pray- 
 ing her to direct adequate compensation to be made to Mr. Bewicke 
 for his sufferings and losses, and declaring that the House would 
 make good the same. The home secretary and attorney-general 
 resisted the motion, but expressed the willingness of government to 
 agree to the appointment of a select committee to enquire into the 
 special circumstances of the case, and as to whether Mr. Bewicke 
 sustained much loss by the sale of his property at auction. After a 
 division, in favour of the main motion, a committee of enquiry into 
 the allegations of the petition presented in 1863 was appointed. On 
 June 17, the committee reported their opinion that Mr. Bewicke was 
 not entitled to any compensation, having failed to prove that there 
 had been a miscarriage of justice in his case, through the default of 
 the persons charged with the administration of the law. They also 
 declared their inability to accede to the proposition, that persons 
 
 < Hans. D. v. 163, pp. 944-952. r Ib. v. 172, p. 1175; and see 
 Law Mag. N. S. v. 13, p. 213. Smith's Parl. Reni. 1863, p. 166.
 
 688 KOYAL PREROGATIVE IN ADMINISTRATION OF JUSTICE. 
 
 who have been convicted in due course of law by evidence subse- 
 quently proved to be false are entitled to compensation out of the 
 public purse. But in view of the loss sustained by the sale of his 
 property, under forfeiture, they ventured to suggest, for the favour- 
 able consideration of the crown, whether the full value of such 
 property at the time of forfeiture should not be restored to Mr. 
 Bewicke, minus the net produce of the sale already paid over to 
 him, 3 
 
 Com. Pap. 1864, v. 6, p. 547.
 
 IN GRANTING HONOURS AND REWARDS 689 
 
 CHAPTEE XIH. 
 
 ROYAL PREROGATIVE IN GRANTING HONOURS AND 
 REWARDS. 
 
 THE next branch of the royal prerogative to which our Peroga- 
 attention will be directed is that which regards the gating 
 sovereign as the fountain of honour. honours. 
 
 Presuming that none can judge so well of the merits 
 and services of the subjects of the realm as the crown 
 itself, by whom they are governed or employed, the 
 constitution has entrusted to the sovereign the sole 
 power of conferring dignities, honours, and titular dis- 
 tinctions upon his people ; in confidence that he will 
 make use of the same in behalf of none but those who 
 -deserve distinction or reward. a But this prerogative, 
 like every other function of royalty, is exercised upon 
 the advice of responsible ministers. 
 
 It is a constitutional principle of great importance 
 that all honours should be bestowed by the spontaneous 
 action of the crown, and not necessarily at the instiga- 
 tion of ministers ; such advice, however, may be tendered 
 by way of suggestion to the sovereign through the 
 prime minister. b No interference with this prerogative 
 by either House of Parliament should ordinarily take 
 place, for the obvious reason that, if it were under- 
 stood that the goodwill and recommendation of Parlia- 
 
 a Act 34 & 35 Viet. c. 53. Bow- 1835. Mr. Disraeli, Ib. v. 223, p. 
 
 yer, Const. Law, p. 174. Petersdorff, 975. Martin, Life of P. Consort, v. 
 
 New Abdt. v. 6, p. 535. 3, p. 478. Torrens, Life of Ld. Mel- 
 
 b Earl Grey, Hans. D. v. 102, p. bourne, v. 2, p. 169. Welln. Desp. 
 
 1813. Mr. Gladstone, Ib. v. 193, p. 3rd S. v. 7, pp. 180, 366.
 
 590 
 
 THE ROYAL PREROGATIVE 
 
 Advice of 
 Parlia- 
 ment 
 thereon. 
 
 ment was the road to honorary distinction, there would 
 be an end to all true responsibility ; and the favour of 
 private members would be sought after instead of the 
 approbation of the crown. 
 
 On June 27, 1873, Earl Stanhope, in the House of Lords, moved 
 an address to the Queen, praying her consideration to the institution 
 of an order of merit to be conferred on persons of desert in science, 
 literature, and art. The motion was opposed by ministers, on 
 account of difficulties in giving practical effect to the idea, and 
 negatived, without a division. 
 
 Nevertheless, exceptional cases may arise, and have 
 arisen, to justify the Houses of Parliament in approach- 
 ing the sovereign with their advice and recommenda- 
 tions in regard to the exercise of this prerogative, and 
 on behalf of meritorious public servants, whose claim 
 to the favour of the crown had been either overlooked 
 or disregarded. 
 
 Foreign orders, decorations, or medals cannot be 
 accepted by British subjects without express licence 
 from the crown. Such leave is never granted unless 
 to reward active and distinguished service against an 
 enemy, or actual employment in the service of the 
 sovereign who confers the distinction, or attendance 
 upon a foreign sovereign to convey to him an order 
 from the British monarch. The rules governing the 
 practice in such cases were established by Lord Castle- 
 reagh in 1812, d and were revised in 1870 ; they are 
 strictly maintained, although they may not be legally 
 enforceable. 6 
 
 It is very undesirable that Parliament should inter- 
 fere with the discretion of the crown in this particular; 
 and if any representation were made by Parliament 
 
 c Clode, Mil. Fore. v. 2, p. 327. Consort, v. 3, p. 472. Ib. v. 5, pp. 
 
 Hans. D. v. 139, p. 1532. 
 
 392-3D4. Welln. Deep. 3rd S. v. 5, 
 
 d They will be found in Hertslet'a pp. 321, 406. Earl Derby, Hans. D. 
 
 Foreign Office List. v. 229, p. 1265. L. Times, Nov. 9, 
 
 Queen Victoria's letter to Em- 1878, p. 19. 
 peror Napoleon, in Martin, Life of P.
 
 IN GRANTING HONOURS AND REWARDS. 691 
 
 thereon, it ought to be in general terms, so as to leave 
 to the crown as much liberty as possible in dealing with 
 the subject. At the same time opinions expressed by 
 any considerable number of members of Parliament 
 would go far to induce the proper minister to consider 
 whether the rules applicable thereto could not be modi- 
 fied with advantage.* No rules have been laid down as 
 to British subjects receiving titles from foreign sove- 
 reigns. It rests entirely with the crown whether the 
 acceptance of such a title should be sanctioned or not. g 
 
 Thus, on June 3, 1845, Mr. Hume moved an address to the Prece- 
 Queen, that she would be pleased to grant such a pension as she dents. 
 should think proper to the Right Hon. Sir Henry Pottinger, as a 
 reward for his eminent public services, especially in China. The 
 premier (Sir Robert Peel) deprecated the interference of the House 
 in this matter, and said it was a question ' whether the House 
 should make a precedent of a special grant, usurping the prerogative 
 of the crown to reward public servants.' Considering, however, the 
 peculiarly exceptional circumstances of the case, he stated that he 
 would not oppose the motion, but would take upon himself to advise 
 her Majesty to make a suitable provision for this distinguished man. 
 Whereupon the resolution was agreed to, nem. con.^ 
 
 And, in 1857, the government having been tardy in recognising 
 Ihe value of the public services of Sir John M'Neil and Colonel 
 Tulloch, upon a commission of enquiry into the state of the army in 
 the Crimea, and having tendered to them an inadequate reward, the 
 House of Commons passed an address, ' praying that some especial 
 mark of approbation might be conferred upon them ' by the crown, 
 in consideration of their able services on that occasion. The 
 ministry yielded to the general wish of the House, did not oppose 
 the address, and advised a favourable reply to it. 1 
 
 On June 16, 1865, Mr. Hanbury Tracy called the attention of 
 the House to the dissatisfaction prevailing in military circles, in 
 regard to recent appointments to and promotions in the Order of the 
 Bath, upon a motion for a copy of any regulations altering the con- 
 
 f Mr. Gladstone, Hans. D. v. 208, them head-money, at the urgent 
 
 pp. 1491, 1650, 1771. lb. v. 214, p. appeal of the II. of C. Mir. Parl. 
 
 773. 1834, pp. 2258, 2858. And case of 
 
 * Earl Derby, Ib. v. 229, p. 1415. those engaged in the Chinese war, 
 
 h Hans. D. v. 80, pp. 1380, 1391, which was successfully resisted by 
 
 1394. See a^o case of officers, &c. the government. Hans. D. v. 82, p. 
 
 engaged in battle of Navarino ; where 681. 
 
 the government were induced to allow l Hans. D. v. 144, pp. 2246, 2396.
 
 592 THE ROYAL PREROGATIVE 
 
 stitution of the order. After a short debate, and explanations 
 from the prime minister on the subject, the motion was withdrawn.J 
 
 ofiiouse -^y constitutional usage, it is customary, in the case 
 
 of com- of Speakers of the House of Commons, on their final 
 retirement from the chair, to address the crown to 
 confer upon them ' some signal mark of royal favour.' 
 This is responded to, on the part of the sovereign, by 
 their elevation to the peerage, and by a message to the 
 House of Commons recommending that pecuniary pro- 
 vision may be made for the support of the dignity. k 
 Peerages. The creation of peers 1 is a peculiar and incommuni- 
 cable privilege of the sovereign, over which Parliament 
 has no control ; saving that it must be exercised upon 
 the advice of responsible ministers. 111 
 
 In 1784, George III. declared to Mr. Pitt his positive intention 
 to reserve the first rank in the peerage for his royal family." This 
 probably gave rise to the impression that the sovereign alone could 
 create a dukedom, and that ministers never interfered therein ; an 
 impression which, it need scarcely be said, is both unconstitutional 
 and unfounded. 
 
 In December 1711, by a stretch of the prerogative, 
 twelve new peers were created at once, professedly 
 for the purpose of overruling, or rather inverting, the 
 majority in the Upper Chamber upon a great political 
 question. In 1832, a similar encroachment upon the 
 independence of the House of Lords was attempted, 
 
 J Hans. I). v.] 80, p. 400; and see/A, the case of civil peerages, it is the 
 
 p. 748, in regard to tlie claims of certain rule for the expenses to be borne by 
 
 troops in India to the Indian Mutiny the country. Hans. D. v. 210, p. 103. 
 
 medal. Ib. v. 189, p. 171 ; v. 193, For procedure in contested claims to 
 
 pp. 640, 667, 760. peerage, see a paper in Law Mag. v. 
 
 k Rt. hon. 0. M. Sutton, Mir. Parl. 8, 4th s. p. 173. 
 
 1831-2, pp. 3467, 3486, 3502. lit. m May, Const. Hist. v. 1, c. 5. 
 
 hon. C. S. Lefevre, Hans. D. v. 144, Mir. Parl. 1830, p. 1705. Hans. D. 
 
 pp. 2126, 2271, 2300. v. 188, p. 1127. Hearn, Govt. Eng. 
 
 1 The process of making a peer, pp. 415-436. Bagehot, Eng. Const. 
 
 and the fees payable upon patents of p. 288. In regard to the choice of 
 
 dignities, as well as upon official ap- candidates for this honour, see Welln. 
 
 , 11 MI i r J TV /I* *l o ft rtr*> 
 
 pointrnents, generally) will be found Desp. Civil S. v. 6, p. 563. 
 
 in Com. Pap. 1867, v. 39, p. 425. In n See ante, p. 282. 
 
 the case of peerages conferred for Stanhope, Queen Anne, p. 507. 
 
 See ante, p. ,282. 
 military or naval services, but not in
 
 IN GRANTING HONOURS AND REWARDS. 593 
 
 for the purpose of carrying the Reform Bill ; but the 
 crisis was happily averted by the prudence of the 
 Opposition. 1 * 
 
 In 1856, the right of the crown to create peerages Life 
 for life was, after investigation and debate, denied by pe 
 the House of Lords. The question was raised in the 
 case of Mr. Parke, an eminent lawyer, upon whom a 
 life peerage, with the title of Baron Wensleydale, was 
 conferred, for the avowed purpose of strengthening the 
 appellate jurisdiction in the Upper House. It was not 
 contended that the sovereign was debarred from con- 
 ferring this description of honour upon any of her 
 subjects, but merely that, in conformity to the usage 
 and practice of the constitution, since it has been de- 
 fined and settled in its best days namely, from the 
 revolution of 1688 downwards neither the patent 
 creating a life peerage nor the writ of summons issued 
 in pursuance thereof entitled the grantee to sit and 
 vote in Parliament. q This point having been decided 
 by the House of Lords, after an examination of prece- 
 dents, Lord Wensleydale, who, in February 1856, had 
 been created a baron * for and during the term of his 
 natural life,' refrained from attempting to take a seat in 
 that House. But on July 25 following, the Govern- 
 ment, acquiescing in this decision, created him an here- 
 ditary peer. 
 
 By an Act passed in 1871 for the preservation of pisquaii- 
 the dignity and independence of Parliament, bankrupt 
 peers are disqualified from sitting or voting in the 
 House of Lords/ 
 
 The usage of Parliament also permits of the adop- Votes of 
 tion, by either House, of resolutions of thanks to officers 
 of the army or navy and others, who have rendered ment - 
 military service, for meritorious conduct in their official 
 
 P See ante, p. 192. D. v. 140, pp. 263, 508, 591, 898, 
 
 > Rep. Corn*, of Privileges, agreed 1121, 1289. 
 to by H. of L. Feb. 25, 1856. Hana. ' 34 & 35 Viet. c. 50. 
 
 VOL. I. Q Q
 
 694 THE ROYAL PREROGATIVE 
 
 votes of capacity. Votes of thanks ' should be proposed in both 
 Houses, and with such a concurrence of opinion that 
 there could be no doubt of their being unanimously 
 passed.' 8 Various rules have been prescribed by pre- 
 cedent in respect to votes of this description. In the 
 first place, it has been customary that all such motions 
 should emanate from a member of the administration, 
 acting on behalf of the crown, as the source and foun- 
 tain of honour.* This rule has not been without ex- 
 ception, though it is worthy of notice that motions for 
 votes of thanks which have proceeded from private 
 members have rarely been successful. 
 
 For example, on June 20, 1794, Mr. Secretary Dundas having 
 moved a vote of thanks to the officers and men engaged in the 
 expedition to Corsica, Mr. Sheridan proposed an amendment to 
 restrict the same to certain officers enumerated ; but his amendment 
 was rejected." Again, on March 3, 1797, Mr. Keene moved an 
 amendment to a proposed vote of thanks to Sir John Jervis, to sub- 
 stitute an address to the crown to confer some signal mark of royal 
 favour upon Sir John ; but he was compelled to withdraw it. On 
 August 10, 1803, however, Mr. Sheridan moved a vote of thanks to 
 the Volunteer and Yeomanry Corps, which was carried nem. conJ 
 On February 14, 1828, Mr. Hobhouse proposed a vote of thanks to 
 the officers engaged in the battle of Navarin ; but the previous 
 question being proposed thereon, he withdrew his motion. 
 
 It is contrary to the practice of Parliament to pro- 
 pose thanks to officers, by name, who are under the 
 rank of general or commodore, or who are not in chief 
 command in the action ; w but ' the several officers, non- 
 commissioned officers, and privates ' engaged, are often 
 thanked collectively/ After the suppression of the 
 Indian mutiny, thanks were voted, collectively, to the 
 gallant civilians, who had voluntarily performed mili- 
 
 Mr. Disraeli, Hans. D. v. 149, p. 11, 1806. 
 252. w Peel, in Mir. Parl. 1841, p. 222. 
 
 ' Parl. Hist, v. 33, p. 8. Hang. G. Hardy, Hans. D. v. 218, p. 428. 
 D. v. 149, p. 255. Ib. v. 203, p. 725. * See general indices, Com. Jour. 
 
 u Com. Jour. v. 49, p. 742. Hans. D. v. 136, p. 324. 
 
 " See also the proceedings on July
 
 IN GRANTING HONOURS AND REWARDS. 595 
 
 tary service on that occasion, with courage and self- Votes of 
 devotion. 7 Thanks were also voted, on December 15, 
 1854, to * General Canrobert and the French army, 
 for their gallant and successful co-operation with her 
 Majesty's land forces ' in the Crimean campaign ; and 
 Field-Marshal Lord Eaglan was desired to convey to 
 them the resolution. Votes of thanks should be founded 
 on official papers, announcing the completion of the 
 service for which the thanks are to be given. 2 
 
 It is usual to await the conclusion of operations 
 before voting thanks in Parliament ; and not to pro- 
 pose them after a brilliant exploit, which has left the 
 operations or the victory incomplete.* And they are 
 only voted for successes, and could not therefore be 
 given to General Williams for his gallant defence of 
 Kars, as that fortress was ultimately surrendered. 1 * 
 
 It has not been customary to give the thanks of 
 Parliament for victories, however brilliant, meritorious, 
 or complete, unless they took place against a power 
 with whom Great Britain was, at the time, in a state of 
 formal recognised war. Of late years, however, and 
 ~ especially in the case of military operations in India, 
 this has not been insisted upon. d In proposing thanks 
 for successes in India, it has been the uniform practice 
 to confine the expression of the same to the military 
 operations and arrangements, keeping out of view the 
 question of the policy and origin of the war, for which 
 the government are alone responsible. 6 
 
 Votes of thanks are always confined to the survivors; 
 there is no precedent of resolutions of approval being 
 adopted in regard to the conduct of deceased officers, of 
 whatsoever rank or merit.* In 1854, however, a general 
 resolution of appreciation, sympathy, and condolence, 
 
 y Hans. D. v. 148, p. 827. d Hans. D. v. 72, pp, 542, 571. 
 
 * Ib. v. 192, p. 925. e Mir. Parl. 1840, p. 801. Hans. 
 
 Peel, Hans. D. v. 71, p. 553. D. v. 66, p. 206. 
 
 b Hans. D. v. 141, pp. 1847, 1878. < Peel, in Hans. D. v. 84, p. 421. 
 e Mir. Parl. 1828, p. 189. 
 
 Q Q 2
 
 596 THE ROYAL PREROGATIVE 
 
 Votes of was adopted in reference to the heroes who fell in the 
 
 thanks. .-^ . . 
 
 Crimean campaign. 8 
 
 If names intended to have been included in a vote 
 of thanks are accidentally omitted, or if errors occur 
 therein, they may be subsequently corrected, on motion 
 to that effect. h Or, the order may be discharged, so as 
 to admit of one more complete being adopted.' 
 
 In 1843, when it was proposed to include the name 
 of Sir Henry Pottinger, plenipotentiary and envoy-extra- 
 ordinary to China, in a vote of thanks for successful 
 operations during the war with that country, Sir E. 
 Peel said, ' there is no instance in which a diplomatic 
 agent of the government has received the thanks of 
 Parliament for the successful completion of any nego- 
 tiation however important, or of any treaty however 
 advantageous to the interests of the country ; ' adding, 
 ' I think it of great importance to adhere in these 
 matters strictly to precedents .... which, I think, 
 have been founded upon good sense ; otherwise, every 
 omission that we happened to make in a vote of this 
 nature would imply a censure.' 3 This principle was 
 afterwards explained and enforced by Lord Palmerston, 
 who said that "* Parliament seemed to have systemati- 
 cally avoided votes of thanks to negotiators, and most 
 properly, because a negotiator was a person acting 
 under the instructions of his government. The govern- 
 ment had a majority in Parliament, and a vote of thanks 
 to their negotiator was, in fact, a vote of thanks to 
 themselves.' k 
 
 But, in the same year, Lord Brougham proposed in the House 
 of Lords, 1 and Mr. Hume in the House of Commons," 1 a vote of 
 thanks to Lord Ashburton, envoy- extraordinary to Washington, 
 for the manner in which he had conducted the negotiations which 
 
 ' Hans. D. v. 136, p. 326. Hans. D. v. 66, pp. 572, 573. 
 
 h Mir. Parl. 1840, pp. 814, 1137. k Ib. v. 08, p. 1237. 
 
 76. 1841, p. 499. Hans. D. v. 136, Ib. p. 641. 
 
 p. 424. m Ib. p. 1159. 
 
 1 Mir. Parl. 1840, pp. 1100, 1362.
 
 IN GRANTING HONOUES AND REWARDS. 697 
 
 resulted in the Treaty of Washington. Sir Robert Peel, on the Votes of 
 part of the government, acquiesced in this motion, viewing it as an an B ' 
 exception to the general rule, on the distinct ground that such 
 strong censure had been cast upon Lord Ashburton and the treaty, 
 by leading public men, that it was due to his lordship to take the 
 sense of Parliament upon his conduct. He said, moreover, that 
 unprecedented as the proposed vote undoubtedly was, many pre- 
 cedents existed for insisting upon a distinct expression of opinion 
 on the part of the House, in cases where, as in the present instance, 
 a motion of condemnation had been made." His views, however, as 
 to ' the danger of establishing, or rather continuing such a pre- 
 cedent,' in other cases, remained unchanged. The vote was agreed 
 to in both Houses. It was acknowledged, in the House of Lords, 
 by Lord Ashburton, from his seat in the House. P 
 
 n Hans. D. v. 68, p. 1217. House, from his seat, proceeded to 
 Ib. p. 1241. See also Ib. v. 80, comment at length, and with severity, 
 p. 1387. upon errors in the speech of the 
 p On one occasion General De Lacy mover of the vote of thanks, de- 
 Evans, a member of the H. of C., scribing the services of the army, 
 in acknowledging the thanks of the Hans. D. v. 136, p. 1265.
 
 598 THE ROYAL PREROGATIVE 
 
 CHAPTEE XIV. 
 
 KOYAL PREROGATIVE IN GRANTING CHARTERS. 
 
 granting of charters to corporations, conferring 
 granting upon them certain exclusive rights, privileges, and im- 
 
 charters. . , ' r , 6 . . , 
 
 mumties, is also a matter ol prerogative, and is exercised 
 by order in council. In former times, this prerogative 
 was of very wide extent, and implied an absolute legis- 
 lative power on the part of the crown, by virtue 
 whereof charters of liberties were granted to the peo- 
 ple, both at home and abroad ; which were all, more 
 or less, in the nature of public laws. The growth and 
 progress of our political institutions, however, have 
 gradually restrained the authority of the crown in this 
 particular within recognised limits, and now no charter 
 conferring political power or franchise in Great Britain 
 or her colonies can be granted by the crown, without 
 the concurrence of Parliament. 
 
 Power to And the crown cannot create corporations with 
 corpo- powers which transcend the law. Thus, it may not 
 rations. crea t e a corporation to enjoy a monopoly, nor with 
 power to tax the rest of the community. When a cor- 
 poration is to be created with privileges of this descrip- 
 tion, the authority of the legislature must be invoked 
 to supply the deficiencies of the royal prerogative.* The 
 House of Commons in 1693 resolved ' that it is the 
 right of all Englishmen to trade to the East Indies or 
 any part of the world, unless prohibited by Act of 
 
 Bowyer, Const. Law, p. 412,
 
 IN GRANTING CHARTERS. 599 
 
 Parliament.' This resolution destroyed the monopoly 
 granted by royal charter to the East India Company ; it 
 has ever since been held that no power but that of the 
 whole legislature can give to any person or to any 
 society an exclusive privilege of trading to any part 
 of the world. b The ' Statute of Monopolies,' passed in 
 21 James I. c. 3, put an end to a number of mono- 
 polies ; but an exception was made therein of the pre- 
 rogative right to grant certain exclusive rights, or 
 letters patent, to inventions of new manufactures. But 
 in 1852 the exercise of this prerogative came to be 
 wholly regulated by Act of Parliament. 
 
 It is customary in the colonies, possessing repre- chartered 
 sentative institutions, for Acts to be passed by the local 
 legislatures, constituting and incorporating colleges and ties - 
 universities therein. It has heretofore been deemed to 
 be necessary to invoke the exercise of the royal pre- 
 rogative for the grant of letters patent to such institu- 
 tions, for the purpose of enabling them to confer degrees, 
 which shall be recognised as equivalent to degrees 
 .granted by universities in the mother country. In the 
 grant of such powers the crown will exercise discre- 
 tion to ensure that no degrees shall be sanctioned 
 other than those conferred by similar institutions, and 
 particularly by the great English universities, on 
 which these new institutions are professedly modelled, 
 in order that uniformity in procedure might exist 
 among universities having the sanction of royal letters 
 
 J 
 
 patent. d 
 
 But, by an Act passed in Victoria in 1881, the University of 
 Melbourne was empowered to confer ' any degree, diploma, certifr- 
 
 b Macaulay, Hist, of Eng. v. 4, p. Gov. Normanby of N. Zealand, 
 
 475. Forsyth, Const. Law, p. 434. dated Jan. 22, 1875. Canada Acts 
 
 Am. Law Rev. v. 7, p. 737. of 1843 and 1852. Quebec Stat. 1870, 
 
 c Hans. D. v. 222, p. 245. for Bishop's College, Lennoxville, 
 
 d Earl of Carnarvon's Desp, to
 
 600 
 
 THE EOYAL PKEROGAT1VE 
 
 Queen's 
 College 
 Univer- 
 sity. 
 
 Mel- 
 bourne 
 Univer- 
 sity. 
 
 Laval 
 Univer- 
 sity. 
 
 Adelaide 
 Univer- 
 sity. 
 
 cate or license, -which can now be conferred by any university in the 
 British dominions.' 
 
 In 1839-40, the Upper Canada Parliament passed an Act to 
 establish ' the university at Kingston.' This Act was assented to, 
 but afterwards disallowed, and a royal charter issued instead, incor- 
 porating ' Queen's College ' at Kingston. The law officers of the 
 crown were of opinion that it belongs to the crown by its prero- 
 gative to incorporate a college or establish a university. And in 
 order to secure the royal name to such an institution, certain forms 
 must be observed, which appropriately should be gone through at 
 the seat of royalty. The Act was considered an objectionable 
 precedent, and as disabling the crown to meet the wishes of the 
 trustees. It was therefore disallowed. 6 
 
 The Melbourne (Victoria) university was established under a 
 colonial statute, which received the royal assent on January 22, 
 1853.' 
 
 The University of the Cape of Good Hope was incorporated by 
 local Act of 1873 ; but it received a grant of royal letters patent 
 on August 8, 1877. 
 
 In 1881, an Act respecting Laval University was passed by the 
 Quebec Legislature.^ It was nevertheless protested against, and its 
 disallowance asked for by certain members, as ultra vires of a pro- 
 vincial legislature. 11 It merely empowered the university 'to in- 
 crease the number of its chairs of arts and other faculties, within 
 the limits of the province of Quebec.' The imperial government 
 refused to interfere as it was a local question, to be disposed of by 
 the governor-general in Council. And the Dominion Government 
 decided, under the British North America Act of 1867, 93, 
 the question was in the exclusive jurisdiction of the provincial 
 legislature. 
 
 The university of Adelaide, in South Australia, was incorporated 
 by local statute, and power to confer degrees granted by letters 
 patent, from the crown. Subsequently the university applied for 
 permission to confer degrees on women, and also degrees in science 
 (Bachelor, and Doctor of Science). At first the secretary of state 
 for the colonies refused to advise her Majesty to recognise these 
 degrees. But, after obtaining the sanction of the local legislature, 
 the colonial secretary was requested in 1879 to reconsider his 
 refusal. He agreed to do so, and to advise the issue of the neces- 
 sary letters patent, provided a local Act was first passed, giving 
 
 " Toronto British Colonist, Dec. Quebec Acts 44-45 Viet. c. 46. 
 
 29, 1841, p. 3. h See reasons in I^eg. Com. Jour. 
 
 ' See Rep. on Colonies for 1879. 1881, pp. 135-139. 
 Com. Pap. 1881, v. 64, p. 1.
 
 IN GRANTING CHARTERS. 601 
 
 power to the university to confer these degrees. This was accord- 
 ingly done in 1880. Whereupon the royal charter was granted, 
 which not only recognised degrees in science, but also authorised the 
 conferring of degrees on women. 1 
 
 In 1870, an Act was passed founding a university in New New 
 Zealand, to which a charter was subsequently granted by the Queen, 
 The Act was amended in 1874, and letters patent of a late date 8 it y . 
 gave rank and precedence to degrees conferred by this university, 
 equal to that of degrees granted in the imperial universities.^ 
 
 By an Act passed in 1871, it is provided that a copy Procedure 
 of any application for the foundation of any college j^a 
 or university, which may hereafter be referred for the college, or 
 consideration and report of any committee of the Privy 
 Council, shall, together with a draft of the proposed 
 charter, be laid before both Houses of Parliament for 
 not less than thirty days before any report thereon shall 
 be submitted to the crown. k 
 
 Corporations for local and municipal purposes must Creating a 
 be created in the mode prescribed by law for the exer- 
 cise of that portion of the royal prerogative, and with 
 the incidents legally essential to their nature. 1 For 
 example, her Majesty has been expressly empowered by 
 ^statute, on petition of the inhabitant householders, to 
 grant, with the advice of her Privy Council, a charter 
 of incorporation, according to the provisions of the 
 Municipal Corporation Act, to any town or district, and 
 to create the same a municipal borough. m 
 
 The crown is also at liberty to give royal charters to Royal 
 private associations, a prerogative which is exercised chart ers. 
 upon the advice of the Board of Trade ; but this prac- 
 tice has long been regarded as of doubtful propriety. 
 One of the objects of the Companies Act of 1862 was 
 
 1 S. Aust. Parl. Proc. 1881, App. k 34 & 35 Viet. c. 63. Hans. D. 
 
 No. 37. Ib. 1882, App. 37. v. 220, p. 1348 ; v. 221, pp. 762, 
 
 J Rusden, Hist. N. Zealand, v. .% 1373. 
 
 p. 52. By London Gaz. Dec. 11, l See stat. cited in Bowyer, Const. 
 
 1883, this University was empowered Law. Hans. D. v. 189, p. 597. 
 
 by Supp y . Letters Patent to grant m Bowyer, Const. Law, p. 399, n. 
 
 degrees of Bachelor and Doctor in New Municipal Corp. Act, 1882, pt. 
 
 Science. Colonies, Dec. 14, p. 11. xi.
 
 602 
 
 THE ROYAL PREROGATIVE 
 
 to substitute a general law for an exceptional privi- 
 lege. 
 charters The crown has ever exercised, and still retains, the 
 
 and cor- . . . ... ,, 
 
 porations. prerogative of incorporating universities, colleges, com- 
 panies, and other public bodies, and of granting to them, 
 by charter, powers and privileges not inconsistent with 
 the law of the land, while, at the same time, similar 
 powers are now conferred by Act of Parliament. But 
 public associations for commercial purposes ordinarily 
 require powers which can only be conferred by legisla- 
 tion. Even long-established institutions, such as the 
 Bank of England, which were originally created by 
 royal charter, have of late years derived their extra- 
 ordinary privileges, like other public companies, from 
 legislative enactments. 15 
 
 All charters or grants of the crown may be repealed 
 or revoked when they are contrary to law, or uncertain 
 or injurious to the rights and interests of third persons ; 
 and the appropriate process for the purpose is by writ 
 of scire facias. To every crown grant there is annexed 
 by the common law an implied condition that it may be 
 repealed by scire facias by the crown, or by a subject 
 grieved, using the prerogative of the crown upon the 
 fiat of the attorney-general.* 1 
 
 Moreover, all private corporations are subject to the 
 control of the law, and may be proceeded against for 
 illegal acts or abuse of powers, either by a special 
 action on the case, or by writ of mandamus or of quo 
 warranto, according to the nature of the alleged offence 
 or misdemeanour. Where the legal remedy against a 
 corporation is inadequate a court of equity will inter- 
 
 Private 
 Corpo- 
 rations. 
 
 n Hans. D. v. 189, p. 861. But the 
 abstract right of issuing such charters 
 still remains in the crown. Ib, v. 
 196, p. 356. 
 
 See proceedings in H.of C. in re- 
 ference to granting of a royal charter 
 to the Univ. of London. Mir. Parl. 
 1833, pp. 1842, 2740. In 1869 the 
 
 royal charter granted in 1836 to 
 Univ. College, London, was annulled, 
 and the Univ. incorporated by 32 & 
 33 Viet. c. 23. 
 
 p Amos, Fifty Years Eng. Const. 
 p. 126. 
 
 > Forsyth, Const. Law, p. 387.
 
 IN GEANTING CHAETEES. 003 
 
 fere and restrain unlawful proceedings by the issue of 
 an injunction.' 
 
 While a corporation may be dissolved by a forfeiture Power of 
 of its charter by ordinary legal process, Parliament men tto 
 itself may also interfere, and by an Act of its own put dissol j e 
 an end to the existence of a body which has misused or ration, 
 abused the powers entrusted to it. [It is a principle of 
 American law that the charter of a private corporation, 
 whether civil or eleemosynary, is an executed con- 
 tract between the government and the corporators, and 
 that the legislature cannot repeal, impair, or alter it, 
 against the consent or without the default of the cor- 
 poration judicially ascertained and declared. 8 ] Under 
 the British constitution, Parliament is omnipotent, and 
 may at any time dissolve a corporation created by the 
 crown or by Act of Parliament. But such is the respect 
 which is shown by British law to private property and 
 private rights that there have been very few instances, 
 and those mainly determined upon grounds of public 
 policy, wherein Parliament has thought proper to dis- 
 solve any corporate body, or to interfere without their 
 consent with the exercise of powers originally conferred 
 upon them. As a rule, it is left to the courts of law to 
 regulate and restrain the proceedings of all corporations 
 within the limits of their original charters.* 
 
 On March 18, 1862, a petition was presented to the House of Prece- 
 Commons, charging the directors of the West Hartlepool Railway dents. 
 and Dock Company with having made certain fraudulent state- 
 ments of accounts, and with having borrowed money largely in 
 excess of the powers conferred upon them by Parliament. On 
 March 25 it was moved to appoint a committee to enquire into the 
 truth of these charges ; but as they were about to be investigated 
 
 r Angell and Ames, Corporations, * Angell and Ames, Corporations, 
 
 c. 11, 20, 21. 766, 767. Brice, Ultra Vires, ed. 
 
 5 Ib. 767. Green, Am. ed. of 1880, p. 786. Dwarris on Statutes, 
 
 Brice, Ultra Vires, ed. 1880, p. 96, n. 2nd ed. p. 650. Hans. D. v. 198, pp. 
 
 Abbott, Corporations, 1869, verbe 1127-1134, 1338. Am. L. Rev. v. 
 
 ' Legislation.' 8, pp. 222-229.
 
 604 THE ROYAL PREROGATIVE 
 
 Prece- by a court of law, ministers opposed the motion, and it was accord- 
 lts - ingly negatived. 11 
 
 Next session (1863) the company applied to Parliament for 
 further powers. On June 1, the select committee, to whom their 
 Bill was referred by the House of Lords, made a special report that 
 it was not expedient to proceed further with the Bill, inasmuch as it 
 appears the directors 'have for a series of years wilfully contra- 
 vened the provisions of the Acts of Parliament relating to the said 
 company, by largely exceeding the limits of their borrowing powers, 
 and by the application of the company's funds to purposes other 
 than those of the undertaking, and have concealed their illegal acts 
 from the shareholders and creditors of the company, and from the 
 public, by the continued and systematic publication of false ac- 
 counts.' The committee further recommended that a searching 
 enquiry should be made into the facts of the case, and if the parties 
 concerned should prove to have been guilty of the alleged offences, 
 ' that the authority of the House should be exercised to ensure 
 their prosecution and punishment.' They were also of opinion ' that 
 it would be expedient to devise further legislative measures to 
 restrain boards of directors within the legal limits of their Acts 
 of Parliament, and for the protection of the interests of innocent 
 creditors and shareholders.' v 
 
 On June 23 the chairman of the above-mentioned committee 
 (the Earl of Donoughmore) moved that the report and evidence be 
 referred to the attorney -general, with directions to enquire into the 
 alleged illegal conduct of the late directors and auditors of the said 
 company, and to institute a prosecution against such persons as 
 might be justifiably accused of illegality or fraud. But the lord 
 chancellor stated that the government held it to be their duty to 
 make immediate enquiry into the alleged frauds ; and if it appeared 
 that an indictment could be sustained, would themselves institute 
 a prosecution. Whereupon the motion was withdrawn. w On Febru- 
 ary 26, 1864, the lord chancellor, in reply to a question from 
 Lord Donoughmore, informed the House that, after full enquiry, the 
 attorney-general had advised that no prosecution should be under- 
 taken against the parties complained of, as he did not think a con- 
 viction could be obtained/ 
 
 So much of the report of the committee aforesaid as related to 
 further legislative measures to restrain unlawful acts by railway 
 directors was endorsed by the House of Lords, by the appointment, 
 on June 23, 1863 (on motion of Lord Donoughmore), of a select 
 committee to consider what measures might be necessary to restrain 
 directors of railway companies from exceeding their borrowing 
 
 u Hans. D. v. 166, pp. 107-110. - Hans. D. v. 171, pp. 1294-1302. 
 
 Lords' Pap. 1863, v. 34, p. 463. Ib. v. 173, p. 1179.
 
 IX GRANTIXG CHARTERS. 605 
 
 powers, and from an unauthorised use of their funds, and to enquire Prece- 
 into the means of affording additional security to the holders of dents, 
 debentures. The West Hartlepool Harbour and Railway Bill was 
 referred to this committee, to consider whether it should be allowed 
 to proceed, for the benefit of the innocent shareholders, and without 
 exempting the guilty parties from their responsibility.? On June 
 30, the committee reported in favour of the Bill, with certain 
 amendments. It accordingly became law. 2 On July 21, the com- 
 mittee reported the evidence they had taken, together with various 
 recommendations.* In the following session (1864) the committee 
 was reappointed. They reported on July 15 several recommenda- 
 tions for the prevention of frauds by railway companies ; b which 
 led to the passing of a general Act, making new regulations and 
 restrictions in regard to the borrowing of money by railway com- 
 panies, in excess of the amount allowed by their Acts of Incorpora- 
 tion. 
 
 In 1863 the unexpired charters of four Canadian banks, incor- 
 porated by private Acts of the provincial Parliament, but which 
 had become insolvent, and had discontinued banking operations, 
 were repealed by a public Act. In a previous session, a committee 
 of enquiry into the condition of these banks had reported that it 
 was ' advisable to prevent their resumption of business on the terms 
 and conditions embodied in their several charters.' d 
 
 The solicitation of a Bill in Parliament has been regarded, by 
 courts of equity, as so similar to that of an ordinary suit, that in 
 one instance the promoters have been restrained by injunction from 
 proceeding with a Bill, the object of which was held to be to set 
 aside a covenant ; and though this injunction was afterwards set 
 aside, on appeal, the lord chancellor held that in a proper case the 
 court would not hesitate to issue an injunction ' touching proceed- 
 ings in Parliament for a private Bill, or a Bill respecting property.' 
 It is erroneous to suppose that this would be an infringement upon 
 the privileges of Parliament, for the Court of Chancery ' acts upon 
 the person, and not upon the jurisdiction.' 
 
 In fact the Irish Court of Chancery, in 1873, by a decision which 
 was afterwards confirmed, upon appeal, did issue an injunction to 
 restrain the corporation of the township of Kingstown from pro- 
 ceeding any further with a Bill for extending the boundary of the 
 township and improving its economic and sanitary arrangements, 
 which Bill had been read a second time in the House of Commons 
 
 y Hans. D. v. 171, pp. 1302-1305. d Canada Leg. Ass*. Jour. 1862, 
 
 x 26 & 27 Viet. c. 154. pp. 145, 228, 268. App*. No. 4. Ib. 
 
 Lords' Pap. 1863, v. 34, p. 215. 2nd Sess. 1863, p. 109. 27 Viet c 
 
 " Ib. 1864, v. 27, p- 29. 45. 
 c 27 & 28 Viet. c. 120, 23.
 
 606 
 
 THE ROYAL PREROGATIVE 
 
 Corporate 
 vested 
 rights in 
 United 
 States. 
 
 and referred to a select committee. The ground of this decision was 
 that the corporation had not complied with certain provisions of 
 ' The Towns' Improvement Clauses Act, 1847,' and the effect was, 
 that the corporation were restrained from prosecuting the Bill, in 
 their corporate capacity; while, as private individuals, they remained 
 free to act on their own responsibility, and at their own expense. 6 
 The judgment was delivered on May 5, and on May 7 the select 
 committee reported to the House of Commons that the preamble of 
 the Bill had not been proved to their satisfaction/ 
 
 It may indeed be very difficult to conceive a proper case for the 
 interference of a court ; inasmuch as the ordinary province of Par- 
 liament in private Bills is to abrogate existing rights, and to create 
 new ones. An injunction, therefore, could not be granted on the 
 ground that the Act applied for would interfere with existing rights. 
 For Parliament has the power of destroying, altering, or affecting 
 pre-existing rights, providing, as it always does, or intends to do, 
 compensation to the party affected. % But parties have been re- 
 strained, by an injunction, from appearing as petitioners against a 
 private Bill pending in the House of Lords, h and the Lords, upon 
 complaint thereof made, have declined to interfere, on the ground 
 that ' the matter lay entirely between the parties themselves, and 
 did not in any manner affect their lordships' power of legisla- 
 tion.' 1 
 
 By the Imperial Act, 38 & 39 Viet. c. 64, the Guarantee by 
 Companies Act of 1867 is repealed, and every certificate granted by 
 the Treasury to a company under that Act is cancelled ; existing 
 rights and remedies being saved. 
 
 Much practical difficulty has been experienced in 
 the United States from the immunity from legislative 
 control enjoyed by so many corporations throughout 
 the country since the decision in the case of the trus- 
 tees of Dartmouth College v. Woodward, in 1819. j 
 
 e Irish Eq. L. R v. 7, p. 395. 
 
 r For further particulars see Brice, 
 Ultra Vires, ed. 1877, p. 412, n. 
 
 Heatkcote n. North Staffordshire 
 Rly. Co. 6 Railway and Canal 
 Cases, pp. 359, 368. 2 Mac. & G. p. 
 100. White & Tudor, Lead. Caa. 
 Am. ed. 1876, v. 2, p. 1324. See 
 35 & 36 Viet. c. 95, directing that 
 certain legal proceedings pending in 
 a matter where inParl. had legislated, 
 
 and might hereafter legislate, should 
 be stayed for a time. 
 
 b Stockton and Hartlepool Rly. 
 Co. 5 Railway and Canal Cases, p. 
 691. 
 
 1 Hans. D. v. 100, p. 784. May, 
 Parl. Prac. ed. 1883, p. 757. For 
 later cases, Brice, Ultra Vires, ed. 
 1877, pt. 3, c. x. 
 
 J 4 Wheaton, p. 518.
 
 IN GRANTING CHARTERS. 607 
 
 As a result, it has generally become customary to insert 
 into the statute law of the States, as a part of the 
 organic law of all subsequently granted corporate 
 charters, a reserved legislative power of amendment or 
 repeal ; thereby re-establishing over such bodies, as a 
 condition precedent of their existence, the old common 
 law principle of parliamentary omnipotence. k Similar 
 power is reserved in Canada, by the Interpretation Act 
 of 1867, clause 7, 34 ; by the General Eailway Act 
 of 1868, clause 22 ; and by the Joint Stock Companies 
 Act of 1869, clause 43. 
 
 The decision of the Supreme Court, in the Dartmouth College Prece- 
 case, was professedly based upon the fact that the United States dents - 
 possess a written constitution, binding alike upon Congress and 
 upon the state legislatures ; and that ' the will of the people, as 
 declared in the constitution, is the first law.' 1 It is assumed to be 
 the duty of the Supreme Court to construe that constitution, and 
 to declare whether any impugned law is in conformity with it. The 
 tenth section of the United States Constitution declares any law to 
 be unconstitutional which impairs the validity of a contract. Under 
 this clause the doctrine embodied in the Dartmouth College case was 
 enunciated. By degrees this doctrine was made to cover grants to 
 railway companies and industrial corporations, which had been 
 thoughtlessly and improvidently granted ; and monopolies, injuri- 
 ously affecting the whole community, came to be regarded as vested 
 rights. m 
 
 In 1852 (by Act 16 Viet. c. 39) the charters granted in 1851 to the 
 Montreal and Kingston, and to the Kingston and Toronto Railway 
 Companies, were severally repealed, in order that leave might be 
 given to a grand trunk company to construct the whole line from 
 Toronto to Montreal. This proceeding of the legislature was pro- 
 tested against and resisted, at first, by the Montreal and Kingston 
 Railway Company ; but finally, as is expressed in the above statute, 
 they ' expressed their willingness ' to the abrogation of their charter, 
 provided the expenses they had already incurred were repaid. 
 
 In 1861, the Canadian Legislature (on complaint of parties inter- 
 ested) determined to annul certain rights granted by local Acts to 
 
 k Am. L. Eev. v. 1. pp. 451-476. Sedgwick, Construe. Stat. p. 125. 
 But see Ib. v. 8, p. 189. Proffatt on m Cont, Rev. v. 28, p. 689. 
 Private Corporations, pp. 17-34. n Canada Leg. Ass y . Jour, 1852-3, 
 
 1 Cooley, Const. Limit, p. 4. A pp. xx.
 
 608 ROYAL PREROGATIVE IN GRANTING CHARTERS. 
 
 the owners of certain toll bridges over the Riviere des Prairies, but 
 in so doing a select committee of the legislative council on the Bill 
 recommended that compensation should be given by the government 
 to the said owners. Pursuant to this recommendation, the Board 
 of Works awarded indemnity to the bridge proprietors. 1 * 
 
 Canada Leg. Council Jour. 1852-3. P Can. Ssse. Pap. 1862, No. 25.
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. 609 
 
 CHAPTEE XV. 
 
 EOYAL PREROGATIVE IN REGARD TO OFFICES AND 
 PUBLIC OFFICERS. 
 
 THE crown, besides being the fountain of dignity and Preroga- 
 honours, is likewise entrusted by the constitution with regard to 
 the sole power of creating such offices, for carrying on offices and 
 
 x-u vv <. .-u J- -x r ,1 P ublic 
 
 the public service, or maintaining the dignity 01 the officers, 
 state, as may be required. It has also, by virtue of the 
 prerogative, a right to make choice of all persons to be 
 appointed to fill places of trust and emolument under 
 the crown ; a to determine the amount of remuneration 
 to which they shall be respectively entitled ; and to 
 dismiss them from office, according to its discretion. 
 
 Every office and employment in the public service 
 derives its authority either directly or indirectly from 
 the crown ; and in the eye of the law is accounted 
 honourable, because implying a superiority of abilities ; 
 and being always presumed to be filled by the person 
 best qualified for the same. Offices are in the gift of 
 the crown, because the law supposes that no one can 
 be so good a judge of the merits and qualifications of 
 public officers as the sovereign by whom they are 
 employed. b 
 
 As the king may create new titles, so may he create 
 new offices, but with this restriction, that he cannot 
 create new offices with new fees annexed to them, nor 
 annex new fees to old offices ; for this would be a tax 
 
 * Macaulay, Hist, of Eng. v. 4, b Bowyer, Const. Law, p. 147. 
 p. 303. 
 
 VOL. I. R R
 
 CIO THE ROYAL PREROGATIVE 
 
 upon the people, which cannot be imposed but by Act 
 of Parliament. Neither may the crown grant ancient 
 offices in other manner and form than has been usual, 
 unless with consent of Parliament ; d nor create an office 
 that is inconsistent with the constitution, or prejudicial 
 to the subject, though without fees. 6 Neither can a 
 judicial office be granted for a term of years, or in 
 reversion. Ministerial offices, however, are not subject 
 to this rule. f With these limitations it is competent to 
 the crown to create a new office, or department of the 
 executive government, whenever the exigencies of the 
 public service may require it ; and to determine the 
 rate of salary to be affixed thereto. g The statutes 
 50 Geo. III. c. 117, and 56 Geo. III. c. 46, were the 
 Acts by which the civil service of the crown was for 
 the first time formally recognised, and constituted upon 
 a parliamentary basis. h 
 
 In cases which admit of delay it is customary to 
 obtain the previous sanction of Parliament to the erec- 
 tion of new offices ; and it is sometimes provided, that 
 the appointment of individuals to a new office created 
 by statute shall be deemed to be temporary only until 
 the salary of such office has been granted by Parlia- 
 ment. 1 
 
 In former times, and even so recently as the reign of 
 George II.. the patronage of the crown was oftentimes 
 shamefully abused. Persons were appointed to places 
 of trust and emolument, or removed therefrom, on mere 
 political grounds, and in furtherance of political in- 
 
 " 2 Coke, Inst. 533. Com. Dig. proposed additional judge in Chan- 
 
 Prerog. D. 3. eery, Mir. Parl. 1830, pp. 2269, 2420, 
 
 * Chitty, Prerog. p. 81. 2560 ; and on objection raised in 
 
 e Ib. p. 81. Bowyer, Const. Law, Com 6 , of Supply to an apptmt. of a 
 
 p. 175. certain person as Inspect.-Gen. of 
 
 r Com. Dig. Officer, B. 7. Marines, Ib. 1830-31, pp. 493, 495, 
 
 Hans. D. v. 190, p. 986 ; v. 227, 1098. Mr. Gladstone's remarks on 
 
 p. 500 : post, v. 2. the proposed creation of a new office 
 
 h West. llev. v. 49, p. 464. to draft Government Bills, Hans. D. 
 
 ' 33 & 34 Viet. c. 17; 34 & 35 v. 185, p. 1236. 
 Viet. c. 70, 3. And see debates on
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. Gil 
 
 trigues. Even persons holding non-political offices, such Public 
 as lord- lieu tenants of counties, or having commissions 
 in the army and navy, were not unfrequently dismissed 
 by order of the king, for votes given in Parliament.' 
 
 On March 6, 1780, a debate arose in the House of Lords for an 
 address to the king, to be informed ' by whose advice the Marquis of 
 Carmarthen and the Earl of Pembroke had been dismissed from the 
 office of lord-lieutenant, by reason of their conduct in Parliament.' 
 The motion was opposed by the ministry, as intrenching upon the 
 king's prerogative of choosing his own servants, and was negatived. 
 And see the case of Earl Fitzwilliam, who was removed from the 
 lord -lieutenancy of Yorkshire, for taking part in the proceedings of 
 a political meeting against the government, at a time of great politi- 
 cal excitement. k 
 
 Sinecure offices, gifts of places in reversion, and 
 secret pensions for political services to the court were 
 multiplied ; and the illegitimate influence of the crown 
 was thereby greatly increased. But chiefly through 
 the patriotic labours of Edmund Burke, in the cause of 
 economic reform, these evils were exposed and reme- 
 died. Acts of Parliament were passed in the early 
 -part of the reign of George III. to abolish sinecures, 
 to regulate the grant of offices, and to reform abuses 
 connected therewith. Since the commencement of the 
 present century, a marked improvement has taken place 
 in the practice of governments, and in the tone of 
 public opinion, respecting the distribution of patronage. 
 No minister would now venture to incur the responsi- 
 bility of abusing the prerogative, in the choice and 
 dismissal of servants of the crown, by such acts as 
 were committed with impunity less than a century ago. 
 Public opinion has gradually brought the exercise of 
 these powers of administration under the control of 
 certain rules, which, though for the most part enforced 
 by no written law, are yet practically acknowledged 
 
 May, Const. Hist, v, 1, pp. 24, 29, 40; Ewald, Life of Walpole, p. 247. 
 k Lewie, Administrations, p. 397. 
 
 E R 2
 
 612 
 
 by the government, and have put an end to many 
 abuses. 1 
 
 The most important rule of modern times, in regard 
 to the civil servants of the crown, is that whereby they 
 have been divided into two classes political and non- 
 political, of which the former is supreme and the latter 
 subordinate. The former consists of cabinet ministers 
 and other members of the administration, and the 
 latter of the permanent members of the civil service." 1 
 The principle upon which this division is made, is that 
 certain officers have duties to perform that are of a 
 decidedly political character, or are otherwise so inti- 
 mately connected with the person of the sovereign as 
 to afford peculiar facilities for influencing the royal 
 mind. All such functionaries, as a general rule, have 
 seats in one or other of the Houses of Parliament, and 
 are required to co-operate with each other in further- 
 ing the policy of the government. And they necessarily 
 relinquish their offices upon a change of ministry." 
 
 The non-political civil servants of the crown may be 
 considered as virtually ineligible to a seat in Parlia- 
 ment. They have been, for the most part, excluded 
 from the House of Commons by express statutes ; p but 
 even where there is no positive prohibition, the fact of 
 a person holding a permanent official appointment under 
 the crown operates as an indirect disqualification for 
 political life, inasmuch as every successive ministry in 
 England is formed upon party principles, and ' no ad- 
 ministration could act with colleagues who were mem- 
 bers of the House, unless they were willing to act as 
 
 1 Grey, Parl. Oovt. new ed. 285. 
 
 m Upon this principle a parlia- 
 mentary under-secy. takes precedence, 
 in rank and responsibility, over a 
 permanent under-secy., however de- 
 pendent the former may be upon the 
 latter in his first appointment for 
 guidance and information. Rep. 
 
 Com c . on Diplomatic Service, Com. 
 P. 1871, v. 7, pp. 295, 339. 
 
 n See further on these points, v. 2, 
 c. ' On the Cabinet Council.' 
 
 See Com. Pap. 1854-5, v. 20, 
 p. 400. 
 
 P See v, 2.
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. 613 
 
 members of the same party.' q Their exclusion from 
 the political arena is the price they pay for their 
 tenure of office, being virtually that of good behaviour. 
 For whether they were originally appointed for political 
 reasons, or otherwise, nevertheless, ' as a general rule, 
 the civil servants who do not sit in Parliament, hold Principle 
 their offices technically and legally during the pleasure ne nce in 
 of the crown, but are in practice considered as having ^vice! 1 
 a right to remain in undisturbed possession of them, so 
 long as they continue to discharge their functions pro- 
 perly. This principle is so universally recognised, that 
 the dismissal of a person holding a permanent office is 
 never heard of now, except for misconduct.' r 
 
 ' The distinct line drawn between permanent and 
 political offices, together with the complete establish- 
 ment of the practice of regarding the former as held 
 during good behaviour, has diminished the evils inci- 
 dental to changes of administration.' 'By allowing 
 these transfers to affect only a comparatively small 
 number of high offices, and by retaining the great 
 majority of the public servants permanently in their 
 situations, the experience and traditional knowledge 
 they possess of the business of the several departments 
 of the state are rendered still available for the conduct 
 of affairs.' s 
 
 Contrast this picture with the results of the system which now American 
 prevails in the United States of America, where thousands of offices system. 
 are periodically transferred from the adherents of one party to 
 those of another, upon the accession of every new president ! This 
 practice is contrary to the original principles of the American Con- 
 stitution, which provided for a permanent executive system, inde- 
 pendent alike of political interference, and of legislative control. 
 It is contrary, likewise, to the practice of their government from 
 the days of Washington to those of President Jackson. Since then, 
 however, the right of appointments to office has been gradually 
 absorbed by the Senate and House of Representatives, and is now 
 
 " Kept. Board of Admiralty, Com. 287 ; Com. Pap. 1854-5, \. 20, p. 103. 
 Pap. 1861 , v. 5. s Grey, pp. 288, 289 ; Hearn, Govt 
 
 ' Grey, Parl. Govt. new ed. p. of Eng. p. 239.
 
 614 THE ROYAL PREROGATIVE 
 
 wholly controlled by those bodies, irrespective of the opinions of 
 the president. As a natural consequence, the permanence, dignity, 
 purity, and efficiency of the civil service have been completely over- 
 thrown, and the entire community most injuriously affected by the 
 corrupt use of patronage for political purposes. The existing prac- 
 Evils of tice of rotation in office exercises moreover a most pernicious in- 
 American ^ uence u pon the employes themselves by diminishing the sense of 
 system, of personal responsibility, and by fostering a careless indifference to 
 frequent the obligations of office, whilst its emoluments are greedily sought 
 lai zf 6 ' for, and too often fraudently increased. It has deprived the state 
 of the services of men of character and qualifications, hindered the 
 progress of departmental improvement, and compelled every succes- 
 sive batch of employes to acquire the merest rudiments of official 
 routine, when they should be profiting by the traditions and expe- 
 rience of office to bring their several departments into the highest 
 possible condition of efficiency. The demoralising effects of this 
 system upon the public welfare are beginning to attract serious 
 attention. A partial reform of the civil service was sanctioned by 
 an Act of Congress in 1871, upon the recommendation of President 
 Grant, and a commission was appointed which reported in 1874 in 
 favour of steps to give effect to the reforms already initiated ; but 
 Congress has not hitherto sustained the efforts which have been 
 made by the president in this direction.* Meanwhile some of the 
 ablest and most respectable organs of public opinion in America 
 have announced that a vital change in this particular has become 
 essential to the maintenance of their republican institutions. One 
 writer, after pointing out the nature and extent of the existing evil, 
 urges the necessity of adopting the usage of Great Britain in regard 
 to office-holders, declaring that ' we must have a general rule for the 
 selection of employes ; their tenure of office must be made dependent 
 on their good behaviour ; there must be promotion as a reward for 
 fidelity and ability, and pensions as a refuge for old age. In other 
 words, some inducement must be held out to honest and competent 
 men to enter the public service, to remain in it, and behave well in 
 it.' u This is a striking testimony to the superior advantages of the 
 British system. 
 
 In 1877, President Hayes instituted enquiries into the working 
 of the system in Great Britain, without waiting for further con- 
 gressional action. This led to the preparation and publication, in 
 
 * President's Message, April 15, 122-124. Ib. v. 109, pp. 443-475 ; 
 
 1874, forwarding Report of Civil v. 124, p. 16; Am. Law Rev. v. 6, 
 
 Service Commission. Senate Poets, p. 159. See also in regard to work- 
 
 1873-4, No. 63. See Am. Law Rev. ing of American political system and 
 
 v. 11, p. 197; North Am. Rev. v. its notorious inferiority to that of 
 
 127, p. 273. Gt. Britain, North Am. Rev. v. 
 
 u North Am. Rev. v. 101, pp. 118, p. 1 ; Quar. Rev. v. 127, p. 61.
 
 IN EEGARD TO OFFICES AND PUBLIC OFFICERS. 615 
 
 1880, of a report by Mr. D. B. Eaton, which affords a comprehen- Aypoint- 
 sive history of the whole subject of civil service reform in England, ments to 
 
 The principle which regulates the choice of persons 
 to fill political offices under the British crown will be 
 explained in another part of this treatise/ It is here 
 material to notice that, although appointments to office 
 under the crown are made in the name of the sovereign, 
 it is contrary 1 to the spirit of the constitution for any 
 such appointments to be made except through a re- 
 sponsible minister, and after consultation and agreement 
 with the prime minister. w The complete and unreserved 
 recognition of this principle is of recent date. George HI. 
 was fond of the exercise of private patronage and disre- 
 garded, sometimes, the restraint of constitutional rules. x 
 His son and successor, George IV., was of a similar 
 disposition in this respect. In 1829 he directed the 
 military authorities to issue patents conferring two mili- 
 tary appointments, without having previously taken 
 the advice of the prime minister (Duke of Wellington) 
 thereon. The home secretary (Mr. Peel) demurred to 
 this transaction ; and agreed with the premier that, had 
 -the appointments been to political or ecclesiastical 
 offices a stronger remonstrance would have been advis- 
 able. But in consideration of the king's health, and 
 the unobjectionable selection of persons made by his 
 Majesty to fill these vacancies, they contented them- 
 selves with recording, in an official memorandum, their 
 sanction to the appointments. But, in the event of the 
 recurrence of a similar proceeding, it was agreed that 
 the king should be informed that the secretary of state 
 ought not to forward instruments conferring appoint- 
 ments to his Majesty for his signature, without 
 previously communicating with the first lord of the 
 Treasury, and ascertaining that he is acting with his 
 sanction and consent/ 
 
 T See v. 2. 3 Wellington, Desp. Civil Series, 
 
 w See ante, p. 271. v. 6, pp. 162, 166, 181. Another 
 
 * Ib. p. 281. case, Ib. p. 300.
 
 616 
 
 THE EOYAL PREROGATIVE 
 
 Appoint- 
 ments to 
 perma- 
 nent 
 offices. 
 
 Political 
 patronage. 
 
 But from and after the complete establishment of 
 the principle of open competitive examinations for the 
 selection of candidates to fill up vacancies in the civil 
 service of the crown in the United Kingdom, which 
 dates from the year 1870 political patronage has been 
 entirely abandoned, and there has been a complete 
 surrender of the power formerly exercised by members 
 of Parliament over appointments to office. 2 
 
 In selecting individuals to fill subordinate places of 
 honour and emolument, a great responsibility devolves 
 upon the existing administration. Public opinion will 
 no longer tolerate the prostitution of offices for political 
 services that so often disgraced our history in former 
 times. It is now an admitted necessity, that every 
 one appointed to an office of trust, however small, 
 should be qualified for his post, otherwise the choice 
 will bring discredit upon the government, and may lead 
 to the withdrawal of public confidence and parliament- 
 ary support from those who are accountable for the 
 same. But so long as this principle is not lost sight of, 
 it is acknowledged to be the privilege of an administra- 
 tion to give the preference, in appointments to office, 
 to their political friends and supporters ; for among the 
 powers that are required to enable a government to 
 perform its functions with efficiency, there are few more 
 essential than that of.reward. a ' The patronage of the 
 crown,' says May, b ' has ever been used to promote the 
 interests and consolidate the strength of that party in 
 which its distribution happened to be vested.' It is true 
 that the offer of places, as a corrupt inducement to vote 
 at elections, has long been recognised by the legislature 
 as an insidious form of bribery. But while carefully 
 avoiding the committal of any offence against the law, 
 
 1 Eaton, Civil Service, pp. 310, 
 431. 
 
 b May, Const. Hist. v. 2, p. 91. 
 2 Geo. II. c. 24 ; 49 Geo. III. c. 
 
 a Grey, Parl. Govt. p. 311 ; Row- 118, &c. ; Rogers on Elections, 316- 
 land's Eng. Const, p. 437. 347.
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. 617 
 
 the patronage of the crown within certain limits to be 
 presently noticed has been systematically, though not 
 invariably, distributed by the ministry of the day, ' as 
 a means of rewarding past political service, and of 
 ensuring future support.' 
 
 It is worthy of remark that the Earl of Shelburne (formerly 
 prime minister), a stanch Whig, accepted the Marquisate of Lans- 
 downe from the hands of Mr. Pitt ; continuing in Opposition, not- 
 withstanding ; though he took but little part in politics after his 
 retirement from office. d And in November 1858, during the Derby 
 administration, the Right Hon. W. E. Gladstone, M.P., was ap- 
 pointed lord high commissioner extraordinary to the Ionian Islands, 
 from a sense of his peculiar fitness for the post, and notwithstand- 
 ing his being a leading member of the Opposition. 6 
 
 ' The greater part of all local patronage has been 
 dispensed [by the patronage secretary to the Treasury] 
 through the hands of members of Parliament, sup- 
 porting the ministers of the day. They have claimed. 
 and received it as their right ; and have distributed it, 
 avowedly, to strengthen their political connection.' f 
 
 On May 24, 1860, the then lord-lieutenant of Ireland (Lord 
 Carlisle) was called upon in the House of Lords to defend an ap- 
 pointment he had made to a lieutenancy in an Irish county. While 
 vindicating the propriety of his choice, he admitted that if he had 
 had recourse to persons differing in political sentiment from the 
 government, he might have found one or two persons more eligible 
 for the post ; but, he added, ' I think it due to those who concur 
 in political opinion with her Majesty's government, whenever I 
 have to assign stations of honour and distinction, unless there is 
 some strong reason to the contrary, to give the preference to those 
 who entertain the opinions and support the principles to which I 
 myself owe the position I hold, and the power I possess of dealing 
 with such matters at all.' ' This,' he continued, ' has been the 
 general practice in this country ; ' in proof of which assertion he 
 
 d Lewis, Administrations, p. 55. of corruption which consists in the 
 
 e Com. Pap. 1859, sess. 2, v. 15, misuse of patronage as 'inherent in 
 
 p. 576. the system of parliamentary govern- 
 
 f And see Hans. D. v. 172, p. 954. ment.' For further particulars as to 
 
 Ib. v. 195, p. 482. Earl Grey, in his the usage of ministries in the dis- 
 
 essay on Parl. Govt. new ed. p. 48, tribution of the patronage of the 
 
 points out the tendency to encourage crown, Bee vol. 2, c. ' On the Office 
 
 corruption, and especially that kind of Prime Minister.'
 
 618 
 
 THE ROYAL PREROGATIVE 
 
 Non-poli- 
 tical ap- 
 point- 
 ments. 
 
 In the 
 Church. 
 
 In the 
 army and 
 navy. 
 
 cited several notable examples.? On June 26 following it was 
 moved in the House of Commons to resolve that ' fitness has not 
 been primarily considered in certain appointments made by the lord- 
 lieutenant of Ireland ; ' but it being conclusively shown that this 
 charge was wholly destitute of foundation, the motion was nega- 
 tived without a division. 
 
 In January 1882, Sir John Holker, late attorney-general in the 
 Conservative (Beaconsfield) administration, was appointed by the 
 Gladstone (Liberal) ministry, a lord justice of appeal. 
 
 We now proceed to notice the exceptions to this 
 practice, which are both numerous and important. 
 
 In the first place, in the disposal of the ecclesiastical 
 patronage of the crown, it is not the rule that it should 
 be generally given to partisans of the existing govern- 
 ment. Appointments to bishoprics, and other dignified 
 offices in the Church, and to the more valuable livings 
 in the gift of the crown, are usually made upon the 
 recommendation of the prime minister, and he is careful 
 to consult the general interests of the Church, in such 
 nominations, without reference to mere political or 
 sectional opinions. 11 
 
 Lord John Russell stated that, with regard to bishops, he thought 
 the minister generally recommended persons who agreed with him 
 in political opinion, they having seats in the House of Lords. But, 
 of late years, a stricter impartiality has been observed in the selec- 
 tion of persons for this sacred office. 
 
 The lord chancellor has the distribution of a very 
 large amount of inferior Church patronage, which he 
 is free to dispose of ' according to his notions of what 
 is due to religion, friendship, or party ; ' i but as a rule 
 the distribution of Church patronage by ministers of 
 the crown is not influenced by political considerations.* 
 In the appointment, or promotion, of naval and 
 military officers, and of persons employed in the civil 
 
 Hans. D. v. 158, pp. 1644-46. 
 
 h See Rep. on Off. Salaries, Com. 
 Pap. 1850, v. 15. Ld. John Russell's 
 Evid. 309, 1282. 
 
 4 Ld. Campbell's Lives of Chan, 
 v. 1, p. 20. 
 
 J Earl Granville, Hans. D. v. 207, 
 p. 1865.
 
 IX EEGAED TO OFFICES AND PUBLIC OFFICERS. 019 
 
 branch of the Admiralty, political distinctions are 
 almost invariably overlooked. It is universally recog- 
 nised as the duty of those who are entrusted with the 
 patronage of the crown, to be guided in the distri- 
 bution of promotion and professional employment in 
 the army and navy by the rules of the service and the 
 merits of the case, and to permit no interference by 
 members of Parliament to influence them in such 
 matters. k Any minister would incur inevitable dis- 
 grace who should be actuated by political or party 
 preferences on such occasions, and should select inferior 
 men, because of their political opinions. 1 Promotion in 
 militia regiments is, as a rule, conducted on the prin- 
 ciple of seniority. 111 
 
 In the appointment or retention in office upon a 
 change of ministry of ambassadors or ministers abroad, 
 and other members of the diplomatic service, their 
 personal fitness is solely considered irrespective of their 
 political opinions, which practically are never found 
 to interfere with the impartial discharge of their official 
 duties. 11 
 
 It is the same with regard to appointments to Judicial 
 
 offices. 
 
 judicial offices. With the exception of the office of 
 lord chancellor, which is political and ministerial, and 
 of the post of chief justice of the Queen's Bench, which 
 is usually conferred upon the law officers of the crown, 
 no such principle would be permitted to prevail in 
 England, as that seats upon the bench should be given 
 to political partisans. 
 
 Lord Lyndhurst was made chief baron of the Exchequer in 
 
 k Grey, Parl. Govt. p. 160. Cora. v. 10, p. 71. Index to Rpt. p. 480. 
 
 Pap. (on Admiralty), 1861, v. 5, pp. Olode, Mil. Fore. v. 2, p. 92. 
 
 52, 109. Clode, Ml. Fore. v. 2, p. m Hans. D. v. 172, p. 1472. 
 
 741. Earl of Derby, Rep. Diplo- 
 
 1 Mr. Grey and Mr. Fox's speeches, matic Service, Com. Pap. 1870, v. 7, 
 
 Parl. D. v. 4, pp. 342, 358. Ad- pp. 465, 471, 483. 
 
 miral Seymour's Evid. before Com 6 . Yonpre, Life Ld. Liverpool, v. 1, 
 
 oil Navy Promotions, Com. Pap. 1863, p. 265. Hans. D. v. 1 73, p. 205.
 
 620 THE ROYAL PREROGATIVE 
 
 1831, upon the recommendation of his political rival Lord Brougham, 
 who then held the great seal. Lord Campbell, when lord high chan- 
 cellor, appointed Colin Blackburn to be a judge of the Court of 
 Queen's Bench, although he was of opposite politics, and was only 
 known to the chancellor by his professional reputation.? And on 
 July 3, 1865, the attorney -general stated in the House of Commons 
 that Lord Chancellor Westbury had exercised his judicial patronage 
 without regard to the interests of party ; and that he had selected 
 a political opponent (Mr. Montague Smith, a Conservative member 
 of the House of Commons) to fill the last vacancy upon the bench, 
 and another Conservative gentleman to be chief registrar of the 
 Court of Bankruptcy, because he considered them to be the most 
 qualified persons for the said offices. In the appointment of County 
 Court judges he had also striven to select men for their merit and 
 qualification, without regard to personal or party considerations.^ 
 
 In Ireland, it is true, a greater laxity on this point 
 has prevailed ; and while the Derby administrations, in 
 1852 and 1858, afforded examples of promotion from 
 the Irish bar of political opponents of the government, 
 yet ' no doubt, in Ireland, promotions to the bench 
 have been made in general, by both sides, on party 
 grounds.' r 
 
 offices in Subordinate offices in the superior courts of justice 
 
 judges. in England are in the gift of the heads of the several 
 courts, to whom such officers are responsible for their 
 proper conduct. 8 A different practice prevailed in 
 Ireland, where, by an ancient prerogative of the crown, 
 certain of these appointments were conferred by the 
 lord lieutenant. But in 1871 this judicial patronage 
 was conferred upon the judges, save only that junior 
 clerkships in the courts are now filled up by open 
 competition. 6 
 
 Upon the retirement of Sir John Rolt, one of the lords justices 
 
 v Mac. Mag. v. 11, p. 18. revising barrister, Ib. v. 198, pp. 1487, 
 
 i Hans. D. v. 180, p. 1128; Ib. 1535, 1541. In appt. of official 
 
 v. 189, p. 1611. referees under Judicature Act, Ib. v. 
 
 ' Ib. v. 173, p. 205 ; v. 220, p. 430. 229, p. 1309. 
 
 8 Question raised as to proper * Hans. D. v. 189, pp. 842, 1602. 
 
 exercise of judicial patronage in But see 34 & 35 Viet. c. 72, 14 
 
 appt. of clerk of assize, Hans. D. v. Hans. D. v. 235, p. 1572. 
 192, pp. 343, 497. In the appt of
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. G21 
 
 of appeal in 1868, the Derby government offered the situation to 
 Sir Roundell Palmer, M.P., who had been attorney -general in Earl 
 Russell's administration. But the offer was declined. Shortly 
 afterwards, the same ministry conferred a vacant judgeship upon 
 Mr. Hannen, a Liberal. And in the succeeding administration of 
 Mr. Disraeli, Sir W. Page- Wood, a Liberal, was appointed one of 
 the lords justices ; and Mr. G. M. Giffard, also of Liberal politics, a 
 vice-chancellor. 
 
 As respects civil service nominations, for minor civil ser- 
 
 [v* i n i . -, . ,. vice nomi- 
 
 appomtments to omce, before the introduction of the nations, 
 competitive system, Lord Palmerston has testified that 
 they were ' often given without regard to political con- 
 siderations.' 11 
 
 Promotions in the civil service are wholly unin- rrom - 
 
 . . * tions. 
 
 fiuenced by party motives/ In fact, stringent regula- 
 tions have been adopted and enforced by government 
 to discountenance attempts on the part of public officers 
 to obtain promotion by such means. Circulars have 
 been addressed to members of Parliament by the heads 
 of the principal administrative departments, calling 
 attention to orders in council, which strictly forbid the 
 endeavour to interest members of Parliament in appli- 
 cations for promotion or pecuniary advancement, and 
 declaring that any attempt to obtain promotion by 
 political or other indirect influence will be punished. w 
 On the other hand, some public servants are forbidden 
 by law (post, p. 633) to exercise the elective franchise, 
 lest they should be subjected to undue political influence 
 by their official superiors. In other cases, where the 
 franchise is not restrained, care has been taken to pre- 
 vent its independent exercise from being interfered with/ 
 These measures, coupled with the general adoption of 
 the system of competitive examinations, in appoint- 
 ments to office, have done much to prevent the abuse 
 of patronage for party purposes. 
 
 Hans. D. v. 172, p. 968 ; v. 187, p. 621. w See post, p. 649. 
 
 " Ib. v. 207, p. 1865. x lb. p. 633.
 
 622 THE EOYAL PEEROGATIVE 
 
 The right of making appointments in the public 
 service has been, in certain cases, expressly conferred 
 upon the crown by statute. Nevertheless, since the 
 introduction of the competitive system, appointments 
 are ordinarily conferred only in accordance with the 
 provisions of orders in council regulating the same. 
 But so long as the statutes are unrepealed, the crown 
 possesses a reserved right to exercise the statutory 
 power in such cases, and to set aside, at its discretion, 
 the regulations established by order in council. 7 
 Crown The entire patronage of the crown in Great Britain 
 
 ^Ss was computed in 1863 at about 105,000 offices. 2 After 
 extentand excluding the different classes of appointments in regard 
 tion. to which, as we have seen, the influence of party was but 
 small, there still remained a considerable amount which 
 was regarded as being available for distribution amongst 
 the friends and supporters of the existing adminis- 
 tration. Patronage of this description was generally 
 exercised through the instrumentality of the parlia- 
 mentary secretary to the Treasury, or the political 
 secretary of the department concerned, and upon the 
 recommendation of members of Parliament, particularly 
 when they were avowed supporters of the government/ 
 But the recommendations of members did not bind the 
 discretion of the executive, and were sometimes dis- 
 regarded in favour of a more suitable choice. b 
 
 But parliamentary influence was often exercised in regard to 
 nominations, or first appointments, in the civil service, irrespective 
 of the member being a supporter of government. Thus, in 1867, 
 Sir P. O'Brien, a Liberal member of the House of Commons, wrote 
 
 y Sir W. Dunbar, Rpt. Pub. Accts. 1873 they were computed to number 
 
 Com. Pap. 1874, v. 6, pp. 37, 50. 43,509 (irrespective of civilians in 
 
 * Hans. D. v. 172, p. 95C. Of this military and naval depts.) Ib. v. 
 
 number it is stated that the employes 214, p. 613. 
 
 of the civil service amounted, in * Com. Pap. 1854-55 on Civ. Ser. 
 
 1862, to 43,163, while in 1822 they v. 20, p. 112. Hans. D. v. 188, p. 
 
 were only 18,500. 16. v. 176, p. 1024; v. 193, pp. 323, 1286 ; v. 207, 
 
 1,944. But of late years the empires p. 1706. 
 
 in the civil service have considerably b Hans. D. v. 197, p. 1421. 
 increased. Ib. v. 193, p. 1187. In
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. 023 
 
 to the postmaster-general of Lord Derby's administration, saying, 
 ' During the fifteen years I have been in Parliament, I have been 
 allowed the privilege of nominating young men to offices in various 
 branches of the public service, nearly all whom, as far as I can 
 recollect, have given satisfaction.' c But all parliamentary patronage 
 is now abolished ; and the rule is laid down that ' applications [for 
 appointments] through members of Parliament are calculated to 
 defeat rather than promote the object in view.' d 
 
 In the United States the delegates to Congress from the several 
 states are gradually absorbing the executive function of appointing 
 to all minor offices, as vacancies occur in the states they represent. 
 The evil tendencies of this practice are manifold. 6 
 
 It included first appointments to minor and subordi- 
 nate offices, and nominations, under the competitive 
 examination system, until that gave place to ' open 
 competition.' The principal members of the ministry 
 were careful, however, to hold themselves aloof from 
 such transactions, lest their position should be compro- 
 mised thereby/ Nevertheless, in every branch of the 
 public service the political head of the department was 
 responsible, if not for every individual appointment, at 
 any rate for the regulations under which the patronage 
 was bestowed. 8 
 
 The system of competitive examinations, to which Competi- 
 reference has already been made, was introduced for 
 the express purpose of doing away with abuses in 
 regard to patronage. From its first organisation the 
 constitution of the civil service of the crown has been 
 regulated by royal orders in council. 11 The principle 
 of competitive examinations for appointments in the 
 civil service was introduced by the same authority by 
 an order in council of May 21, 1855, 1 having been 
 
 c Case of A. G. Duffy, Com. Pap. appoint'.), 1852-3, v. 25, pp. 300, 
 
 1867-8, v. 41, p. 317 ; Hans. D. v. 344, 363. 
 
 193, p. 1409. * Ib. Rept. p. xii. 
 
 d Kept. Civ. Serv. Inquiry Com". h See Sir James Stephen's letter 
 
 Com. Pap. 1875, v. 23. Mr. Mundella, on reorganisation of Civ. Serv. in 
 
 M.P., on this point, N. Am. Rev. v. Com. Pap. 1854-5, v. 20, p. 81. 
 
 124, p. 19. Hans. D. v. 138, p. 2157 ; v. 139, 
 
 Am. L. Rev. v. 5, p. 373. p. 682. 
 
 f Com. Pap. (Rept. on Dockyard
 
 624 
 
 THE ROYAL PREROGATIVE 
 
 Competi- 
 tive 
 
 examina- 
 tions. 
 
 recommended in November 1853, in a report on the 
 organisation of the Permanent Civil Service, by Sir 
 Stafford North cote and Sir Charles Trevelyan. Kesolu- 
 tions in favour of this principle were agreed to by the 
 House of Commons on April 24, 1856, and on July 14, 
 1857. Nevertheless, its adoption in the various parts 
 of the service was gradual. 1 " 
 
 In the House of Commons, a debate arose on April 1, 1862, and 
 July 17, 1863, wherein the objections to the new system were very 
 forcibly urged. The government upon both occasions explained the 
 extent to which the system had been already adopted, and showed 
 that the principle of competitive examinations was being gradually 
 introduced throughout the public service. But Lord Grey, in the 
 new edition of his Parliamentary Government, points out the peculiar 
 abuses which have arisen in the working of the competitive system, 
 and strenuously condemns it, as being ' radically wrong,' and calcu- 
 lated to obtain in general a less efficient class of public servants 
 than those appointed by government under the old system. k 
 
 In some departments open competition was the rule 
 from the first ; in others a limited competition among 
 three candidates. In the civil and medical services of 
 India, 1 the army generally, certain naval establishments, 
 and nearly all the civil departments of the state, open 
 competition was established, and thereby ceased to 
 afford patronage to ministers. 
 
 Twenty years before, in the India Bill of 1833, Mr. Macaulay 
 had proposed to rearrange the system of appointment to the Indian 
 civil service on the basis of competition. But though agreed to by 
 Parliament these clauses were a dead letter, and were afterwards 
 repealed. Nevertheless they were re-enacted, by the help of Macau- 
 lay's powerful advocacy, in the India Act of 1853. 
 
 The existing arrangements in regard to competitive 
 examinations for military or first appointments in the 
 
 J Com. Pap. 1868-9, v. 18. 
 
 k See also Mr. Guilders' and Mr. 
 Hunt's observations, Hans. D. v. 193, 
 pp. 1191, 1197; Quar. Kev. v. 127, 
 p. 64 ; Ed. Rev. v. 139, p. 330 ; Duke 
 of Northumberland's address in Social 
 Science Trnns. 1870, p. 9 ; Helps on 
 
 Government, pp. 62-78 ; Sir A. 
 Helps' Letter to the Civ. Serv. In 
 quiry Com", in 1874 ; Cora.Pap. 1875, 
 v. 23, p. 361 ; 19th Cen. v. 8, p. 715. 
 1 As to working of system in India, 
 see Com. Pap. 1870, v. 7, p. 449.
 
 IN EEGAED TO OFFICES AND PUBLIC OFFICERS. 625 
 
 civil service as prescribed by various orders in council, 
 passed in the years 1862 to 1872, are explained in the 
 Seventeenth Eeport of the Civil Service Commissioners. 111 
 
 In 1860 a select committee of the House of Com- civil 
 mons was appointed to consider the whole subject of 
 civil service appointments. They recommended the 
 application of the method of limited competition to 
 certain classes in the service, as preliminary to the 
 future extension of a system of competitive examina- 
 tion for all junior clerkships in the civil service, which 
 should be open to all her Majesty's subjects. 11 These 
 recommendations were approved of by the government, 
 and measures taken in 1861 to apply them to the clerk- 
 ships under the control of the Treasury. 
 
 On April 9, 1869, Mr. Fawcett moved to resolve 
 that in the opinion of the House of Commons all 
 appointments to the civil and diplomatic services 
 ought to be obtained by open competition. But as the 
 adoption of this principle would require ' a thorough 
 reorganisation of the civil service, with a view to a 
 division being made between the merely mechanical 
 and the intellectual work ' a duty which the govern- 
 ment could not then venture to undertake ministers 
 opposed the motion, and it was lost on division. p On 
 February 25, 1870, Mr. Fawcett renewed his motion, 
 but was met by an assurance that the government con- 
 templated the speedy introduction of a system of open 
 competition on a sufficiently large scale to give it a fair 
 trial, whereupon the motion was withdrawn. It was 
 afterwards stated that, should the new system prove 
 successful, it was certain ultimately to become uni- 
 versal.* 1 
 
 By order in council, dated June 4, 1870, the prin- 
 ciple of public open competition for admission into the 
 
 - Com. Pap. 1872, v. 19. P Hans. D. v. 195, p. 480. 
 n Ib. I860, v. 9, p. 14. < Ib. v. 203, p. 15.3. 
 
 Ib. 1867-8, v. 22, p. 6. 
 
 VOL. I. S S
 
 626 THE EOYAL PKEROGATIVE 
 
 Com- civil service was established, and applied to nearly all 
 system 6 the public departments, the Home and Foreign Offices 
 and British Museum 1 " alone being at that time exempted 
 from the operation of the new system, on account of 
 the highly confidential and delicate nature of a large 
 portion of the duties transacted therein ; likewise the 
 two Houses of Parliament, for special reasons. From 
 the Civil Service Commissioners' Eeport in 1872, it 
 appears that in the House of Lords and in the 
 Foreign Office (but not including the diplomatic ser- 
 vice) the system is being gradually adopted. 8 And 
 in 1874 the Home Office introduced the competitive 
 system.* 
 
 So that now patronage has been abolished, and the 
 principle of competitive examinations introduced in all 
 the public departments, except the diplomatic service 
 and the British Museum, wherein the trustees have 
 hitherto declined to adopt the recommendations of 
 the Treasury, though they have declared themselves 
 favourable to a scheme of limited competition. 11 Com- 
 petitive examinations have also been established in 
 regard to first appointments to commissions in the 
 army. r The system was likewise introduced into 
 the navy in 1869, but after a short trial it was 
 abandoned in 1875. w In all other departments it has 
 been determined to adhere to the competitive system, 
 as being (if not the best system that could be devised) 
 the one most suited to our present social and political 
 condition, and as being of incalculable advantage to 
 
 r Hans. P. v. 217, p. 1454. of dispensing with the orders in 
 
 15th, 16th, and 17th Reps. Civ. council establishing the competitive 
 
 Serv Comms. Com. Pap. 1870, v. 19; examinations. Com. Pap. 1873, v. 
 
 1871, v. 17 ; 1872, v. 10. Mr. Glad- 39, p. 103. 
 
 Ftone, Hans. D. v. 201, p. 1944; v. ' Rep. Com e . Puh. Accts. Com. 
 
 202, p. 388 ; aud see Ib. v. 203, pp. Pap. 1874, v. 6. 
 
 153, 254. As regards the Foreign u 2nd Rep. Civ. Ser. Comn. Com. 
 
 Office, see Rep. Dip. Serv. Com. Pap. Pap. 1875, v. 23, pp. 460, 548. 
 
 1870. v. 7, p. 456 ; Ib. 1872, v. 7, Hans. D. v. 234, p. 858. 
 
 p. 407. The Treasury claim to have v See post, v. 2. 
 
 a discretionary right in certain cases w Ib.
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. 627 
 
 the heads of public departments in relieving them of 
 patronage.* [Certain changes were made in 1876 in 
 the working of the system in reference to candidates 
 for the Indian civil service.] y 
 
 On February 23, 1877, it was moved in the House 
 of Commons to resolve that the principle of open com- 
 petition now generally prevalent in the public service 
 should be extended to the Foreign Office and the 
 diplomatic service. [In the Foreign Office some six 
 to fourteen nominees of the foreign secretary are sub- 
 jected to a competitive examination, and in the diplo- 
 matic service members are admitted by nomination on 
 a test examination.] After debate the motion was 
 negatived on division. 
 
 But in cases where appointments have been made 
 in public departments without the intervention of the 
 civil service commissioners, through inadvertence on the 
 part of the heads of such departments, and without 
 any default on the part of the persons so appointed, 
 Acts have been passed to validate the appointments, 
 and to entitle the appointees to the benefit of the Super- 
 annuation Act. z 
 
 Even the officers and servants attendant upon the Pariia 
 two Houses of Parliament are not appointed by the 
 Houses themselves, but either (as in the case of the 
 principal officers) by letters-patent from the crown, or 
 by the lord chancellor, or the clerk, sergeant-at-arms, 
 or usher of the black rod, or by the Speaker, according 
 to the department to which the particular office may 
 belong, subject to the approbation of the House itself. 
 
 * Marq. of Salisbury, Hans. D. of the classes of civil servants who 
 v. 230, p. 1467. are not now appointed by open com- 
 
 y 20 Rep. Civ. Serv. Comn. Com. petition, but selected by a minister or 
 
 Pap. 1876, v. 22, pp. 5-10. permanent head of department, see 
 
 * 36 Vic. c. 23; Hans. D. v. 225, Com. Pap. 1877, v. 15, p. 502. For 
 p. 1482; 39 & 40 Viet. c. 68 ; 1st lists of persons irregularly appointed. 
 Rep. Pub. Accts. Com. Pap. 1875, confirmed in office under the Act, 
 v. 8, Evid.p. 35. For an enumeration Com. Pap. 1877, v. 49, pp. 391, 585. 
 
 as 2
 
 628 
 
 THE ROYAL PREROGATIVE 
 
 The clerk and clerk assistant of the House of Lords are both 
 appointed by the crown. The clerk of the House of Commons is 
 appointed by the crown, upon the recommendation of the prime 
 minister, 8 the clerk's assistant by the crown, upon the recommenda- 
 tion of the Speaker. b Such functionaries in either House are ' re- 
 movable only by her Majesty, upon an address of the House to her 
 Majesty for that purpose.' 
 
 It is not usual for any direct resolution of sanction 
 to be passed, except in the case of the clerks at the table 
 of the House of Lords. But it is competent to com- 
 mittees of either House to report their opinions as 
 to the filling up of vacancies, and as to the salaries, 
 arrangements, and classification of the establishment 
 generally. The House of Commons appoint their 
 Speaker and the chairman of the committee of Ways 
 and Means ; the House of Lords their chairman of 
 committees, and the examiners of standing orders for 
 private Bills. d 
 
 As a necessary consequence of the division of the 
 civil service into political and non political officers, and 
 of the acknowledged supremacy of the members of the 
 public de- administration over all the subordinate employes, it is 
 partment. required by our parliamentary system that every branch 
 of the public service should be represented, either 
 directly or indirectly, in the Houses of Parliament. 
 This duty is performed by the political heads, who are 
 themselves solely responsible for every act of admini- 
 stration down to the minutest details of official routine. 
 Having entire control over the public departments, 
 they are bound to assume responsibility for every 
 
 Represen- 
 tation in 
 Parlia- 
 ment of 
 every 
 
 Hans. D. v. 114, p. 142. 
 
 b Ib. v. 140, pp. 258, 447 ; 5 Geo. 
 IV. c. 82 ; 19 Vic. c. 1 ; Com. Pap. 
 ]856, v. 51, p. 1. As to appoint- 
 ments in clerks' depart, see Ib. 1847-8, 
 v. 18, pt. 1, p. 95 ; Hans. D. v. 202, 
 pp. 386, 388 ; v. 204, p. 233. In the 
 eergt.-at-arms' depart. Ib. v. 16, p. 
 45. As to appointments in H. of 
 
 Lords, see 5 Geo. IV. c. 82 ; Lords' 
 Jour. v. 67, p. 622 ; v. 80, pp. 122, 
 177 ; v. 94, p. 66. 
 
 c Com. Pap. 1 847-8, v. 18, pt. 1, 
 p. 13 ; Lords' Jour. v. 67, p. 621 ; v. 
 77, p. 1130; v. 94, p. 276. 
 
 d Hans. D. v. ] 14, p. 48 ; S. O. H. 
 of Lords. May, Parl. Prac. 1883, 
 pp. 507, 667.
 
 IN REGAED TO OFFICES AND PUBLIC OFFICERS. 629 
 
 official act, and not to permit blame to be imputed 
 to any subordinate for the manner in which the 
 business of the country is transacted, except only in 
 cases of personal misconduct, for which the political 
 chiefs have the remedy in their own hands. 8 
 
 ' It is no arbitrary rule,' says Lord Grey, * which Subordi- 
 requires that all holders of permanent offices must be a n p^ma- 
 subordinate to some minister responsible to Parliament, jj^^" 
 since it is obvious that without it, the first principle of some poii- 
 our system of government the control of all branches 
 of the administration by Parliament would be aban- 
 doned.' f But the control of Parliament, as will here- 
 after appear, is general, and does not admit of any 
 direct interference with the subordinate officers of 
 government. 
 
 So strict is the rule of ministerial supremacy as to 
 forbid any orders to be given to any public servant of the 
 crown, by either house of Parliament, except through 
 the regular channel of official communication, namely, 
 a secretary of state, or other officer who may be 
 authorised to convey the royal commands. g 
 
 So, also, as regards the dismissal of persons from Absolute 
 public employ ; the crown possesses by virtue of its 
 prerogative an absolute legal power to dismiss any of its 
 servants holding office ' during pleasure,' on the advice public 
 of its responsible ministers. 11 Such a power ' is indis- 
 pensable, in order to give to the latter that authority 
 over those by whose agency and assistance they carry 
 on the public business, without which they could not 
 justly be held accountable by Parliament for the manner 
 
 8 For further particulars on this case of Earl Howe in Mir. Parl. 
 head, see vol. 2, c. on the Cabinet . 1831, p. 3127. Case of Sir S. Robin- 
 Council, son, Hans. D. v. 205, p. 1324. Case 
 
 f Grey, Parl. Govt. new ed. p. 300. of Surgeon-Major Tufuell, L. T. Rep. 
 
 Case of Sir Baldwin Walker, N.S. v. 34, p. 838. As regards officers 
 
 Hans. D. v. 161, pp. 1631-1641 ; v. in the navy, army, or militia, see 
 
 162, pp. 235-247. ante, p. 530. 
 
 h Chitty on Prerog. 82. See the
 
 630 
 
 THE ROYAL PREROGATIVE 
 
 in which affairs are conducted.' 1 But such dismissals 
 should take place without cause assigned. If a reason 
 be given, it must be for an offence known to the law, 
 and for which there has been a lawful trial and convic- 
 tion^ Moreover, as respects those offices which are 
 held ' during good behaviour,' a tenure which has been 
 applied by Acts of Parliament to the judges (whether 
 their jurisdiction be local or general), the comptroller 
 and auditor-general, the assistant comptroller, the clerk 
 of the Parliaments, and the clerk and clerk's assistants 
 of the House of Commons, and various other function- 
 aries, whose position is one that makes it desirable that 
 they should be independent of the crown, holding their 
 offices for life, the incumbents thereof are only remov- 
 able (except in the case of certain officers of inferior 
 grade) by legal process, or upon addresses from one or 
 both of the Houses of Parliament, as the case may 
 be.* 
 
 But while every government must necessarily possess 
 the abstract right of dismissing any of its servants who 
 may hold their offices ' during pleasure,' whenever they 
 consider that such a step is required by the exigencies 
 of the public service, it has nevertheless been recog- 
 nised as a rule that persons holding non-political offices 
 under the crown should only be dismissed for incom- 
 petence or misconduct. 1 Dismissals on other grounds 
 are highly objectionable and inexpedient ; more espe- 
 cially if they spring from political considerations. 
 Doubtless, an active interference in politics, on the part 
 
 1 Grey, Parl. Govt. new ed. p. 326. 
 It is an invariable rule that no man 
 dismissed from one public dept. shall 
 be admitted to another. Hans. D. v. 
 227, p. 560. 
 
 J Law Mag. v. 2 (1856), p. 180. 
 
 k Broom, Const. Law, pp. 525, 
 791 . As to clerks of peace, who hold 
 oHice quamdiu hcne gessennt, Hans. 
 1). v. 17:3, p. 708; 27 & 28 Viet. c. 
 
 65. For legal effect of this tenure, 
 see Hans. D. v. 180, pp. 295, 304 ; 
 and post, \. 2. For list of offices of 
 courts of law in Great Britain and 
 Ireland which are held for li f e, see 
 Com. Pap. 1874, v. 24, p. 580. 
 
 1 Grey, Parl. Govt. p. 287. Mr. 
 Gladstone, Hans. D. v. 205, p. 1324 ; 
 and 3rd llep. Com 8 . Civ. Serv. Ex- 
 pend. Com. Pap. 1873, v. 7, p. 649.
 
 IN KEGARD TO OFFICES AND PUBLIC OFFICERS. 631 
 
 of a non-political office-holder, would be a case of 
 'misconduct' sufficient to justify his dismissal. It is a 
 well-understood rule of constitutional government, that 
 all such functionaries ' should abstain from taking an 
 active part in political contests,' observing a strict neu- 
 trality therein. If a contrary practice prevailed, it 
 would inevitably follow that the opposite party, on 
 succeeding to power, would retaliate on those who had 
 assisted to uphold a rival ministry ; and thus a repe- 
 tition of vindictive and extensive changes amongst 
 government employes would occur, that would prevent 
 the growth of experience in office, and destroy the 
 efficiency of the public service. 
 
 In August 1866, the Lord Chief Justice of England, Sir Alex- 
 ander Cockburn, dismissed, or rather declined to reappoint, as usual, Case of 
 
 Mr. Edmund Beales, as revising barrister for the county of Middle- r^ r< 
 
 , TIT i. J->eales. 
 
 sex, on account of his having taken ' a very active and leading part 
 
 in a political agitation of no ordinary character,' having for its object 
 the endeavour to bring about a radical reform of Parliament. Re- 
 vising barristers are annual appointments, but it is customary to 
 nominate the same person year by year, unless for some special 
 reason ; so that declining to reappoint, in the present instance, was 
 equivalent to dismissal. The chief justice conveyed his sentiments 
 to Mr. Beales on this occasion, in an explanatory letter, wherein he 
 stated that he was ' very far from thinking that to entertain or to 
 express decided political opinions ought to be considered as disqua- 
 lifying a member of the bar from holding office as a revising barrister. 
 In making these appointments,' his lordship added, ' I have looked 
 only to the fitness of the candidates, and have never stopped to 
 enquire what were their political views. But, on the other hand, I 
 must say I do not think it desirable that a gentleman holding what, 
 in the view of many persons, would be deemed extreme opinions, and 
 occupying a prominent position in the political warfare of the day 
 whether on the one side or the other should be appointed to decide 
 judicially on the claims of persons to vote in the election of members 
 of Parliament.' Mr. Beales remonstrated against his removal, as 
 being, in his opinion, uncalled for and unjustifiable, but acknowledged 
 the kindly and friendly spirit in which his lordship had acted towards 
 him. m 
 
 m See correspond, in Jurist, v. 12, government in 1841, upon complaint 
 pt. 2, p. 346. See action taken by of clerks of justices of peace in
 
 632 THE ROYAL PREROGATIVE 
 
 In 1869, Lord Chancellor Hatherley appointed Mr. Beales a 
 county-court judge. His conduct in that capacity gave general satis- 
 faction. 11 
 
 All public employes, whatever may be their private 
 convictions on political questions, are bound to discharge 
 their duties towards their official superiors for the time 
 being honestly and faithfully, affording to them all the 
 assistance in their power. But this assistance is neces- 
 sarily limited to the sphere of official obligation, and 
 does not require the surrender of private opinions, or 
 justify an intermeddling, on behalf of their employers, in 
 political strife. While, on the one hand, the practice 
 of depriving persons of subordinate offices simply on 
 account of their political views is destructive of all 
 efficient administration as the example of the American 
 Eepublic has strikingly shown on the other hand, it is 
 manifestly unreasonable that any public servant should 
 be permitted to continue in active opposition to the 
 existing government. 
 
 Any connection of public officers with the press, 
 which should lead to the improper use of official infor- 
 mation, or which would disturb the confidential rela- 
 tions which ought to subsist between members of the 
 civil service and their chiefs, is strictly prohibited. 1 * 
 
 Even the mere exercise of the political franchise by a subordinate 
 servant of the crown, though not prohibited, may be considered, as a 
 general rule, to be inexpedient. <* All persons engaged in the manage- 
 ment or collection of the public revenue were, by statutes passed in 
 the last century, expressly disqualified from voting at parliamentary 
 elections. So strictly was this enforced that country postmasters in 
 
 Scotland, acting as ' political agents.' p. 363 ; Hans. D. v. 171, p. 722, 
 
 Mir. Parj. 1841, p. 2216. Also correspondence between col. 
 
 " Hans. D. v. 209, p. 440. sec. and Gov. of New Brunswick 
 
 Desp. of col. secretaries to respecting dismissals from office for 
 
 Lieut.-Qov. of N. Scotia in 1848 and political reasons, New Brims. Ass y . 
 
 1860 in respect to control and dis- Jour. 1862, pp. 192-196. 
 
 missal of public officers, Toronto P Hans. D. v. 226, pp. 912, 915. 
 
 Globe, 22 Sept. 1860. Desp. to Grey, Parl. Govt. new ed. p. 236. 
 
 Gov. of Jamaica prohibiting public Hans. D. v. 189, p. 747; v. 194, p. 
 
 oHicers from writing offensive letters 1598. 
 
 iu the press, Com. Pap. 1860, v. 45,
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. 633 
 
 receipt of but 4?. a year from the state were disfranchised. And by 
 later enactments, all persons connected with the police or consta- 
 bulary force, in town or country, were and still continue to be pro- 
 hibited from exercising the elective franchise. 1 " With this excep- 
 tion, however, no one is forbidden to vote by reason of his holding 
 an office under the crown, or because he may be in receipt of a fixed 
 income from the public revenue. 8 But motions to insert clauses in 
 the Reform Bill of 1867 to restore the franchise to revenue officers 
 and to the police force were negatived.* Nevertheless the tendency 
 of recent departmental regulations has been to secure a greater de- 
 gree of independence than formerly to those public servants who are 
 permitted to exercise the political franchise. Thus Mr. Ferrand, a 
 political opponent of the government, was elected a member for the 
 borough of Devonport, in February 1863, against one of the lords 
 of the Admiralty, although the constituency comprises a large num- 
 ber of employes in the Admiralty dockyards, whose votes turned the 
 scale in favour of Mr. Ferrand. u At the general election in 1865, 
 Devonport returned two Opposition members; but, upon petition, 
 they were both unseated for bribery practices. 7 The royal commis- 
 sion on dockyards, in 1860, recommended the disfranchising the dock- 
 yards, but this was not approved of by the government^ However, 
 the Reform Bill introduced by Mr. Gladstone in 1866 contained a 
 clause for the disfranchisement of the dockyard labourers ; avowedly 
 in order to protect members from the undue influence on the part of 
 constituents who are dependent upon government for their daily 
 wages. x Mr. Gladstone's Bill did not pass, but, in 1867, it was 
 stated by a member for a dockyard town that, as the result of an 
 improved departmental system, ' government influence in the dock- 
 yards was of no value now to any candidate.' y The government 
 now give a half -holiday to dockyard voters to enable them to exercise 
 the franchise at their own discretion. 2 It has been estimated that 
 the number of dockyard voters, in the several boroughs of Chatham, 
 Devonport, Greenwich, Portsmouth, and Pembroke, who would have 
 been disfranchised had this Bill become law was 3,655. a 
 
 It is not easy to define the extent of 'misconduct' Aiiinter- 
 of this description which should properly subject a f ^J^" 1 
 permanent officer of the crown to dismissal. During a objection- 
 
 3)016* 
 
 r Rogers, Elections, ed. 1885, pp. w Ib. v. 171, p. 670. 
 122, 123. * Ib. v. 181, p. 1876; v. 182, pp. 
 
 * Hans. D. v. 169, p. 524 ; v. 188, 68, 72, 1177 ; and see Ib. v. 193. 
 p. 1035. p. 1081. 
 
 * Ib. v. 188, pp. 1032-1036, 1202. Ib. v. 186, p. 1372. 
 u Ib. v. 169, p. 784. z Ib. v. 221, p. 1035. 
 
 * Ib. v. 183, p. 643. Com. Pap. 1866, v. 57, p. 43.
 
 634 
 
 THE ROYAL PREROGATIVE 
 
 period of great political excitement the government 
 may be constrained to act with more severity towards 
 public servants who may take an active part in politics, 
 than at ordinary times. 
 
 For example, in 1819, when party feelings ran very high, Earl 
 Fitzwilliam, an amiable and loyal nobleman, was summarily dis- 
 missed from his office of lord-lieutenant of the West Riding of 
 Yorkshire, because he had joined in calling a meeting of freeholders 
 to consider of petitioning the king, and the two Houses of Parlia- 
 ment, upon the existing state of public affairs, in terms supposed to 
 reflect upon an answer recently given by the Prince Regent to an 
 address from the City of London. b The ministry, being interrogated 
 in Parliament in regard to this dismissal, justified it on the ground 
 that ' it was essential to the due administration of public affairs, and 
 to the dignity of the crown, that none of its servants should hold 
 opinions of it derogatory to its honour and character.' c 
 
 In 1868, however, a Bill introduced into the House of Com- 
 mons by a private member, to permit revenue officers to exercise 
 the franchise, was allowed to become law, d notwithstanding reports 
 made to the Treasury by the commissioners of Customs and Inland 
 Revenue that the measure was highly objectionable, and must 
 inevitably lead to mischievous results. 6 But an attempt made in 
 1869 to remove the remaining restrictions which prevent customs 
 officers from taking any active part, and officers in the Post Office 
 from voting at elections, was opposed by ministers, on the ground 
 that those concerned in collecting the revenue occupy a very different 
 position from other public officers, and that if such persons were 
 permitted ' to mix themselves up actively in political life, the 
 neutral position which they now occupy between the two parties in 
 the state would be destroyed.' The Bill was accordingly rejected/ 
 In 1870, a motion, for a committee of enquiry into the extent of 
 these disabilities was proposed, and after a brief debate with- 
 drawn.s But in 1874 an Act was passed to abolish all existing 
 penalties against the interference of revenue officers, &c., at elections ; 
 leaving it to the discretion of the executive government to issue any 
 order whatever with regard to revenue and customs officers taking 
 part in elections. 11 The commissioners of Customs and Inland 
 Revenue, however, again protested against this Bill. 1 
 
 b Campbell's Chanc. v. 7, p. 335. 
 May, (Joust. Hist. v. 2, p. 107. 
 
 c Parl. 1). v. 41, p. 102. 
 
 d Hans. D. v. 192, p. 1533; v. 
 193, pp. 389-410, 1078; 31 & 32 
 Met. c. 73; 33 Viet. c. 11. 
 
 e Com. Pap. 1867-8, v. 50, p. 409. 
 
 f Hans. D. v. 194, pp. 1573-1599. 
 
 * Ib. v. 199, p. C98 ; also Ib. v. 
 210, p. 886. 
 
 11 Ib. v. 219, p. 797; 37 & 38 
 Viet. c. 22. 
 
 1 Com. Pap. 1874, v. 53, p. 335.
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. 635 
 
 It has been suggested that the relations between 
 the subordinate class of public functionaries and the 
 executive government should be regulated by statute, 
 so as to prevent a possible abuse of power on the part 
 of the responsible advisers of the crown towards their Exercise 
 subordinates in office. But it has been well remarked pow er of 
 by Lord Grey, that ' it would be impossible to limit the dlsmissal - 
 power of dismissal to cases in which misconduct could 
 be proved before a court of law, without incurring the 
 risk of having the executive government paralysed by 
 the passive resistance of persons holding these situa- 
 tions, and by the obstructions they would be able to 
 throw in the way of ministers they wished to oppose. 
 Law would be too clumsy an instrument for regulating 
 the conduct of the ministers of the crown and the 
 permanent civil servants of the state in their relations 
 to each other. This is now far more effectually and 
 far more safely accomplished by the power of public 
 opinion. So great is the authority of public opinion, 
 that no minister now ever thinks of dismissing a public 
 servant from those offices which are regarded as per- 
 manent, unless for gross misconduct ; but at the same 
 time he has the power (and public opinion would sup- 
 port him in using it) of dismissing such a servant for 
 misconduct, which it might be impossible for any law 
 to define beforehand, and of which there might be no 
 legal evidence, though there was a moral certainty.' j 
 Lord Grey proceeds to point out that active opposition 
 to their political chiefs for the time being, or attempts 
 to embarrass them either by passive resistance or by 
 putting difficulties in the way of their administration of 
 office, are just those kinds of misconduct which would 
 be most dangerous, and yet most difficult to suppress 
 or prevent by legal enactment. k ' The knowledge that 
 
 J Grey, Parl. Govt. new ed. pp. L. April 18, 1864, on the Educa- 
 
 326, 827. tion Coin, and the vote of the H. 
 
 k Ib. p. 327. See speeches of of C. 
 Earls Grauville and Grey, iu H. of
 
 636 THE ROYAL PREEOGATIVE 
 
 there is no legal restriction on the power of dismissal 
 to prevent a minister from dealing with such a case as 
 it would deserve, has probably been the principal 
 reason why such cases do not arise ; and, by preventing 
 the possibility of a struggle between a government and 
 its servants, has kept up the good feeling which has 
 hitherto existed between them.' l 
 
 By a Treasury minute of March 27, 1849, the prin- 
 ciple has been laid down that the public are entitled to 
 the whole of the time of the civil servants of the 
 crown, and that government employes should not be 
 allowed to accept situations as directors of companies 
 Work in- requiring their attendance elsewhere during office 
 withoffice nours > or otherwise to engage in pursuits which would 
 hours interfere with the proper discharge of their official 
 duties. But so long as civil servants discharge the 
 
 service duties of their departments satisfactorily, the govern- 
 ment are disposed to refrain from interference with 
 them in endeavours to improve their pecuniary circum- 
 stances. 11 On April 1878 the rule was further defined 
 in respect to local offices, members of school boards, 
 &c., and the opinion was strongly expressed that such 
 extra employment is generally prejudicial to the public 
 service, because no one can serve two masters. Such 
 offices, if of profit, are specially objectionable. If not 
 of profit, the chief of each department must consider 
 and ' decide on the compatibility of functions in respect 
 of character and time.' 
 
 Whenever it is deemed advisable, in furtherance of 
 
 1 Grey, Parl. Qovt. new ed. p. 327. professional men, Ib. v. 225, p. 904. 
 
 See discussions in both Houses in In regard to persons in the army 
 
 1872 as to alleged discourtesies in and navy taking part in religious 
 
 treatment of Dr. Hooker, direc. of services when off duty, see Ib. v. 
 
 Kew Gardens, by his official chief, 213, p. 836. 
 
 the first comn. of works, Hans. D. For example, by being directors 
 
 v. 213, pp. 2, 709. of Co-operative Supply Associations, 
 
 m Chanc. of excheq Hans. D. v. Ib. v. 221, p, 870 ; v. 225, p. Oil. 
 212, p. 954 ; also Ib. v. 219, p. 329. Coin, Pap. 1882, v, 52, p. 639. 
 Jiut this rule would not apply to
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. 637 
 
 proposed reforms or retrenchments in the public ser- Pensions 
 vice, to dispense with the services of any particular class tiring ai- 
 of public employes, it has always been customary to lowances - 
 respect the claims of existing incumbents, by allotting 
 to them suitable pensions or retiring allowances. It 
 was well said by Edmund Burke, whose patient labours 
 in the cause of national retrenchment were so eminently 
 successful, that it was neither wise, expedient, nor just to 
 interfere retrospectively with places or pensions ; that 
 reform ought to be prospective ; that the duration of 
 the life of a nation was not to be compared with the short 
 duration of the life of an individual ; that an individual 
 hardship, and especially an injustice, ought not to be 
 committed for the sake of arriving a few years sooner 
 at the object Parliament had in view, namely, economi- 
 cal reform. p ' The reason why public retrenchment in 
 this country has been satisfactory to the nation is this, 
 that no country, no Parliament, in pursuing the work 
 of retrenchment, ever has been so studiously observant 
 of the claims of justice to every individual. And 
 therefore the work of retrenchment must be a well- 
 considered and a gradual work.' q It is to the credit 
 of the imperial government that they have invariably 
 acted upon this magnanimous principle. Authority 
 has been given to the Treasury, by a general Act 
 of Parliament, to make suitable compensation to all 
 persons whose offices may be abolished ; r and in 
 cases which do not come within the purview of this 
 Act, special provision is made by Parliament for the 
 purpose. 8 
 
 When the new Divorce and Probate Court was established, in 
 1857, provision was made to compensate the proctors who had 
 
 P Mir. Parl. 1836, p. 1047. case of Sir R. Bromley in 1865, 
 
 q Mr. Gladstone's speech to elec- wherein the govt. and the H. of C. 
 
 tors of Greenwich, 21 Dec. 1868. dealt as liberally as possible with a 
 
 r 4 & 5 Will. IV. c 24 ; Com. valued public servant upon his re- 
 Pap. 1852-3, v. 57, p. 717. tirement, Hans. D. v. 180, pp. 499- 
 
 Hans. D. v. 207, p. 308. See 508.
 
 638 THE EOYAL PEEROGATIVE 
 
 practised in the old Ecclesiastical and Prerogative Courts, which were 
 then abolished. This compensation, including retiring allowances 
 to judges and other officers of said courts, amounted to upwards of 
 116,000^. per annum.* 
 
 Formerly the lord chancellor was at liberty to 
 increase salaries of clerks in the Court of Chancery, 
 within certain limits, at his own discretion, but in 1869 
 an Act was passed providing that the Treasury should 
 be a party to all alterations of salary in connection 
 with the court, and in 1871 the committee on public 
 accounts reported that it was desirable that the Trea- 
 sury sanction should be obtained to all alterations of 
 salaries and office expenses of the courts of law. u 
 He orts ^ n -^ e k- -^' 1873, a select committee of the House 
 
 of civil of Commons was appointed to enquire into any and 
 Ex-pen- what reductions could be effected in the expenditure 
 diture f or c [ v {\ services (other than the national debt and the 
 mittee. civil list), whether charged on the Consolidated Fund 
 or defrayed from votes of Parliament, with special 
 reference to those branches thereof which are not under 
 the direct or effectual control of the Treasury. This 
 committee was presided over by Mr. Childers. It 
 made three reports, and recommended that the enquiry 
 should be continued in the next session. The new 
 ministry, however, declined to propose a resumption of 
 it/ But they decided to appoint a commission to en- 
 quire into various matters affecting the civil service. 
 
 The first report (March 31) recommended that, 
 inasmuch as the mastership of the Eolls was about to 
 be vacated, any new appointment in that department 
 should be made subject to the express condition that 
 the office may be abolished or modified, or its salary 
 reduced by the Treasury, without compensation, and 
 that the Treasury should at once proceed to revise 
 this department. In their second report the committee 
 
 Hans. D. v. 154, p. 1095. Com. u Hans. D. v. 207, p. 1G9. 
 Pap, 1801, v. 61, p. 495. T Ib. v. 218, p. 628.
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. 639 
 
 recommended that this principle should be applied to civil 
 all salaried offices in legal departments within the expen- 
 scope of this enquiry. w Whereupon a Treasury minute diture - 
 was issued, authorising a circular to be sent to the 
 judges, &c., in conformity therewith. x 
 
 The second report (June 12) dealt further with the 
 administrative departments of the courts of justice in 
 the United Kingdom, the expenditure for which amounts 
 to 1,746,000/. per annum. While, as a rule, the 
 Treasury claims and exercises a right to judge every 
 measure increasing, or tending to increase, the civil 
 expenditure, the functions of that department are not 
 uniform in respect of all branches of the civil service. 
 The power of the Treasury in dealing with the legal 
 departments is to a great extent limited by statute, 
 and is ineffectual to prevent excessive and ill- regulated 
 expenditure. The committee therefore recommended 
 (as preferable to enquiry by themselves) that these 
 establishments should undergo a searching investiga- 
 tion by a competent commission of enquiry to be ap- 
 pointed by the crown. This enquiry to embrace the 
 numbers, salaries, superannuations, mode of appoint- 
 ment, and promotion for each establishment, and should 
 recommend who ought to be responsible to Parliament 
 for their organisation, and what should be their relation 
 to the Treasury ; and in view of the probable changes 
 under the Judicature Bill now pending (and since 
 become law), should report what rules ought to be 
 laid down as to compensation on abolition of judicial 
 or other offices therein, with a view to general legisla- 
 tion on the subject. 7 
 
 This commission of enquiry was appointed by the crown in Report of 
 October 1873. On December 8 they presented a first report, on 
 
 Service 
 Expen- 
 
 w Com. Pap. 1873, v. 7, pp. 387, * For steps taken by govt. to carry 
 
 391. out this report, see Hans. D. v. 216. ms 
 
 Ib. 1875, v. 61, p. 383. See p. 1856; v. 217, p. 494. 
 Hans. D. v. 225, p. 1001.
 
 640 THE ROYAL PREROGATIVE 
 
 the subject of the proper compensation to be allowed on abolition 
 of judicial offices, or of subordinate offices in courts of justice, and 
 on the possibility of utilising the services of persons in receipt of 
 such compensation. 2 Certain subordinate offices connected with 
 the great seal were abolished, and new provision made for the 
 duties and salary of the clerk of the crown in Chancery in 1874, by 
 the Act 37 & 38 Viet. c. 81. On July 31, 1874, the commission 
 presented a second report, dealing with the organisation and duties 
 of all existing administrative departments of the courts of justice, 
 and making various recommendations to promote an efficient 
 responsibility to Parliament for the same, and also to ensure a more 
 direct and effectual control by the Treasury over financial arrange 
 ments in the legal establishments. 81 Being unable to agree as to the 
 department of state which should be specially held responsible for 
 the administrative departments in the courts of justice, the com- 
 mission presented supplementary reports on this subject, pointing 
 out opinions they had received from men of large administrative 
 experience, in favour of assigning to the home secretary (in con- 
 nection with the office and responsibilities of a minister of justice) 
 the oversight and control of the legal departments, and, on the other 
 hand, adverse opinions, in favour of a recognition of the responsi- 
 bility of the lord chancellor for the same. The majority of the 
 commissioners were of opinion that this was a question of policy 
 not properly before them. Accordingly, in the absence of any 
 larger scheme, they recommended that the control of the lord 
 chancellor should be acknowledged and made operative throughout 
 all the departments of the High Court of Justice, and be exercised in 
 concurrence with the Treasury. The minority of the commissioners 
 objected to any scheme which would lessen the authority and 
 responsibility of the lord chancellor. 5 In 1876 ministers stated 
 that they were about to give effect to the recommendations of the 
 commission. 
 
 The third report (on July 25) proposed for conside- 
 ration the expediency of amalgamating the Customs 
 and Inland Kevenue Boards, and whether the increas- 
 ing charge for the departments under the postmaster- 
 general was required, but deferred such enquiries until 
 next session, when they recommended that the com- 
 mittee should be reappointed. 
 
 1 Com. Pap. 1874, v. 24, p. 557. b 2nd Rep. Com. Pap. 1875, v. 30, 
 
 a Ib. p. 583. Upon which recom- pp. 658-679. 
 
 mendations, see Hans. D. v. 233, p. c Hana. D. v. 227, p. 1838 ; v. 
 
 1449. 232, p. 1019.
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. 641 
 
 Meanwhile, it dealt with the question of economical Cmi 
 reform in the organisation of the permanent and tempo- ex^n- 
 rary staff in the civil departments. This report embodies diture - 
 various recommendations with a view to the reduction 
 in numbers and cost of these establishments, regard 
 being had to the claims of existing incumbents. The com- 
 mittee regret that the policy of the rules embodied in 
 the orders in council of 1870 and 1871, for the entry by 
 competitive examinations into the civil service, has not 
 been always applied with harmonious action between 
 the Treasury and particular departments, and they ex- 
 press their opinion ' that careful regard to the respec- 
 tive functions of the Treasury and of the heads of 
 departments, should prevent a recurrence of such dif- 
 ferences.' The committee further remark, in reference 
 to the authority of the Treasury in deciding upon the 
 necessary establishments of the various civil offices, 
 that ' inasmuch as the civil estimates are presented to 
 Parliament on the responsibility of the Treasury, and 
 are moved by the secretary to that Board, they cannot 
 but think that Parliament will look to the responsible 
 heads of the Treasury as competent to deal with contro- 
 versies between the heads of civil departments arid the 
 permanent officers of the Treasury, when those contro- 
 versies relate to the establishments to be voted by the 
 House of Commons. ' d 
 
 The committee (in their third report) specially 
 adverted to certain new rules for the organisation of 
 the civil departments by which the clerical force in 
 each office is divided into three classes : (1) A com- 
 paratively small class of established clerks, with high 
 salaries, fixed tenure, and pension, selected by open 
 competition of a superior kind. (2) An intermediate 
 class of established clerks, with lower salaries, but with 
 fixed tenure and pension, also selected by open compe- 
 
 d Com. Pap. 1873, v. 7, p. 415. 
 VOL. I. T T
 
 service 
 
 642 THE ROYAL PREROGATIVE 
 
 civil tition, though of a lower standard. (3) A class of 
 writers, paid by the hour or week, selected by the civil 
 service commissioners after examination in reading, 
 writing, and arithmetic, but without fixity of tenure, 
 pension, or prospective advantages. The new rules 
 have been condemned by some prominent and expe- 
 rienced officials, and the committee ' doubt the wisdom 
 of the present arrangements,' although they refrain 
 from recommending any alteration in them. Approving 
 in the main of the competitive system for admission 
 into the civil service, they feel the importance of a good 
 system of promotion, under which men can be advanced 
 to the higher grades, according to their fitness and 
 merit. The committee also doubt the practicability of 
 excluding any considerable number of employes from 
 the benefits of superannuation, inasmuch as the advan- 
 tages of superannuation in retaining trained officers 
 .in the service, in protecting the public from combi- 
 nations, and as a means of enforcing discipline, are 
 obvious. 6 
 
 On June 17, 1873, the House of Commons appointed 
 a select committee to enquire whether writers appointed 
 before August 19, 1871, have suffered any wrong or 
 injustice by the cessation of the system of a progres- 
 sive rate of payment [pursuant to the new regulations 
 enforced by the order in council of that date]. The 
 committee reported on July 30 their ' opinion that a 
 restoration of the system of a progressive rate of pay- 
 ment will best meet the requirements of justice, give 
 contentment to the writers, and promote the efficiency 
 of the public service.' The report was accompanied 
 oy minutes of evidence, and an appendix of illustrative 
 documents.* 
 
 In 1874, the Disraeli administration determined 
 
 Com. Pap. 1873, v. 7, p. 415. Govt. on this Kept., see Com. Pap. 
 ' Ib. v. 11, p. 1. For action of 1876, v. 60, p. 329.
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. 643 
 
 upon the issue of a Treasury commission to enquire civil 
 into the organisation of the civil service. It should be 
 the duty of this commission to investigate the working Com - 
 
 , n. -i missio. 
 
 of the system of competitive examinations, and to 
 recommend any suitable modifications of the same ; to 
 consider the principle of transferring men from office 
 to office ; the possibility of grading the civil service as 
 a whole, and of establishing uniform rates of pay in 
 different departments ; and the system of employing 
 writers for temporary service. 15 
 
 This commission (known as the ' Playfair Commis- civil ser- 
 sion')was appointed on April 25, 1874. They pre- gan\si 
 sented a first report in January 1875, which, together tion - 
 with the minutes of evidence taken, and some subse- 
 quent correspondence on the subject with the chancel- 
 lor of the exchequer, was laid before Parliament in 
 February 1875. The report recommended a partial 
 reorganisation of the lower and higher grades of the 
 civil service, by the substitution of a larger number of 
 clerks of the lower divisions for the clerks of the higher 
 division ; a modification of the present competitive 
 system for first appointments, by permitting a choice to 
 be made from a list of successful candidates ; the intro- 
 duction of the system of service pay, with extra ' duty 
 pay ' as a reward of special services ; with proposals in 
 regard to promotion by merit, transfers from office to 
 office, staff appointments, and the great reduction of 
 the class of ' writers.' h After the receipt of this report 
 the Government instituted special enquiries into the 
 mode in which the proposed reform would accommo- 
 date itself to the requirements of particular depart- 
 ments, 1 and invited the assistance of the commissioners 
 in applying the principles they had recommended to 
 the reorganisation of one of the large departments. 5 
 
 * Hans. D. v. 219, p. 70. l Hans. D. v. 223, p. 1447. 
 h Com. Pap. 1876, v. 23, p. 1. J Ib. p. 1958. 
 
 T T 2
 
 mission. 
 
 644 THE ROYAL PEEEOGAT1VE 
 
 civil On March 19, 1875, Sir Charles Trevelyan gave impor- 
 Treasury ^ant evidence before the commission in relation to the 
 c m : topics embraced in their first report, and especially as 
 
 rmcairm w 
 
 to the desirability of maintaining intact the principle 
 of competitive examinations, and as to the proper 
 mode of rendering the supervision of the Treasury 
 over the public departments efficient and complete. 
 This evidence is appended to the second report as 
 Appendix F. 
 
 On May 14, 1875, the commission presented a 
 second report, which relates to appointments in various 
 offices requiring special and technical qualifications, 
 viz., the British Museum, the Department of Science 
 and Art, and the Public Eecord Office. The commis- 
 sioners are of opinion that the plans recommended 
 in their first report can be adapted to these establish- 
 ments, and to appointments in other offices requiring 
 special and technical qualifications, without material 
 modification.* 
 
 The Civil Service Enquiry Commission presented a 
 third (and final) report on July 23, 1875. It deals with 
 the Inland Eevenue and Customs departments, and 
 recommends their reorganisation upon the principles 
 advocated in the previous reports. 1 
 
 On July 26 the chancellor of the exchequer informed 
 the House of Commons that the interesting and sugges- 
 tive questions raised in these reports would be carefully 
 considered by the government during the recess. m 
 
 On February 12, 1876, an order in council was passed 
 to give effect to the recommendations of the commis- 
 sion in regard to the staff for the lower division, or 
 * mechanical and routine ' work of government offices 
 consisting of ' writers,' of men and boy clerks, to be 
 appointed after open competitive examinations before 
 
 " Com. Pap. 1875, v. 23, p. 451. ' Ib. v. 23, p. 569. 
 
 ra Hans. D. v. 226, p. 46.
 
 IN EEGARD TO OFFICES AND PUBLIC OFFICERS. 6-<6 
 
 civil service commissioners, and was laid before Parlia- civil 
 
 Service 
 ment. Treasury 
 
 When ' the Civil Service Commission ' was first c ? m : 
 
 mission. 
 
 created in 1855, it was a tentative department, and the 
 commissioners received no salary. It was afterwards 
 deemed expedient to make them salaried officers. Of late 
 years the business of the department has greatly increased, 
 and the delicacy and difficulty of the work have increased 
 also. The commissioners have now to examine candi- 
 dates for the whole civil service, and likewise candidates 
 for first appointments in the army, for admission to the 
 Royal Military Academy, for commissions in the Eoyal 
 Marines, for appointments in the Indian civil service, 
 the Indian civil engineers, the foreign service, together 
 with candidates for employment as writers. The com- 
 missioners have likewise to conduct correspondence 
 with the various public departments as to the character 
 of the examinations and the questions to be put to can- 
 didates. 1 * 
 
 In 1875, upon the death of Sir Edward Ryan, the 
 late chief commissioner, the government appointed in 
 his place a peer of Parliament, Lord Hampton, with an 
 increased salary ; and a third commissionership was 
 again created, an office which had been in abeyance 
 since the death of Sir E. Head in 1869. This gave rise 
 to considerable opposition in the House of Commons, 
 chiefly because of Lord Hampton's advanced age (76). 
 But the government defended the appointment on the 
 ground of special fitness, and because it was desirable 
 that the commission should be represented in Parlia- 
 ment.' 1 
 
 On May 5, 1874, the House of Commons appointed Saieof 
 a select committee to enquire into the existing principles ^ntT" 
 and practice regulating the purchase and sale of mate- stores - 
 
 20th Rep. Civ. Serv. Com. p. 10. P Hans. D. v. 227, p. 1 100. 
 Com. Pap. 1876, v. 22. < Ib. pp. 500, 1099.
 
 616 
 
 THE ROYAL PREROGATIVE 
 
 rials and stores in the several public departments/ 
 (This was in continuation of a similar enquiry in 1873.) 
 The committee reported on July 3 on the several civil 
 and military departments, but principally upon the 
 management of the stationery department, and upon 
 the mode of regulating and defraying the cost of printing 
 for Parliament and for the public departments. 
 
 As with the appointment and dismissal, so also in 
 regard to the remuneration of public employes, it should 
 be left to the government to determine the amount of 
 pay to be allotted to all public servants, of whatever 
 grade or position. 8 Those who serve the crown should 
 look directly to the crown for compensation and reward. 
 The salaries and allowances of all public servants, in 
 every department of state (with the exception of those 
 functionaries whose salaries are fixed by Act of Parlia- 
 ment),* are regulated by the Lords Commissioners of the 
 Treasury, and determined by Treasury minutes. [When 
 a salary is proposed to be fixed by a Bill before the 
 House of Commons an amendment to increase the 
 amount of salary, though unusual, and generally inex- 
 pedient, is not irregular."] It is competent for the 
 official head of every public department to recommend 
 to the Treasury the alteration or increase of salaries to 
 his own subordinates. But every such recommendation 
 is subjected to the closest scrutiny by the Treasury, who 
 possess supreme control in all financial matters, over 
 every other branch of the public service/ The salaries 
 and expenses of the public departments are annually 
 submitted to the review of the House of Commons in 
 the estimates, and a separate vote is taken for the 
 amount required to defray the same, in each depart- 
 
 ' Com. Pap. 1874, v. 11, p. 339. to this rule ; see post, pp. 600-664. 
 Corresp. Will. IV. with Earl u Hans. D. v. 143, pp. 696-708 ; 
 v. 1, pp. 134-152. Citing v. 186, p. 1164. 
 
 * Hans. D. v. 73, p. 1662. Ib. 
 v. 117, p. 834. Aud see v. 2. On 
 
 Gr . e y> . - 
 
 opinion of law officers of the crown. 
 1 The officers of the two Houses 
 
 of Parliament are also an exception the Treasury.
 
 IN REGARD TO OFFICES A>T) PUBLIC OFFICERS. 647 
 
 ment. Appended to the estimate for every vote, a list Salaries, 
 is given of the different items of expenditure included &c ' 
 therein ; but, although it is within the power of the 
 House of Commons, in committee of supply, to reduce 
 any such vote by omitting the amount of any particular 
 salary, or other item, this power is rarely exercised, and 
 only upon grave and urgent considerations. It is per- 
 fectly competent for either House of Parliament, and 
 more particularly for the House of Commons, to subject 
 the conduct of the executive government towards the 
 subordinate officers and servants of the crown to free 
 enquiry and criticism ; but there should be no attempt 
 to interfere with the discretion of responsible ministers, 
 in regulating the pay and allowances of public employes, 
 except in cases where it is apparent that injustice and 
 oppression have been exercised. 
 
 On July 16, 1849, a motion was made in the House of Com- 
 mons that a reduction of ten per cent, should be made in all salaries 
 in the several departments of government, at home and abroad. 
 The motion was opposed by ministers, and negatived on di vision. w 
 The Treasury have always objected to dealing en bloc with depart- 
 mental salaries. 1 When the government determine upon any reduc- 
 tion of official salaries, or emoluments, it is customary to respect 
 existing interests. y 
 
 It is a rule in the public service that if an officer in 
 the receipt of a pension receives new employment his 
 pension is merged for the time being in the salary he 
 receives. 2 
 
 This law must not be evaded, by allowing colonial officers in 
 receipt of imperial pensions, to draw part of their emoluments by 
 way of gratuity, lest the offenders should incur severe penalties, 
 and a withdrawal of their privileges to receive pensions out of the 
 United Kingdom.* 
 
 When a man has been discharged from the public Subject to 
 service upon retiring allowance and is afterwards found reca11 - 
 
 " Hans. D. v. 107, pp. 408-451. Pap. 1870, v. 54, p. 457, &c. 
 
 Ib. v. 217, p. 1451 ; Com. Pap. * Ib. v. 233, p. 814. 
 
 1873, v. 7, p. 662. Circular Desp. 1 Oct. 1878. N. 
 
 * Ib. v. 203, p. 1464 ; see Com. Zeal. H. Jls. 1880. App. A. 2, p. 13.
 
 648 THE ROYAL PREROGATIVE 
 
 capable of doing further work the Treasury may recall 
 him, and if he does not answer to the recall he forfeits 
 his pension . b 
 
 Pecuniary While every salary and the classification of every 
 should be office is duly submitted in the annual estimates for the 
 Trea^ur^ 6 CI> iti c i sm an ^ sanction of Parliament, it is the peculiar 
 duty of the executive government and of the heads of 
 the several departments to enter into the particular and 
 minute considerations by which the rate of salaries, the 
 annual increments, and the prospect of promotion are 
 adjusted. This duty is discharged by the lords of the 
 Treasury, and should be left to their unfettered dis- 
 cretion, inasmuch as they are responsible for the 
 expenditure incurred in every branch of the public 
 service. 
 
 Appiica- By a Treasury minute, dated February 26, 1866, 
 
 increase which embodies the substance of regulations previously 
 f salary, established in various departments of the civil service, 
 it is provided that henceforth, as a general rule, no 
 application in relation to increased pay or allowances 
 (or for promotion, where such rests with the Treasury) 
 will be entertained by the board unless transmitted 
 through the head of the department to which the 
 applicant belongs. But in the event of the depart- 
 mental head refusing to forward any such application, 
 the Treasury will receive it direct from the subordinate 
 officer, if it be accompanied by a copy or statement of 
 the refusal, and will determine whether or not the 
 communication was one which should have been ad- 
 dressed to them. 
 
 This minute has originated in consequence of a 
 practice recently introduced by employes in the civil 
 service of memorialising the Treasury for increase of 
 salary or improved departmental position through mem- 
 bers of Parliament or other influential persons, or by 
 direct petition to the board itself. 
 
 b Hans. D. v. 235, p. 1420.
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. 649 
 
 In enforcing a stricter rule upon the service, the 
 Treasury expressly disclaim the desire to debar any 
 classes or individuals in the public service from making 
 a respectful complaint of any matter of personal 
 grievance. Still less do they intend to offer any ob- 
 stacle to the most free action of members of the legis- 
 lature who, on public grounds, may consider it their 
 duty, whether in Parliament or by communications to 
 the Treasury, to call attention to cases of grievance on 
 the part of individuals, or who may think fit to enter 
 upon the investigation of questions affecting the re- 
 muneration and other conditions of service under which 
 classes of public officers are employed. It is equally 
 the duty and the desire of the Treasury to afford every 
 proper facility for such representations, and to give 
 them their impartial attention. 
 
 Nevertheless, a due regard to the principles of sub- Political 
 
 ,.. , , . ,, r , . influence 
 
 ordination, and the maintenance 01 proper relations forbidden, 
 between the various officers employed in the civil 
 service, requires that for the future the Treasury 
 should insist upon the observance of the rule which 
 forbids subordinate officers from seeking advancement 
 by means of pressure put upon the executive govern- 
 ment by persons whose only knowledge of the cir- 
 cumstances of the case is derived from the ex parte 
 representation of the applicants themselves. 4 And by 
 a minute, dated May 2, 1867, and directed against the 
 ' growing practice on the part of gentlemen employed 
 in the public service to endeavour to influence the 
 Treasury to accede to their applications for increase of 
 salary or additional retiring allowance by means of the 
 private solicitation of members of Parliament and other 
 persons of political influence,' the lords of the Treasury 
 declare that any such attempt hereafter will be treated 
 
 c For example, Hans. D. v. 193, Pap. 1866, v. 39, p. 339; Hans. D. 
 
 p. 1407 ; v. 217, pp. 303-306. Com. v. 181, p. 1806 ; v. 186, p. 391 ; v. 
 
 Pap. 1873, v. 7, pp. 683-689. 194, pp. 1586, 1595 ; v. 230, p. 251. 
 
 d Copy Treasury Minute, Com.
 
 650 THE ROYAL PREROGATIVE 
 
 by them as an admission on the part of the applicant 
 that his case is not good upon its merits, and it will be 
 dealt with accordingly. On the other hand, any such 
 representation which reaches them in the recognised 
 way will receive their most careful consideration. 6 
 
 The system of superannuation allowances now exist- 
 ing in the civil service was first introduced early in 
 the present century. Prior to that time provision for 
 public officers on their retirement from active service 
 was generally secured by methods which would now be 
 considered as objectionable. The first Act for esta- 
 blishing a system of superannuations applicable to 
 public officers generally was passed in 1810. In 1822, 
 owing to the efforts of certain economical reformers, it 
 was enacted that deductions should be made from the 
 salaries of all civil servants as a contribution towards 
 the superannuation fund. But this Act was repealed in 
 1824, and about 90,000/. which had been collected 
 under it repaid to the contributors, upon the principle 
 that such deductions were in violation of the terms 
 on which public officers had entered the service. In 
 1828 a finance committee of the House of Commons 
 recommended the re-adoption of deductions, but Par- 
 liament would not sanction this proposal, so far at least 
 as existing interests were concerned. In 1829, how- 
 ever, a Treasury minute was passed for the purpose 
 of lessening prospectively the public charge for super- 
 annuations by which deductions were imposed on the 
 salaries of all civil servants to be thereinafter appointed. 
 This was ratified by Parliament, and a new Act passed 
 in 1834, authorising deductions towards the super- 
 annuation fund to be made from the salaries of all civil 
 servants appointed after August 4, 1829, but exempting 
 
 e Com. Pap. 1867, v. 40, p. 323 ; of revenue officials were, until 1868, 
 
 Hans. D. v. 187, p. 1095 ; v. 193, debarred from exercise of the fran- 
 
 p. 1088. In order to prevent the chise, and are still prohibited from 
 
 exercise of political influence for taking active part at elections. Ib. v. 
 
 aggrandisement the numerous class 188, p. 1033 ; v. 194, p. 1586.
 
 IN EEGARD TO OFFICES AND PUBLIC OFFICERS. 651 
 
 those who held office prior to that date from any such Superan- 
 payment. The distinction thus made between two 
 classes of civil servants, according as they received 
 their first appointments before or after 1829, gave rise 
 to much dissatisfaction. This, together with other 
 anomalies and irregularities attending the working of 
 the system, induced the Government in 1856 to appoint 
 a commission to enquire into the operation of the 
 Superannuation Act. The commissioners made an 
 elaborate report in the following year, wherein they 
 reviewed the whole question in all its bearings. Ad- 
 mitting that the first impression in entering on the 
 enquiry had been favourable to the retention of deduc- 
 tions, they concluded, upon a careful review of the 
 whole case, and * with a view to public interests alone,' 
 to recommend * the total abolition of deductions for the 
 purpose of superannuation, without any corresponding 
 reduction in the salaries on which such deductions had 
 been charged,' as being the only settlement of the 
 question which was ' likely to be permanent and satis- 
 factory.'* This recommendation was approved by Par- 
 liament, and an Act passed to repeal the section of the 
 Act of 1834, under which the deductions had taken 
 place (20 & 21 Yict. c. 37). In certain minor depart- 
 ments such as the lighthouse boards, the endowed 
 schools board, and some branches of the police service, 
 the employes contribute to an annuity fund, which is 
 supplemented by government^ But there has been a 
 growing disposition of late years to grant superannua- 
 tion allowance in all public establishments, without 
 requiring any deductions from salaries. 11 
 
 In 1859 another Act was passed to extend the 
 operation of the Act of 1834 to all persons who had 
 served in an established capacity in the permanent civil 
 
 f Com. Pap. 1857. Seas. 2, v. 24, pp. 217-237. 
 
 Third Rep. Civ. Serv. Exp. Com. Pap. 1873, v. 7, p. 624. 
 
 * Ib. p. 637.
 
 652 THE ROYAL PREROGATIVE 
 
 service of the state, and who were not otherwise pro- 
 vided for by Parliament. The Act was necessary 
 because several classes of public servants were omitted 
 from the operation of the Act of 1834 in order to save 
 them from becoming liable to the abatements, but these 
 deductions having been abolished, it was deemed ex- 
 pedient to bring all civil departments under the pro- 
 visions of the Superannuation Act. 1 But if a super- 
 annuated person afterwards is appointed to office in 
 any part of the empire, his allowance is to be reduced 
 by the amount of salary received for such service. 3 The 
 total annual charge for civil pensions, annuities, and 
 superannuation allowances in Great Britain, as esti- 
 mated in 1869, exceeds l,600,000/. k This includes 
 annuities to the royal family and civil list pensions, 
 but not half pay and pensions for military services. 
 
 The system of superannuation by deduction from 
 the salaries having been tried and failed, it was decided 
 in 1870, in order ' to promote economy and efficiency,' 
 to diminish the number of established clerks as vacan- 
 cies occur, and introduce * men and boy writers on the 
 ordinary footing of commercial clerks M i.e., per diem 
 allowances and without superannuation. But this 
 system did not work well, and was afterwards con- 
 siderably modified. 111 
 
 In 1869, by the Act 32 & 33 Viet. 32, the Treasury 
 were empowered in their discretion n to commute pen- 
 sions to retired officers in the army and navy and clerks 
 in the war and admiralty departments by payment of 
 
 1 Hans. D. v. 153, p. 354 ; 22 minutes and circulars issued under 
 
 Viet. c. 26. 36 Viet. c. 23, and 39 & them, concerning pensions, and super" 
 
 40 Viet. c. 53. allow'. See 'Jol. office list, 1870, p. 
 
 35 Viet. c. 12. 216. 
 
 k Com. Pap. 1868-9, v. 35, p. 1115. ' Hans. D. v. 203, p. 1247; v. 
 
 Civil Service Superannuations alone, 208, p. 1472; v. 206, p. 1384. 
 
 including compensation allowances m See 1st, Rep. Oir. Serv. Inq. 
 
 exceeds 1,100,000/. Com. Pap. 1873, Com". Com. Pap. 1875, v. 23. 
 
 v. 7, pp. 581, 841. For Imp. Acts, " Hans. D. v. 211, p. 283.
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. 653 
 
 a capital sum of money, according to the estimated Superan- 
 duration of life of the pension holder. nuation - 
 
 On April 18, 1871, a motion was made (by a private 
 member) to resolve ' That it is expedient to extend 
 the provisions of the Pensions Commutation Act, 1869, 
 to all the departments of the civil service. In reply, 
 the chancellor of the exchequer stated that ministers 
 proposed to amend the said Act by taking away the 
 privilege of commutation as far as regards pensions on 
 retirement after sixty years of age, and upon a medical 
 certificate, and by limiting the privilege to those who 
 received compensatory pensions on account of the abo- 
 lition or reorganisation of their office. With this 
 restriction they proposed to extend the Act to the whole 
 civil service. Satisfied with this concession the mem- 
 ber withdrew his motion. [The Bill was accordingly 
 introduced and passed. p It was extended to telegraph 
 clerks by Act 35 & 36 Viet. c. 83, and amended by 
 Act 39 & 40 Viet. c. 73, and again amended in 1882 
 so as to admit of the commutation of a portion of a 
 pension.] But the Treasury would object to commute 
 a pension for anyone of whom there was a definite 
 prospect of his being again employed in the public 
 service.* 1 
 
 By the Superannuation Act of 1875, a special rate 
 of pension is allowed to persons who have been in the 
 civil service of the state in an ' unhealthy place.' 
 
 That all persons employed by the crown in the 
 civil service of the United Kingdom are entitled to 
 a superannuation allowance after a certain length of 
 service is a principle which, ratified by Act of Parlia- 
 ment, is now ' universally admitted,' r provided only that 
 he has reached the age when retirement upon a pension 
 is allowable, or that an earlier retirement is justified 
 
 Hans. D. v. 211, p. 1253-1259. ' Hans. D. v. 177, p. 1907 ; 57 
 P 34 & 35 Viet. c. 36. Geo. III. c. 65 ; extended by 4 & 
 
 1 Hans. D. v. 208, p. 1847. 5 Will. IV. c. 24.
 
 654 THE ROYAL PREROGATIVE 
 
 by a medical certificate of incapacity for further ser- 
 vice. 8 But if it should afterwards appear that a pension 
 had been granted upon insufficient grounds, or at too 
 high a rate, the lords of the Treasury would revise 
 their decision and issue a new minute thereon.* All 
 Pensions pensions and retiring allowances to public servants, 
 granted, although payable under statutable authority, are awarded 
 by the lords of the Treasury, pursuant to regulations 
 they are empowered to make from time to time for 
 that purpose. 
 
 The maximum pension to a retiring civil servant 
 contemplated by the Superannuation Act is an amount 
 equal to two-thirds of his salary. But by the 9th clause 
 of the Act, pensions up to the full amount of the salary 
 may be granted ' in cases where the services were of 
 a peculiar and unusual degree of merit." 1 But this 
 power has been most sparingly exercised/ 
 
 Formerly pensions were granted at the discretion 
 of the sovereign. But as great irregularities prevailed 
 in the granting of pensions by the crown, it became 
 necessary for Parliament to interpose its authority to 
 regulate and restrict the exercise of this prerogative. 
 Prior to the reign of Queen Anne, the crown had 
 assumed the right of charging its hereditary revenues 
 with pensions and annuities ; and it had been held that 
 the king had power in law to bind his successors. 
 But, on the accession of Queen Anne, an Act was 
 passed (1 Anne c. 7), forbidding the alienation of any 
 portion of the hereditary revenues for any term beyond 
 the life of the reigning monarch. On the accession of 
 
 Hans. D. 223, p. 1214. If the 1874, App. 2. 
 
 government should refuse to allow to * Case of SirW. Brown. Com. Pap. 
 
 a public officer his just claims under 1871, v. 37, p. 627. 
 
 the Superannuation Act, he could u Hans. D. v. 217, pp, 1531, 1501. 
 
 apply to the court of Queen's Bench v Case of Sir R. Hill. Com. Pap. 
 
 for a mandamus to compel the Trea- 1864, v. 30, p. 610 ; v. 32, pp. 565, 
 
 sury to pay him whatever he was 569. Ib. 1873, v. 7, pp. 556, 571. 
 
 entitled to receive, Hans. D. v. 180, Ib. 1875, v. 42, p. 675. Ib. 1877. 
 
 p. 503 ; New Zealand, Leg. Coun. Jls. v. 49, p. 587, &c.
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. 655 
 
 George HE. the land and other revenues of the crown, 
 except the revenues of the duchies of Cornwall and 
 Lancaster, were surrendered to Parliament, in exchange 
 for a fixed civil list. 
 
 The ' Civil List ' originated after the Revolution. It was then Civil list, 
 applied to defray the charge both of the royal household and of the t I 
 civil offices of government, hence the term ' civil list.' It is now j 
 exclusively limited to the expenses of the sovereign and of the royal 
 household." 
 
 In the colonies, the term ' civil list ' is applied to an enactment 
 which withholds certain portions of the regular expenditure of the 
 colony from being annually voted by the legislature. Under the 
 Civil List Act, it is the duty of the Treasury, when required by the 
 sovereign, to render assistance in the administration of the civil list, 
 but the extent of such interference is expressly limited, and it can 
 only be exercised for the benefit of the Queen. 1 
 
 The pensions which had previously been paid out of 
 these revenues were henceforth paid out of the civil 
 list. There was no limit to the amount of pensions so 
 long as the civil list could meet the demand ; and no 
 principle on which the grant of them was restrained, 
 save the discretion of the crown and its advisers/ 
 
 The abuses of the pension list, and the enormous Abuses of 
 facilities it afforded for corrupt purposes, frequently sioVust, 
 engaged the attention of Parliament during the reign of 
 George III., and several Acts were passed at different 
 periods to regulate the grant of pensions. The consti- 
 tutional right of Parliament to investigate this matter, 
 and to control the crown in respect to all payments of 
 the civil list, was fully asserted and secured by Burke's 
 Act in 1782, z this Act forbade the granting of secret 
 pensions, upon the principle that Parliament had a 
 right to be informed of every instance of the exercise 
 
 w May, Const. Hist. v. 1, c. iv. * 22 Geo. III. c. 82. And see 
 
 1 Mr. Gladstone, Hans. I), v. 208, debate on Sir 0. W. Dilke's motion in 
 
 p. 157. regard to Civil List in Hans. D. v. 
 
 * May, Const. Hist. v. 1, pp.214, 210, pp. 251-317. Fitzmaurice, Life 
 
 215. of Lord Shelburne, v. 3, pp. 4, 80.
 
 656 THE ROYAL PREROGATIVE 
 
 of this prerogative in order to ensure and enforce the 
 responsibility of the ministers of the crown. a It further 
 acknowledged the principle that pensions ought to be 
 granted for two causes only ; namely, as a royal bounty 
 to persons in distress, or as a reward for desert. 
 R e . The interference of Parliament to restrain abuses in 
 
 strained the grant of pensions continued during the succeeding 
 ment. reigns of George IV. and William IV. ; b and finally, 
 upon the accession of her present Majesty an Act was 
 passed which limited the right of the crown to grant 
 new pensions on the civil list to the sum of 1,200/. in 
 each year ; in addition to the pensions previously in 
 force. A like amount is granted to her Majesty, for 
 each and every successive year of her reign, cumula- 
 tively, for the bestowal of new pensions : such pensions, 
 civil list pursuant to a resolution of the House of Commons of 
 pensions. February 18j 133^ to be awarded only to ' such per- 
 sons as have just claims on the royal beneficence, or 
 who, by their personal services to the crown, by the 
 performance of duties to the public, or by their useful 
 discoveries in science and attainments in literature and 
 the arts, have merited the gracious consideration of 
 their sovereign and the gratitude of their country.' c 
 It is further required, that a list of the pensions granted 
 shall be annually laid before Parliament, so as to enable 
 the House of Commons to give its advice in regard to 
 their bestowal, should it desire to do so. d The prime 
 minister, and not the chancellor of the exchequer, is 
 the responsible minister upon whose advice these pen- 
 sions are conferred. 6 
 
 In 1861 complaint was made in the House of Commons that a 
 
 Burke's Works, v. 3, pp. 304-307. v. 35, p. 1 1 00. 
 And see Hans. D. v. 183, p. 423. d Com. Pap. 1861, v. 34, p. 237. 
 
 " May, Const. Hist. v. 1, pp. 217, e Mir. of'Parl. 1840, pp. 1327,1347. 
 
 218 ; see Hans. D. v. 176, p. 358. In proof of difficulty of obtaining 
 
 c 1 & 2 Viet. c. 2. Rep. of Com* one of these pensions, see Veitch's 
 
 on civil list pensions, Com. Pap. Life of Sir Win. Hamilton, pp. 284. 
 
 1837-8, v. 23, pp. 55-59. Ib. 1868-9, 294 : Quar. Rev. v. 130, p. 407.
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. 667 
 
 literary pension had been conferred upon an undeserving person 
 (Mr. Close, ' the Westmorland poet '). After due consideration of 
 the case, Lord Palmerston (the premier) announced that the pension 
 would be withdrawn. 1 ' 
 
 It is now recognised as a constitutional rule, that AH pen- 
 all pensions should be granted by Parliament, or out of 
 funds set apart by Parliament for the purpose ; and 
 that the grant of pensions should invariably come sance of 
 under the cognisance of the House of Commons. 8 Even 
 in the case of pensions and retiring allowances awarded, 
 according to established practice, under the provisions 
 of the Superannuation Acts, the money to defray the 
 same must be annually voted by the House of Commons, 
 although the faith of Parliament might be virtually 
 considered as pledged to their continuance ; h and it is 
 only in extreme cases of grave misconduct, that a pub- 
 lic officer is deprived of his ordinary right to a pension. 1 
 
 By a Treasury minute dated December 22, 1873, 
 the Treasury is empowered to make a compassionate 
 allowance to widows and children in the event of the 
 death of a civil servant, either directly or indirectly, 
 from injuries received in the discharge of his duty: such 
 annual allowance not to exceed ten-sixtieths of the hus- 
 band's emoluments at the time of his death ; and not 
 to be less than 12. per annum.' Otherwise neither widows 
 the Superannuation nor the Pensions Acts confer upon orph 
 the Treasury any authority to grant an allowance to ofcivil 
 the widows and families of deceased public officers in 
 the civil service, howsoever strong the claim may be in 
 any particular instance. 1 * The only fund available for 
 
 1 Hans. D. v. 162, p. 1375 ; v. 164, of all pensioners are appended thereto, 
 
 pp. 1402-1411. Also case of R. and a list of the new pensions given. 
 
 Young. Ib. v. 186, pp. 428, 454 ; v. j Hans. D. v. 235, p. 197. 
 
 187, p. 256. i Ib. v. 218, p. 723 ; v. 226, 
 
 s Com. Pap. 1868-9, v. 35, pp. p. 782. In regard to widows of 
 
 1105-1109. labourers on public works who die 
 
 h Att.-Gen. Hans. D. v. 179, p. from injuries received in execution of 
 
 1320. In the annual estimates the their duty, see Ib. v. 217, p. 312. 
 
 sum required under Superan. Acts is k Appropriation Accts. Com. Pap. 
 
 included in one vote, but names, &c., 1875, v. 50. 
 
 VOL. I. U U 
 
 ans 
 vil 
 
 ssrvjiiits *
 
 658 THE ROYAL PREROGATIVE 
 
 such a purpose is the limited amount above mentioned, 
 which is payable out of the civil list. This has been 
 occasionally resorted to, in cases of peculiar hardship 
 and desert. 1 And in some few instances the Treasury 
 have taken upon themselves to grant compassionate 
 allowances to widows of old servants, to save them 
 from poverty. 
 
 In rare and exceptional cases it has been customary 
 to vote a yearly ' compassionate allowance ' to widows 
 or children of messengers and others in the lower grade 
 of the civil service. 
 
 of army The widows and orphans of officers in the army and 
 
 officers^ nav 7 are entitled to pensions under certain regulations ; 
 but a similar bounty is not extended to the families of 
 deceased adjutants and quartermasters of militia regi- 
 ments, because these officers ' are not liable to the 
 dangers of foreign service common to officers in the 
 line.' n 
 
 By Act 56 Geo. HI. c. 73, an annuity and bene- 
 volent fund was established on behalf of the widows 
 and orphans of deceased officers and servants employed 
 in the customs department ; but this is purely a volun- 
 tary association, and is not assisted by the government, 
 a small poundage on salaries of persons belonging to 
 the society, which was originally authorised to be levied, 
 having been abolished by Act 34 & 35 Viet. c. 103, 
 sec. 20, which at the same time extended the operation 
 of the fund to customs officers in Scotland and Ireland. 
 
 Dr. Farr's valuable report on the Police Superannuation Funds P 
 gives an account of the condition and prospects of the different super- 
 annuation funds in England and Wales. 
 
 In the Cape Colony, by the ' Public Service Widows' Pension 
 
 1 Hans. D. v. 179, p. 788. Ib. v. n Ld. Hartington, sec. of state for 
 
 217, p. 1471 : Quar. Rev. v. 130, p. War, Hans. D. v. 183, p. 683. 
 
 414. Phillips' Insurance case, L. T. 
 
 m 1st Rep. Com e Pub. Accts, ET. Hep. N. S. v. 48, p. 81. 
 
 p. 16. Cora. Pap. 1876, v 8. Com. Pap. 1877, v. 15, p. 101.
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. 669 
 
 Act,' 1874, a pension fund has been established for the benefit of 
 widows of civil servants in that colony. 
 
 We have now completed our review of the royal Summary 
 prerogative in relation to office-holders. We have seen 
 that the constitution has vested in the sovereign the 
 right of appointing, controlling, remunerating, and dis- 
 missing all the public servants of the crown, with an 
 exception in the case of certain functionaries whose 
 tenure of office has been made that of ' good behaviour,' 
 and who can only be dismissed from their employments 
 upon an address of the two Houses of Parliament. By 
 this means, the dignity and independence of the crown 
 in the choice of its officers and the efficiency of the 
 public service are secured. At the same time, adequate 
 protection is afforded against abuse in the distribution 
 of patronage and the control and dismissal of public 
 employes by the responsibility of ministers to Parliament 
 for the faithful exercise of this prerogative. Ministers 
 are directly accountable for maintaining the public 
 service in a proper state of efficiency, for selecting 
 qualified persons to fill all subordinate offices under the 
 crown, for awarding to such persons adequate remuner- 
 ation, and for granting them protection against op- 
 pression or dismissal upon insufficient or unwarrantable 
 grounds. 
 
 The authority that appoints to office is necessarily 
 competent to dismiss any insufficient or untrustworthy 
 servants. It is also the proper judge of their qualifica- 
 tions and of the remuneration they should receive. In 
 all such matters Parliament ought not to interfere except 
 in cases of manifest abuse or corruption, when it may be 
 called upon to exercise its inquisitorial power . q Upon 
 such occasions, however, the Houses of Parliament are Ri^t O f 
 constitutionally empowered to institute investigations to Parlia - 
 
 -i i ,1 ... , , . ment to 
 
 declare their opinion as to the manner in which this investi- 
 
 gate 
 
 q Hans. D. v 212, p. 1148. And see precedents, post, pp. 668, &c. 
 
 IT tr 2
 
 660 
 
 THE ROYAL PREROGATIVE 
 
 rogative. 
 
 and to ad- prerogative lias been exercised in any particular instance, 
 
 v:se the IT 11 -.1 i i n 
 
 crown, in anci , " need be, either to appeal to the crown to redress 
 Sre-* the grievance, or to proceed to remedy it themselves by 
 an act of legislation. 
 
 It is also quite in accordance with constitutional 
 usage for either House to address the crown or to record 
 their opinion by resolution upon the existing state of 
 the various public departments generally, and to advise 
 the adoption of such reforms as may be calculated to 
 increase the efficiency of administration/ But when 
 fundamental changes are sought to be effected, whereby 
 the crown would be deprived of any of its prerogative 
 rights, or which transcend the scope of the lawful 
 authority of an order in council, the proper course would 
 be to bring in a Bill, embodying the substance of the 
 proposed regulations, in order that the same may receive 
 the concurrence of the whole legislature. 8 This was 
 the plan pursued by Mr. Burke, in 1780, in carrying 
 out his proposed economical reforms in the various 
 departments of state.* 
 
 Another indirect but powerful influence possessed by 
 Parliament in the control of the public service arises 
 from the necessity for obtaining the sanction of the legis- 
 lature to the supplies required for carrying on the go- 
 vernment and defraying the salaries of all the public 
 employes* ' Thus without touching the prerogative 
 itself its exercise is moderated. The effect of this check 
 upon the exercise of the royal prerogative is, that the 
 responsible ministers of the crown usually take care not 
 to advise the sovereign to do any act requiring to be 
 
 Control 
 exercised 
 by Par- 
 liament. 
 
 * See Debates in Parl. on Motions And see ante, concerning Minutes 
 for Administrative Reform. Hans, of Council on the Revised Code of 
 I), v. 138, pp. 2040-2133, 2154-2225, Education. 
 
 2332. Proposed resolutions in regard * 22 Geo. III. c. 82. See other 
 to constitution of the Office of Works, cases cited in Tomline's Law Die- 
 submitted to the H. of C. in 1860, tionary, verbo Office, I. 
 1863, and 1866. u But see ante, p. 646. 
 
 Hans. D. v. 139, pp. 695, 713.
 
 IN REGARD TO OFFICES A1ST) PUBLIC OFFICERS. 061 
 
 supported by supplies, unless they believe that it will 
 meet with the approbation of Parliament, especially that 
 of the lower House, which is invested by the constitu- 
 tion with the principal control over the public purse. 
 
 Moreover, by the usage of Parliament, it has always 
 been considered allowable for either House to address addresses 
 the crown for funds to defray the salaries and other ex- %? 
 penses of their own establishments, pursuant to regula- expenses 
 tions they may themselves adopt in this behalf; and 
 each House is at liberty to determine the amount of re- 
 muneration to be allowed to their respective officers and 
 servants, subject to the approval of the House of Com- 
 mons in committee of supply/ The salaries of the 
 principal officers are fixed by statute, and are paid out 
 of the consolidated fund. Proposals for the increase of 
 other salaries, and generally in regard to contingent ex- 
 penses, must be approved by the commissioners for 
 regulating the offices of the House of Commons, or on 
 their behalf by the Speaker. But all such proposed 
 expenditure for either House must be included in the 
 estimates, and annually voted in committee of supply. w 
 It is customary for the government, in their own discre- 
 tion, to give effect to recommendations from committees 
 of the House of Commons, in favour of appropriations Recom- 
 for particular parliamentary services, by inserting items ^ons of 
 in the supply estimates, to the required amount, with- co . m- 
 
 . . L L J - 1 mittees. 
 
 out waiting for any formal application from the House 
 itself.* 
 
 The salaries and retiring allowances of the House of Salaries, 
 Lords establishment are fixed by the House itself/ but House* of 
 annually voted in committee of supply. The estimate Lords - 
 for the House of Lords is now prepared by a committee 
 
 'Corn. Jour., June 29, 1836; Com. Pap 1862, v. 35. 
 
 Lords Jour. April 23, 1850. Hans. See Lords Jour. Aug. 27, 1835 ; 
 
 D. v. 218, p. 762. Aug. 28, 1846 ; April 23 and July 
 
 See post, p. 662. 30, 1850; Aug. 12. 1859: June 5. 
 
 ' Estimates for Civ. Serv. 1862-3. 1862. 
 
 *
 
 662 THE ROYAL PREROGATIVE 
 
 Salaries, of the House and sent to the Treasury, by whom it is 
 generally accepted without dispute. 3 The salaries and 
 contingencies of the Lords are now ^included in the 
 annual estimates and voted in supply. But the Lords 
 are permitted to retain the right of paying for retired 
 allowances of their officers out of the interest of the 
 invested fee fund (3878). The fee fund of the House 
 used ordinarily to suffice to pay all these demands ; but 
 when a deficiency occurred application was made by the 
 clerk of the Parliament to the Treasury, to insert in the 
 estimates a sufficient sum to cover the same. Formerly 
 the Treasury had no knowledge or control over the fee 
 fund of the House of Lords, or over the appropriation 
 thereof. But in 1865 they suggested to the clerk of 
 the Parliament the expediency of following the course 
 adopted by the House of Commons, in regard to their 
 fee fund, which is regularly paid over to the con- 
 solidated fund, and the charges upon the same in- 
 cluded in the annual estimates, and voted by Parlia- 
 ment. 
 
 With the consent of the House of Lords in the civil 
 service estimates for the year ending March 31, 1870, 
 the salaries and expenses of the House of Lords' offices 
 were, for the first time, included and brought under the 
 control of the House of Commons. But the Treasury 
 do not exercise any control over this expenditure. A 
 portion of the fee fund was retained by the Lords in 
 1869, the interest of which is used to defray the retired 
 allowances in the Lords' offices ; but over 30,000/. is 
 annually paid over to the Exchequer, as extra receipts. 
 If this sum should prove insufficient, the balance is paid 
 out of current fees. b Moreover, by the Act 29 & 30 
 
 Hans. D. v. 150. p. 1128 : v. 5^02, See Hans, D. v. 177, p. 1123. Ib. v. 
 
 p. 383. 197, p. 1474; v. 202, p. 383; 3rd 
 
 b Report Com 6 Pub. Ace. p. 47. Rep. Civ. Serv. Exp. Com. Pap. 1873, 
 
 Com. Pap. 18G5, v. 10. Lords Pap. v. 7. Ev. pp. 8, 34; Civ. Serv. Est. 
 
 1807-8, v. 30, p. 881 ; Civ. Serv. Est. 1877-8, p. 01, n. Com. Pap. 1877 
 
 1*78-9. Com. Pap. 1878, v. 63. v. 57,
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. 663 
 
 Viet. c. 39, 33, 34, the Treasury were empowered to 
 insist that the Lords' fee fund should be audited ; and 
 they have pledged themselves to the House of Commons 
 to use the powers so conferred upon them. c 
 
 Applications for pensions by officers of the House 
 of Lords are decided upon by the House itself ; either 
 directly, or upon a report from the select committee on 
 the office of the clerk of the Parliament and usher of 
 the Black Eod. d 
 
 The salaries, retiring allowances, and other disburse- salaries, 
 ments on behalf of the establishment of the House of House of 
 Commons have been heretofore regulated by reports of Commons - 
 committees of the House, and are now settled by the 
 commissioners appointed by statute 6 for regulating the 
 offices of the House of Commons. The commissioners 
 consist of the Speaker of the House of Commons, the 
 chancellor of the exchequer, the secretaries of state, 
 and certain other functionaries, being members of the 
 House of Commons. Practically, the actual business of 
 the board is transacted by Mr. Speaker. But the board 
 is always convened when there is anything important to 
 be done. The salaries of officers of the House of Com- 
 mons have been fixed from time to time, pursuant to 
 various reports from select committees of the House, 
 from 1836 (up to which period they were paid by fees) 
 to 1849. The establishment is divided into three 
 branches or departments ; which are under the Speaker, 
 the clerk, and the serjeant-at-arms respectively. The 
 head of each department is responsible for the items 
 which concern his own department, whether they be for 
 salaries or contingent expenses ; and the entire pay-list 
 
 c Hans. D. v. 187, p. 853. wards rescinded, on proof that he had 
 
 d Mr. Birch's case. Hans. D. v. 97, been guilty of gross misconduct and 
 
 p. 1. Mr. Edmunds' case, Lords malversation in office; Hans. D. v. 
 
 Jour. v. 97, pp. 27-28. And see Mr. 179, pp. 6-45. 
 
 Gladstone's observations, in Hans. D. e 52 Geo. III. c. 11 ; and 9 & 1Q 
 
 v. 177, p. 1370. The resolution grant- Viet. c. 77. 
 
 ing Mr. Edinunda a pension was after-
 
 664 THE ROYAL PREROGATIVE 
 
 Salaries, is submitted to the Speaker, for his approval and signa- 
 ture. If the establishment requires to be varied, or 
 increased, it is done by the permanent head of the 
 department with the approval of the Speaker. The 
 Treasury is not consulted, ' the Speaker's sanction would 
 be sufficient : for instance, in 1865, there were two 
 referees of private Bills put on, at 1,000/. each that 
 was done with the sanction of the Speaker.' By the Act 
 12 & 13 Viet. c. 72 the Speaker's audit in regard to all 
 expenditure for the House of Commons is final. His 
 order is the warrant to the Treasury to insert the amounts 
 required to be voted by Parliament in the annual esti- 
 mates. The Treasury adopt his return without exami- 
 nation, and include the amount in the estimates, because 
 it concerns the internal economy of Parliament.* There 
 are, however, certain items of expenditure, which are 
 common to both Houses, that are settled by the Trea- 
 sury: such as the sums to be allowed for the payment 
 of witnesses attending committees, the allowance for a 
 shorthand writer, and other miscellaneous charges of 
 inconsiderable amount. 
 
 These payments are made by the Treasury, upon receiving an 
 account of expenses, certified by the chairman of the select com- 
 mittee. If the charges are excessive they will be reduced or dis- 
 allowed by the secretary of the Treasury. 8 The Commons committee 
 on East India finances in 1873 desired to take evidence from India 
 and requested the Treasury to sanction the expenditure of 10,00(K to 
 defray the expenses of the witnesses. The Treasury replied that they 
 did not feel justified in incurring such a large expenditure from im- 
 perial funds. They considered that the government, rather than the 
 committee, ought to take the initiative in the matter. Whereupon 
 the committee reported the matter to the House : and the govern- 
 ment promised to consider it, and make some recommendation to 
 Parliament on the subject. 11 
 
 f For comparative statement of g Com. Pap. 1847-8: v. 18, pt. 1, 
 
 salaries paid to principal officers of p. 111. Hans. D. v. 186, pp. 702, 
 
 both Hos. ofParlt. in Gt. Britain, J376. Ib. v. 212, p. 99. 
 
 Canada, and the Australian Colonies, h 2nd Rep. Com* East I. Fin. 
 
 see Jls Leg. COUD. N. Zealand, 1877, Com. Pap. 1873, v. 12 ; Hans. D. v. 
 
 Appx. No. 18, 215, p. 1874.
 
 IN EEGARD TO OFFICES AND PUBLIC OFFICERS. 665 
 
 Eetiring allowances to officers of the House of Com- 
 mons are settled by the commissioners, on the basis of 
 the Superannuation Acts. 1 
 
 Upon the retirement of the Speaker of the House of Speaker of 
 Commons from the chair, it has been the invariable commons, 
 usage for the House to address the crown, that * some 
 signal mark of royal favour ' may be conferred upon 
 him, on his ' ceasing to hold the office of Speaker.' The 
 response to this application, on the part of the crown, 
 is by conferring a peerage upon the retiring Speaker, 
 and by a message recommending the House to grant a 
 suitable allowance for the support of the dignity.^ 
 
 In 1817, on the retirement of Mr. Abbot from the 
 speakership, the crown took the initiative in recom- 
 mending provision for him, without waiting for an 
 address from the House of Commons. This was resented 
 as irregular and objectionable. k 
 
 A similar practice formerly prevailed in the case of chaplain, 
 the chaplain to the House of Commons. After a short 
 term of service it was customary to vote an address to 
 the crown, soliciting the bestowal of church preferment 
 upon this functionary. When Parliaments were of tri- 
 ennial duration, such addresses were uniformly passed 
 after a service of about two years and a half. After 
 they became septennial, it was usual to allow the Speaker 
 two chaplains during each Parliament. Since 1837, 
 owing to the diminution of church patronage in the gift 
 of the crown, an annual salary has been voted to this 
 officer in supply, in lieu of an application for preferment. 
 But on May 31, 1838, the House having, prior to the 
 change -of system, addressed the crown in favour of 
 three chaplains, and received favourable answers, though 
 (for the reason above mentioned) no preferment had 
 
 1 See Rep. Corn' on Public Ace. Ib. v. 187, pp. 855, 1093 ; v. 197, p. 
 
 Evid. 885, 977 &c., 1107 &c., 1121 &c. 1478 ; v. 223, p. 1637. 
 
 Com. Pap. 1865, v. 10. Rep. Oom e . J See ante, p. 592. 
 
 Civ. Serv. Ex. Com. Pap. 1873, v. 7, k Colchester Diary, v. 3, p. 1. 
 Evid.p. 9. Hans.D. v. 177, p. 1123,
 
 686 THE ROYAL PREROGATIVE 
 
 chaplain, been conferred upon them, an address, recapitulating 
 fthese circumstances, and reiterating the request, was 
 agreed to. During the debate thereon, the home secre- 
 tary (Lord John Eussell), while defending the govern- 
 ment from an intentional disregard of the wishes of the 
 House, admitted that the House were justified in the 
 course they had taken. But he afterwards observed 
 * that no address of the House can bind the crown in 
 the disposal of its patronage, otherwise than according 
 to the advice that may be given to it.' l In reply to the 
 address her Majesty stated that she would ' take into 
 her consideration in what manner the wishes of her faith- 
 ful Commons could be carried into effect. ' m In the 
 course of the session, in committee of supply, an opinion 
 being generally expressed in favour of a salary of 40 01. 
 a year being allowed to the chaplain, instead of 200/., 
 as heretofore, the chancellor of the exchequer promised 
 to consider the matter. Accordingly, the estimates of 
 the following year proposed to fix the salary at 400/., 
 which has ever since been the recognised allowance of 
 this dignitary : and from that time the situation has 
 been held as a permanent appointment. 11 
 
 The foregoing particulars will show that the Houses 
 of Parliament are at liberty to determine the remunera- 
 tion to be allowed to their own officials, subject to the 
 approval of the Treasury and the consent of the House 
 of Commons. 
 
 But while, as a rule, any direct interference by Par- 
 liament with the exercise of the prerogative of the crown, 
 in the appointment, control, or dismissal of public ser- 
 vants, would be unconstitutional, unless under the 
 
 1 Mir. of Parl. 1838, p. 4491. to Mr. Gurney for expenses of experi- 
 
 m Ib. p. 4541. ments in lighting the House of Com- 
 
 n Ib. p. 5323; 2b. 1839, p. 416, mons, performed under the direction 
 
 Parkinson's Under Govt. p. 54. of a committee of the House, was pro- 
 
 But a motion to declare the nounced by the Speaker to be informal, 
 
 opinion of the House as to the extent without the previous consent of the 
 
 of remuneration that ought to be crown. Mir. of Parl. 1839, p. 5116. 
 
 allowed by the lords of the Treasury
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. 667 
 
 peculiar circumstances already indicated, when it may Enquiries 
 -r-, -, . ^ . 'of mmis- 
 
 become the duty of Parliament to tender advice upon ters. 
 
 the subject ; it is nevertheless agreeable to usage, and of 
 great public advantage, 1 * for enquiries of ministers or 
 desultory discussions to take place, in either House, in 
 reference to the appointment and control of office-holders, 
 in particular instances, when a direct motion on the 
 subject would be objectionable. In this way opportu- 
 nity is afforded to the administration to explain and 
 defend the propriety of appointments, which may have 
 been subjected to misrepresentations by the press or the 
 public at large. 
 
 On June 8, 1860, a member called the attention of the House of 
 Commons (without making any motion) to the unfavourable position 
 and inferior rate of pay of the civil assistants of the Ordnance Sur- 
 vey, compared with that of other public servants. His remarks were 
 favourably received by the ministry, and the alleged grievance shown 
 to have no real existence.*! On March 4, 1861, enquiry was made of 
 the ministry whether a person, recently appointed to a lucrative 
 office, had received the same in acknowledgment of political services 
 rendered by his father to the Liberal party. Lord Palmerston replied 
 that he was ' unable to answer the question.' r 
 
 On May 2, 1862, a member having moved for and obtained a 
 return of the services of the late barrack-master at Sheffield, and the 
 retiring allowance granted to him, enquired why he and others 
 similarly circumstanced had been allowed such a paltry pittance, when, 
 the treasury had legal power to grant double the amount. In reply 
 the secretary of the Treasury gave satisfactory explanations on the 
 point. 8 
 
 On April 2, 1869, the attention of the House was called to the 
 appointment of a person as deputy-master of the mint, in apparent 
 disregard of the civil service regulations ; but satisfactory explana- 
 tions were given by Mr. Disraeli, and endorsed by Mr. Gladstone.* 
 
 p Mr. Gladstone, Hans. D. v. 196, long standing in service, Ib. v. 169, 
 
 p. 40. p. 572. This appointment afterwards 
 
 q Ib. v. 159, p. 568. See cases of gave rise to a motion for papers, in 
 
 Messrs. Barker & Jopp, Ib. v. 161, order 'to show to the country the 
 
 pp. 1217, 1220. facts connected therewith ' ; but, be- 
 
 r Ib. v. 161, p. 1307. ing opposed by government, the mo- 
 
 5 Ib. v. 166, p. 1183. See enquiry tion was negatived on division. Ib. 
 
 into Mr. Reed's case, as to his in- v. 172, p. 1139. 
 
 tended appointment to office in navy * Ib. v. 195, pp. 31-41. 
 department over heads of others of
 
 668 
 
 THE ROYAL PREROGATIVE 
 
 Prece- 
 dents. 
 
 Mr. 
 
 Spencer 
 
 Perceval. 
 
 The following precedents will serve to explain and 
 confirm the statements made in this section, and will 
 explain under what circumstances parliamentary inter- 
 ference with this branch of the prerogative has hereto- 
 fore taken place : 
 
 I. As TO THE APPOINTMENT, DISMISSAL, OR CONTROL OP 
 PUBLIC OFFICERS. 
 
 In 1807, in the interval between the resignation of the Grenville 
 ministry and the accession to office of that of the Duke of Portland, 
 it was rumoured that it was the intention of the king to offer the 
 situation of chancellor of the duchy of Lancaster to Mr. Spencer 
 Perceval, as an inducement to that eminent statesman to accept the 
 responsible, but then insufficiently paid, office of chancellor of the 
 exchequer in the new ministry. It had been heretofore the usual 
 (though not invariable) custom to confer this office during pleasure, 
 but as a means of compensating Mr. Perceval for relinquishing a 
 lucrative profession for the service of the crown, the king proposed 
 that he should hold it for life. Whereupon, on March 25, a member 
 of the House of Commons moved an address to the king that he 
 would be graciously pleased not to grant the office in question, ' or 
 any other office not usually granted for life, for any other term than 
 during pleasure.' During the discussion of this motion, Mr. Perce- 
 val took the opportunity of stating that it was true the king had 
 made him this offer under the circumstances alleged, but that in 
 order to prevent his Majesty from being fettered by any advice the 
 House of Commons might give, he had resolved not to take advan- 
 tage of the offer, but that he should be prepared to give his services 
 to the crown in any political capacity notwithstanding. The 
 motion for the address was supported by the leading members of the 
 late administration, who took the ground that it was not a restric 
 tion upon the royal prerogative, but rather in the interest of the 
 king, who should not be advised to give any places for life, but to 
 keep them at his own disposal to reward his faithful servants from 
 time to time. The address was agreed to by a large majority, and 
 ordered to be presented to his Majesty by such members of the 
 House as were of the privy council." Agreeably to constitutional 
 usage no reply was given by the king until after the formation of 
 his new ministry, when he was pleased to send down the following 
 answer : ' His Majesty acquaints his faithful Commons that he will 
 take the subject of their address into his most serious consideration, 
 and thinks it proper, at the same time, to inform them that he has 
 
 u Par!. D. v. 9, pp. 194-220.
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. 
 
 G69 
 
 thought it fit to provide that in a grant now to be made of the office Prece- 
 of chancellor of the duchy of Lancaster, the office shall be conferred dents. 
 only during his royal pleasure. His Majesty assures his faithful 
 Commons that, in the execution of the powers with which he is 
 intrusted by law to grant certain offices for life, as in the exercise 
 of all the prerogatives of his crown, his conduct will at all times be 
 governed by an anxious attention to the public interest and welfare.' v 
 ' Accordingly, Mr. Perceval, who had accepted the chancellorship of 
 the exchequer, held the situation of chancellor of the duchy of 
 Lancaster conjointly therewith, and also during pleasure. ' w Since 
 that time, this office, which may be regarded as a sinecure, has been 
 always held by a member of the administration. 
 
 In 1809, an enquiry was instituted by the House of Commons, The Duke 
 upon the motion of Colonel Wardle, into the conduct of H.R.H. the f York. 
 Duke of York, the then commander-in-chief, who was charged with 
 conniving at the corrupt sale of military commissions for the advan- 
 tage of a woman by the name of Clarke, with whom he had had a 
 dishonourable connection. The duke was defended by the chancellor 
 of the exchequer, Mr. Perceval, who succeeded in carrying an 
 amendment exculpating his royal highness from any guilty partici- 
 pation in Mrs. Clarke's proceedings. The duke, however, resigned 
 his command of the army ; whereupon the House resolved to pro- 
 ceed no further in the matter. 1 But two years afterwards, in May 
 1811, the duke was reappointed to office. This gave rise to a motion of 
 censure which was submitted to the House of Commons on June 6. 
 It was opposed by ministers, who pleaded his royal highness's fit- 
 ness for the post, and his personal popularity with the army, and 
 urged that the former proceedings of the House were not meant to 
 operate as a perpetual disqualification, and did not, in fact, affix any 
 stigma upon his character. The motion was accordingly negatived 
 by a large majority.? 
 
 Shortly before the meeting of Parliament, in 1812, the prince Colonel 
 regent was advised to bestow upon his faithful servant, Colonel McMahon 
 McMahon, the office of paymaster of widows' pensions. The aboli- 
 tion of this office, as being in the nature of a sinecure, had been 
 recommended, so far back as 1783, by the commissioners for public 
 accounts : and again by the commissioners of military enquiry, in 
 1808. The House of Commons resolved, in 1810, that it was expe- 
 dient to abolish all sinecures, and at the same time ' to enable 
 his Majesty to reward in a different way those who had filled high 
 
 v Com. Jour. v. 62, p. 305. 
 
 w Walpole's Life of Perceval, v. 1, 
 p. 243. 
 
 * Parl. Deb. March 17 and 20, 1809. 
 For particulars of this discreditable 
 case, Walpole, Life of Perceval, v. 
 
 1, pp. 305-331. Colchester's Diary 
 v. 2, pp. 166-176. Le Marchant 
 Life Earl Spencer, c. vi. 
 
 v Le Marchant, Life of E. Spencer 
 p. 131.
 
 670 
 
 THE ROYAL PREROGATIVE 
 
 Prece- 
 dents. 
 
 Lieut. - 
 general 
 of the 
 ordnance. 
 
 effective civil offices.' Regarding Colonel McMahon as one whose 
 services merited a public remuneration, and no other means having 
 been provided by Parliament for the purpose, the ministry recom- 
 mended that he should be appointed to the office in question ; sub- 
 ject, however, to any decision that Parliament might come to for the 
 reformation or abolition of the office. On January 9, 1812, the case 
 was brought before the House of Commons, upon an amendment to 
 postpone the motion to go into committee of supply, which, after a 
 long debate, was negatived. On February 22, an amendment was 
 submitted in committee of supply, to reduce the proposed grant for 
 pensions to officers' widows, by the amount intended to be given as 
 salary to Colonel McMahon. This also was negatived by a majority 
 of 16. But upon the report of the resolutions of supply on the fol- 
 lowing day, the said amendment was again proposed and agreed to 
 by a majority of 3. z This vote occasioned the abolition of the sine- 
 cure. The ministry then advised the appointment of Colonel McMahon 
 to the office of keeper of the privy purse, and private secretary to 
 the prince regent, with a salary to be defrayed by the Treasury. On 
 April 14, Mr. Wynn moved for a copy of this appointment with a 
 view to proposing a resolution of censure thereupon, on the ground 
 that it was unconstitutional for the reigning monarch to have a 
 private secretary. The motion was negatived by a large majority. 
 But, on June 15, ministers informed the House that the prince regent 
 had directed the salary of Colonel McMahon to be paid out of his 
 privy purse. Whereupon all further opposition to the appointment 
 ceased, and the gallant colonel was permitted to retain it until the 
 day of his death. a 
 
 In 1823, a motion was made by Mr. Hume in the House of Com- 
 mons to condemn the filling up of a vacancy in the office of lieuten- 
 ant-general of the ordnance, the said office having been declared by 
 a royal commission to be unnecessary ; an amendment was -proposed 
 for the appointment of a select committee to enquire into the duties 
 of this office, and the expediency of abolishing it, which was nega- 
 tived ; after which the main question was negatived on division. 1 " 
 On March 29, 1830, in committee of supply on the ordnance esti- 
 mates, Sir James Graham moved an amendment to reduce the vote 
 to defray the ordnance salaries by the amount payable to the lieu- 
 tenant-general, with a view to obtain the abolition of the said office; 
 the amendment was negatived on division. But in the following 
 year the office was abolished. d 
 
 Parl. Deb. v. 21, pp, 114, 906, 
 
 931. 
 
 See ante, p. 296. 
 
 b Parl. Deb . N.S. v. 8, pp. 110, 
 140-171. 
 
 Mir. of Parl. 1830, pp. 1099-11 13. 
 See a similar motion on March 12, 
 
 1830, concerning the office of trea- 
 surer of the navy, which was nega- 
 tived. Ib. p. 735. In 1835, pursuant 
 to the Act 5 & 6 Will. IV. c. 35, this 
 office was merged into that of pay- 
 master-general. 
 
 d Haydn, Book of Dignities, p. 192,
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS, 671 
 
 On April 16, 1832, an attempt was made to induce the House of Pi-ece- 
 Commons to interpose in a case where the colonial secretary (exer^- dents, 
 cising the discretion vested in him by an Act of Parliament) had Colonial 
 refused to grant an extension of leave of absence to a colonial clergy- secretary- 
 man. It was moved to resolve that, for certain reasons therein* 
 stated, it was the opinion of the House that this clergyman should 
 be allowed an additional six months' leave, without prejudice to his- 
 salary. The under- secretary for the colonies opposed the motion > 
 he showed that much indulgence had already been granted to this- 
 gentleman ; and declared that it would be quite contrary to the 
 practice of the House to interfere with the government in such a. 
 matter. Accordingly the motion was negatived. 6 
 
 In 1837, Mr. Hume, being desirous of impugning the recent Corn- 
 appointments of commander-in-chief and military secretary, pro- 
 posed, on the consideration of the report from the committee of 
 supply on the army estimates, an amendment to reduce the vote 
 by the amount of the respective salaries of these officers ; but Mr. 
 Wynn (a very high authority) declared that this course was neither 
 ' regular nor constitutional ' ; and, if successful, would lead, not to- 
 the substitution of one individual for another as commander-in- 
 chief, but to the abolition of the office. He considered that the 
 object the mover had in view amounted to an improper interference 
 with the prerogative of the crown in appointments to office ; adding, 
 that ' it is undoubtedly the right of the House to allot what sum it 
 may think proper for the expenses of the army : but if a charge is 
 intended against any individual, it ought to be stated intelligibly 
 and directly, in the form of an address.' The amendment was then 
 put and negatived.' 
 
 In 1841, objection being taken in the House of Commons to the Solicitor 
 creation of a new office, that of solicitor to the Home Department, ^^ Iome: 
 and a resolution proposed that such an office was unnecessary ; it 
 was urged, in reply, that the proper time to make the objection 
 would be in committee of supply, when a vote would be submitted 
 to defray the salary of the same. Accordingly, the motion was 
 withdrawn, and the objection renewed in the debate on the esti- 
 mates. But the government having promised to enquire into the 
 matter, no further action took placed 
 
 Mir. of Parl. 1831-2, p. 1863. Meath. Hans. D. v. 159, p. 1533. 
 f Ib. 1837, p. 861. See a similar And that of new offices created in 
 
 proceeding in 1868, to condemn a 1869 and 1873. Ib. v. 195, p. 80 ; 
 
 certain legal appointment made by v. 216, p. 1287. The ordinary prac- 
 
 one of the judges. Hans. D. v. 192, tice now is, to call in question new 
 
 p. 497. appointments by amendments to re- 
 
 * Ib. 1841, p. 1509. Ib. 1841, sess. duce votes in committee of supply on 
 2, p. 351. See also the case of the behalf of the same. Ib. v. 229, p. 
 crown solicitor for the county of 1311.
 
 672 
 
 THE ROYAL PREROGATIVE 
 
 Prece- 
 dents. 
 
 Sir T. 
 
 Sir P. 
 Maitland. 
 
 In 1838, upon the appointment of the Earl of Durham to the 
 office of governor-general of Canada, his lordship was accompanied 
 
 to Quebec by a gentleman named T (afterwards Sir T. T ), 
 
 who had been convicted of adultery several years previously, but 
 had since filled situations of honour and responsibility. In conse- 
 quence of his high legal attainments and general ability, Lord Durham 
 
 appointed Mr. T. as one of his secretaries, and gave him a seat 
 
 in the executive council. When his lordship's appointments gene- 
 rally came under review by the home government, they were all 
 
 approved of with the exception of that of Mr. T . Meanwhile 
 
 enquiry had been made in the House of Lords, whether it was true 
 that this individual had been appointed to an office by Lord Durham. 
 At first it was denied by the government, but when it was clear 
 from the Canadian journals that such an appointment had taken 
 place, the government declared that they had received the intelli- 
 gence ' with surprise and regret.' h Subsequently, the government 
 remonstrated with Lord Durham for what he had done, but his 
 lordship replied that he took the whole responsibility upon himself 
 and would rather resign his own office than suffer it to be cancelled. 
 Thus far had the correspondence proceeded the government being 
 unwilling ' to disturb Lord Durham's government by actually insist- 
 ing' on the rescinding of this appointment when more serious events 
 occurred in Canada, which led to the retirement of Lord Durham 
 
 from his post. Mr. T accompanied his lordship home. But 
 
 the matter was not allowed to drop here. The question was again 
 brought under notice of the House of Lords after the Earl of Dur- 
 ham had resumed his seat in that assembly in 1839, 1 and a motion 
 was made for an address to the crown for correspondence on the 
 subject. Upon that motion the foregoing explanations took place : 
 and the prime minister (Lord Melbourne) having stated that the 
 correspondence in question had been principally private and un- 
 official, the mover expressed himself satisfied with the regret ex- 
 pressed on the part of the government that such an objectionable 
 appointment should have been made, and withdrew his motion.' J 
 
 On August 13, 1839, a motion in the House of Lords for the 
 production (with other papers) of a letter from Sir Peregrine Mait- 
 land, tendering his resignation of the command of the Madras 
 army, and of his seat in the Indian Council, was objected to by the 
 administration, because there was no charge against the ' character 
 and conduct ' of that officer, and nothing which called for a vindi- 
 cation of either. Whereupon the mover consented not to press his 
 motion, so far as this letter was concerned. 11 
 
 h Mir. of Parl. 1838, pp. 6181, 5517. ' Ib. 1839. p. 307. 
 
 J Ib. pp. 353-359. k Ib. p. 4976.
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. 673 
 
 In 1844, a petition having been presented to the House of Com- 
 mons from a Mr. Heathcote, complaining of his dismissal, by the 
 secretary of state, from the office of sub-inspector of factories, 
 upon a false charge, founded upon misapprehension, it was moved 
 'that the petition be taken into consideration. The mover admitted 
 ' that in most cases it was inexpedient for the House to interfere 
 with the exercise of that discretionary power which must be pos- 
 sessed by every government over its subordinate officers,' and that 
 in his opinion, ' the only cases to justify the interference were when 
 the head of the department did not seem to have been in possession 
 of the facts of the case, or that he had laboured under some misap- 
 prehension. ' l The home secretary (Sir James Graham) opposed the 
 motion ; giving, however, explanations of the matter complained of, 
 while at the same time protesting against the House being ' converted 
 into a court of appeal against the executive : for if he were to be 
 responsible for the duties that he performed, he must exercise them 
 according to his own conscience and judgment with reference to the 
 dismissal of officers who held their offices during pleasure, and with 
 whose public conduct he was dissatisfied.' m Whereupon the motion 
 was negatived. 
 
 On April 19, 1853, after the accession to office of the Aberdeen 
 administration, the government acquiesced in a motion made by an 
 independent member of the House of Commons, for the appointment 
 of a select committee to ' enquire into the exercise of the influence 
 and patronage of the Admiralty, in the dockyards, and public de- 
 partments, connected with the several parliamentary boroughs,' 
 -it having been alleged that this patronage had been made use of, 
 for political purposes, by persons officially connected with the Derby 
 administration." The committee reported to the House on May 23, 
 with minutes of evidence in regard to the several branches of the 
 enquiry. They showed that, prior to the year 1847, corrupt practices 
 in regard to appointments and promotions to office were very preva- 
 lent in the dockyards ; but that, on February 27, 1847, an Admiralty 
 order was issued, in the form of a circular, insisting upon the in- 
 troduction and maintenance of a system of promotion, to depend 
 solely upon merit and efficiency. This was followed up, in 1849, by 
 another circular to the same general effect, which was backed by a 
 personal appeal from Sir Francis Baring, the then first lord of the 
 Admiralty, to the superintendents and principal officers of the dock- 
 yards, that they would give him an assurance that they would not 
 interfere in politics. These measures semed to have worked very 
 successfully, But when the Derby ministry came into power, the 
 circular of 1849 was cancelled, with a view to favour the interests 
 
 1 Hans. D. v. 76, p. 1623. 
 m Ib. pp. 1634. 1640. 
 
 VOL. I. 
 
 Ib. v. 126, pp. 33-122. 
 
 Prece- 
 dents. 
 
 Mr. Heath- 
 cote. 
 
 Patronage 
 of Board 
 of Admi- 
 ralty. 
 
 X X
 
 674 THE EOYAL PREROGATIVE 
 
 Prece- of the party in power ; and though but few political appointments 
 appear to have been uiade, they were sufficient in number to ' sub- 
 vert the confidence of the men, and render nugatory all the solemn 
 assurances of circulars issued by the Admiralty, to the effect that 
 men should rise by merit, and not by political influence.' The com- 
 mittee imputed blame for these transactions principally to Mr. Staf- 
 ford, the then secretary of the Admiralty, to whom the first lord, 
 upon his accepting office, had given up ' all the civil patronage, 
 excepting the master shipwrights, and one class of messengers, 
 which he reserved for deserving sailors and marines.' Recently, the 
 circular of 1849 was restored, and its provisions rendered more 
 secure by being embodied in an order in council. The committee 
 concluded with a recommendation that should the system under 
 which promotions in the dockyards are now again regulated be 
 hereafter altered, Parliament should be informed thereof as soon as 
 possible. On July 5, 1853, a motion was made in the House of 
 Commons, that referring to said report and evidence, ' this House 
 is of opinion that, during the administration of the late board of 
 Admiralty, the patronage of dockyard promotions, and the influence 
 of the Admiralty, were used and exercised for political purposes, to 
 an extent, and in a manner calculated to reflect discredit upon that 
 department of the government, and to impair the efficiency of the 
 service.' p In order to get rid of this charge, an amendment, impli- 
 cating ' every administration of the Admiralty ' in a similar offence, 
 was proposed. After a short discussion, a motion to adjourn the 
 House was carried, and the debate was never again resumed.i On 
 May 30, the dockyard committee were instructed by the House to 
 Case of consider the case of Lieutenant Engledue, R.N., who in 1840 had 
 Lt. Engle- been struck off the list of lieutenants of the royal navy for an act 
 of insurbordination. Upon several occasions, afterwards, at dif- 
 ferent times, Mr. Engledue memorialised the Board of Admiralty 
 to restore him to his former position, but was invariably refused. 
 However, on November 30, 1852, he again renewed his application, 
 and on December 22 he was informed that he was at liberty to 
 memorialise the Queen in council to be reinstated. This permission 
 was given two days after the Derby ministry had announced that 
 they only held office until their successors were appointed. The 
 memorial was sent in, favourably entertained, and referred to the 
 Admiralty. On January 4, 1853, the Queen's approval was given 
 to the restoration of Mr. Engledue. On the 6th inst. before the 
 transaction was quite completed, a new board of Admiralty was 
 
 Report on Dockyard Appoint- q Ib. pp. 1321-1325. See, also in 
 
 raents: Coin. Pap. 1852-3, v. 25, pp. this connection, the Churchward case, 
 
 3-14; Hans. D. v. 125, p. 595. which is described in another chapter, 
 
 f Hans. D. v. 128, pp. 1290-1311. post, p. 772.
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. 075 
 
 appointed. Nevertheless the appointment was confirmed. But soon Prece- 
 afterwards papers in relation to this case were moved for in the dents - 
 House of Commons, and being transmitted, were referred to the 
 committee on dockyard appointments, it having been alleged that 
 political influence had been made use of to procure the restoration 
 of Mr. Eiigledue to his former rank in the service, notwithstanding 
 the repeated refusals of the Admiralty to reinstate him. 1 ' The com- 
 mittee carefully investigated the circumstances of the case, in view 
 of which they reported, on July 26, their opinion ' that the restora- 
 tion of Mr. Engledue to his former rank in the royal navy was not 
 a judicious proceeding.' But they added, that notwithstanding their 
 attention having been called to the peculiar time when the applica- 
 tion was granted, ' they have not heard any evidence which shows 
 that this favour was bestowed from any political or unworthy 
 motives.' 8 
 
 In 1855, a motion was made in the House of Commons, for the 
 appointment of a committee to enquire into ' the grounds and 
 justification of ' the removal from office of the Right Hon. T. F. *J r - T - I? - 
 Kennedy, a commissioner of woods and forests, and a privy coun- en 
 cillor, who was dismissed from office by Mr. Gladstone, chancellor 
 of the exchequer, because ' he could not serve the public with credit 
 therein,' and had treated his subordinates improperly and unfairly, 
 so that the government could not be responsible for his conduct. 1 
 The motion was opposed by Mr. Gladstone (though he had, mean- 
 while, retired from office) on the ground that it was : entirely con- 
 trary to parliamentary usage and injurious to the public service,' 
 and that ' no primd facie ground had been established for it.' u Ad- 
 mitting the abstract right of the House to institute such an enquiry, 
 in conformity with the resolution of 1784, v nevertheless 'he found 
 that the practice of the House had been uniformly to decline en- 
 quiring into the removal of public servants, when the removal had 
 taken place according to law, and according to the apparently con- 
 scientious judgment of those who, by law, were made responsible 
 for the conduct of such public servants.'" Viewing the motion as 
 intended ' to impugn his conduct while in office, in one of the most 
 important functions belonging to a minister,' Mr. Gladstone declared 
 that he should abstain from voting on it. Accordingly, after an 
 elaborate speech, he withdrew. x The secretary of the Treasury 
 (Mr. Wilson) defended the dismissal, and said, it would be impos- 
 sible to carry on the work of government if the House were to 
 assume a right to review every transaction of this kind, although 
 
 r Hans. D. v. 126, p. 87(3. v See ante, p. 416. 
 
 s Com. Pap. 1852-3, v. 25, p. 471. w Hans. D. v. 136, pp. 1998-2001 
 
 * Hans. D. v. 136, p. 1991. Ib. pp. 1992-2011. 
 
 u Ib. p. 2010. 
 
 x x 2
 
 676 
 
 THE ROYAL PKEROGATIVE 
 
 Prece- 
 dents. 
 
 Civil Ber- 
 vice com- 
 mis- 
 sioners. 
 
 if a primd Jacie case of injustice was made out it ought not to be 
 overlooked. 'y Lord Palmerston acquitted Mr. Kennedy of any 
 conduct reflecting on ' his honour, his veracity, or his character/ 
 but nevertheless resisted the motion, as a dangerous precedent, and 
 contended that ' a discretion must be left in the hands of the 
 servants of the crown as to removing from office those whom they 
 thought incompetent ' for their duties : adding, that ' if the House 
 were to establish as a precedent that any man removed from a 
 situation was to appeal to his friends in the House of Commons, 
 and obtain a verdict as to the propriety of his removal, there would 
 be an end of all discipline in the service of the state.' 2 Satisfied 
 with the acknowledgment that Mr. Kennedy's honour stood per- 
 fectly unimpeached, the mover consented to withdraw his motion. a 
 
 A discussion arose in the House of Commons on the case of 
 Mr. Chisholm Anstey, who was removed from his office of attorney- 
 general of Hong Kong for ' his violent temper and want of discre- 
 tion ' in his conduct to his superior the governor of the island, to 
 whom he had shown ' an excess of personal animosity and want of 
 respect. ' b See also the debates in both Houses of Parliament, in 
 1863, upon the removal of two judges in the Ionian Islands, by the 
 authority of the lord high commissioner, and with the sanction of 
 the secretary of state for the Colonies. Pursuant to an address of 
 the House of Lords of April 17, papers on this subject were laid 
 upon the table ; but as the reasons for the removal of these func- 
 tionaries did not clearly appear from the same, further papers con 
 taining ' any charges of conduct inconsistent with their judicial 
 office ' were moved for in the House of Lords on July 9. This 
 motion was opposed by the government, on the ground that it was 
 ' a most dangerous precedent ' to authorise an appeal to Parliament 
 from acts of responsible ministers in the execution of the law, and to 
 require the production of confidential communications from the high 
 commissioner to his superiors in office, and of letters from other 
 persons intended to be confidential, without their consent. Never- 
 theless, as the sense of the House was in favour of the motion, the 
 government gave way, and allowed it to pass without a division. 
 After the production of the papers, no further action was taken in 
 the matter by either House. 
 
 In 1860, a motion for papers was made in the House of Com- 
 mons, which involved an attempt to induce the House to review the 
 decision of the civil service commissioners, in respect to a candi- 
 date rejected upon examination before them. The government pro- 
 tested against such an interference with public servants engaged 
 in a judicial enquiry, as being unprecedented and unjustifiable. 
 
 T Hans. P. v. 136, p. 2029. 
 2b. p. 2031. 
 
 Ib. p. 2032. 
 
 b 76. v. 172, pp. 993-999.
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. 677 
 
 ' If,' it was said, ' it can be shown that the commissioners were 
 not worthy of the confidence of the government, or of this House, 
 that they act with unfairness, or are incompetent, from literary or 
 other disqualifications, then let the House interfere by an address 
 to the crown to remove them from their offices.' The motion was 
 negatived. Subsequently the House refused to direct these com- 
 missioners to publish certain information with their annual report, 
 on the ground that they were not amenable to the jurisdiction of 
 the House, but only to the crown itself. d 
 
 On March 4, 1861, it was moved in the House of Lords, that a 
 select committee be appointed to enquire into the circumstances 
 attending the appointment and resignation of Mr. Turnbull to a 
 place in the Record Office ; but the motion was opposed by the 
 government, and negatived. 6 
 
 On July 15, 1861, it was moved in the House of Lords to 
 resolve that it is desirable, without delay, to restore the consular 
 authority at Mozambique, in order to aid in repressing the slave- 
 trade on the eastern coast of Africa. [In the previous session the 
 House had addressed the crown, requesting that a consul might 
 be re-appointed at this place ; but as yet the government had not 
 done so.] The aforesaid motion was opposed by the under-secre- 
 tary for foreign affairs, on the ground that it was an undue en- 
 croachment on the functions of the executive, and not a case in 
 which Parliament should interfere. He added that the address 
 last year had been carried by surprise, and because the ministry, 
 not anticipating a division, had allowed their supporters to leave 
 "the House. After these explanations, the motion was withdrawn/ 
 
 A Bill, introduced by Mr. Whiteside, in 1865, to alter the con- 
 stitution, &c. of the Irish Court of Chancery, contained a clause 
 providing that certain judicial offices in the said court should be 
 conferred upon persons at present holding other offices of high posi- 
 tion. This was opposed by the attorney-general, who said that it 
 would not be ' for the public advantage to set the example of naming 
 in Acts of Parliament the persons who were to be appointed to par- 
 ticular posts about to be created, instead of leaving the appoint- 
 ments to the crown, acting under the guidance of its responsible 
 advisers. He did not think it advisable that these appointments 
 should be made in the House of Commons, because nothing could 
 
 Prece- 
 dent?. 
 
 Mr. 
 bull. 
 
 c Hans. D. v. 158, pp. 892-907. 
 
 d Ib. p. 2083. And see Ib. v. 170, 
 p. 23. See further, as to the inter- 
 ference of Parliament with Commis- 
 sioners appointed by the crown to 
 conduct an enqirry, post, vol. 2. 
 
 e Ib. v. 161, p. 1271. See also Ib. 
 
 Consul at 
 Mozam- 
 bique. 
 
 Irish 
 Court of 
 Chancery. 
 
 p. 2101. And see the case of Mr. 
 Reed's appointment, Ib. v. 172, p. 
 1138. 
 
 f Ib. v. 164, p. 855. See a 
 similar proceeding in the H. of C. in 
 the case of the consulship at Pesth. 
 Ib. p. 1001.
 
 678 THE ROYAL PREROGATIVE 
 
 be more invidious than to invite personal discussions as to the 
 fitness of individuals for particular offices.'^ The Bill was shortly 
 afterwards withdrawn. 
 
 On April 29, 1870, it was moved in the House of Commons that 
 a select committee be appointed to enquire into and report on all the 
 circumstances which led to the resignation by Colonel Boxer of the 
 office he held in the royal laboratory. The government had laid a 
 paper on this subject before the House ; and they gave full explana- 
 tions of the course pursued ; but viewing this motion as an attack 
 on the War Department, they gave it ' an uncompromising opposi- 
 tion.' After debate, the motion was withdrawn. 
 
 On May 13, 1870, a resolution was proposed in the House of 
 Commons, censuring the ' abrupt discontinuance ' of the services of 
 Mr. Barry, the architect hitherto employed at the Houses of Parlia- 
 ment, and declaring the same to have been an uncalled-for proceed- 
 ing, and of doubtful expediency. The action of government was 
 explained and defended by the first commissioner of works, who was 
 specially responsible for Mr. Barry's dismissal. And Mr. Gladstone 
 (the premier) pointed out the bearing of the motion on the principle 
 of parliamentary responsibility, urging that nothing could more effec- 
 tually relax and destroy the responsibility of ministers, and weaken 
 the power of the House to control the public expenditure, than an 
 attempt to intimate to the government the man whom they should 
 employ. After a long debate, the motion was negatived, on a 
 division. 11 
 
 On February 15, 1872, a vote of censure upon government was 
 proposed in the House of Lords for the proceedings taken in the 
 appointment of Sir A. P. Collier to the judicial committee of the 
 privy council, contrary to the spirit and intention of an Act passed 
 in 187 1. 1 After a long debate, an amendment, acquitting the 
 government of blame, was carried, by a majority of one. On Feb- 
 ruary 19, a vote of censure, in the same terms, was moved in the 
 House of Commons, but a similar amendment was agreed to, by a 
 majority of 27. An informal discussion took place in the House of 
 Commons on March 8, 1872, upon the appointment of a clergyman 
 to the crown living of Ewelme, under circumstances alleged to be at 
 variance with the directions of an Act of Parliament. 
 
 On May 7, 1872, a vote of censure was moved in the House of 
 Commons upon the government for the appointment of a non-resi- 
 dent to be lord-lieutenant of the county of Clare. After a long 
 debate, the motion was negatived on division. 
 
 Hans. D. v. 177, p. 811. See h Ib. v. 201, pp. 670-729. 
 
 filso Mr. "Walpole's observations on ' Com. Pap. 1872, v. 50, p. 200. 
 
 this point, Ib. v. 178, p. 525. And see &c. 
 Jb. v. 184, p. 526. And ante, p. 143.
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. 679 
 
 II As TO THE REMUNERATION OF PUBLIC EMPLOYES. 
 
 On May 20, 1828, a motion was made in the House of Co 
 for a return of pensions granted on the English Civil List ; but the 
 
 motion was opposed by the ministry, on the ground that it was a 
 principle to maintain inviolate the arrangements made with the 
 crown respecting the civil list, which had been granted for the life- 
 time of the sovereign ; and that unless the civil list shall become in 
 such state as to render it necessary to apply to Parliament for assis 
 tance, or unless some special case of abuse is made out, the House 
 have no right to enquire into details of this kind. On division, the 
 motion was negatived.J 
 
 The next case that will engage our attention under this head is 
 one which occurred in 1830, when the Grey Ministry, immediately 
 upon their appointment to office, took the initiative, and invited the 
 House of Commons to appoint a committee to consider the amount 
 of the salaries and emoluments payable to members of the adminis- Official. 
 tration holding seats in either House of Parliament ; pledging them- 
 selves to abide by the recommendations of the committee on the 
 subject. The chancellor of the exchequer (Lord Althorp), in moving 
 for this committee, on December 9, stated that, while it was neces- 
 sary, in point of form, that his name, as the mover, should be in- 
 cluded, he hoped he would be excused for non-attendance, as the 
 government were desirous that the committee should be exclusively 
 composed of independent members, and altogether free from the 
 suspicion of government influence. k [Two members of the late 
 ministry were placed on the committee in order that they might be 
 able to give details as to official business. They consented to attend 
 for this purpose, but refused to act as ordinary members of the com- 
 mittee. 1 ] His lordship cited a precedent for this course, in 1806, 
 when the then chancellor of the exchequer, in appointing a committee 
 to enquire into the state of the finances, selected no one to serve 
 thereon who was an office-holder under the crown. Lord Althorp's 
 committee reported on March 30, 1831, recommending very con- 
 siderable reductions in official salaries, which were agreed to by the 
 government, and the estimates for the ensuing year framed in accor- 
 dance therewith. [The committee having recommended a reduction 
 of the salary of the president of the board of control, which had been 
 acquiesced in by the government, an independent member of the 
 House of Commons, on September 29, 1831, moved a series of 
 resolutions declaring the inexpediency of reducing this salary from 
 5,000?. per annum at which it had been fixed since 1810, to 3,5001. as 
 
 J Mir. of Parl. 1828. pp. 1585-1 593. k Mir. of Parl. 1830, p. 439. 
 
 1 Ib. pp. 611), 1285.
 
 680 
 
 THE ROYAL PREROGATIVE 
 
 Prece- 
 dents. 
 
 Lord 
 Douglas. 
 
 Customs 
 salaries. 
 
 proposed by the committee. The government, however, opposed this 
 motion, and the previous question was put thereon and negatived. 
 But in 1853 the salary was again raised to 5,000?. per annum, pur- 
 suant to the directions of the Act 16 & 17 Viet. c. 95, sec. 33, that 
 this officer should be paid as much as other principal secretaries of 
 state.] But it would appear that this enquiry was not regarded as 
 sufficiently complete, for on April 12, 1850, on motion of Lord 
 John Russell (the first lord of the treasury) a similar committee was 
 appointed to consider of the diplomatic establishments, and the 
 salaries and retiring allowances of the judges ; although the proposal 
 to refer the question of official salaries to a select committee, instead 
 of determining upon them in council, with the experience and on the 
 responsibility of the government, was strenuously opposed in the 
 House. The only minister who sat upon this committee was the 
 mover himself. The committee reported on July 25th, their recom- 
 mendations in regard to official salaries were few and unimportant, 
 as in their opinion the reductions made after the report of the 
 committee in 1831, had gone far enough. 11 Upon the other branches 
 of enquiry several important recommendations were made. The 
 report was ordered to lie on the table and be printed. Before the 
 next meeting of Parliament, the government undertook, upon their 
 own responsibility, and according to their own judgment, to decide 
 upon the manner in which they would deal with the various recom- 
 mendations contained therein. 
 
 On March 14, 1871, a motion was made in the House of Com- 
 mons by an independent member, for the appointment of another 
 committee to enquire into the salaries of members of Parliament 
 holding office under the crown. It was urged that these salaries 
 required to be equalised, and in some cases increased. But Mr. 
 Gladstone (prime minister) having declared that no case had been 
 made out to justify either augmentation or re-distribution of official 
 salaries, the motion was negatived without a division.? 
 
 On May 8, 1833, Mr. Hume moved an address to the crown, 
 praying that the law-officers might be instructed to enquire into the 
 validity of a pension or sinecure office granted by his late Majesty 
 George IV. to Lord Douglas, contrary (as he alleged) to an agree- 
 ment between the crown and Parliament : with the consent of the 
 government the motion was agreed to."* Ministers afterwards inti- 
 mated their intention to apply to the Court of Session to set aside 
 the grant. r 
 
 On July 30, 1834, a petition was presented to the House of 
 Commons from certain commissioners of customs, complaining of the 
 
 m Mir.of Parl. 1813, pp. 2531-2530. 
 n Com. Pap. 1850, v. 15, p. 179. 
 Hans. D. v. 11 (i, p. 548. 
 
 Ib. v. 204, pp. 1985-2003. 
 Mir. of Parl. 1833, p. 1681. 
 Ib. p. 3592.
 
 IN EEGARD TO OFFICES AND PUBLIC OFFICERS. 081 
 
 reduction of their salaries under a treasury minute. The petitioners Prece- 
 admitted that ' the question of salaries rests exclusively with the dents - 
 executive, and ought not to be brought before Parliament/ but they 
 claimed that theirs was an exceptional case, and one of peculiar 
 hardship. The chancellor of the exchequer characterised this as ' a 
 most unusual and extraordinary proceeding,' but proceeded to show 
 that the petitioners had no just grounds of complaint in the present 
 instance. Members generally acknowledged ' the extreme inexpe- 
 diency ' of ' making the House a court of appeal in questions of this 
 sort.' Even Mr. Hume, that staunch supporter of the people's rights, 
 declared that he ' could not conceive anything more mischievous ' 
 than for the House to interfere where it had not a right to do so ; 
 and that the House was ' called upon to decide whether the legisla- 
 ture or the executive should determine what salaries are to be given 
 to the servants of the public.' The petition was by leave with- 
 drawn. 8 
 
 On May 1, 1838, Mr. Hume moved for leave to bring in a Bill to Pension to 
 suspend the payment of the annuity granted by Act of Parliament jj^wver. 
 to H.R.H. the Duke of Cumberland, so long as he should continue 
 king of Hanover, being of opinion that it was inexpedient and un- 
 called-for to continue a pension granted to an English prince after he 
 had become an independent sovereign. The motion was opposed by 
 the chancellor of exchequer (Mr. T. Spring Rice), on the ground that 
 the annuity had been granted for the term of ' the natural life ' of 
 his royal highness, and that Parliament had no right to put a new 
 construction on the grant, so as to deprive him of it. This view was 
 sustained by the House, and the motion rejected. Similar motions 
 were again proposed by Mr. Hume, on March 27, 1840, and on June 
 30, 1843, but were opposed by the ministry on the same grounds as 
 before, and negatived by the House. 
 
 On February 27, 1840, the attention of the House of Commons Sir John 
 was directed to the grant of a pension to Sir John Newport, on his ewpo ' 
 retirement from the office of comptroller of the exchequer. This was 
 an office which was held under a statute ' during good behaviour.' 
 It was wholly independent of the crown, and did not entitle the in- 
 cumbent to receive a pension on his relinquishing office. It had been 
 held by Sir John Newport for five years only, previous to which he 
 had performed various public services during a long public career, 
 but none of them of a nature that authorised him to claim a retiring 
 allowance. The government, however, being desirous of rewarding 
 Sir John's long and faithful services, determined upon his retirement 
 from the comptrollership to allow him a pension of 1,000. a year out 
 of the royal bounty fund, which was set apart, under the Act 1 & 2 
 Viet. c. 2, to enable the crown to reward persons who had just claims 
 
 9 Mir. of Parl. 1834, pp. 3101-3104.
 
 682 
 
 THE EOYAL PREROGATIVE 
 
 Prece- 
 dents. 
 
 Superan- 
 nuation 
 allowance. 
 
 Eev. Dr. 
 
 Morrison. 
 
 on the royal beneficence for discoveries in science, &c., or the per- 
 formance of special duties to the crown or public. This proceeding 
 was called in question in a series of resolutions submitted to the 
 House, setting forth that the peculiar office lately held by Sir John 
 Newport disqualified him from the receipt of a pension from the 
 crown ; that it was contrary to the spirit and intent of Parliament 
 in respect to civil service pensions to allot him an annuity for public 
 political services out of a fund set apart for the reward of merit of a 
 different kind ; and that, for these and other reasons set forth, the 
 House deems it expedient to express its decided opinion that the 
 pension in question ought not to be drawn into precedent. The 
 ministry met these resolutions by an amendment, asserting the nature 
 and value of Sir John Newport's services upon which his claim to a 
 retiring allowance was based, and declaring that, on reviewing the 
 whole case, 'this House is satisfied that the grant of a pension to a 
 retired comptroller of the exchequer, in circumstances so peculiar, 
 cannot be drawn into precedent.' The House, however, was not 
 satisfied with the explanations and excuses of ministers, but passed 
 the original resolutions by a majority of twenty-eight. 1 
 
 In 1840, a retired public servant petitioned the House of Com- 
 mons, complaining of the insufficiency of his superannuation allow- 
 ance, and declaring that he was legally entitled to a larger amount. 
 A motion to refer this petition to a committee was opposed by the 
 chancellor of the exchequer, who explained the merits of the case, 
 and said that ' it would have a very bad effect on the public service 
 if the House should interfere with the retired allowances of public 
 officers.' The motion was negatived on a division." 
 
 On March 26, 1844, a motion was made in the House of Com- 
 mons for an address to the Queen, requesting that a suitable provision 
 might be made for the widow and children of the late Rev. Dr. 
 Morrison, on account of the eminent public services in China of the 
 doctor and of his eldest son, both deceased. The prime minister 
 (Sir R. Peel) fully admitted the value of the services rendered to the 
 country by the Morrisons, but declared that the rule in respect to 
 pensions to civil servants could not be extended to this family, and 
 that there was no other means available for the purpose ; adding that 
 1 the House should be exceedingly cautious how they established a 
 precedent in such a case of special interference with the conduct of 
 the executive government, and in some degree with the prerogative 
 of the crown.' The motion was accordingly withdrawn. v 
 
 On April 8, 1862, the attention of the House of Commons was 
 
 * Mir. of Parl. 1840, p. 1323. 
 u Ib. 1840, p. 1810. 
 
 * Hans. D. v. 73, p. 1581. See, 
 also, a discussion in the H. of C. 
 
 Hans. D. v. 161, pp. 938-946, on 
 Feb. 26, 1861, on an address to the 
 Queen respecting forage allowances 
 to cavalry officers.
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. 683 
 
 called to the case of the clerks and officers of the late Insolvent Prece- 
 Debtors Court, whose interests had been injuriously affected by the 
 operation of the Bankruptcy Act of 1861. The ministry stated that Officers of 
 it was not their intention to introduce any measure for the relief of p 1S u] v ^ nt 
 these persons, but that they would offer no objection to the reference Court, 
 to a select committee of any petition setting forth their claims ; and 
 that they would agree to carry out any recommendation from such 
 committee as to the amount of compensation which should be awarded 
 to these persons. Whereupon a select committee was appointed 
 accordingly, which reported on July 9. Pursuant to this report, a 
 Bill for the relief of these complainants was introduced, and passed 
 into a law. w 
 
 On July 22, 1862, Sir George Bowyer moved the House of Com- Post Office 
 mons for the appointment of a committee to enquire into alleged 
 grievances complained of in a petition from upwards of 1,500 persons 
 in the post office department. The chancellor of the exchequer (Mr. 
 Gladstone) opposed the motion, ' as being of a most dangerous char- 
 acter, not only to the good order of the post office department, but 
 to the entire public service.' 'The question had been settled by com- 
 petent authority, namely, the executive government.' ' If the House 
 thought the executive government to blame, let them take the proper 
 course and pronounce their censure upon them ; but he was satisfied 
 that no worse policy could be adopted than for the House to take 
 into its own hands the management of the public services.' Sir S. 
 Northcote (a leader of the opposition) ' entirely assented to this 
 doctrine, that it was most mischievous for the House of Commons 
 to take out of the hands of the government the details of arrange- 
 ments made in the various departments.' The motion was accord- 
 ingly withdrawn.* 
 
 On March 6, 1865, Mr. Ferrand (who represented a large dock- Dockyard 
 yard constituency) called the attention of the House to the great 3rs> 
 
 inequality and inadequacy of the wages paid to men employed in 
 the Royal Dockyards, with a view ' to elicit an expression of opinion 
 by the House which would induce the Admiralty who had hitherto 
 refused redress to take their most reasonable claims into considera- 
 tion.' The alleged grievances were explained away by the Secretary 
 to the Admiralty, who called upon the House not to countenance 
 the principle of interference with the discretion of government in 
 the remuneration of public servants, at the instigation of members 
 whose constituents were in the receipt of wages from the public 
 treasury. The subject was then dropped. y 
 
 " 25 & 26 Viet. c. 99. See the " Ib. v. 177, p. 1136. Also case 
 
 case of Divorce Court proctors, ante, of third class clerks in Admiralty, Ib* 
 
 p. 637. v. 196, p. 1621. 
 
 1 Hans. D. v. 168, p. 672.
 
 684 
 
 THE ROYAL PREROGATIVE 
 
 Prece- 
 dents. 
 
 Customs 
 officers. 
 
 Test- 
 masters. 
 
 Registrar 
 of Leeds 
 Bank- 
 ruptcy 
 Court. 
 
 On April 28, 1865, a motion was made in the House of Com- 
 mons to refer a petition from certain merchants of Liverpool com- 
 plaining of the inadequate remuneration of the out-door officers of 
 Customs, to a select committee to enquire into the alleged griev- 
 ances. The chancellor of the exchequer (Mr. Gladstone) admitted 
 that if any public servant could complain of any grievance by 
 reason of the acts of the government, ' it was the duty of the 
 government to render an account of their proceedings to the House, 
 and it would be perfectly within the rules of prudence to risk an 
 enquiry by a committee.' Nevertheless, the executive government 
 should be held responsible for the regulation and the pay of the 
 public servants, and nothing would tend so much to the disorganisa- 
 tion of the public service, or do more to lower the character of the 
 House of Commons, than any attempt to take this duty out of the 
 hands of government. Upon an assurance that the grievance com- 
 plained of should receive the attention of government, the motion 
 for a committee was negatived on division. 21 
 
 On May 12, 1865, a motion was made in the House of Commons 
 to declare the expediency and propriety of increasing the salaries 
 of postmasters, upon whom additional labour had been imposed by 
 the establishment of post office savings banks. The secretary of 
 the treasury and the chancellor of the exchequer explained that 
 the Government were considering all cases of hardship arising from 
 this cause, and were dealing with them equitably ; but that they 
 were not prepared to introduce any wholesale and sweeping change 
 in the present system. Whereupon the motion was withdrawn.* 
 
 On May 15, 1865, enquiry was made of the attorney-general as 
 to the circumstances attending the resignation of Mr. H. S. Wilde 
 of the office of registrar of the court of bankruptcy at Leeds, and 
 the appointment of his successor, and in regard to the act of lord 
 chancellor Westbury in sanctioning the grant of a retiring pension 
 to Mr. Wilde, though his conduct in office had disentitled him to 
 any such advantage. 1 * On the following day, the papers connected 
 with Mr. Wilde's resignation of office were ordered to be laid before 
 the House, and on May 19 were ordered to be printed. On May 
 23, with the consent of the government, and especially of the lord 
 chancellor, who caused it to be stated that he courted enquiry into 
 the matter, a select committee was appointed to enquire into all 
 the circumstances attending Mr. Wilde's resignation of office, the 
 grant to him of a pension, and the appointment of his successor. 
 Subsequently it was agreed that this committee should be nominated 
 
 * Hans. v. 178, p. 1205 ; and see engineers, Ib. v. 197, p. 134. 
 
 Ib. v, 180. p. 671. b If>. v. 179, p. 293; and see p. 
 
 ^ Ib. D. v. 179, pp. 194-206. 489. 
 
 See case of civil officers of the royal c Com. Jour. May 16.
 
 IN REGARD TO OFFICES AND PUBLIC OFFICERS. 685 
 
 by the general committee of elections, and should consist of five Prece- 
 
 ordinary members, and two additional members being lawyers, who dents - 
 
 should be empowered to examine witnesses and conduct the case on 
 
 either side, but should not have a right to vote. d On June 22, the 
 
 report of this committee was brought up, and ordered to lie upon 
 
 the table, and to be printed. The report, which was accompanied 
 
 by copious evidence, acquitted the lord chancellor of all charge but 
 
 that of haste and want of caution in granting a pension to Mr. 
 
 Wilde. Nevertheless the committee recorded their opinion, that 
 
 the general impression created by the sudden retirement of Mr. 
 
 Wilde, and the pecuniary transactions which took place between 
 
 Mr. Bethell (the eldest son of the lord chancellor) and Mr. Welch, 
 
 who was appointed to succeed Mr. Wilde, ' were calculated to excite 
 
 the gravest suspicions,' and that their investigation had been 
 
 'highly desirable for the public interests.' 6 On July 3, a motion, 
 
 to resolve that the conduct of the lord chancellor in reference to 
 
 the appointments in the Leeds Bankruptcy Court and in the case of Mr. L. 
 
 Leonard Edmunds/ which had been reported upon by a committee Edmunds - 
 
 d Hans. D. v. 179, pp. 781-785. 
 The committee decided upon con- 
 ducting their enquiry with closed 
 doors. Ib. v. 180, p. 881. 
 
 e Rep. Com. Leeds Bankruptcy 
 Court, p. x. Com. Pap. 1865, v. 9. 
 
 f On Feb. 14, 1865, Leonard Ed- 
 munds, reading clerk and clerk of com- 
 mittees of the House of Lords, peti- 
 tioned the House for leave to resign his 
 office, and for the grant of a retiring 
 allowance. The petition was presented 
 by the lord chancellor, upon whose 
 motion the resignation was accepted, 
 and the petition referred to the select 
 committee on the office of the clerk 
 of the Parliaments, &c. On Feb. 17, 
 the lord chancellor acquainted the 
 House that he had appointed his 
 second son (the Hon. Slingsby 
 Bethell), to the office vacated by Mr. 
 Edmunds, which appointment was 
 approved of by the House. On the 
 same day, the committee reported in 
 favour of allowing to Mr. Edmunds 
 the usual retiring pension, which 
 report was agreed to by the House 
 on Feb. 24. On March 7, the lord 
 chancellor, being moved thereto by 
 various discreditable rumours which 
 were afloat, informed the House of 
 certain circumstances connected with 
 the conduct of Mr. Edmunds while 
 
 holding a situation in the patent 
 office, and subsequently when in the 
 employ of the House, which de- 
 manded investigation. Whereupon, 
 on his lordship's motion, a select 
 committee was appointed to enquire 
 into all the circumstances connected 
 with Mr. Edmund's resignation of 
 both the said offices, and with the 
 grant of a retiring pension to him by 
 the House. This committee reported 
 on May 2. On May 9, on motion of 
 Lord Redesdale, a member of 'the 
 pension committee,' a passage from 
 the report of the committee ol' enquiry 
 was read, which appeared to reflect 
 upon the previous committee for 
 recommending a pension to Mr. 
 Edmunds, without duly considering 
 the imputations upon his conduct. 
 Lord Redesdale then moved two 
 resolutions, to exonerate the ' pension 
 committee ' from all blame in the 
 matter. After a long debate, the 
 previous question was put thereon, 
 and negatived ; and the resolution of 
 the House of Feb. 24, agreeing to the 
 recommendation of the committee in 
 favour of a retiring allowance of 8001. 
 per annum to Mr. Edmunds, was re- 
 scinded. Before putting this motion 
 to the vote, a petition was presented 
 to the House from Mr. Edmunds that
 
 G86 THE ROYAL PREROGATIVE 
 
 of the House of Lords, a copy of whose report had been laid before 
 dents. -j-jj-g jj ouse was ' highly reprehensible, and calculated to throw dis- 
 credit on the administration of the high offices of state,' was moved 
 by Mr. Hunt : to this an amendment (of which no notice had been 
 given) was proposed by the lord advocate, acquitting the lord 
 chancellor from all charge except that of haste and want of caution 
 in granting a pension to Mr. Wilde, but declaring the opinion of the 
 House that some further check should be placed by law upon the 
 grant of pensions to the holders of legal offices. Previous to the 
 commencement of the debate, Mr. Bouverie had given notice that 
 he should move, as an amendment to the main motion, to resolve, 
 that this House, having considered the report of the committee on 
 the Leeds Bankruptcy Court, and the evidence, &c., are of opinion 
 that, while the evidence discloses the existence of corrupt practices 
 with reference to the appointment of P. R. Welch to the office of 
 registrar of the said court, they are satisfied that no imputation can 
 fairly be made against the lord chancellor with regard to this 
 appointment ; but that such evidence and also that taken before 
 the Lords' committee on the circumstances connected with the re- 
 signation by Mr. Edmunds of the offices held by him, ' show a laxity 
 of practice and a want of caution with regard to the public interests 
 on the part of the lord chancellor in sanctioning the grant of re- 
 tiring pensions to public officers against whom grave charges were 
 pending, which, in the opinion of this House, are calculated to dis- 
 credit the administration of his great office.' The lord advocate's 
 amendment was first proposed ; but, although Mr. Bouverie's amend- 
 ment was not technically before the House and could not be dis- 
 cussed until it should be moved, its terms were known, and generally 
 preferred by those who took part in the debate, including Mr. Hunt, 
 the mover of the main motion. K The question, ' that the words pro- 
 posed to be left out [i.e. Mr. Hunt's motion] stand part of the 
 question,' was therefore put and negatived without a division. On 
 the question that the lord advocate's amendment be then added, 
 Lord Palmerston (the premier) moved, that the Debate be now 
 adjourned. This was negatived on division by a majority of 14. 
 Lord Palmerston thereupon agreed to accept this division as con- 
 clusive in favour of Mr. Bouverie's amendment. The lord advo- 
 cate's amendment was accordingly put and negatived, and then Mr. 
 
 he might be first heard, by counsel, successful attempt to induce the 
 
 in his defence ; but Earl Granville House of Lords to re-open the ques- 
 
 (the leader of the House) said that tion, see Law Majr. N. S. v. 28, p. 
 
 he felt it impossible to accede to this 374. Com. Pap. 1872, v. 5, p. 196, 
 
 roijuust. For the final result of the &c. Hans. D. v. 216, p. 963 ; v. 220, 
 
 proceedings instituted by government p. 1500. 
 against Mr. Edmunds, and his un- Hans. D. v. 180, pp. 1C92, 1117.
 
 IN REGARD TO OFFICES A T D PUBLIC OFFICERS. 087 
 
 Bouverie's amendment was agreed to without a further division. Prece- 
 On the following day, Lord Palmerston announced that, owing to " ents - 
 this vote, Lord Chancellor Westbury had tendered his resignation, 
 which had been accepted, and that he would merely retain the seals 
 for a few days for the convenience of public business. 11 On July 5, 
 the lord chancellor informed the House of Lords of his resignation. 
 He added that, had he followed his own judgment, he would have 
 retired from office when the charges were first raised against him, 
 as he felt that the holder of the Great Seal ought never to be in 
 the position of an accused person. But he had been dissuaded 
 from this step by the prime minister, who said it would not do to 
 admit this as a principle of public conduct, for the consequence 
 would be that whoever brought up an accusation would at once 
 succeed in driving the lord chancellor from office. Since then he 
 had repeatedly pressed his resignation upon Lord Palmerston, but 
 without satisfying him that the time had come when it should be 
 accepted, until after the vote of the House of Commons on July 3, 
 which had determined him no longer to consent to retain office. 1 
 In the session of 1866 an Act was passed requiring the lord chan- 
 cellor to transmit to the lords of the treasury all applications for 
 superannuation allowances on retirement of which he may approve, 
 from any officer connected with the court of chancery, or in bank- 
 ruptcy or lunacy, or any of the superior courts of common law, 
 and empowering the treasury to decide thereon.J This statute is 
 intended to take away from the lord chancellor the absolute right 
 which he had hitherto enjoyed, and .to give to the treasury the 
 power of determining upon the report of the lord chancellor the 
 amount of pension to which any such officer is entitled by law upon 
 his retirement. k 
 
 On July 4, 1873, a resolution was carried, in the House of Com- 
 mons, on division (against the Government) in favour of redressing 
 the present inadequate scale of salaries of the civil servants in 
 Ireland. Whereupon ministers undertook to appoint a depart- 
 mental committee to enquire into this matter. 1 
 
 On May 12, 1874, the House of Commons was moved to appoint 
 a select committee to consider the salaries, &c., of the officers 
 of the two Houses of Parliament, with a view to their being more 
 equitably apportioned. The mover pointed out that salaries in the 
 
 h Hans. D. p. 1103. had been filed against Mr. Welch and 
 
 1 Ib. p. 1174. On Feb, 13, 1866, the Hon. R. Bethell for corrupt 
 
 the Attorney-General informed the practices in obtaining, or attempting 
 
 House that, in accordance with the to obtain, a judicial appointment. 
 
 recommendation of the Leeds Bank- J 29 & 30 Viet. c. 68. 
 
 ruptcy Court Committee in tbe pre- k Hans. D. v. 183, p. 1938. 
 
 vious session, criminal informations ' 76. v. 216, p. 1860; v. 217, p. 149.
 
 688 PREROGATIVE IN REGARD TO OFFICES. 
 
 Preee- Lords offices were relatively much higher than in the Commons 
 offices. But the chancellor of the exchequer deprecated the motion 
 as an objectionable interference with the discretion of the House of 
 Lords, and the motion was negatived. m 
 
 On June 14, 1877, the attention of the House of Lords was 
 called to a hardship resulting from the transfer of Mr. W. Woods 
 from the treasury to the colonial office, whereby, through no fault of 
 his own, his pecuniary interests had been injuriously affected. The 
 colonial secretary agreed to lay before the House papers on this 
 matter ; but severely censured Mr. Woods for printing and circulat- 
 ing amongst members certain confidential minutes in relation to 
 his case. n 
 
 "> Hans. D. v. 219, p. 184. n Ib, v. 234, p. 1753.
 
 THE ROYAL PREEOGATIVE IN REGARD TO SUPPLY. 689 
 
 CHAPTER XVI. 
 
 PREROGATIVE IN REGARD TO SUPPLY AND TAXATION. 
 
 WE have next to consider the prerogative of the Preroga- 
 crown in regard to supply and taxation, and the con- g^to" 
 stitutional rights of Parliament in reference thereto. supply 
 
 . -, and taxa- 
 
 The true doctrine on this head has been briefly tion. 
 stated by May, in the following words : ' The crown, 
 acting with the advice of its responsible ministers, 
 being the executive power, is charged with the manage- 
 ment of all the revenues of the country, and with all 
 payments for the public service. The crown, therefore, 
 in the first instance, makes known to the Commons the 
 pecuniary necessities of the government, and the Com- 
 mons grant such aids or supplies as are required to 
 satisfy these demands ; and provide by taxes, and by 
 the appropriation of other sources of the public in- 
 come, the ways and means to meet the supplies which 
 are granted by them. Thus the crown demands money, 
 the Commons grant it, and the Lords assent to the 
 grant. But the Commons do not vote money unless it 
 be required by the crown ; nor impose or augment 
 taxes unless they be necessary for meeting the supplies 
 which they have voted, or are about to vote, and for 
 supplying general deficiencies in the revenue. The 
 crown has no concern in the nature or distribution of 
 taxes ; but the foundation of all parliamentary taxation 
 is its necessity for the public service, as declared by 
 the crown through its constitutional advisers.' a 
 
 a May. Parl. Prac. pp. 650, 651 ; ed. 1883. See also Mill, Rep. Gov. p. 9Q t 
 VOL. I. Y y
 
 690 THE EOYAL PREROGATIVE 
 
 In entering upon a more detailed investigation of 
 the relative functions of the Crown and of Parliament 
 in the matter of supply, it is proposed to divide the 
 subject into three parts, and to consider, first, the con- 
 stitutional restrictions upon Parliament in respect to 
 (a) supply and (b) taxation ; secondly, in the following 
 chapter, the rights and privileges of Parliament, and 
 especially of the House of Commons, in the grant of 
 money for the public service ; and thirdly, in vol. ii., 
 the oversight and control of the public expenditure. 
 
 I. (a) The Restrictions upon Parliament in matters 
 of Supply. 
 
 NO supply According to ancient constitutional doctrine and 
 grafted practice, no moneys can be voted by Parliament for 
 mamfof 6 ' ^J P ur P ose whatsoever, except at the demand and 
 the crown; upon the responsibility of ministers of the crown. b 
 
 In former times, when any aids and supplies were 
 required for the public service, the crown made known 
 its wants to the House of Commons by message ; this 
 message was taken into consideration by the Commons, 
 and the necessary supplies were voted by that House, 
 according to its discretion. This mode of procedure in 
 obtaining grants of money admitted of no exception. 
 It therefore left no opportunity to any private member 
 to introduce any scheme of his own whereby any 
 charges would be made upon the people. But in the 
 beginning of the last century a specious evasion of this 
 constitutional rule crept in. The wholesome system of 
 exchequer control in the custody of public moneys 
 which afforded protection alike to the crown and to the 
 Parliament against illegal appropriations was made 
 the occasion of attempts to induce the crown, by the 
 
 b Hats. Free. v. 3, p. 168. Hearn, Gladstone's speeches, Hans. D. v. 181, 
 Govt. of Eng. pp. 349-851, Mr. p. 1131 ; Ib. v. 182, p. 697.
 
 IN REGARD TO SUPPLY. 691 
 
 exercise of parliamentary influence, to sanction expen^ 
 ditures that were extravagant and unjustifiable. Find- 
 ing that there was generally a balance of public money 
 remaining in the exchequer, as yet unappropriated to 
 any specific service, there was a growing disposition 
 on the part of private members to regard this money 
 as available for any purpose they might be disposed to 
 favour. Petitions were presented to the House from orpeti- 
 
 , . . . ,. tions for 
 
 various persons claiming pecuniary assistance or relief ; pecuniary 
 which being often promoted by members who were 
 friends to the parties, and carrying with them the 
 appearance of justice or of charity, induced the House 
 to approve, or at utmost to be indifferent to their 
 success. By this means large sums were granted to 
 private persons improvidently, and sometimes upon 
 insufficient grounds. In the year 1705 this abuse 
 became so notorious, that early in the next session, on 
 December 11, 1706, before any petitions of this sort 
 could be again offered, the House resolved, ' That they 
 would receive no petition for any sum of money relat- 
 ing to public service, but what is recommended from 
 the crown.' This resolution was made a standing order 
 on June 11, 1713, and amended, June 25, 1852, to 
 bring it into conformity with existing practice, by the 
 substitution of a new order to declare, ' That this House or motions 
 will receive no petition for any sum of money relating ^Jf^f 
 to public service, or proceed upon any motion for en . ter - 
 granting any money, but what is recommended from 
 the crown. ' d 
 
 The House was informed by a member of the petitions com- 
 mittee, on March 20, 1866, 'that there was hardly a meeting of 
 that committee at which petitions were not rejected, on account 
 
 e Hats. Prec. v. 3, p. 242. Mr. to this rule, see Mir. of Parl. 1837 
 
 Ayrton's speech on proposing the new p. 259. Ib. 1837-8, p. 2026; 1839* 
 
 supply order, on March 20, 1866. p. 123. The standing order of June' 
 
 Hans. D. v. 182, p. 591. 1852, was extended to charges upon 
 
 d For cases illustrating the strict- the Indian revenues, by standing 
 
 ness with which the II. of 0. adheres order of July 21, 1856. 
 
 X Y 2
 
 692 THE ROYAL PREROGATIVE 
 
 of their praying for a grant of public money, or some similar 
 informality. 6 
 
 The uniform practice of the House has construed 
 this rule to extend to any motion which involves the 
 expenditure of public money, even though it may not 
 directly propose a grant.* 
 
 And although the House is not precluded from 
 appointing a select committee to enquire into any 
 alleged grievance or matter of complaint against the 
 or reports government/ it has been held that a select committee 
 cannot recommend that public compensation should be 
 made to individuals for losses incurred, unless the same 
 had been previously sanctioned by the crown . h 
 
 In several similar instances committees have evaded the rule by 
 the use of general terms in favour of the relief they desired to 
 recommend. 1 But the rule does not apply to select committees on 
 public questions, appointed at the instigation, or with the consent, 
 of government. Such committees may recommend the adoption of 
 anything within their order of reference, notwithstanding that their 
 recommendations may involve the expenditure of money .J 
 
 This is a striking proof of the strictness with which 
 this rule is enforced ; as the mere report of a com- 
 mittee, though entitled to respectful consideration, does 
 not bind the House to anything, unless it be formally 
 agreed to by the House itself. 
 
 But while the House of Commons has invariably 
 maintained the principle embodied in the foregoing 
 standing order, so far as it was directly applicable, the 
 ingenuity of members has discovered a way of practi- 
 
 Hane D. v. 182, p. 601. v. 174, p. 1460. Baron de Bode's 
 
 ' May, Parl. Prac. 1883, p. 652. case, post, pp. 697 and 705. 
 
 The recommendation of the crowo is h Fourdrinier's case, Com. Jour. 
 
 signified either by a message under June 15, 1837 ; and see liana. D. v. 
 
 the sign-manual, or by a formal uoti- 166, p. 710. 
 
 fication by a minister of the crown. ' May, Parl. Prac. ed. 1883, pv 
 
 Hans. D. v. ] 05, p, 471. 3 Hats. Prec. 662. 
 
 pp. 169, 196. J Rep. Sel. Com. on Dockyards. 
 
 * Fourdrinier's Patent, Com. Jour. Com. Pap, 1864, v. 8 ; and see post, 
 
 v. 92, p. 309. Mir. of Parl. 1837, p. p. 698, 
 
 1888. Claims of J. Clare, Hans. D.
 
 IN REGARD TO SUPPLY. 
 
 cally evading it. Of late years it has become customary Bill .s n 
 to permit the introduction of bills by private members public 
 which, though not professedly in the nature of money char s ea 
 bills, do yet necessitate, to a greater or less extent, the 
 imposition of new charges upon the people, the precise 
 extent of which cannot always be estimated at the out- 
 set. These Bills have been either for the construction 
 of certain public works, or for the establishment or 
 encouragement of certain new institutions, or they have 
 proposed to grant new salaries to officials to be ap- 
 pointed under the Bill, or to grant compensation or aid 
 to individuals, or associations for various causes assigned. 
 But whatever may be the precise object of these Bills, 
 inasmuch as they establish grounds of expense, they 
 are an evasion of the constitutional rule which forbids 
 the grant of money by Parliament, except at the appli- 
 cation of the crown. In order to admit of the pro- 
 posed grant without a direct violation of constitutional 
 practice, Bills of this description invariably contain a 
 clause to the effect that the necessary expenses to be 
 incurred thereby should be ' defrayed out of moneys to 
 be hereafter voted by Parliament.' The facilities attend- 
 ing the introduction of such Bills has frequently induced 
 ministers themselves to take advantage of this mode of 
 obtaining the sanction of Parliament to their legislative 
 measures. Moreover, under certain circumstances, and 
 with a view to facilitate the progress of public business, 
 Bills of this class have even been permitted to originate 
 in the House of Lords. 
 
 Provided that any clauses which infringe upon the Sugges- 
 privileges of the Commons are formally struck out of 
 the Bill before it is sent to that House. But for the 
 sake of convenience, and to make the measure intelli- 
 gible, such clauses may be either written, or printed in 
 red ink, in the copy of the Bill which is sent down from 
 the Lords ; in which case they are understood not to 
 form part of the Bill, but to be merely suggestions, to
 
 694 THE ROYAL PREROGATIVE 
 
 Bills im- be offered for the acceptance of the Commons in com- 
 posing . k 
 public mittee. 
 
 While it is obvious that the introduction of such 
 Bills by ministers of the crown is not open to the same 
 objections as when they are brought in by private 
 members, yet it is most desirable that measures of this 
 description should be subjected to careful scrutiny, and 
 that the probable expense they would entail should be 
 duly estimated, and made known to the House by a 
 responsible minister, before it is called upon to sanction 
 them. 1 In 1862 two such Bills, brought in by ministers 
 of the crown, were rejected by the House of Commons, 
 on account of the excessive expenditure they would 
 occasion. 
 
 have been But where such Bills have originated with private 
 of members, they have, as a general rule, been productive 
 f g reat abuse, by encouraging injudicious and extrava- 
 gant expenditure. If the principle of the Bill obtains 
 the sanction of Parliament, the faith of Parliament 
 becomes pledged to the outlay involved, and ministers 
 are obliged to include, in future estimates, distinct pro- 
 vision for the same ; and when the particular grant that 
 is required to carry out any such measure is brought 
 forward in committee of supply, any objection to its 
 principle is commonly met by the assertion that it is 
 useless, if not unfair, to oppose it at this stage, inas- 
 much as Parliament has already agreed that the pro- 
 posed expenditure ought to be incurred. So long as 
 private members are permitted to initiate measures 
 which involve the expenditure of public money without 
 the previous consent of the crown, it would be in vain 
 
 k See Rpt. of Joint Com. on Des- British Museum Bill, Smith, Parl. 
 
 patch of Business with Evidence. Rememb. 1862, pp. 25, 101. See the 
 
 Com. Pap. 1868-9, v. 7. And pro- debate in the Commons, on the 
 
 ceedings on Divorce Court Bill. Public Offices (Site and Approaches) 
 
 Hans. D. v. 160, pp. 1628, 1734, Bill, on March 7, 1865. See post, 
 
 1765. p. 699. 
 
 1 The Kensington Koad Bill, and
 
 IN REGARD TO SUPPLY. - (395 
 
 to expect an economical administration of the public 
 funds. These considerations were brought under the 
 notice of the House of Commons by a private member 
 (Mr. Ayrton) on May 16, 1862, when, after a short 
 debate upon the subject, the chancellor of the exche- 
 quer promised that it should receive the attention of 
 government, and that hereafter a committee should be 
 appointed to review the whole question, and to recom- 
 mend rules to remedy the evils arising from this objec- 
 tionable practice. 111 
 
 The attention of the House was again directed to the injurious 
 consequences of this practice in a speech of the chancellor of the 
 exchequer, on May 22, 1865, in regard to a proposition emanating 
 from a private member, to transfer an annual expenditure of up- 
 wards of two millions on behalf of the poor, from local to public 
 revenues, and to provide that this enormous amount should be 
 thenceforth defrayed ' out of moneys provided by Parliament,' in- 
 stead of being chargeable upon parochial poor rates. 11 
 
 No such committee having been proposed, the sub- 
 ject was again brought up by Mr. Ayrton, on March 20, 
 1866. After adverting to the consequences which had ^ di 
 arisen from the introduction of this novel and uncon- orders to 
 stitutional practice, he proposed in the interest of previous 16 
 economy, and in order that ' the whole responsibility of ^ 
 increasing the public expenditure should be thrown to such 
 upon her Majesty's ministers ' that ' The standing motions 
 order of June 25, 1852, relating to applications for 
 public money, be repealed, and, in lieu thereof, that 
 this House will receive no petition for any sum relating 
 to public service, or proceed upon any motion for a 
 grant or charge upon the public revenue, whether pay- 
 able out of the consolidated fund, or out of moneys to 
 be provided by Parliament , unless recommended from 
 the crown ' ; and that the further standing order of the 
 same date, relating to public aids or charges upon the 
 
 m Hans. D. v. 166, pp. 1839-1848. Gladstones speech, Ib. v. 181, p. 
 Ib. v. 179, pp. 665^696, Mr. 1132.
 
 696 THE ROYAL PREROGATIVE 
 
 people, be repealed, and that, in lieu thereof, it be 
 resolved That if any motion be made in the House 
 for any aid, grant, or charge upon the public revenue, 
 whether payable out of the consolidated fund, or out 
 of moneys to be provided by Parliament, or for any 
 charge upon the people, the consideration and debate 
 thereof shall not be presently entered upon, but shall 
 be adjourned till such further day as the House shall 
 think fit to appoint ; and then it shall be referred to a 
 committee of the whole House, before any resolution or 
 vote of the House do rjass therein.' The proposed new 
 orders were thankfully accepted by the chancellor of 
 the" exchequer, on the part of government, approved of 
 by experienced members, and agreed to by the House. 
 Under these rules a Bill by which it is intended to 
 authorise a charge upon the public revenues may be 
 introduced upon -motion, provided that the money 
 clauses are printed in italics. Thus they form no part 
 of the Bill, but are treated as blanks. Before they are 
 discussed the Queen's recommendation must be signified, 
 and a committee of the whole House appointed to con 
 sider, on a future day, the resolution authorising the 
 charged But whilst private members are not precluded 
 from introducing Bills of this description, it is obvious 
 that it is most desirable that such legislation should, as 
 a general rule, be initiated by ministers of the crown. q 
 Practice And here it may be noticed, that the practice of the 
 
 of Lords House of Lords, in these particulars, is less stringent 
 less strm- than that of the House of Commons. There is no rule 
 or usage of the House of Lords to forbid the presenta- 
 tion, discussion, and reference to a committee of a 
 petition for pecuniary redress or compensation ; or for 
 
 Hans, D. v. 182, pp. 691-603. the standing order. See Hans. D. v 
 
 Notwithstanding the increased strin- 209, pp. 1966, 1996. 
 
 gency of these new orders, the in- v The Speaker, Hans. D. v. 209, p. 
 
 genuity of members has succeeded in 1952. 
 
 evading them by a form of motion q Hans. D. v. 218, p. 690 ; also Ib, 
 
 not directly contrary to the words of v, 220, p. 864.
 
 IN EEGARD TO SUPPLY. 697 
 
 the expenditure of public money in the construction of 
 particular public works, or for grants of money to par- 
 ticular institutions/ And although the House of Lords 
 have no right to initiate measures of taxation, or pro- 
 positions for increasing tne pecuniary burdens of the 
 people, yet they are not constitutionally debarred from 
 instituting enquiries, by their own committees, into 
 financial maitersfor into questions which involve the 
 expenditure of public money. 8 From 1691 to 1703 a 
 great controversy prevailed between the two Houses as contro- 
 to the right of the Lords to institute enquiries into the ^ht'of* 
 public accounts. The Lords stoutly maintained that the Lords 
 they had a right to take cognisance originally of public in^ex" 
 accounts, whilst the Commons denied that there was penditure. 
 any utility in such enquiries.* The consent of the 
 Lords is indispensable to every legislative measure, 
 whether of supply or otherwise, and it is desirable that 
 they should be prepared, by full investigation and free 
 enquiry, to give or withhold their assent intelligently. 11 
 The House of Lords are competent, moreover, to re- 
 commend questions involving the expenditure of money 
 to the consideration of the crown ; but such a recom- 
 mendation must be couched in general terms. 
 
 Thus, on August 4, 1842, a select committee of the House of 
 Lords on the ventilation of the new Houses of Parliament, recom- 
 mended that a sum of 86,OOOZ. should be provided to carry out a 
 plan proposed for that object. v 
 
 In 1852 the House of Lords appointed a select committee to _ 
 enquire into the claims of Baron de Bode for pecuniary relief, in dents, 
 respect to a certain claim against the government as set forth in a 
 
 r Baron de Bode's case, infra, p. places ; and in 1860, on the levying 
 
 705. Hans. D. v. 173, p. 1622 ; v. and assessment of church rates. 
 
 174, p. 962. * Hats. Free. pp. 467-485, 495- 
 
 8 See May's Parl. Prac. ed. 1883, 516. 
 
 p. 647. Lords' Committees were ap- u See Palmer's case, post, p. 703, 
 
 pointed in 1847, to enquire into the Also paper duties case, post, p. 809, 
 
 receipts and charges of the post office, where the relative position of the 
 
 and into the manner of keeping the two Houses, hi regard to questions of 
 
 accounts thereof, and in 1858, on supply and taxation, is discussed, 
 
 spiritual destitution in populous T Lords Jour. v. 74, p. 509.
 
 608 
 
 Recom- 
 menda- 
 tions of 
 the Lords 
 involving 
 expendi- 
 ture. 
 
 petition from the Baron, which had been referred to the committee. 
 The committee reported favourably on the claim. In the following 
 year Lord Lyndhurst moved a resolution, based upon this report, 
 * earnestly recommending this claim to the favourable consideration 
 of the government.' The motion was negatived on its own merits, but 
 its regularity was not disputed. w In 1860, a Lords committee upon 
 floating breakwaters, &c. recommended 'that a sum not exceeding 
 10,000?. be placed at the disposal of the Admiralty,' to enable that 
 department to test any plans for the suitable construction of such 
 works.* On July 5, 1861, Lord Shaftesbury moved an address to 
 the Queen, in favour of the extension, throughout India, of the best 
 systems of irrigation and internal navigation. The previous ques- 
 tion was proposed on this motion, on the ground that the govern- 
 ment were themselves prepared to carry out the principle advocated, 
 as fully as possible, but would consider ' the adoption of such an 
 abstract resolution to be inconvenient.' y 
 
 In 1871 Mr. Gladstone claimed for the House of Lords an equal 
 right with the House of Commons to enquire into the finances and 
 financial administration of India. And though he abandoned his 
 proposal for a joint committee of both Houses on the subject, be- 
 cause it did not meet with general acquiescence in the House of 
 Commons, yet he protested against any attempt to narrow the 
 deliberative functions of the Lords, except on grounds of broad 
 constitutional principle. And subsequently the Duke of Argyll 
 declared that, ' should any suggestion emanate from the Commons 
 committee of which the government or the House of Lords might 
 doubt the propriety, it would be their lordships' duty to institute a 
 full enquiry before passing any measure founded upon it.' z 
 
 On May 9, 1871, a peer moved for an address to her Majesty, on 
 behalf of the widow of the late Captain JBurgoyne, R.N., with a 
 view to her relief from certain pecuniary liabilities incurred by the 
 loss of the ship commanded by her husband. The question was 
 debated on its merits, but ministers having stated that the presenta- 
 tion of the address could lead to no practical result, as it was not 
 competent for the House of Lords to originate motions with regard 
 to grants of money ; also, that the matter was under consideration 
 by government the motion was withdrawn.* 
 
 w Lords Jour. v. 84, pp. 221, 241. 
 Hans. D. v. 122, p. 488 ; v. 129, p. 
 1097. 
 
 ' Ib. v. 167, p. 232. 
 
 i Ib. v. 164, pp. 394, 401. And 
 see a discussion m the H. of Lords, 
 on June 30, 1865, upon a peer calling 
 attention to the claims of naval cap- 
 
 tains on the reserved pay-list under 
 certain orders in council. Ib. v. 180, 
 p. 975. 
 
 Ib. v. 204, pp. 776, 1162. 
 
 Ib. v. 206, pp. 462-467. See 
 also proposed address for measures to 
 repressslave trade in Africa, / b. v. 
 212, p. 1608.
 
 IN REGARD TO SUPPLY. 699 
 
 The House of Commons, in forbidding, by their Wise re - 
 
 _. , j / , , ,v stramtim- 
 
 standing orders and uniform practice interpreting the posedby 
 same, the reception of petitions for pecuniary aid, and JJcJS? 80 
 the presentation of reports from select committees re- monsupon 
 commending the expenditure of public money, have selves, 
 voluntarily assumed a restraint which goes beyond the 
 positive obligation of the constitutional rule that re- 
 quires all grants of money by Parliament to be made 
 only upon the application of the crown. Nevertheless, 
 they have wisely imposed upon themselves this restric- 
 tion, in order to guard against importunate demands 
 from without, and as a check upon the too easy liberality 
 of their own members. The responsibility of recom- 
 mending applications for pecuniary redress or relief to 
 the consideration of Parliament should rest solely upon 
 the executive government, who are strictly accountable 
 for every item of public expenditure, whose especial 
 duty it is, in the interest of the taxpayer, to oppose 
 all unnecessary outlay, and who possess peculiar facili- 
 ties for investigating into the merits of all pecuniary 
 claims. b And it is only a waste of time to encourage 
 premature debates in Parliament upon questions in- 
 volving a grant of money, whether for public or private 
 purposes, before the attention of government has been 
 directed to the merits of the application. 
 
 By a ruling of the Speaker of the House of Assem- 
 bly of the Cape of Good Hope, on June 22, 1882, it 
 was decided that a select committee cannot recommend 
 a specific grant of land, any more than a grant of 
 public money, without the recommendation of the 
 crown. 
 
 Should any case arise wherein it may appear to be Resoiu- 
 the duty of the House to point out to the government SS^s of 
 public charges which ought to be incurred, they have * h House 
 
 MI ill in favour 
 
 still undoubted authority to do so, either by the ofapar- 
 
 Clode, Mil. Forces of the Crown, v. 2, p. 186. 
 
 ticular ex- 
 penditure.
 
 700 
 
 Resolu- 
 tions and 
 addresses 
 on issue of 
 public ex- 
 penditure 
 
 to origi- 
 nate in 
 Commit- 
 tee of 
 
 Supply. 
 
 adoption of a resolution, expressing an abstract opinion 
 in favour of a proceeding which will necessitate a future 
 grant of money, or by agreeing to address the crown 
 to incur certain expenditure, with an assurance of their 
 readiness to make good the same, the House is free' to 
 approach the crown with their constitutional advice in 
 this, as in any other matter of prerogative. An abstract 
 resolution does not finally bind the House to make the 
 grant, and it imposes upon the government the respon- 
 sibility of either accepting or rejecting the recommenda- 
 tion. But this is a right which the House exercises, 
 and should exercise, with very great reserve, and only 
 under peculiar and exceptional circumstances. More- 
 over, the adoption of an abstract resolution, for the 
 express purpose of evading a wholesome rule in matters 
 affecting the public expenditure, should be discouraged 
 as much as possible. 
 
 Addresses from the House of Commons to the crown, 
 requesting an issue of public money for some particular 
 purpose, with the assurance ' that this House will make 
 good the same,' are required, by standing order, to 
 originate in a committee of the whole house. d This 
 ' ancient and truly constitutional method of expressing 
 the desire of the House, that some public charge shall 
 be incurred,' remains unimpaired, notwithstanding the 
 increased restrictions imposed upon the initiation of 
 money charges inj.866. e But such addresses are only 
 justifiable when there is no reason to apprehend that 
 the supposed advance would be disapproved of by the 
 other House of Parliament, whose concurrence is 
 
 See May (citing precedents), 
 Parl. Prac. ed. 1883, p. 654. Hans. 
 D. v. 197, p. 1807 ; v. 205, pp. 340, 
 663, 1871; v. 211, p. 1238. Also 
 Mr. Gladstone's speech on Mr. 
 Ayrton's motion, March 20, 1866. 
 Hearn, Govt. of Eng. p. 350. Also 
 ante, p. 411. 
 
 d May, Parl. Prac. ed. 1883, p. 691. 
 
 e Mr. Gladstone, Hans. D. v. 182, 
 p. 598. Address concerning transit 
 of Venus in 1874. Com. Jour. v. 
 124, p. 404. By the Brit. N. Am. 
 Act, 1867, sec. 64, the Canadian H. 
 of C. is debarred from adopting an 
 address for the advance of public 
 money without a previous recom- 
 mendation from the governor-general.
 
 IN REGARD TO SUPPLY. 701 
 
 necessary to give legal effect to any measure of supply 
 or appropriation. Addresses have generally been 
 adopted upon occasions of urgency which have arisen 
 after the committee of supply has closed its sittings 
 as, in order to submit to the crown a proposal to confer 
 a pecuniary benefit on a particular person ; ortoshow 
 respect to the memory of some illustrious person lately 
 deceased, bv tne erection of a monument to his honour ; 
 or for the purpose of obtaining the co-operation of 
 the crown in a matter affecting the privileges of the 
 House.* 
 
 This mode of obtaining the issue of money is im- Wfien 
 
 JMlViTPSS IS- 
 
 properly resorted to when it is used for the purpose of objection- 
 escaping the necessity for appealing to the House of ^^ 
 Lords for their concurrence, or to compel the govern- 
 ment, contrary to their own judgment, to incur expendi- 
 ture at the mere request of the House of Commons. 
 In such cases it is the duty of the ministry to interpose, 
 and, by asserting the prerogative of the crown, to pro- 
 tect the privileges of the House of Lords from violation, 
 and the public revenue from an unwarrantable outlay. 
 
 After the battle of Navarino, a private member succeeded in 
 inducing the House of Commons, notwithstanding the opposition 
 of the government, to pass an address to the king, that he would 
 graciously consider the claims of the officers and men who fought 
 in this engagement to head-money. These claims had been investi- 
 gated by the government, and rejected on grounds of public policy ; 
 but after the adoption of this address, by a nearly unanimous vote, 
 the government agreed to propose a grant for this purpose in com- 
 mittee of supply ; reiterating, however, their conviction of its in- 
 expediency.* 
 
 If a proposition be submitted to the House of The Com - 
 Commons, on behalf of the crown, for a supply for a sometimes 
 particular service, and an opinion should be generally in f fa 7 our 
 
 -, , ,, TT f f ' IM i of a larger 
 
 expressed by the House in favour of a more liberal grant than 
 
 that re- 
 commen- 
 
 f 3 Hats. Free. p. 178-180, n. prize-money in 1845, but which was ded bythe 
 
 * Mir. Parl. 1834, pp. 2258, 2564, successfully resisted by government. crown - 
 2858. See also case of Chinese Hans. D. v. 82, p. 681.
 
 702 THE ROYAL PREROGATIVE 
 
 appropriation on this behalf than that which has been 
 asked for by the government, while it is confessedly be- 
 yond the power of the House to vote a larger sum of its 
 own accord, the ministry, in deference to the opinion of 
 members, will sometimes agree to submit a motion for 
 the increased amount suggested ; h or will undertake to 
 reconsider the matter, and to apply to Parliament for 
 a further grant, at a future period, should it appear 
 expedient so to do. 
 
 In 1838, the government proposed, in supply, a vote of 10,000. 
 for the relief of the distressed Poles. An opinion in favour of a 
 larger amount was unanimously expressed by the committee, but it 
 was admitted that constitutional usage forbade a motion to that 
 effect being made, except by the ministry. The chancellor of the 
 exchequer at first defended the smaller sum, but finally agreed to 
 re-consider the question. 1 Accordingly, the estimates next year 
 included an additional sum of 15,000. for this service. 
 
 ^ n ^ * n or( ^ er to elicit an expression of parliamentary 
 take the opinion upon some doubtful question involving pecuniary 
 
 sense of - , . ,.<. ,, . , . . -f 
 
 Pariia- outlay, or to justify their own decision on some apph- 
 ment - cation for pecuniary aid, the ministry will occasionally 
 communicate the formal consent of the crown to the 
 discussion by the House of a motion concerning the 
 same, without contemplating any further proceedings 
 in the case. Or, a desultory debate may be permitted 
 to take place in either House of Parliament upon a 
 question of this kind, without any formal motion. Or, 
 a motion may be proposed to express in general terms 
 the opinion of the House upon the merits of the case, 
 
 h See case of the provision on be- p. 1479 ; v. 212, p. 1676. But no 
 
 half of the widow and children of grant recommended, salary proposed, 
 
 Spencer Perceval, Walpole'a Life of or other item in estimates can be in- 
 
 Perceval, v. 2, p. 303. The proposed creased, except upon recommendation 
 
 grant for purchase of an annuity for of the crown. May, Parl. Prac. ed. 
 
 the Duke of Wellington, when go- 1883, p. 673. But see ante, p. 646w, 
 
 vernment recommended a vote of and post, p. 756. It may be reduced 
 
 300,OOOZ. ; but, in deference to the in committee of supply, or by the 
 
 wishes of the House, consented to ask House itself, as in case of Prince 
 
 for 400.000/. for this purpose. (Hans. Albert's annuity. Mir. of Parl. 1840, 
 
 D. v. 27, p. 831.) See also case of pp. 364, 380, 449. 
 
 Sir II. Havelock, Ib. v. 151, p. 2355. ' Mir. of Parl. 1838, p. 5875. 
 And that of Lady Mayo, Ib. v. 210,
 
 IN REGAED TO SUPPLY. 703 
 
 without directly asserting that any grant of money is - 
 required. 3 By such a course, the constitutional over- 
 sight of Parliament in all pecuniary transactions of the 
 government may be exercised, consistently with a due 
 regard for the prerogative of the crown. 
 
 The following precedents may serve to illustrate this- 
 branch of our enquiry. 
 
 The first case that will claim our notice is that of Mr. Palmer, 5fr. 
 which engaged the attention of Parliament for a number of years. Balmar. 
 
 This gentleman, originally the manager of a country theatre,, 
 conceived a plan for the improvement of postal communication 
 throughout the kingdom, which, being communicated to Mr. Pitt, 
 he appointed him comptroller -general of the post office, with full 
 power to carry out his proposed reforms. These were so successful 
 that in a few years the postal system was greatly benefited, and the 
 revenues from the same largely increased. It was at first agreed ta 
 reward Mr. Palmer by a grant for life of two and a-half per cent, 
 on a certain proportion of the increased net revenue, which would 
 eventually have given him some 10,000?. per annum. But, after 
 a time, Mr. Palmer's conduct in office became insubordinate and 
 objectionable, and the government were obliged to dismiss him. 
 In so doing, they cancelled the agreement under which the per- 
 centage on the increased postal revenues had been awarded to him, 
 and gave him, in lieu thereof, a pension of 3,000?. a-year. Not 
 satisfied with this amount, and claiming the continuance for his 
 lifetime of the per-centage in question, he appealed to the House of 
 Commons, by petition, in the year 1807. Government allowed the 
 king's recommendation to the petition to be signified, for the pur- 
 pose of obtaining an enquiry into the case by a committee of the 
 House. A favourable report thereon was made on July 13, but 
 nothing further was done until the next session, when, by permission 
 of the government (who continued, however, to oppose the claim), 
 a Bill was introduced into the House of Commons to secure to Mr. 
 Palmer his future per-centage on the net increased postal revenues. 
 
 I See cases of abstract resolutions grant of 2,5001. for this purpose, 
 
 of House upon pecuniary questions, which he received for several years. 
 
 May, ed. 1883, p. 654 ; the case of (Index, Com. Jour. 1820-37, p. 1057.) 
 
 Sir A. B. King, in Mir. of Parl. 1831, See the case of the losses of Mr. 
 
 pp. 223, 440, 477. While on this Speaker Manners Sutton by burning 
 
 occasion the ministry successfully of the Houses of Parliament in 1837, 
 
 opposed a motion in favour of com- Mir. of Parl. 1837-S, p. 402; the 
 
 pensation to Sir A. B. King for loss case of Fourdrinier's Patent, Ib. 1839, 
 
 of an office, it appears by estimates p. 2067 ; the case of the Distressed 
 
 in following year, that they ulti- Letter Carriers, Hans. D. v. 124, p. 
 
 mately consented to his indemnifica- 841. 
 tion. bv recommending an annual
 
 704 THE ROYAL PREROGATIVE 
 
 The Bill was passed, notwithstanding the opposition of the govern- 
 ment, but was rejected in the House of Lords. k Meanwhile, a 
 supply resolution, granting a certain sum to defray arrears of per- 
 centage claimed by Mr. Palmer, was reported, agreed to, and a Bill 
 ordered thereupon. But as the Lords had thrown out the prospec- 
 tive Bill in favour of Mr. Palmer, it was proposed by the chancellor 
 of the exchequer, and agreed to by the House, that the grant of 
 arrears should not be included in the General Appropriation Act, 
 but in a separate Bill, ' for the avowed purpose of affording to the 
 Lords an opportunity of considering that grant distinctly from the 
 other grants of the year.' l The bill was not proceeded with in that 
 session, but Mr. Palmer's friends determined to persevere, and on 
 May 21, 1811, they induced the House of Commons to pass an 
 address to the prince regent, beseeching him to advance the sum of 
 54,000. to Mr. Palmer, ' being the amount of arrears due to him 
 out of the post-office revenues, and assuring his royal highness 
 that the House will make good the same.' The House of Lords 
 greatly resented this address, and a warm debate took place therein 
 on the subject on the following day, but no proceedings were had. 
 Two days after, one of the ministry assured the House of Lords that 
 he should not recommend the prince regent to sanction a claim 
 which their lordships considered to be unfounded. Accordingly, 
 the reply of his royal highness, as sent down to the House of Com- 
 mons, stated, that ' it must at all times be the prince regent's desire 
 to attend to the wishes of the House of Commons., and that he 
 shall be ready to give effect to them in this instance whenever the 
 means shall have been provided by Parliament ' : in other words, by 
 a legislative Act, which should have received the concurrence of 
 both Houses." An attempt was made to induce the House to agree 
 to a motion that this answer tended to create a misunderstanding 
 between the crown and the Commons, but it was negatived by a large 
 majority. The opposers of the motion allowed the existence of the 
 right of addressing the crown for money, but justified the answer in 
 this instance, because the regent must have known that what the 
 Commons had resolved to be due as of right, had been denied to be 
 due by the Lords after an enquiry into the facts of the case. In 
 the following session, with the formal consent of the crown, a 
 further attempt was made to indemnify Mr. Palmer. A Bill was 
 passed by the House of Commons for securing to him his future 
 per-centage, and for granting nearly 80,000. as arrears due. The 
 
 k See Parl. Deb. v. 11. pp. 161- m Ib. v. 20, p. 296. 
 252, 959-973. Encyc. Brit. 9th ed. Ib. pp. 347, 359. 
 v. 19, p. 566. Ib. pp. 343-365. Walpole, Life 
 
 1 3 Hats. 203 n. Parl. Deb. v. 11, of Perceval, v. 2, p. 215. Colchester 
 
 pp. 1010-1042. Diary, v. 2, p. 332.
 
 IN REGARD TO SUPPLY. 705 
 
 government, as heretofore, continued to oppose the measure, and it Prece- 
 was rejected, upon the third reading, in the Lords. Next session a dents, 
 similar Bill was passed by the Commons, and rejected by the Lords. 
 Finally, and in the same session, the matter was compromised by the 
 introduction of another Bill, granting the sum of 50,00(K to Mr. 
 Palmer, 'in consideration of public services performed by him,' to 
 which Bill the Lords agreed, and it received the royal assent.? 
 
 In reviewing the proceedings between the two Houses in this 
 case, it is worthy of special remark that, whilst a large majority of 
 the Commons were agreed upon the payment in full of Mr. Palmer's 
 claims, a still greater number were in favour of proceeding by separate 
 Bill, instead of inserting the amount to be granted in the general 
 Appropriation Act, to the infringement of the rights of the Lords to 
 judge specially of a grant that was not intended for the particular 
 service of the year, and upon which there was reason to believe they 
 entertained an adverse opinion. 1 * 
 
 Our next case will be that of the Baron de Bode, whose claims garon 
 for pecuniary indemnification have been urged for upwards of forty Bode, 
 years upon successive administrations, and still remain unsettled. 
 The baron alleged that he was born a British subject, and originally 
 possessed a large property in France, but which had been confiscated 
 by the government of that country during the revolution. After the 
 peace a treaty was made between France and Great Britain, under 
 which a large sum of money was paid over to the British government 
 for the purpose of indemnifying British subjects whose property had 
 been confiscated by the French authorities at that period. Under 
 this treaty the baron (and subsequently his son and heir) made 
 various applications to the government, to the legal tribunals, and 
 to both Houses of Parliament for payment of his claim, which had 
 been pronounced invalid. In 1834, a committee of enquiry into the 
 same was appointed by the House of Commons, notwithstanding the 
 opposition of the ministry. Being unable to complete the investiga- 
 tion in that year, a motion was made in the following session for the 
 re-appointment of the committee. The motion was again opposed by 
 the ministry, who declared it to be an attempt to convert the House 
 into a court of appeal, and was negatived. 1 " In 1852 Lord Lynd- 
 hurst induced the House of Lords to appoint a committee of enquiry 
 into the claims of the baron, as set forth by him in a petition to that 
 House, and which reported in favour of the same. 8 Whereupon, on 
 
 P Gen. Index, Com. Jour. 1801- r Mir. of Parl. 1834, p. 1438 ; 1835, 
 
 1820, p. 709. p. 19G2. In 1845 the case was 
 
 q See Oorresp. on this point be- argued before the Court of Queen's 
 
 tween Mr. Speaker Abbott, and Mr. Bench, upon a petition of right, and 
 
 S. Perceval in Colchester Diary, v. 2, decided against the baron. See 8. Q. 
 
 pp. 151-156. Also Com. Pap. 1867-8, B. Rep. 208. 
 v. 48, pp. 633, 646-648, 677. s Hans. D. v. 122, p. 478. 
 
 VOL. I. Z Z
 
 70G THE ROYAL PREROGATIVE 
 
 Prr-ce- August 1, 1853, his lordship moved a resolution, based upon the 
 report of the committee, ' earnestly recommending the petitioner's 
 claim to the favourable consideration of her Majesty's government; ' 
 but after a long debate, the motion was negatived on the ground that 
 it had already been decided by competent tribunals, and ought to be 
 regarded as conclusively disposed of.* On June 20, 1854, a resolu- 
 tion was proposed in the House of Commons, ' that the national good 
 faith requires that the just claims of the Baron de Bode, established 
 after protracted investigations, should be satisfied.' The government, 
 however, continued to deny the justice of the claim, and the motion 
 was rejected." At length on June 4, 1861, on a further petition from 
 the baron, the House of Commons was again moved to appoint a 
 committee to consider and report on this case ; but the attorney- 
 general re-argued the question, and declared that the petitioner was 
 not in reality a British subject, and therefore had no claim upon the 
 fund above mentioned. The chancellor of the exchequer urged that 
 it would be cruel to the petitioner himself to do anything to keep 
 alive his claim, and desired to know, if the committee reported 
 favourably thereon, how such a report ' could justify the executive 
 government in acting against an opinion of all the law advisers of 
 the crown for the last thirty years ? ' But notwithstanding the 
 opposition of government the committee was appointed. v The com- 
 mittee took voluminous evidence, but were unable to conclude their 
 enquiry ; they therefore, on August 1, reported to the House their 
 proceedings and the evidence they had taken. w Since then nothing 
 more has been done in Parliament in this case. 
 
 Danish ^ ur nex t leading precedent is that which arose out of the much- 
 
 claims, litigated Danish claims. During the war with France in 1807, Great 
 Britain, having reason to suspect that Denmark, although nominally 
 a neutral power, was secretly favouring the designs of the French 
 ruler, suddenly captured the Danish fleet while it was lying in the 
 harbour of Copenhagen. By way of reprisal, the Danish government 
 seized and confiscated the property of the British merchants who 
 were trading in the Baltic sea. As Great Britain was not actually 
 at war with Denmark at this time, it was contended that she should 
 be answerable for the consequences of her act of aggression towards 
 that kingdom, and should compensate the British merchants for their 
 losses by the act of reprisal. This was acknowledged, and a large 
 portion of these claims was paid by the government. But others, to 
 a considerable amount, remained unliquidated. Accordingly, the 
 merchants who conceived themselves aggrieved by the non-recogni- 
 fr'on of their claims, petitioned the House of Commons for indemni- 
 
 ' Hans. D. v. 129, p. 1007. T Ib. v. 163, pp. 571-597. 
 
 u Ib. v. 134, pp. 392 425. - Com. Pap. 1861, v. 11, p. 515.
 
 IN REGARD TO SUPPLY. 707 
 
 fication. Whereupon, on May 24, 1838, an address to the crown Prece- 
 was moved for an enquiry into the rest of these claims, with a view dents, 
 to their being satisfied. The government opposed the motion, on the 
 ground that all the debts which by the law of nations were justly 
 due had been paid by Great Britain, and that the remainder of the 
 claims were untenable. Nevertheless, the motion for the address 
 was carried.* After the vote had been taken, the chancellor of the 
 exchequer declared that his opinion on the matter remained unaltered, 
 and that ' considering the serious consequences which may be pro- 
 duced by such a vote, he begged to say that he undertook no further 
 responsibility on the question.' y The government, however, upon 
 further consideration, agreed to pay a portion of the remaining 
 claims. 2 This being deemed insufficient, in the following session a 
 similar address was moved and carried, against the government.* 
 Whereupon the government consented to pay an additional number 
 of the claims. b The claimants being still unsatisfied, a third address 
 was passed on June 10, 1841, for the liquidation of the remainder, 
 assuring her Majesty that the House would make good the same. c 
 Upon this the government took a stand, and declared that they 
 would not consent to any further expenditure on this account. The 
 chancellor of the exchequer stated that the crown had no fund out of 
 which a further payment could be made, and that it was therefore 
 no use for the House to ask it to do so. Accordingly, on June 21, 
 the following reply to the address was reported : That it must at all 
 times be the most earnest desire of her Majesty to attend to the 
 wishes of the House of Commons, and that she shall be ready to give 
 effect to them in this instance, whenever the means shall have been 
 provided by Parliament. No action was taken by the House upon 
 this answer. But similar addresses were again proposed and nega- 
 tived by the House on June 20, 1843, July 9, 1844, and June 26, 
 1851 ; after which no further application to Parliament on behalf of 
 the Danish claimants was made until July 12, 1861, when the atten- 
 tion of the House of Commons was again called to the subject by a 
 member, who recapitulated the arguments in favour of the claimants, 
 but contented himself with laying the matter before the House with- 
 out making any motion. The attorney-general and the chancellor of 
 the exchequer resisted any renewed agitation of the question, the 
 latter asserting that whereas the constitution required the concur- 
 rence of the executive government and of the House of Commons 
 in any money appropriation, governments of various politics had re- 
 peatedly denied the justice of these claims, and for the last fifteen 
 
 Mir. of Parl. 1838, p. 4247. b See Ib. pp. 4083, 4710; and 1841, 
 
 y Ib p. 4255. p. 2250. 
 
 z Ib. p. 5096. c Ifi. 1841, p. 2249 
 
 Ib. 1839, pp. 3051-3056. 
 
 z z 2
 
 708 
 
 THE ROYAL PREROGATIVE 
 
 Prece- 
 dents. 
 
 Duke of 
 Sussex. 
 
 Church 
 accommo- 
 dation in 
 England. 
 
 Railroads 
 in Ireland. 
 
 Captain 
 Grant. 
 
 years the House of Commons, though often appealed to, had equally 
 repudiated the demand, it would be therefore wrong to give further 
 encouragement to their discussion in Parliament. The subject was 
 then dropped, and has not since been renewed. 
 
 On July 6, 1838, Mr. Gillon moved an address to the crown to 
 consider the parliamentary grant of an annuity to H.R.H. the Duke 
 of Sussex, ' with a view to recommend to the House some addition 
 thereto.' The home secretary (Lord John Russell) resisted the 
 motion on the ground that the matter was properly cognisable by 
 the government, whose duty it was to advise an increase of the 
 allowance if necessary, but who had not thought fit to do so. Sir R. 
 Peel agreed in this doctrine, and asserted that the interference of the 
 House would be ' an exceedingly dangerous precedent.' Accordingly 
 the motion was negatived on division. d 
 
 On June 30, 1840, Sir R. H. Inglis moved for a committee to 
 consider of an address to the crown, declaring the readiness of the 
 House to make a grant to supply the deficient church accommoda- 
 tion throughout the kingdom ; and on June 16, 1842, Mr. Ferrand 
 moved for an address for the advance of one million pounds to relieve 
 the distress prevailing in the manufacturing districts : both these 
 motions, notwithstanding the opposition of government, were debated, 
 but they were each negatived on division. 
 
 On February 4, 1847, Lord George Bentinck moved for leave to 
 bring in a Bill to raise a loan of sixteen million pounds, to encourage 
 the construction of railroads in Ireland, and to give prompt employ- 
 ment to the suffering poor in that country. Lord John Russell (the 
 prime minister) opposed the Bill, but did not object to its introduc- 
 tion, understanding from the Speaker that, 'in point of form, no 
 objection existed thereto provided it did not include those money 
 clauses which would require a previous committee.' e It was after- 
 wards stated, on the part of government, that the prerogative of the 
 crown should not be made use of in any way ' to interfere with the 
 full discussion of the measure.' f Accordingly the Bill proceeded to 
 a second reading, when, on the motion of the chancellor of the ex- 
 chequer, it was postponed ' for six months.' s 
 
 On July 22, 1862, the case of Captain Grant, who had rendered 
 great benefits to the army by the introduction of an improved system 
 of cooking, in barrack and in camp, was brought before the House of 
 Commons on a motion that his services were ' entitled to recognition.' 
 This was considered by the government, and was in fact intended, to 
 be equivalent to a recommendation for a grant of money to this officer; 
 but the motion had been drawn up in these vague terms in order to 
 
 Mir. of Parl. 1838, p. -5306. 
 Hans. D. v. 89, p. 808. 
 
 1 Ib. p. 857. 
 
 * Ib. v. 90. p. 123.
 
 IN REGARD TO SUPPLY AND TAXATION. 709 
 
 admit of its being discussed without an infringement of the standing Prece- 
 orders. The secretary of state for war objected to the motion as dents. 
 being an evasion of the standing orders, and also on its own merits, 
 contending that the services of Captain Grant were not of a nature 
 to justify a compensation from the public purse. On division, the 
 motion was negatived, but only by a majority of one. A few days 
 afterwards the secretary for war informed the House that, ' in con- 
 sequence of the opinion expressed by a nearly equal division, the 
 subject should be further investigated by the government.' h Being 
 dissatisfied with the amount proposed to be given by the government 
 to Captain Grant, a motion was made in the House of Commons on 
 May 20, 1864, for an address to her Majesty to render him ' some 
 suitable reward for his services ; ' but, after explanations from the 
 under secretary for war. the motion was negatived on division. 1 
 
 In 1864, the government having determined from motives of Yeomanry 
 economy to refrain from submitting to Parliament the usual vote cavalry. 
 (of about 46,000.) to defray the cost of assembling the yeomanry 
 cavalry for the accustomed period of six days' training on permanent 
 duty, an amendment was moved on March 3 to the motion that the 
 Speaker do leave the chair for the House to go into committee of 
 supply on the army estimates, to resolve that the discontinuance of 
 the drill would be detrimental to the efficiency of the force, inexpe- 
 dient, and contrary to the recommendations of a departmental com- 
 mittee in 1861. The government opposed the motion, and contended 
 that the efficiency of the force would be in no wise impaired by the 
 temporary suspension of active training. On a division, the amend- 
 ment was negatived by a majority of one. On May 5 following, the 
 under secretary for war submitted to the committee of supply a 
 vote of 39,200. for the training of the yeomanry, alleging that 
 since the aforesaid division the unexpected advices from New Zea- 
 land had enabled the government to effect a saving in the estimate 
 on account of the war in that island, and they were therefore in a 
 position to continue the usual grant on behalf of the yeomanry 
 cavalry. On division, the vote was agreed to by a large majority.J 
 
 I. (b) The Restrictions upon Parliament in matters of 
 Taxation. 
 
 As no supply can be voted, so no taxes can be im~ proposi- 
 posed upon the subject, by Parliament, for purposes of cen- n coil ~ 
 public revenue except upon the recommendation of the taxes 
 crown. k Accordingly any proposition for the levy of a emanate 
 
 * Hans. D. v. 168, p. 855. J Ib. p. 45. 
 
 ' Ib. v. 175, p. 523. k See post, p. 786. 
 
 from 
 ministers.
 
 710 THE ROYAL PREROGATIVE 
 
 new tax or duty or, for the increase of particular 
 taxes, excepting when the consideration of Parliament 
 has been directed to the subject by the crown, should 
 emanate from the government. 1 But there is a distinc- 
 tion in this respect between imperial and local taxes. 
 ' No private member is permitted to propose an imperial 
 tax upon the people ; it must proceed from a minister 
 of the crown, or be in some other form declared to be 
 necessary for the public service. But any member may 
 bring in a Bill to impose heavy local burdens.' m 
 
 It should be observed, however, that the rule con- 
 fining the initiation of all taxation to ministers of the 
 crown is one of constitutional practice merely, and is 
 not enforced by any standing order. Accordingly it has 
 not been invariably insisted upon. n But if not positively 
 forbidden, it is nevertheless highly inexpedient for a pri- 
 vate member to introduce a measure affecting the public 
 revenue. It is only when such measures are in the 
 hands of ministers that legislation upon them can be 
 successful. 
 
 Prene- On March 25, 1830, Mr. Poulett Thomson moved for the appoint- 
 
 dents. ment of a committee to consider of revising and re-arranging the 
 general system of taxation. The motion was strenuously and suc- 
 cessfully opposed by Mr. Secretary Peel, as being an unprecedented 
 attempt to deprive the ministers of the crown of one of their most 
 important and peculiar functions. He remarked that proposals for 
 the imposition of taxes belonged peculiarly to the crown ; custom 
 and sound policy having long ago devolved upon ministers the duty 
 of submitting such questions to the consideration of Parliament.? 
 So, also, a motion on March 14, 1844, by a private member for a 
 committee to consider of imposing a certain probate duty on real 
 estate, was objected to by the Speaker and by Sir Robert Peel (the 
 prime minister), on the ground that it ought not to be offered, except 
 
 > Hans. D. v. 182, p. 592; v. 228, n Hans D. v. 115, pp. 660-668. 
 
 p. 1781. May, Parl. Prac. ed. 1883, 11. v. 186, pp. 160, 1849. 
 
 p. 674. P Mir. of Parl. 1830, p. 1032. See 
 
 m Sir T. E. May's evidence before also similar motions, proposed and 
 
 Joint Com e . on Despatch of Business, negatived, on March 26, 1833 ; on 
 
 Com. Pap. 1868-69, v. 7, p. 185. Aug. 7, 1848 ; on May 10, 1849; and 
 
 liana. D. v. 215, p. 1676. on May 10, 1864.
 
 IX REGARD TO TAXATION. 711 
 
 in committee of ways and means, nor unless it could be shown that 
 the public exigencies required it. After some debate the motion 
 was withdrawn.*! 
 
 In committee upon the Stamp Duties Bill, on August 4, 1859, a 
 private member having proposed a clause to extend the probate duty 
 upon property above the value of one million, the government con- 
 sented to this impost. But, in point of form, it was considered 
 necessary for a resolution to this effect to be proposed by the chan- 
 cellor of the exchequer, in committee of ways and means, and after- 
 wards introduced into the Bill. 1 " 
 
 It is also an invariable rule of constitutional practice Enquiries 
 that ministers are not required to answer questions in- 
 volving an explanation of their intentions as to matters 
 
 taxes 
 
 of taxation, until they may deem it expedient to the 
 public interests to declare them. 8 
 
 The general question of a revision of a certain class of Amend- 
 duties having been submitted to the House by the crown, g ovrn- 
 it is perfectly competent to any member, in committee ^eme 
 of ways and means, or in committee of the whole House taxation, 
 upon the Customs or Inland Eevenue Acts, to offer an 
 amendment to a particular rate of duty proposed to be 
 levied, either for the increase or diminution of the same : 
 it may even be proposed to insert in the schedule a new 
 rate of duty, provided it relates to an article which is 
 already included therein.* And when the House re- 
 solves itself into a committee of ways and means to 
 consider of raising supplies for the service of the current 
 year, it is competent for any member to propose another 
 scheme of taxation of equivalent amount, as a substitute 
 for the government plan. u But a proposition made by 
 the chancellor of the exchequer, in committee of ways 
 and means, to require licenses to be taken out by brewers, 
 cannot be amended, upon the motion of a private mem- 
 
 i Hans. D. v. 73, p. 1052. u May, Parl. Prac. ed. 1883, p. 
 
 r Ib. v. 155, p. 991. Com. Jour. 675. And see a case on June 20, 
 
 v. 1 14, p. 348. 1836, where a member proposed a 
 
 5 Mir. of Parl. 1840, p. 1203. reduction of the soap duties in lieu of 
 
 Hans. D. v. 158, p. 1879; v. 181, p. the government scheme for a reduc- 
 
 963. tion of the duty on newspaper stamps. 
 
 * Com. Jour. 1842, p. 367. Hans. Mir. of Parl. 1836, p. 1963. Mr. 
 
 D. v. 75, p. 1020 ; v. 218, p. 1041. Gladstone, Hans. D. v. 223, p. 389 .
 
 712 THE ROYAL PREROGATIVE 
 
 Amend- ber, by extending such licenses to other manufacturers, 
 
 ments to . 11-11 
 
 taxation, iron-masters, and coal-owners ; inasmuch as this would 
 be a new and distinct tax, and not the mere increase of 
 a duty upon an article already recommended by govern- 
 ment for taxation/ 
 
 On July 1, 1853, in committee of the whole House 
 on the stamp duties, the opponents of a proposed rate 
 of duty on advertisements succeeded in negativing the 
 government proposition altogether.* And on May 12, 
 1862, in committee on the Customs and Inland Revenue 
 Bill, so much thereof as imposed a tax for brewing beer 
 in private houses was struck out ; the government 
 agreeing to the same, in deference to the wishes of the 
 House/ And if a proposed tax which has been an- 
 nounced in the budget excites general dissatisfaction, it 
 is not unusual for the government to acquaint the House, 
 at a subsequent stage of proceeding, that they have 
 resolved to abandon it. y 
 
 The budget submitted to the House of Commons by Mr. Lowe, 
 chancellor of the exchequer on April 20, 1871, contained a pro- 
 posal to impose a tax on matches, which though formally agreed to 
 by the House on that day, afterwards excited general disapproba- 
 tion in Parliament and in the country. 2 Accordingly, on April 25, 
 Mr. Lowe informed the House that the measure with regard to 
 matches would not be pressed, but that he should go on with an 
 additional penny to the income tax, and legacy and probate duties.* 
 However, on April 27, Mr. Gladstone announced that in view of 
 the adverse opinions expressed in the House in regard to the finan- 
 cial propositions of ministers, they had resolved to withdraw the 
 resolutions relating to the probate, succession and legacy duties, 
 and instead thereof to propose an addition of twopence in the pound 
 to the present rate of income tax. b On May 1, it was moved to re- 
 solve that it is inexpedient to increase the income tax to the extent 
 proposed by government, but after a long debate the motion was 
 negatived, ministers having declared that they ' had reached the 
 
 T Hans. D. v. 202, p. 307. v. 170, pp. 846, 1102, 1125, 1365, 
 
 * Ib. v. 128, p. 1129. 1395. 
 
 * Ib. v. 166, p. 1574. * Hans. D. v. 205, pp. 1418, 1528, 
 y Proposed duties on club-houses, 1585-1659. 
 
 and on charities in 1863. Hans. D. * Ib. p. 16S5. b Ib. p. 1780.
 
 IX REGARD TO TAXATION. 713 
 
 bottom of their resources,' and ' had no further plan,' and should, 
 therefore, consider an adverse vote as equivalent to a vote of want 
 of confidence. 6 This induced the House to give a reluctant consent 
 to the new budget. d Accordingly on May 4, an attempt to reduce 
 the addition to the income tax to fivepence instead of sixpence was 
 negatived, on division. 6 On May 18, before going into committee 
 on the Bill, Mr. Disraeli called attention to its remarkable features, 
 in providing ways and means differing from those proposed in the 
 original budget, and in proposing to provide for a deficiency of more 
 than double the amount announced in the budget but he did not 
 take a division thereon. f 
 
 In vol. ii. precedents will be found, showing the ex- 
 tent to which the financial propositions of the govern- 
 ment have been modified by the House of Commons 
 since the reform of Parliament in 1832. 
 
 The introduction of a Bill or resolution for the re- 
 duction or repeal of an existing rate of taxation, whether 
 for fiscal purposes or for the regulation of trade, is a 
 parliamentary question, in which the crown has no direct 
 concern. g The strict right of a private member to take 
 the initiative in such a proceeding cannot therefore be 
 denied, and has been acknowledged of late years by 
 
 U leading statesmen. 11 It is nevertheless in the highest 
 degree inexpedient under parliamentary government for 
 private members to assume the responsibility of pro- members 
 posing such questions to Parliament. It is an important duce such 
 financial principle, that ' the House, should not be called q uestions - 
 upon to condemn taxes which they are not prepared on 
 the instant to repeal,' i as by so doing they unsettle the 
 minds of commercial men in their business transactions, 
 and occasion embarrassment to the government in their 
 plans for the regulation of the public finances. Abstract Abstract 
 resolutions advocating changes in the scheme or distri- 
 
 particular 
 taxes. 
 
 c Hans. D. v. 205, p. 2024. Hans. D. v. 211, p. 1903. 
 d Ib. v. 208, p. 1660. h By Mr. Disraeli, Hans. I). v. 125, 
 
 Ib. v. 206, p. 242. p. 1174. By Mr. Gladstone, Ib. v. 
 
 f Ib. p. 964. 16], p. 1667. 
 
 Ilearn, Govt. of Eng. p. 351. ' Mr. Gladstone, Ib. v. 125, p. 
 
 May, Parl. Prac. ed. 1883, p. 684. 1149; v. 173, p. 1402.
 
 714 THE KOYAL PREROGATIVE 
 
 bution of taxation, or the imposition of new duties ; 3 or 
 the reduction of particular branches of taxation, have 
 been not infrequently submitted to the House of Com- 
 mons by private members, but they have been generally 
 resisted by the government as being inexpedient and 
 impolitic. 
 
 Prece- The following precedents of motions for the reduc- 
 
 tion or repeal of particular taxes may be cited, as 
 illustrating the practice of Parliament, and, moreover, 
 as showing that, sooner or later, ministers always defer 
 to the recorded judgment of the House of Commons 
 upon matters of taxation. 
 
 Income First, in regard to the question of the income tax. The attention 
 
 tax. o f t ne House has been frequently invited to the consideration of this 
 
 question, by private members, who from time to time have pro- 
 pounded various schemes to relieve certain classes of the community 
 from the unequal operation of this impost. On May 2, 1851, Mr. 
 Hume induced the House to agree to an amendment to a govern- 
 ment Bill for continuing the property tax for three years, whereby 
 its operation was limited to one year, with an express view to an 
 enquiry into the mode of assessing and collecting the income tax. 
 Such a committee was formally appointed on May 8, with authority 
 to consider whether a more equitable mode of levying this tax could 
 be devised. Both the premier (Lord John Russell) and Mr. Disraeli 
 expressed their disapprobation of this committee as an unwise inter- 
 ference with the functions of government ; but, nevertheless, con- 
 sented to its appointment, in order to carry out the previous 
 determination of the House. 15 The committee encountered great 
 difficulties in the investigation of this question, and, after devoting 
 two years to the subject, confined themselves to reporting the 
 evidence they had taken to the House, without expressing any 
 opinion thereupon. 1 On February 19, 1861, on the motion of Mr. 
 Hubbard, a select committee was again appointed, to consider of 
 some more equitable mode of levying the income and property taxes. 
 The motion was opposed by the chancellor of the exchequer (Mr. 
 Gladstone), and by Sir Stafford Northcote, an eminent leader of 
 the Opposition, but was carried by a majority of four. After full 
 enquiry, the committee reported to the effect, that the objections to 
 
 J Com. Jour. v. 88, p. 336; v. 94, > Com. Pap. 1851, v. 10, p. #39; 
 
 p. 510; v. 102, p. 580: v. 103, p. 1852, v. 9, pp. 1 , 403. See also Peto 
 
 886. Hans. I), v. 229, p. 778. on Taxation, p. 90. 
 
 k Hans. 1). v. Ii6, pp. 726-732.
 
 IN REGARD TO TAXATION. 715 
 
 this tax were rather to its essence and nature than to its incidence ; Prece- 
 and that it would be unjust to reconstruct its mode of operation dents, 
 without at the same time revising other parts of our fiscal system. 
 Notwithstanding the adverse report of this committee, Mr. Hub- 
 bard, on May 13, 1862, submitted to the House a resolution in 
 favour of a re-adjustment of the income tax, in respect to certain 
 alleged abuses. The motion was opposed by the chancellor of the 
 exchequer, and negatived by a large majority. Nothing daunted 
 by this defeat, Mr. Hubbard renewed his attack in the following 
 session, by moving, on March 24, 1863, a similar resolution for the 
 re-adjustment of this impost. The motion was again opposed by 
 the chancellor of the exchequer, who characterised Mr. Hubbard's 
 scheme as being visionary and impracticable, and as affording no 
 adequate remedy for the admitted irregularities of the income tax. 
 Without any further debate, the motion was then put and negatived. 11 
 On April 23 following, Mr. Roebuck moved to resolve that on a 
 renewal of this tax, a lower charge should be imposed on precarious 
 incomes than on permanent incomes. The motion was opposed by 
 the chancellor of the exchequer, and, after a short debate, was 
 withdrawn. On July 3, 1874, Mr. C. E. Lewis moved the adoption 
 of a resolution, in favour of the further reduction of the income tax 
 (then only twopence in the pound) and its ultimate repeal, at the 
 earliest possible moment. After a long debate, the motion was 
 negatived, by a large majority. On March 11, 1875, Mr. Sandford 
 moved, to resolve that incomes not exceeding 300?. per annum 
 should be exempt from this tax, but it was negatived. 
 
 In 1850, and again in 1851 and in 1853, Lord R. Grosvenor _ 
 brought in a Bill to abolish the annual duty payable on attorneys', certiti- 
 &c. certificates. The principle of this Bill was affirmed by the cates. 
 House, on division ; but the government succeeded in delaying its 
 passage. On May 19, 1865, on motion of Mr. Denman, an abstract 
 resolution in favour of the abolition of this duty was agreed to by 
 the House, notwithstanding the 'stout resistance of the govern- 
 ment,' both on the ground of principle and expediency.? In 1867, 
 a Bill to reduce this duty was brought in by Mr. Denman, and read 
 a second time, notwithstanding the opposition of ministers, but the 
 third reading was put off for three months, n 
 
 On April 14, 1853, Mr. Milner Gibson moved the House of 
 
 Commons to declare that the advertisement duty ought to be re- Adver( ise- 
 
 ____ J ment 
 
 m Com. Pap. 1861, v. 7, p. 4. negatived on division. See Mr. Hub- U J ' 
 
 n Hans. D. v. 169, p. 1848. On bard's observations on this tax. Ib. 
 
 June 14, 1864, Mr. Hubbard again v. 178, p. 1501. 
 
 moved a resolution, condemnatory of Hans. D. v. 170, pp. 614-625. 
 
 the inequalities and injustice attend- P Ib. v. 179, pp. 564-577. 
 
 ing the operation of the existing > Ib. v. 185, p. 1064; v. 188, p. 
 
 property and income tax ; but it was 922.
 
 716 THE ROYAL PREROGATIVE 
 
 Prece- pealed. The government opposed the motion, but it was agreed to 
 on division. 1 " Nevertheless, the chancellor of the exchequer refused 
 to give way. Some days afterwards the House went into committee 
 of ways and means, when the chancellor of the exchequer pro- 
 posed to fix the rate of this duty at sixpence. The opponents of the 
 duty again succeeded : the proposed rate was struck out, and no 
 other amount inserted in the resolution. 8 After this, the govern- 
 ment acquiesced in the abolition of the duty. 1 
 
 Taper On the same occasion (April 14, 1853), and as a part of his 
 
 duty. scheme for the abolition of taxes on knowledge, Mr. Milner Gibson 
 
 moved a resolution condemning the continuance of the paper duty 
 as a permanent source of revenue, as being impolitic and incon- 
 sistent with the efforts of Parliament for the encouragement of 
 education. The previous question was proposed on this resolution, 
 and negatived. On June 21, 1858, Mr. Gibson again brought for- 
 ward the question, upon a motion ' That this House is of opinion 
 that the maintenance of the excise on paper, as a permanent source 
 of revenue, would be impolitic ; arid that such financial arrange- 
 ments ought to be made as will enable Parliament to dispense with 
 that tax.' The chancellor of the exchequer (Mr. Disraeli) stated 
 his readiness to agree to the repeal of this tax when a favourable 
 opportunity should arise, but he strongly objected to the latter part 
 of the motion, as being a ' highly impolitic and inexpedient ' 
 endeavour to hamper the government by an abstract resolution 
 concerning a tax, at a time when it would be impossible to act upon 
 it. He suggested the withdrawal of the latter part of the motion, 
 from the word ' impolitic,' which was also advised by Lord John 
 Russell and other leading members, on the same ground. This 
 being consented to by Mr. Gibson, the former part of the motion, 
 condemning the permanent continuance of the paper duties, was 
 agreed to without a division." In 1860, Mr. Gladstone (the then 
 chancellor of the exchequer) included the abolition of the paper 
 duty in his financial measures for the year, and a Bill for that pur- 
 pose passed the House of Commons, but was rejected by the Lords. v 
 Next session a similar proposition was inserted in a Bill respecting 
 customs and inland revenue, which passed both Houses, and became 
 law. 
 
 Hop duty. O n March 5, 1861, Mr. Dodson moved to resolve 'that the main- 
 tenance of any duties upon hops is impolitic ; and that in any 
 remission of taxation or adjustment of financial burdens, provision 
 should be made for the removal of such duties.' The chancellor of 
 
 r Hans. D. v. 125, p. 1187. * Lords' Debates, May 21, 1800 
 
 s Ib. v. 128, p. 1128. A narrative of this celebrated case 
 
 * Ib. v. 161, p. 166S. will be given in vol. ii. 
 1J Ib. v. 151, pp. 110-135.
 
 IN REGAKD TO TAXATION. 717 
 
 the exchequer (Mr. Gladstone) asked no one to give an opinion on Prece- 
 the merits of this duty, but objected to the motion on the ground " ents - 
 that it was an abstract resolution relating to the matter of finance. 
 Without denying the right of the House, under any circumstances, 
 to pass such a resolution, he characterised the same as being a rash 
 innovation on the practice of the House in former times. He held 
 up the paper duty resolution as an example which ought to be a 
 warning to the House not to commit itself to a similar proceeding, 
 but to await the proper time when the financial condition of the 
 country could be considered as a whole in connection with the fiscal 
 propositions to be submitted to it by the government. Acquiescing 
 in these views, the House negatived the motion by a large majority. w 
 The budget laid before the House by the chancellor of the exchequer 
 in the following session contained a proposal for the repeal of the 
 hop duties, so that the sentiments entertained by the House on this 
 question ultimately prevailed. 
 
 On May 4, 1860, and again on March 8, 1861, Mr. H. B. Sheridan Fire 
 moved for leave to bring in a Bill to reduce the duty on fire in- insurance 
 surance. On both occasions the motion was opposed by the ministry, U y ' 
 and negatived by the House. In 1860, the motion was made after 
 the budget had been opened by the chancellor of the exchequer, 
 and he objected to it because it was ill-timed, as it would effect a 
 considerable loss of revenue that could not be spared, and because, 
 even if its operation should be postponed, no tax ought to be con- 
 demned until the House is prepared to reduce or abolish it. x In 
 1861, the chancellor of the exchequer objected to the motion on the 
 ground that no proposal should be made to reduce a tax until after 
 the budget had been brought forward, when, if it should appear that 
 there was a sui'plus revenue sufficient to justify an abatement of 
 taxation, the proposed claim for relief could be put into competition 
 with similar demands, and be fairly considered by the Housed On 
 April 1, 1862, Mr. Sheridan again proposed his Bill. This time, as 
 on the previous occasion, the budget had not been submitted to the 
 House. The chancellor of the exchequer, in opposing the motion, 
 said that it was 'the duty of every government a duty always 
 acted upon to object to any individual and isolated proposals for 
 the repeal of taxes before the House had within its view the 
 general state of the revenue and charges of the country.' ' The 
 popular principle of government, and the control of it by the House 
 of Commons, depend on nothing so much as this, that it should 
 narrow into a single measure the financial operations of the year.' 
 If brought forward after the introduction of the budget, the same 
 objections to this motion would not apply. On this point it was 
 
 - Hans. D. v. 161, pp. 1448-1457. * Ib. v. 161, p. 1667; and see v 
 
 * Ib. v. 158, p. 728. 172, p. 813.
 
 718 THE ROYAL PREROGATIVE 
 
 Prece- also contended by the premier (Lord Palmerston) that it was a 
 principle of our constitutional system, that the discretion of pro- 
 posing to Parliament the necessary financial arrangements for the 
 year should be left to the chancellor of the exchequer, as the organ 
 of the administration, and that any objections to be offered, or 
 alterations to be proposed, should be reserved until after the opening 
 of the budget. Nevertheless the motion for leave to bring in the 
 Bill was carried against the government. 2 Subsequently, on intro- 
 ducing the budget, the chancellor of the exchequer briefly explained 
 the impossibility of carrying out the reduction of this tax, stating 
 that there was no surplus revenue available for the purpose. He 
 added that he was sorry to reflect that the only security for a 
 chancellor of the exchequer lay in his utter destitution. ' If he does 
 not possess a surplus you cannot take it from him ; or, according to 
 an old proverb current in the northern portion of this kingdom, 
 which I will translate for fear of offending Scottish ears by a de- 
 fective accent, " It is difficult to deprive a Highlander of a par- 
 ticular garment which he does not wear.'" a Accordingly the Bill, 
 though formally presented on April 10, was not proceeded with, 
 because the mover ' took the vote of the House to imply rather a 
 recognition of the principle of reduction than the empowering a 
 private member to interfere with the financial arrangements of the 
 government.' b On July 14, 1863, the subject was again submitted 
 to the House of Commons by Mr. Sheridan, in the shape of an 
 abstract resolution, recording the opinion of the House that the 
 duty upon fire insurances is ' excessive in amount, that it prevents 
 insurance, and should be reduced at the earliest opportunity.' The 
 motion was opposed by Mr. Gladstone on the general grounds of 
 constitutional practice previously urged by him, but was never- 
 theless carried against the government by a majority of thirty-six. 
 On March 15, 1864, Mr. Sheridan declared his intention of again 
 taking the sense of the House in regard to this tax, but would 
 defer so doing until after the budget had been opened. On April 7, 
 in his budget speech, the chancellor of the exchequer stated that, 
 'in deference to the convictions entertained by the House, the 
 government had determined to recommend that the duty on fire in- 
 surances should be reduced one-half.' Dissatisfied with this con- 
 cession, Mr. Sheridan moved to resolve, upon going into committee 
 of ways and means, that a further reduction would be more in 
 accordance with the wishes of the House in agreeing to the fore- 
 going resolution. He was opposed by the chancellor of the ex- 
 chequer ; and, upon division, the motion was negatived. d On 
 
 1 Hans. D. v. 166. pp. 385-309. e Ib. v. 174, p. WK). 
 
 Ib. p. 464. d Ib. p. 1431-1450. 
 
 b Ib. v. 172, p. 799,
 
 IN REGARD TO TAXATION". 719 
 
 March 21, 1865, Mr. Sheridan again submitted to the House a Prece- 
 motion to declare the expediency of reducing this duty to a uniform dents, 
 standard of one shilling and sixpence on all descriptions of insurable 
 property. It was strenuously opposed by the chancellor of the 
 exchequer, who moved the previous question ; but on division the 
 previous question was carried, and the main question agreed to. 
 On proposing the budget on April 27 following, the chancellor of 
 the exchequer announced that, in deference to the unmistakable 
 expression of opinion by the House on this subject, the government 
 had decided to recommend a reduction of this duty to a uniform 
 rate of one shilling and sixpence, from June 25. e This concession, 
 however, failed to satisfy Mr. Sheridan and his friends. Accord- 
 ingly, in the session of 1866, both Mr. Sheridan and Mr. Hubbard 
 gave notice of separate motions regarding this tax. Mr. Hubbard's 
 motion, which was first proposed as an amendment to the motion 
 for the second reading of the Customs and Inland Revenue Bill, 
 was to declare the inexpediency of retaining, as part of the Inland 
 Revenue for the service of the year, the present duties on fire and 
 marine insurances, for certain reasons alleged. After a short de- 
 bate the amendment was negatived without a division/ 
 
 On March 7, 1876, Mr. Spinks moved to resolve, that the rail- Railway 
 way passenger duty ought to be reduced at an early date, with a view passenger 
 to its ultimate repeal. In amendment, Mr. Rodwell moved, that a 
 select committee be appointed to enquire into the operation of this 
 duty, and especially as to its effect upon the working of cheap trains. 
 The government accepted this amendment, and it was agreed to ac- 
 cordingly. The committee reported, on June 23, that it was unde- 
 sirable to maintain this tax any longer than is necessary for fiscal 
 purposes. On April 17, 1877, Mr. Knatchbull-Hugessen, who was 
 a member of this committee, moved, seconded by Mr. Spinks, that, 
 pending the question of the abolition of this duty, the other recom- 
 mendations of the committee should receive the early attention of 
 government. To this an amendment was moved, to deprecate the 
 abolition of the tax. After a long debate the chancellor of the ex- 
 chequer stated that he objected to both motions, and to the House 
 agreeing to a resolution, which points to the abolition of a tax, where 
 there are avowedly not the means for giving effect to that resolution 
 at once. Finally the motion and amendment were both with- 
 drawn. 
 
 ' Hans. D. v. 178, pp. 3120-1124. a resolution in favour of a reduction 
 f Ib. v. 183, pp. 1199-1202, 1407. of the duty on fire insurances to six- 
 And see Ib. March 19 and May 16, pence per cent. But as the budget 
 1867, when the other unsuccessful at- was to be presented within forty- 
 tempts were made to obtain a further eight hours, Mr. Gladstone (prime 
 reduction of this duty. On April 6, minister) moved that the debate 
 1869, Mr. Sheridan again proposed thereon be adjourned for a week,
 
 720 
 
 THE ROYAL PREROGATIVE 
 
 Prece- On June 24, 1864, Mr. Morritt moved, as an amendment upon 
 
 going into supply, to resolve that in case of any modification of the 
 
 Malt Tax. indirect taxation of this country, the excise on malt requires consi- 
 deration. The motion was opposed by the chancellor of the exche- 
 quer upon similar grounds of objection to those made use of in regard 
 to former motions of this description, and was negatived on division. 
 On March 7, 1865, a similar resolution was proposed by Sir Fitzroy 
 Kelly. After an amendment had been proposed thereto and with- 
 drawn, the previous question was put and negatived. But on propos- 
 ing his budget on April 27 following, the chancellor of the exchequer 
 intimated that he was prepared to offer a partial relief to the oppo- 
 nents of this duty by giving the maltster the option of having the duty 
 charged by weight instead of by measure.^ This trifling concession 
 was of no avail to satisfy the opponents of the malt tax. Accord- 
 ingly on April 17, 1866, Sir F. Kelly again submitted a resolution 
 in favour of the speedy reduction and ultimate repeal of this duty. 
 After a long debate, the motion was negatived on division. 
 
 On May 14, 1867, with the consent of the government, the House 
 of Commons appointed a select committee ' to enquire into the opera- 
 tion of the malt tax.' Being unable to complete their enquiry, the 
 committee, on July 25, reported the evidence already taken, and 
 recommended that they should be re-appointed in the next session. 
 This was done, and on July 13, 1868, the committee reported in 
 favour of a repeal of the malt tax, provided the loss to the revenue 
 could be made up in some other way. h Whereupon, 011 March 1870, 
 a proposition for the substitution of a tax on beer in lieu of the 
 malt tax was submitted to the House. After debate, the chancellor 
 of the exchequer promised it should have his careful consideration 
 and the motion was withdrawn. 
 
 Carriers' n March 14, 1868, Mr. Lawrence moved, that the House should 
 
 duty. go into committee to consider of the Acts relating to post horse and 
 
 carriage licences, &c. duties, with a view to revise, reduce, and 
 equalise the taxes on locomotion. After a short debate, the motion 
 was withdrawn, at the request of the chancellor of the exchequer. 1 
 The motion was again made, on March 16, 1869, with a similar re- 
 sult. But in the budget of the same session provision was made for 
 reducing and equalising all taxes on locomotion. k 
 
 Male On July 15, 1870, a private member called the attention of the 
 
 servants' House to a rigid construction placed by the excise office on an Act 
 duty. 
 
 which was carried. But two days 
 after, the chancellor of the exchequer, 
 in making his financial statement, 
 announced the intention of ministers 
 to abolish the tax altogether. Hans. 
 D. v. 11)5, pp. 305, 391. 
 
 Hans. I), v. 178, p. 1120; Act 
 28 & 29 Viet. c. 00. 
 
 h Com. Pap. 1807-08. v. 0, p. 235. 
 1 Ilaus. U. v. 191, pp. 187-190. 
 J Ib. v. 104, p. 1523. 
 k Ib. v. 195, p. 393.
 
 IN REGARD TO TAXATION. 721 
 
 passed in the previous session of Parliament imposing an assessed 
 duty on male servants. 1 Failing to obtain a remedy for his grievance, 
 next session he brought in a Bill to amend the Customs and Inland 
 Revenue Act of 1869, in this particular. This Bill was opposed by 
 ministers, on the ground that it would set a most inconvenient pre- 
 cedent, inasmuch as all enactments of this kind should be embodied 
 in the same measure. Upon the introduction of the annual Bill to 
 amend the customs and inland revenue law, a clause to the effect of 
 this Bill might be moved in committee. Whereupon the second 
 reading of the Bill was deferred. 111 
 
 On April 23, 1874, in committee of ways and means, on a formal 
 motion, ' that it is expedient to amend the laws relating to the inland 
 revenue,' a private member moved, that it is expedient to repeal the 
 Gun Licence Act, 1870, which was negatived on division. 
 
 1 Hans. D. v. 203, p. 349. Ib. v. 205, pp. 403, 1689. 
 
 VOL. I. 3 A
 
 722 THE ROYAL PREROGATIVE. 
 
 CHAPTEE XVII. 
 
 THE RIGHTS AND PRIVILEGES OF PARLIAMENT, AND ESPE- 
 CIALLY OF THE HOUSE OF COMMONS, IN THE GRANT OF 
 MONEY FOR THE PUBLIC SERVICE. 
 
 Grant of FROM a very early period in the history of England 
 by P par e - S the principle has been established, that the right of 
 Hament. taxation, and the granting supplies for the public 
 service, belong exclusively to Parliament. 
 
 The old prerogative claim of the sovereign to levy 
 taxes on the subject at his own will and pleasure, was 
 first expressly restrained by the declaration, in Magna 
 Charta, that ' no scutage or aid shall be imposed in our 
 kingdom unless by the general council of our kingdom ; ' 
 with certain exceptions peculiar to the person and 
 family of the king himself. 
 
 This concession lies at the foundation of our parlia- 
 mentary institutions, and especially of the House of 
 Commons as a distinct branch of the legislature. The 
 growth of the Commons in power and influence was 
 strikingly exemplified by the statute De tallagio non 
 concedendo, in the 25th Edward I., by which it was 
 declared, ' That no tallage or aid shall be taken or 
 levied without the good will and assent of the arch- 
 bishops, bishops, earls, barons, knights, burgesses, and 
 other freemen of the land.' a 
 
 Concurrently, however, with parliamentary taxation, 
 other imposts used to be levied by royal prerogative, 1 * 
 
 * Stubbs, Const. Hist. v. 2, pp. b See ante, p. 457 ; Cox, lust. pp. 
 142, 564. ' 600-603.
 
 CONTROL OF PARLIAMENT OVEK SUPPLIES. 723 
 
 independently of the action of Parliament ; but none 
 of these survived the Eevolution of 1688. It was 
 guaranteed by the Bill of Eights that henceforth ' no 
 man be compelled to make any gift, loan, or bene- 
 volence, or tax, without common consent by Act of 
 Parliament.' And it was finally established by the Act 
 of Settlement, ' That levying money for or to the use of 
 the crown by pretence and prerogative, without grant 
 of Parliament, for longer time or in other manner than 
 the same is or shall be granted, is illegal.' 
 
 Since that memorable period the crown has been No SU P- 
 
 i -, ^ r\ f c plies to be 
 
 entirely dependent upon Parliament lor its revenues, usedun- 
 which are derived either from annual grants for specific ^f a s nted 
 public services, or from payments already secured and b / Par- 
 appropriated by Acts of Parliament, and which are 
 commonly known as charges upon the Consolidated 
 Fund. 
 
 On this principle while prize-money, obtained P rfz e 
 through the valour of the army and navy, is distributed 
 by the crown itself, by virtue of its prerogative d to 
 the captors ; any surplus remaining over after such 
 "distribution should be paid over to the Consolidated 
 Fund, and could not be appropriated to public uses, 
 without the authority of Parliament. 6 
 
 Any question as to the right of persons to participate in prize 
 money should be determined by the lords of the Treasury under 
 the guidance of the law officers of the crown. But in 1863, in the 
 case of the Banda and Kirvvee prize-money, the government under- 
 took to make no final arrangement in regard thereto until papers on 
 the subject had been communicated to the House of Commons, ' so 
 as to give that House the opportunity of intercepting the proposed 
 distribution, if it thought proper to do so.' f This case having excited 
 much controversy, a royal commission enquiry into the whole 
 subject of Army Prize was appointed in 1864, upon whose re- 
 commendation a royal warrant was afterwards issued, under which 
 
 c Broom, Const. Law, pp. 398-402. Ib. v. 61, p. 484; Com. Pap. 
 
 d Clode, Mil. Forces, v. 2, p. 292 ; 1842, v. 26, pp. 369-371. 
 
 Hans. D. v. 71, p. 352 ; v. 82, p. , f Hans. D. v. 172, pp. 250, 817. 
 
 682. 1475. 
 
 3 A 2
 
 THE ROYAL PREROGATIVE. 
 
 Military 
 
 reserve 
 
 funds. 
 
 the Court of Admiralty took cognisance of the case, judgment was 
 rendered in 1866,s awarding to the proper claimants their rightful 
 share of this vast booty. h 
 
 And while the crown is not at liberty to invite or 
 receive gifts or loans of money for any public service 
 without the consent of Parliament, neither may any 
 person voluntarily lend money to the crown, or to any 
 department of stafe 1 "ior public purposes, without the 
 sanction of Parliament, under penalty of a misdemean- 
 our. 1 The charter of the Bank of England contains a 
 clause forbidding money transactions between the Bank 
 and the Treasury, that have not received express par- 
 liamentary authority. 3 
 
 A discussion arose in the House of Commons on April 28, 1862, 
 in reference to the Military Reserve Fund, a fund which since 
 1851 had accumulatecTTromTn^proceecTs of the sale of army com- 
 missions, and amounted to a very considerable sum. k This fund had 
 been appropriated, under the authority of the secretary of state for 
 war, to ' facilitate and remove the friction from the working of the 
 system of purchase,' and it was admitted that no fault could be 
 found with the practice. Nevertheless, grave constitutional objec- 
 tions were urged against the existence of a fund not voted by 
 Parliament, or subject to its control, but which was expended at 
 the discretion of government. The secretary for war acknowledged 
 tuat tnese' objections were well founded, and promised that the at- 
 tention of government should be directed to the question, with a 
 view to this fund being brought under parliamentary examination 
 and audit. 1 Since 1860, accounts of the application of this fund 
 
 12 Jurist N.S. p. 819. 
 
 h Law. Mag. v. 23, p. 66 ; Hans. 
 D. v. 188, p. 983: v. 194, p. 1462 ; 
 Com. Pap. 1868-69, v. 46. Ib. 1871, 
 v. 60. Ib. 1875, v. 156. Hans. D. 
 v. 231, p. 821 ; v. 201, pp. 1524-51 ; 
 v. 212, p. 1404. 
 
 1 See debates in the Commons on 
 Mr. Sheridan's' motion respecting 
 voluntary aids for public purposes 
 without the consent of Parliament, 
 Parl. Hist. v. 31, pp. 83, 97 ; and in 
 the Lords, Ib. p. 122. See Lord 
 Brougham's comments on this case, 
 Hans. D. v. 83, p. 37 ; Mr. Massey's 
 observations in his George III. v. 4, 
 
 p. 77 ; Clode, Mil. Forces, v. 1 , p. 101 ; 
 Com. Pap. 1868-9, v. 35, p. 963. 
 
 J Hans. D. v. 162, p. 887; and 
 see Report of the Comptroller of the 
 Exchequer, in Rep. Corn 6 , on Public 
 Moneys, Com. Pap. 1857, Sess. 2, 
 v. 9. 
 
 k The Commons Com e . on military 
 organisation, of 1860, first directed 
 the attention of the House to the 
 existence of this anomalous fund. 
 (Report, pp. xi. xii. ; Evid. pp. 471- 
 473.) And see Smith's Parl. Rememb. 
 1862, p. 79. 
 
 1 Hans. D. v. 166, p. 985 ; and see 
 v. 168, p. 736.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 725 
 
 have been periodically submitted to Parliament ; and to this extent 
 brought under the control of Parliament. A fund arising from 
 fines imposed on soldiers for drunkenness is distributed in con- 
 formity with the recommendations of a select committee of the 
 House of Commons in 1870. On May 14, 1867, a select committee 
 was appointed by the House to enquire into the origin of Military 
 Reserve Funds, the sources from which they are derived, and the 
 objects to which they are applied. On July 22, this committee re- 
 ported the evidence already taken, with a recommendation that they 
 might be reappointed next session, to complete the enquiry." It 
 was accordingly reappointed in 1868, and on May 22 reported an 
 opinion, that on constitutional grounds the Military Reserve Fund 
 should be wound up. The government promised to consider the 
 matter. 
 
 The constitutional principle of parliamentary control Loans, 
 is also applicable to advances or loans of public money, 
 to foreign powers, corporations, or private persons ; to Debts du 
 the remission of debts due to the crown by any such crown, 
 persons or powers ; and even to the sale of property Govern- 
 by one department of the state, and its purchase by 
 another department for public uses. p It equally applies 
 to the gift of public money, or public stores, in the 
 name or on behalf of the crown. q Public departments 
 are not now at liberty to give away stores without the 
 direct sanction of Parliament. The rule, that no public 
 property should be disposed of in kind, has been ' one 
 of the most difficult achievements of financial reform 
 during the last half century.' Before the establishment 
 of this rule the public never knew when anything was 
 given away, or what was the value of the gift. r But 
 by a Treasury minute, issued on May 13, 1871, pur- 
 suant to the First Eeport of the Committee of Public 
 Accounts in that year, every public department is now 
 
 m Hans. D. v. 214, p. 1393. expenditure. 
 
 " Com. Pap. 1867, v. 7, p. 713 ; Hans. D. v. 193, p. 1279. Olode, 
 
 Hans. D. v. 189, p. 334. Mil. Forces, v. 2, p. 445. 
 
 Com. Pap. 1867-8, v. 6. r Mr. Gladstone, on an address for 
 
 p The question of sales of public the grant of gun-metal to erect a 
 
 property between different public de- statue to Visct. Gough, Hans. D. v. 
 
 partments will be considered in post, 203, p. 779. 
 vol. ii., when treating of unauthorised
 
 726 
 
 THE ROYAL PREKOGATIVE. 
 
 Advances 
 of public 
 money. 
 
 Prece- 
 dents. 
 
 Public 
 Works 
 Loan 
 Commis- 
 sioners. 
 
 required to notify the Treasury whenever it is proposed 
 to relinquish a claim due to the public, whether of cash 
 or stores. 
 
 Advances out of the public funds, for whatsoever 
 purpose, should ordinarily be made only by express 
 authority of Parliament. 3 
 
 In 1868 the select committee on the Lee River Conservancy 
 Bill recommended the Treasury to consider the expediency of 
 authorising the Public Works Loan Commissioners to advance to 
 the said conservancy board funds to pay off certain debts. 1 
 
 In April 1876, regulations approved by the Treasury were 
 issuad for carrying into effect the Public Works Loan Act, 1875. 
 They empowered the commissioners to elect a chairman and deputy- 
 chairman, prescribed the method of conducting business, and fixed 
 the quorum of the board at three. They also defined the powers of 
 the board and its relation to the Local Government Board." 
 
 In May 1876, the Public Works Loan Board presented their 
 first annual report, under the Act of 1875. It was prefaced by an 
 account of the origin of this department of the public service. It 
 originated in 1817, a time at which, after the close of the European 
 war, there was considerable difficulty in obtaining loans of capital 
 for the execution of many works of public utility and advantage, 
 and great numbers of the labouring classes were in want of employ- 
 ment. The proceedings of the department have been regulated by 
 various Acts of Parliament, the first of which (57 Geo. III. c. 34) 
 recites the benefits anticipated to result from the loans of public 
 money, not to exceed in all 1,750,000. authorised by the same. 
 This Act provided for the appointment of twenty-one commissioners 
 for the purposes of the Act in Great Britain, and fifteen commis- 
 sioners for its execution in Ireland. By subsequent statutes, further 
 sums were placed at the disposal of the commissioners for loans, 
 and their powers were extended and enlarged. These Acts are all 
 recited in this report, which gives full particulars of the operations 
 of the board from its first establishment. v 
 
 By the Act 39 & 40 Viet. c. 31, the sum of four million pounds 
 
 See Act 57 Geo. III. c. 34, ap- 
 pointing Public Works Loan Com- 
 missioners, and several Acts since 
 passed extending powers of that 
 board. Also Acts 29 & 30 Viet. c. 
 72 ; 30 Viet. c. 32. 
 
 * Com. Pap. 1867-8, v. 40, con- 
 cerning the remission of bad debts 
 owing to the Loan Fund ; see Rep. 
 
 Corn". Pub. Accts. Com. Pap. 1874, 
 v. 6, pp. 20, 143. Rep. Corn". Pub. 
 Works Loan Bill. Com. Pap. 1875, 
 v. 14, pp. 33, 69. For particulars 
 concerning the origin and operations 
 of this fund, see Hans. D. v. 222, 
 p. 222. 
 
 u Com. Pap. 1876, v. 42, p. 483. 
 
 T Ib. v. 21, p. 125.
 
 CONTROL OP PARLIAMENT OVER SUPPLIES. 727 
 
 was granted, for the purpose of loans by the Public Works Loan rece- 
 Commissioners for the current year, and certain amendments were dents. 
 made to the Loan Act of 1875. A like amount was granted in 
 1877, by the Act 40 & 41 Viet. c. 19, which also authorised the 
 Public Works Loan Commissioners to compound a certain debt in 
 respect to a loan granted by them in 1867. By the Public Works 
 Loans Act, 1882, upwards of four millions were granted for loans in 
 the United Kingdom, and they were empowered to postpone a debt 
 due by a Scotch harbour. And by the Act 40 Viet. c. 2 (for the 
 preparation, issue, and payment of Treasury bills), a new form of 
 raising money is provided, which is specially adapted to facilitate 
 and economise loans for public works from the loan commissioners^ 
 
 The Act of 57 Geo. III. c. 34, by which the commission was first 
 appointed, named the commissioners, twenty-one in number, and em- 
 powered them to fill up vacancies in their number, which they usually 
 did after communication with the chancellor of the exchequer. In 
 the next Act of Parliament relating to the commissioners which 
 happened to be passed, it was customary to insert the new names, in 
 order that they might be confirmed by Parliament, but meanwhile 
 the new commissioners were fully competent to act, and their 
 appointments were considered as permanent. All the vacancies, 
 however, have not been filled up. In 1875, there were only fifteen 
 commissioners, and of these not more than eight or nine were active 
 members of the board. In the consolidating and amending Act, 
 passed in 1875, 38 & 39 Viet. c. 89, the names of the commissioners, 
 sixteen in number, were all included, but the commissioners were 
 still empowered to fill up vacancies themselves for unexpired 
 terms of office.* But provision was made that the commissioners 
 should not hold office for a longer period than five years unless 
 otherwise directed by any Act of Parliament appointing a com- 
 missioner. The commissioners are unpaid, and have no patronage.? 
 The idea has been ' That the loans granted by the state should be 
 regulated by a body independent of political influence.' 15 This view 
 has been endorsed and strengthened by the amending Act of 1875. 
 
 At first the Public Works Loan Commissioners had a yearly sum 
 of 300,000^. appropriated to their requirements, in the grant of loans 
 to local works upon their own discretion. But about 1861 a change 
 was made in the policy of Parliament, and from that time various 
 Acts have been passed, each of which opened a special credit on 
 behalf of particular undertakings upon which the Public Works 
 
 w Hans. D. v. 232, p. 1583. See * Rep. Com e . Public Works Loans 
 
 also Public Works Loan (Ireland) Bill, Com. Pap. 1875, v. 14, pp. 3, 7, 
 
 Act, 1877, and article on Local Debts 27, 38. 
 
 and Government Loans in Ed. Rev. y Vide Report, p. 30. 
 
 v. 153, p. 548. * Ib. p. 66.
 
 728 
 
 THE ROYAL PREROGATIVE. 
 
 Prece- 
 dents of 
 money 
 advances. 
 
 Loan Commissioners were at liberty to draw, without any annual 
 limit to such expenditure, e.g., the Harbour and Passing Tolls Act ; 
 Acts for Relief of Manufacturing Distress ; Loans on account of the 
 Cattle Disease ; of the Public Education Acts ; and of the Public 
 Health Acts. 
 
 The amounts which the commissioners can draw under these 
 Acts are very large, and have hitherto been indefinite. But it has 
 become necessary that the chancellor of the exchequer should know 
 beforehand the probable extent of such demands upon him for 
 pecuniary advances within the year. And he accordingly announced 
 his intention of adding to his ordinary yearly budget an annual 
 statement, or ' local budget,' for the purpose of enabling Parliament 
 to be informed each year of the progress of loan transactions, and of 
 determining what amount of money should be voted to supply loans 
 to be effected through the commission, and of providing for the 
 same by a separate Bill. a Old running loans which have hitherto 
 escaped the attention of Parliament are now to be abolished ; and 
 no loan is to be remitted or compounded without the authority of 
 Parliament. 13 The evidence appended to the afore-mentioned report 
 embodies much information upon the operations of the Public Works 
 Loan Commissioners. 
 
 By the Act 38 & 39 Viet. c. 58, the Treasury is empowered to 
 issue to the Public Works Loan Commissioners, out of the Consoli- 
 dated Fund, sums of money not exceeding in the whole three million 
 pounds sterling, for the purpose of any loans by the commissioners 
 which cannot be issued under Acts in force at the passing of this 
 Act. d 
 
 Previous to the Act of 1875, the Treasury had power by warrant 
 to reduce the terms on which loans might be made by the com- 
 missioners. But by that Act Parliament divested the Treasury of 
 this power, so that full responsibility might rest on the com- 
 missioners, subject only to the control and revision of Parlia- 
 ment. 6 
 
 On July 4, 1876, on going into committee upon a Bill to place 
 four million pounds at the disposal of the commissioners for loans to 
 be granted by them to local authorities during the current financial 
 year, the president of the Local Government Board made the 
 
 Vide Report, Com. Pap. 1875, v. 
 14, pp. 38, 60, 62, 66 ; Hans. D. v. 
 233, p. 1687. 
 
 Public Works Loan Bill, Ib. v. 229, 
 p. 669. 
 c Com. Pap. 1875, v. 14, p. 9, &c. ; 
 
 b Ch. of Exch. in Budget Speech, Ed. Rev. v. 153, p. 548, &c. 
 
 1876, on loan transactions for Pub. 
 Works. Hans. D. v. 228, p. 1111. 
 
 d 38 & 39 Viet. cc. 83 & 95. 
 Hans. D. v. 230, pp. 872, 975, 
 
 A detailed statement, or ' Local 981 ; v. 234, pp. 1169, 1291. 
 Budget,' promised on bringing in a
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 729 
 
 promised financial statement, showing the indebtedness of the local Money 
 
 authorities and their current expenditure. The total indebtedness of advances. 
 
 local authorities in England and Wales was placed at 92,000,000?., 
 
 the great bulk of which was borrowed, not from the Public Works 
 
 Loan Commissioners, but from private bankers and capitalists f On 
 
 April 23, 1877, the ' Local Budget ' was again presented by the 
 
 same officer, asking the same grant of four millions. 
 
 The Local Government Board & are required (by 36 of the 
 Public Works Loans Act of 1875) to satisfy themselves that every 
 loan advanced by the Public Works Loan Commissioners on the 
 security of any rate has been duly applied for the purpose for which 
 it was advanced. Other new duties are imposed on this board by 
 the Local Loans Act of 1875, h which came into force on the 1st of 
 January, 1876. This Act enables every local authority in England 
 and Wales to issue debentures and annuity certificates, and in some 
 cases debenture stock, for the purpose of raising any new loan, 
 which they are otherwise authorised to borrow ; or for the purpose 
 of discharging any existing loan, lawfully contracted. 
 
 By the 161st section of the Public Health Act, 1875, the Local 
 Government Board are empowered to issue provisional orders, in 
 certain cases, authorising the establishment by urban authorities of 
 undertakings under the Gas and Water Facilities Act, 1870. The 
 advantages attending the Provisional Order System as compared 
 with that of Local Acts, and the growing appreciation thereof by 
 local authorities, are pointed out in the fifth annual report of the 
 Local Government Board, 1875-6 (p. Iviii.) On the other hand, the 
 attention of the House of Lords was directed by Lord Redesdale on 
 July 18 and 20, 1876, to the abuses to which this system, in general 
 so useful and advantageous, was liable, and the need of great watch- 
 fulness by Parliament to obviate the same. 1 
 
 Mr. Toulmin Smith comments on the unauthorised donation by 
 the Commissioners of Woods and Forests, on April 26, 1865, of the 
 sum of 15,000. to ' the Bishop of London's Fund,' out of the land 
 revenues of the crown, ' as a contribution in the name and on the part 
 of her Majesty.' These revenues (under the Civil List Act) form part 
 of the Consolidated Fund, and can only be appropriated by Parliament. 
 The Queen had already made a liberal contribution to the bishop's 
 fund from her privy purse ; but this act of the Commissioners of 
 Woods was illegal without the previous sanction of Parliament. J 
 Also the case of the gun-metal presented by government towards 
 
 f Hans. D. v. 230, p. 951. For particulars concerning the official 
 
 See their Ann. Rep. for 1875-6. staff of the P, W. Loan Com. see 
 
 Com. Pap. 1876, v. 81, p. 51. Com. Pap. 1877, v. 57, p. 136. 
 
 h 88 & 39 Viet. c. 83. J Smith's Parl. Rememb. 1865, 
 
 1 Hans. D. v. 230, pp. 1519, 1618. p. 66.
 
 730 
 
 THE RO^AL PREROGATIVE. 
 
 Eemission 
 of loans or 
 debts, &c., 
 require 
 the sanc- 
 tion of 
 Parlia- 
 ment. 
 
 the construction of the National Memorial to the Prince Consort. 
 And the enquiry before the Committee of Public Accounts, in 1867, 
 as to a present made by a secretary of state of 400. worth of govern 
 ment stores to a colony without proper authority. k 
 
 In urgent cases, requiring immediate relief, or 
 when7 on grounds of public policy, secresy is advisable, 
 the government can have recourse in the first instance 
 to the ' Civil Contingencies,' or the ' Treasury Chest ' 
 funds, the nature of which will be hereafter explained. 
 But they are strictly accountable to Parliament for all 
 such transactions, and the advances so made out of 
 these funds must be replaced out of moneys voted by 
 Parliament for that service. 1 
 
 No remission by government of loans, or of the 
 principal or interest of debts due to the crown, whether 
 by foreign powers, corporations, local authorities, or 
 individuals, is justifiable without the knowledge and 
 consent of Parliament. 
 
 By Act 11 & 12 Viet. c. 54, the Crinan Canal Company was as- 
 sumed by government, because the company were unable to repay the 
 sums advanced to them by the Treasury. See also the case of the 
 Leith Docks, &c. By the Act 23 & 24 Viet. c. 48, the lords of the 
 Treasury were authorised to accept the sum of 50,0002. in full satis- 
 faction for a debt of 228,3742. 9s. Sd. incurred by the City of Edin- 
 burgh for advances made by the Treasury on behalf of the harbour 
 and docks of Leith ; this debt having been secured by bonds to the 
 said amount, granted by the corporation of Edinburgh. The Bill 
 was brought in by Mr. Laing, the secretary to the Treasury ; it 
 elicited no debate in the House of Commons, but was referred to a 
 select committee, before whom Mr. Laing appeared, and showed 
 that the proposed arrangement was the best bargain that could be 
 
 k Com. Pap. 1867, v. 10, pp. 692, 
 696-699. 
 
 1 See Mr. Pitt's advance to Messrs. 
 Boyd, Benfield & Co. in 1796. Parl. 
 D. v. 6, pp. 385-424 ; also Hans. D. 
 v. 63, pp. 1139, 1314. Peel's Me- 
 moirs, v. 2, p. 174. Knight's Hist, 
 of Eng. v. 8, p. 548. Rep. on Pub. 
 
 Moneys, Com. Pap. 1857, Sess. 2, v. 
 9, p. 615. 
 
 m S. O. H. of 0. March 25, 1715, 
 and March 29, 1707. Compounding 
 debts due to the crown. Com. Jour. 
 v. 75, p. 167 ; v. 81, p. 66. Case of 
 the Crinan Canal Co. Ib. v. 83, pp. 
 213, 219, 251.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 731 
 
 made by the government." Whereupon the Bill was reported and 
 agreed to by both Houses. See also the Dominica Hurricane Loan 
 Act, 23 & 24 Viet. c. 57. 
 
 Upon this principle the surrender of the rights of the 
 crown in cases of ' Treasure Trove,' by relinquishing 
 the same to the finders, would be- unjustifiable, had it 
 not been authorised by the Civil List Act. p 
 
 So far as loans to foreign powers are concerned, the Loans to 
 practice of government has been heretofore somewhat powers. 
 irregular and objectionable, as the following cases will 
 show. 
 
 In 1863, when the Ionian Islands were ceded by the British Prece- 
 government to the kingdom of Greece, a portion of certain arrears, dents, 
 due by the said islands to the imperial Treasury, was remitted, 
 without the previous authority of Parliament. 1 This proceeding 
 gave rise to a motion of censure in the House of Commons on 
 June 27, 1864. The chancellor of the exchequer defended the 
 course taken by the government, by reference to former precedents, 
 but at the same time he admitted that it was questionable whether 
 it might not be possible to improve the established practice in such 
 cases. In 1823, the government, by a convention with the Emperor 
 of Austria, agreed to accept the sum of 2,500,000?. in lieu of a 
 much larger amount due by Austria, under previous engagements 
 with the British crown. This proceeding was not submitted to 
 Parliament until the following year, when it was sanctioned by the 
 Act 5 Geo. IV. c. 9. A debt due by Portugal was remitted, by treaty, 
 in 1815, without any application to Parliament upon the subject. 
 In brief, the constitutional practice in such cases was thus denned 
 by the chancellor of the exchequer : When a sum of money, to 
 which the British crown was entitled, was surrendered, it was cus- 
 tomary to surrender the same by treaty, which was not made con- 
 tingent on the assent of Parliament. He admitted that, in a 
 constitutional point of view, the assent of Parliament was neces- 
 
 n Com. Pap. 1860, v. 15, p. 32. Accts. Com. Pap. 1874. v. 6, p. xx. 
 
 See Return of Cases wherein p. 143. Act 39 & 40 Viet. c. 31, 6, 
 
 the Treasury have compounded a and Public Loans Remission Act, 
 
 public debt, or reduced the interest 1877. 
 
 thereon, since 1857. Com. Pap. 1867, " 1 & 2 Viet. c. 2, 12. Hans, 
 
 v. 40, p. 317. And case of Cheshire D. v. 180, p. 440. In regard to the 
 
 debt due on account of Cattle Plague, prerogative of Treasure Trove, see 
 
 Hans. D. v. 197, p. 1807. See also Forsyth, Const. Law, p. 178. 
 
 Ib. v. 207, p. 1224 ; v. 216, p. 1605 ; Hans. D. v. 173, p. 1083 ; v. 176, 
 
 v. 219, p. 301. Rep. Com 8 . Pub. p. 568.
 
 732 
 
 THE KOYAL PREROGATIVE. 
 
 Grant of 
 supply. 
 
 Public 
 revenues. 
 
 sary, r but it was not usual to make it a condition precedent in the 
 treaty itself. But when the crown undertook to pay a sum of 
 money, it was customary to make such payment conditional upon 
 the assent of Parliament. After these explanations the motion of 
 censure was withdrawn. 8 
 
 In 1864, a Bill to carry out an ' unconditional agreement ' made 
 by treaty with Greece, to remit 4,000. a year, as a personal dota- 
 tion to George I., king of the Hellenes, out of a debt due by Greece 
 to Great Britain, was introduced by government, and passed with- 
 out amendment.* 
 
 Directly the House of Commons have agreed to the 
 Address in answer to the speech from the throne, the 
 Committee of Supply is at once appointed, for a future 
 day, by virtue of a standing order of July 28, 1870. 
 As it is the duty of this committee to consider the 
 estimates for the current year, the House then orders 
 the estimates for the Army and Navy to be laid before 
 them, and address the crown to give directions 
 accordingly." 
 
 O v 
 
 We may now proceed to state the various sources 
 from whence the public re venue is derived, and the extent 
 to which the revenue is subjected to the periodical re- 
 vision and control of the House of Commons. 
 
 The revenues of the crown in Great Britain were 
 anciently derivable from the hereditary lands of the 
 crown, and from the operation of various prerogative 
 rights. But since the establishment of parliamentary 
 government, these revenues have been mostly sur- 
 rendered to the control of Parliament, in exchange for 
 a permanent civil list. T The public revenues of the 
 country are now chiefly obtained from taxes and other 
 imposts, which are levied under the authority of Acts 
 
 ' In fact he had distinctly admit/- Britain by Spain and Portugal for 
 ted this necessity upon a former oc- expenses incurred in Peninsular War. 
 casion. Hans. D. v. 172, p. 251. Hans. D. v. 200, p. 1617. 
 
 Ib. v. 176, pp. 361, 405. And Act 27 & 28 Viet, c. 40. 
 see procedure proposed by chanc. of 
 exch. in 1870, with a view to formal 
 relinquishment of debts due to Gt. 
 
 u Com. Jour. Nov. 25, 1867. 
 * See ante, p. 655.
 
 CONTROL OP PARLIAMENT OVER SUPPLIES. 733 
 
 of Parliament. w The whole revenue, from whatever 
 source derived, is now (with some trifling exception) 
 paid into the Bank of England or Ireland to the ac- 
 count of her Majesty's Exchequer. The old system of 
 retaining public money at the Exchequer itself has 
 been entirely abolished, and this great department re- 
 modelled, by recent legislation, as will hereafter appear, 
 when we consider the manner in which the control of 
 Parliament is exercised over the issue of public money. 
 
 The revenues which are thus paid into the Bank of 
 England, to the account of the Exchequer, comprise all 
 the principal revenues of the kingdom, including the 
 Customs and Inland Eevenue, and the receipts from the 
 Post Office. 
 
 Formerly, the proceeds of parliamentary taxes Consoii- 
 constituted separate and distinct funds, but by the Fund. 
 Act 27 Geo. III. c. 13, 47, it was directed that the 
 various duties and taxes should be carried to and 
 constitute a fund, to be called ' The Consolidated 
 Fund.'* 
 
 When the annual revenue raised by taxes is found 
 insufficient, as in the case of war, to meet the annual 
 expenditure, Parliament grants authority to raise money 
 by loan to cover the deficiency. All moneys so raised 
 are dealt with like the ordinary revenue, and are paid 
 to the account of the Exchequer for the credit of the 
 Consolidated Fund. 7 
 
 Until the year 1854, the charges of collection and 
 management of the revenue of Customs, Inland Eevenue, 
 
 w For an historical account of and Mr. Disraeli's observations, Hans, 
 
 the several branches of the Public D. v. 206, pp. 625, 976, 983. 
 Revenue, see Public Income and x Com. Pap. 1868-9, v. 35, pp. 
 
 Expenditure of Gt. Britain, 1801- 811-931. The Consolidated Funds 
 
 1869. Com. Pap. 1868-9, v. 35, p. of England and Ireland were united 
 
 889, et seq. presented to Parlt. in by 56 Geo. III. c. 98 ; and by 1 Viet. 
 
 1869. As to the distinction between c. 2, various hereditary revenues of 
 
 direct and indirect taxation, and the the crown were carried to this fund, 
 proportions contributed by each to y Second Rept. Com 6 . Pub. Accts. * 
 
 the public revenue, see Mr. Lowe's Com. Pap. 1873, v. 7, p. 207. //
 
 734 THE KOYAL PKEEOGATIVE. 
 
 Gross re- and the Post Office, were payable out of the gross 
 belaid receipts of these imposts, respectively, and only the net 
 into the revenue, after these and other deductions, was paid 
 
 cxcnG" 
 
 quer. into the Consolidated Fund. The constitutional objec- 
 tions to this practice were repeatedly pressed upon the 
 attention of successive administrations without effect. 
 At length, on April 29, 1847, Dr. Bowring submitted 
 to the House of Commons a series of resolutions based 
 upon the report of the Commissioners of Public 
 Accounts in 1831 recommending the adoption of an 
 improved system for the security of the public 
 revenue, and for ensuring greater accuracy, simplicity, 
 and completeness, in the public accounts ; and re- 
 quiring that the gross revenue of the country, without 
 any deduction whatever, should be paid into the public 
 chest, and be subjected to the surveillance and control 
 of Parliament. After some debate, the motion was 
 withdrawn. But, on April 30, 1848, the discussion 
 was again renewed, and Dr. Bowring succeeded in 
 carrying his resolutions by a bare majority. When 
 questioned upon the subject in the following session, 
 the chancellor of the exchequer informed the House 
 that steps had been taken by the government to carry 
 out in part the reforms proposed by the resolutions. 2 
 But it was not until 1854 that the great object aimed 
 at by Dr. Bowring was sought to be accomplished by 
 the passing of a Bill, which was introduced into Parlia- 
 ment by Mr. Gladstone, ' to bring the gross income and 
 expenditure of the United Kingdom, &c. under the 
 more immediate view and control of Parliament.' a By 
 this Act, it was intended that the whole of the gross 
 revenues of the country, derived from the Customs, 
 Excise (with the exception of certain drawbacks, 
 discounts, and repayments), and other taxes (not in- 
 cluding the land revenues of the crown, which are 
 
 Hans. D. v. 102, p. 499. Act 17 & 18 Viet. c. 94.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 735 
 
 otherwise provided for), should be paid into the Gross 
 
 Exchequer, and the cost of collection be defrayed out 
 
 of votes in supply. b Besides the cost of collection, the exche 
 
 . .... quer. 
 
 revenue was formerly chargeable with certain judicial 
 and other salaries, pensions, and other payments, 
 under the authority of various Acts of Parliament. By 
 Mr. Gladstone's Act, these charges were transferred 
 either to the Consolidated Fund or to the annual 
 supplies to be voted by Parliament. 
 
 On July 9, 1877, a resolution was proposed in the House of 
 Commons to condemn the action of government in refusing to place 
 a vote in the estimates to defray the salary of an office which, until 
 1854, had been paid out of the Consolidated Fund. Ministers justi- 
 fied their act on the ground that the office was a sinecure, and that 
 it was only after it had become vacant that they decided to 
 abolish it. d 
 
 Under the authority of this Act, moreover, a very large 
 number of charges, previously paid out of the Consoli- 
 dated Fund, were placed, thenceforth, in the annual 
 estimates. 6 And, by the Act 19 & 20 Viet. c. 59, 
 certain superannuations and other charges which still 
 remained payable out of the gross revenues were 
 directed to be removed from the same, and placed upon 
 the Consolidated Fund, &c. The only payments re- 
 maining which could be legally charged upon the gross 
 revenues were the charges on the land revenues of the 
 crown the net receipts only of which are payable to 
 the Consolidated Fund, under the statute 10 Geo. IV. 
 c. 50, 113, and the Civil List Act of 1 & 2 Viet. 
 and the drawbacks, bounties, repayments, and dis- 
 counts, aforesaid. 
 
 But notwithstanding the Acts of 1854 and 1856, 
 
 b Mr. Gladstone's speech, in Hans, lection of the Revenue ; ' and North- 
 
 D. v. 130, p. 216 ; see also Ib. v. 135, cote on Financial Policy, p. 238. 
 
 p. 301. a Hans. D. v. 235, p." 1023. 
 
 c As to the results which have fol- e Mr. Gladstone, in Hans. D. v. 
 
 lowed from this improved system, see 169, p. 1943. 
 Peto on Taxation, ch. ix. ' On the Col-
 
 736 THE EOYAL PREEOGATIVE. 
 
 Gross the intentions whereof were clearly to require the pay- 
 payable to naent of the whole revenue, minus the drawbacks, &c. 
 e uer 6 " above mentioned, into the Exchequer, this result was 
 not obtained, owing to an omission in the Acts of any 
 provision to render such a course compulsory. Accord- 
 ingly, the attention of the Committee on Public 
 Moneys, in 1857, was directed to the matter, and they 
 recommended the passing of a law to make it impera- 
 tive on the government to pay the gross revenues to 
 the Exchequer, without any other deductions than 
 those above-mentioned, in order that all issues for the 
 public service might receive the previous sanction of 
 Parliament. They also suggested that, if possible, the 
 charges on the land revenues should be brought under 
 the same parliamentary control.* By Treasury minutes, 
 dated February 15 and December 23, 1858, the go- 
 vernment agreed to this recommendation, excepting so 
 far as the land revenues were concerned, which, for 
 reasons stated, could not be carried out until a new 
 civil list should be under consideration^ But although 
 the Treasury undertook to submit to Parliament a Bill 
 to effect this desirable improvement, no such measure 
 was brought forward, and this great reform remained 
 partially uncompleted until the passing of the Ex- 
 chequer and Audit Departments Act, in 1866, the 
 tenth clause of which has made the practice obligatory. 
 Before the passing of this Act, the cost of collection 
 was still deducted in some cases from the gross revenue ; 
 in other instances part of the cost was paid out of the 
 gross revenue, and another part voted by the House of 
 Commons in the supplies of the year. h 
 
 Salaries in for considerations of public convenience, it is cus- 
 depart- tomary, in the case of the revenue departments gene- 
 
 revenue 
 
 depart 
 ments. 
 
 f Rep. Com 6 . Pub. Moneys, p. 4. h Peto on Taxation, p. 210. But 
 
 Com. Pap. 1857, 2nd Sess. v. 9. see Earl Grey on Parl. Gov. (new 
 
 Com. Pap. 1857-8, v.34, p. 380; ed. pp. 85-90) for remarks on evil 
 
 and 1800, v. 39, pt. i. p. 174. effects attending this change.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 737' 
 
 rally, to pay the salaries of employes, in the first in- 
 stance, out of revenue receipts, and afterwards to re- 
 pay these advances to the Exchequer out of the 
 parliamentary votes for the said departments. This 
 practice has been tacitly approved by the Committee of 
 Public Accounts, and is sanctioned by the tenth clause 
 of the Exchequer Act. 1 
 
 With this exception, therefore, the whole public 
 revenue of the country, together with moneys received 
 from loans, is placed to the account of the Consolidated 
 Fund, out of which all public payments are made. 
 Such payments are twofold : 1. By authority of per- 
 manent grants, under Acts of Parliament. 2. Pursuant 
 to annual votes in Committee of Supply, payable out of 
 the Consolidated Fund by ways and means annually 
 provided. 
 
 The services provided for by permanent grants are 
 in the proportion of about thirty millions to seventy grants. 
 millions of revenue. They are as follows : 
 
 1. The National Debt, j including the funded and 
 unfunded debt; 2. The Civil List k ; 3. Annuities to 
 ~the royal family, and pensions ; 4. Salaries and 
 allowances of certain independent officers ; 5. Courts 
 of justice ; 6. Certain miscellaneous services, com- 
 prising interest and sinking fund of the Kussian, Dutch, 
 and Greek loans, compensations, &c. These charges 
 are made payable out of the Consolidated Fund, by 
 
 1 Fifth Rep. Com 8 . Pub. Accts. 1194-1214; 38 & 39 Viet. c. 45. 
 Com. Pap. 1871, v. 11, p. 435; 2ud Treasury Minute of 23 July, 1881, 
 Rep. Com. Pap. 1873, v. 7, p. 250; on Mr. Gladstone's scheme for fur- 
 Treasury Minute, Com. Pap. 1867, v. ther reducing the National Debt. 
 39, p. 33^. Com. Pap. 1881, v. 17, p. 307. For 
 
 J Amos, Primer of Eng. Const, ed. precautions taken to secure punctual 
 
 1875, p. 222. For origin of National payment of interest to the national 
 
 Debt, see Macaulay. Hist, of Eng. v. creditor, and also payment of other 
 
 4, p. 319. For particulars regarding fixed charges by the Bank of Eng- 
 
 several sinking funds established land, on behalf of government, see 
 
 since 1716, and progressed opinion in Shilling Mag. v. 4, p. 44. 
 
 Parliament on question of sinking k Concerning which see ante, p. 
 
 fund for reduction of National Debt, 655. 
 see Com. Pap. 186S-9, v. 35, pp. 
 
 VOL. i. 3s
 
 788 THE ROYAL PREROGATIVE. 
 
 permanent statutes, from year to year, without any re- 
 newal of parliamentary authority. 1 The principle of 
 not subjecting to the uncertainty of an annual vote the 
 provision for the security of the public creditor, the 
 dignity of the crown, annuities and pensions to royal 
 and distinguished persons, the salaries of judges and 
 other officers in whose official character independence 
 is an essential element, compensations for rights sur- 
 rendered, and like charges, is one the soundness of 
 which is generally admitted, although it may have 
 been in certain cases carried too far. m 
 
 The annual charges for the payment of interest on 
 the unfunded debt, for the maintenance of the naval 
 and military forces, for the collection of the revenue, 
 and for the various civil services, are prepared in the 
 respective departments of state to which they severally 
 belong, and are afterwards revised and approved by the 
 Treasury, in the manner described in the chapter of this 
 work which treats of the functions of that branch of 
 the executive government. 
 
 The ' unfunded debt ' consists principally of exchequer bills, 
 which are in the nature of temporary loans to the government. 
 Every year, during the sitting of the Committee of Supply, grants 
 are made from time to time of money on account, to be raised by 
 exchequer bills or loans. This supply of credit is voted in Com- 
 mittee of Supply, after which a resolution is reported from the 
 Committee of Ways and Means that a sum equal to that amount be 
 raised by loans or exchequer bills, to be charged on the next aids 
 to be granted by Parliament." 
 
 They are then submitted to the House of Commons by 
 command of the crown in very detailed estimates. 
 
 1 For financial history of these It is not customary to send the 
 
 great heads of expenditure, see Com. estimates to the House of Lords. In 
 
 Pap. 1868-9, v. 35, pp. 906-1134. 1786 they applied for a copy, and 
 
 m Rep. on Pub. Moneys, Com. were refused by the Commons, la 
 
 Pap. 2nd Sess. 1857, v. 9, p. 520. 1839 they succeeded in obtaining a 
 
 As to expenditure for diplomatic copy, ' almost for the first time in 
 
 service, see post, v. 2. their history.' Hans. D. v. 169, pp. 
 
 Cox, List. p. 193. Hans. D. v. 1140, 1603. 
 161, p. 1309.
 
 CONTROL OP PARLIAMENT OVER SUPPLIES. 739 
 
 Until the year 1863, there was one exception to this rule, in 
 respect to the Disembodied Militia estimates, which used to be for- 
 mally prepared by a committee of the House of Commons. In 
 former times, the privilege of the direct control of the House over 
 the expenditure upon the militia was highly prized, as one of the 
 safeguards of the liberties of the country, the militia being con- 
 sidered a constitutional force, as distinguished from the regular 
 army. Of late years that feeling has been entirely changed, in 
 consequence of the control acquired by the House over the regular 
 army in Committee of Supply ; the militia estimates had come to be, 
 in fact, prepared in the War Office, and to be merely formally assented 
 \o by the committee charged to prepare them. It was accordingly 
 agreed to abandon this ancient usage, and to permit these estimates 
 to be henceforth prepared by the executive government, and to be 
 presented to Parliament simultaneously with the ordinary army 
 estimates, as in the case of the expenses of the embodied militia 
 and the yeomanry and of the volunteers. P 
 
 In order that the House may be informed, as early Presenta- 
 as possible, of the expenditure for which they will have estimates! 
 to provide, the following resolution was agreed to on 
 February 19, 1821, and has ever since been complied 
 with : 
 
 ' That this House considers it essentially useful to 
 the exact performance of its duties, as guardians of the 
 , public purse, that, during the continuance of the peace, 
 whenever Parliament shall be assembled before Christ- 
 mas, the estimates for the navy, army, and ordnance 
 departments should be presented before January 15 
 then next following, if Parliament be then sitting ; and 
 that such estimates should be presented within ten days 
 after the opening of the Committee of Supply, when 
 Parliament shall not be assembled till after Christmas.' 
 
 The necessity for giving due consideration to the 
 opinions expressed by the Committee on Public 
 Accounts on the appropriation accounts of the preced- 
 ing financial year is a serious impediment in the way 
 of laying the civil service estimates on the table at the 
 commencement of the session. q 
 
 p Hans. D. v. 168, p. 662. Mir. Mr. Gladstone, Hans. D. v. 208, 
 Parl. 1828, p. 1221. Hans. D. v. 16i>, p. 1653. 
 p. 198. Clode, Mil. Fore. v. 1, p. 43. 
 
 3 B 2
 
 740 THE ROYAL PEEROGATIVE. 
 
 Esti- The estimates for civil services, commonly called 
 
 the miscellaneous estimates, together with those for the 
 revenue departments and packet service, were usually 
 presented somewhat later in the session. Since 1857, 
 the Committees on Public Moneys, on Miscellaneous 
 Expenditure, and on Public Accounts, have all re- 
 commended that these estimates should be laid on the 
 table every session, as soon as possible after the meet- 
 ing of Parliament, but the government experienced 
 great difficulty in expediting their delivery/ On 
 March 21, 1862, the House of Commons was informed by 
 the chancellor of the exchequer (Mr. Gladstone) that, 
 while it was most desirable to carry out this recom- 
 mendation as strictly as possible, these estimates could 
 not be presented with the same regularity as those for 
 military and naval services ; inasmuch as their complete 
 preparation depended not merely on other public depart- 
 ments, but upon members of commissions, governing 
 bodies of institutions, and even on others who gave gra- 
 tuitous services to the public ; and that, if the House 
 laid down any fixed rule on the subject it would be 
 complied with, ' but the effect would be that the mis- 
 cellaneous estimates would be imperfect, and the prac- 
 tice of presenting supplementary estimates one of the 
 greatest financial evils the House could endure would 
 of necessity prevail.' s Nevertheless, the civil service 
 estimates for 1866-67 were laid upon the table, in an 
 improved shape, on February 16, 1866, being within 
 sixteen days of the meeting of Parliament ; those for 
 1867-68, on February 13, being within eight days of 
 the commencement of the Session ; and those for 1868-69 
 with equal promptitude. But, owing to the change of 
 ministry in December 1868, the civil service estimates 
 for 1869-70 were not presented until April 12, 1869, a 
 vote on account for two months having been previously 
 
 r Treasury Minute of Dec. 23, p. 170. 
 1858, in Coin. Pap. 1800, v. 39, pt. i. Hans. D. v. 165, p. 1930.
 
 CONTROL. OF PARLIAMENT OVER SUPPLIES. 741 
 
 taken in Committee of Supply.* But the estimates for BS 
 1870-71 and for 1871-72 were each presented before 
 the end of March. 
 
 The civil service estimates for 1872-73 were not in 
 the hands of members until March 22, 1872. This 
 delay arises because ' it is considered better to wait till 
 as near as. possible the close of the financial year ' (i.e. 
 March 31), in order to ensure greater accuracy." The 
 late period of the session to which the introduction of 
 the estimates, prior to 1876, was animadverted upon in 
 the House in 1877. v The estimates for 1877-78 were 
 presented on February 9. 
 
 But under the new system of financial accountability 
 by which the estimates are voted as early as possible, 
 and no balances are carried over from the preceding 
 year, supplementary estimates have become a regular 
 and unavoidable part of the financial system. If not 
 resorted to a chancellor of the exchequer must needs 
 make use of the civil contingencies for every unexpected 
 demand. But the preference, if possible, should be given 
 to supplementary estimates, rather than to the civil con- 
 tingencies, for the latter fund is not submitted to Parlia- 
 ment until after the money is spent. w It is sometimes 
 necessary to present the supplementary estimates early 
 in the following session, before the expiration of the 
 financial year. When this is done it is customary to 
 take a vote in supply to make good excesses in ex- 
 penditure beyond the grants for the current year. x 
 But the vote may be divided into two or more votes if 
 required, or amendments proposed to omit or reduce 
 particular items in accordance with the usual practice 
 in Committee of Supply. 7 Supplementary estimates ought, 
 
 1 Hans. D. v. 195, pp. 524, 544. (0. of E.), Ib. v. 228, p. 1105. 
 
 u Ib. v. 210, p. 393. * Hans. D. v. 205, pp. 308-323; 
 
 T Ib. v. 233, p. 120. v. 209, p. 2003. 
 
 w Mr. Lowe (Oh. of Exch.), Ib. v. r Ib. v. 199, pp. 1570-1579 ; Com. 
 
 210, pp. 604-607. Sir 8. Northcote Tap. 1870, v. 48, p. 559.
 
 742 THE ROYAL PREROGATIVE. 
 
 strictly, to be confined to charges rendered necessary 
 by the legislation of the session. 2 
 Supple- r r ne objection urged by Mr. Gladstone in the fore- 
 
 mentary . J . e J . 
 
 estimates, going remarks against the practice Oi supplementary 
 estimates is one that he has repeatedly pressed upon 
 the attention of Parliament. In 1862 he stated that he 
 regarded such estimates ' with great jealousy. Though 
 very plausible in theory, he thought that in practice 
 nothing tended so much to defeat the efficacy of parlia- 
 mentary control as the easy resort to supplementary 
 estimates. To render this control effectual, it was neces- 
 sary that the House of Commons should have the money 
 transactions of the year presented to it in one mass, and 
 in one account. If it is to be a set of current transactions, 
 with a balance varying from time to time, the House 
 would never know where it was. If supplementary esti- 
 mates were easily and frequently resorted to, the House 
 would be obliged, in self-defence, to appoint a permanent 
 finance committee.' a 
 
 In 1876 the supplementary estimates for civil services and 
 revenue debts which were presented on March 10, in addition to 
 the original estimates voted in the previous session for the service 
 of the year ending March 31, amounted to 2 4 4, 9 9 \L, and the votes 
 in supply to make good excesses actually incurred in the original 
 votes for this year amounted to over 23,585?., besides about 240,000?. 
 of deficiency on the aggregate grants for naval services. The 
 Committee of Public Accounts comment upon this unsatisfactory 
 result of the year's finance in their First Report of March 24, 1876, 
 and state that new regulations have been framed at the Admiralty, 
 from which it is anticipated that no such excess of naval expendi- 
 ture will hereafter occur. 
 
 The gradual augmentation of the general adminis- 
 trative business of the country, which has taken place 
 
 Hans. D. v. 198, p. 1003 ; v. 203, 1673 ; v. 185, p. 499. But in regard 
 
 p. 1466. to suppl. estimates submitted early 
 
 Com. on Pub. Accts. Com. Pap. in a session, to make good deficiencies 
 
 1862, v. 11, Evid. 1571. Also Hans, in grants of a previous year a prac- 
 
 D. v. 169, p. 1860. And debate on tice now invariable see Mr. Ayrton's 
 
 suppl. estimates submitted by Mr. observations, Hans. D. V. 194, p. 
 
 Diraeli, in 1 866, Ib. v. 184, pp. 1292, 539.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 743 
 
 since the peace of 1815, and which is a proof of growing 
 national prosperity, is unavoidably accompanied by a pro- 
 portionate increase in the demands of nearly every de- ' 
 partment of the civil government an increase moderate 
 in each instance, but amounting to a considerable sum 
 in the aggregate. 1 * 
 
 The increase to the civil service estimates is also 
 attributable to additional duties imposed upon govern- 
 ment by recent legislation in the supervision and control 
 of various branches of industry ; to increased grants 
 in aid of education ; for the prevention of crime ; and 
 to the transference to the annual estimates of large 
 items of expenditure previously charged upon the Con- 
 solidated Fund or the Civil List, and not directly cognis- 
 able by the House of Commons. These additional 
 expenditures of government have often given rise to 
 imputations of extravagance which probably, in some 
 cases, have not been unfounded, and has naturally led Proposed 
 to various expedients, on the part of financial reformers, [^g 11011 
 to effect reductions in the same. The constitutional public ex- 
 course of appointing a Committee of Public Accounts F 
 will be noticed in its proper place. Such committees, 
 however, are necessarily limited to the investigation of 
 past transactions, and to the consideration of questions 
 arising out of the management of financial matters by 
 the executive government. 
 
 Not content with legitimate enquiries into past ex- 
 penditure, attempts have occasionally been made to 
 
 b See statement of votes and ex- from 1868 to 1873 about 1,500,00(V., 
 penditure for civil services from 1835 Com. Pap. 1874, v. 35, p. 161, &c. 
 to 1869, Com. Pap. 186b-9, v. 35, p. For a comparison between the civil 
 1138 ; Ib. 1868-9, v. 42, p. 627, &c. service estimates in 1853 and in 1877, 
 The actual increase in these estimates see Hans. D. v. 233, p. 658. H. 
 (after allowing for transfers of Mann, Cost of Civil Service, Statist, 
 charges, debiting of departments with Soc. Jour. v. 32, pp. 40-47. Re- 
 expenditure which was formerly paid marks on increase of navy estimates, 
 out of growing produce of taxes, &c.) Hans. D. v. 192, p. 48. 
 between 1848 and 1868, was in e Com. Pap. 1868-9, v. 85, pp. 
 round numbers somewhat less than 1138-1141. Hans. D. v. 233, pp. 
 6,000,00(W. ; and the further increase 659-662.
 
 744 
 
 THE ROYAL PREROGATIVE. 
 
 mitt', e 
 
 Prece- 
 dents. 
 
 induce the House of Commons to appoint select coin- 
 revise the mittees to revise the estimates before they should be sub- 
 estimates. m j tte( } to t h e Committee of Supply ; but these attempts 
 have been uniformly unsuccessful. In one or two in- 
 stances, during the reign of William III., we read of the 
 estimates, with other accounts, being referred to a select 
 committee ; d but since the doctrine of ministerial responsi- 
 bility has been properly understood, no such proceedings 
 have been permitted, as the following cases will show : 
 
 On March 16, 1835, Mr. Hume moved to refer the navy estimates 
 to a select committee, prior to their being submitted to the Com- 
 mittee of Supply. The chancellor of the exchequer (Sir Robert 
 Peel) opposed the motion, declaring that ' it is for the executive 
 government, from the information it receives from all quarters, dip- 
 lomatic and otherwise, to judge of what the country ought to bear, 
 and then to submit that opinion to the approbation of the House. 
 The government might be required to form their judgment upon 
 facts which it might not be consistent with their duty publicly 
 to disclose, and they are bound to ask, in some instances, for not 
 personal but political confidence from the House. To entrust all 
 this to a finance committee would be to transfer the duty of the 
 monarchy to the House of Commons.' e Sir James Graham, a leader 
 of the Opposition, also opposed the motion, and it was negatived by 
 a large majority. A few days afterwards Mr. Hume moved that 
 the army and ordnance estimates be referred to a select committee, 
 with a view to the reduction of expenditure, and for other purposes. 
 The motion was opposed by Lord John Russell, the leader of the 
 Opposition, and it was resisted by Sir Robert Peel on the ground 
 that the executive government commands means of information 
 which neither the House of Commons nor a select committee can 
 have access to, and it is their constitutional province, on their own 
 responsibility, to propose what the exigencies of the public service 
 may require. Mr. Hume expressed his willingness to concede to the 
 discretion of the government the amount of force to be maintained, 
 but this did not satisfy Sir R. Peel, who pointed out the serious 
 objections which existed to a transference of the constitutional 
 revision of the whole House over the estimates to a committee of a 
 few members, who could not exercise an efficient control, and whose 
 
 * Hans. D. v. 165, p. 1325. D. v. 146, p. 64. See also Grey, 
 
 Mir. of Parl. 1835, p. 364. And Parl. Gov. p. 78; Mill, Rep. Gov. 
 flee similar remarks by Mr. Disraeli, p. 90. 
 
 when hi Opposition, in 1857. Hans.
 
 CONTROL.- OF PARLIAMENT OVER SUPPLIES. 745 
 
 assumed jurisdiction would nevertheless practically operate to with- Prece- 
 draw the supply votes from the beneficial scrutiny of the committee dents. 
 of the whole House. After some further discussion the motion was 
 withdrawn/ 
 
 In 1857, a similar motion, to refer the army estimates to a 
 select committee, not being seconded, fell to the ground.^ 
 
 In 1847, notice being taken that 'a constant increase was 
 going on in the miscellaneous estimates, which required some 
 efficient check,' the government were asked to consent to the 
 appointment of ' a committee, or other tribunal, to which the said 
 estimates could be submitted, previously to the House being called 
 upon to vote them in committee of supply.' The first lord of the 
 Treasury (Lord John Russell) admitted that ' there was great room 
 for enquiry, and early in the next session he hoped that a select 
 committee would lay down some principles on which in future it 
 would be safe to proceed.' 11 Accordingly, on February 22, 1848, 
 Lord John Russell himself moved for the appointment of two com- 
 mittees, one to enquire into the expenditure of the navy, army 
 and ordnance, the other into the miscellaneous expenditure of the 
 country. These committees were restricted in their enquiries 
 within constitutional limits ; the government did not propose to 
 abandon their discretion and responsibility in regard to the force 
 required to be maintained in any department of the public 
 service, but, with this proviso, they invited the fullest investiga- 
 tion into the details of the public expenditure, with a view to 
 reductions to be made in future estimates. 1 Notwithstanding 
 the difference of origin, these two committees were substantially 
 the same as the finance committees which are now annually ap- 
 pointed by the House of Commons, and which have never sought to 
 interfere with the estimates for the ensuing year, as laid upon the 
 table of the House by command of the sovereign. Nevertheless, 
 great public advantages have resulted from the labours of these com- 
 mittees, in the simplification and improvement of the estimates in 
 future years, as well as in the reduction of the public expenditure. 
 
 On March 11, 1862, another attempt was made to induce the 
 House of Commons to control the estimates, by Lord Robert 
 Montagu, who moved to resolve that, in order to strengthen the 
 check upon the government in regard to issues of money for any 
 public service whatever, in excess of the sums voted by Parliament, 
 as well as to secure the just appropriation of every payment voted 
 by Parliament to its proper account, a committee be appointed, 
 to be annually nominated by the Committee of Selection, for the 
 
 ' Mir. of Parl. 1835, pp. 588-592. Ib. v. 96, pp. 1057-1076 ; v. 101, 
 Hans. D. v. 145, p. 843. p. 713. 
 
 h Ib. v. 94, p. 185.
 
 746 
 
 THE ROYAL PREROGATIVE. 
 
 Prece- 
 dents. 
 
 Motions 
 for reduc- 
 tion of ex- 
 penditure. 
 
 Prece- 
 dents. 
 
 purpose of revising all estimates or accounts laid before Parliament, 
 with instruction to consider of improving the present system of 
 audit, and also to report to the House the exact period of the 
 financial year when it would be desirable that the annual estimates 
 should be presented to Parliament, so as to enable the necessary 
 examination of such estimates or accounts to be completed and re- 
 ported upon by the said committee before this House proceeds to 
 sanction such estimates, &c., by a vote of payment in supply. This 
 proposal that the estimates should undergo revision by a select 
 committee was strenuously resisted by the government, as cutting 
 at the root of our present political system. Any such committee 
 would either supersede the House, in its duty of examining and pass- 
 ing the accounts, or it would supersede the government in its duty of 
 submitting them. It would lead to a transference of the responsi- 
 bility of the government for the estimates to an irresponsible body. 
 The motion was negatived, on division, by a large majority .J 
 
 And here it may be suitable to refer to a class of 
 motions which, although they do not concern the esti- 
 mates for the current year, are, nevertheless, intended 
 to effect a prospective reduction of the annual estimates, 
 and to express the constitutional opinion of the House 
 of Commons in regard to the increase of the public 
 expenditure. 
 
 On July 16, 1849, it was moved by Mr. Henley to resolve, that a 
 reduction of ten per cent, be made in all salaries in all the departments 
 of government, at home and abroad. The motion was opposed by the 
 chancellor of the exchequer, who contended that the public servants 
 were not more highly paid than was necessary to their adequate 
 remuneration. After debate, the motion was negatived by a large 
 majority. But on April 12, 1850, on motion of Lord John Russell 
 (the prime minister), a select committee was appointed to enquire 
 into the salaries and emoluments of offices held, during the pleasure 
 of the crown, by members of Parliament, and also into the salaries, 
 fees, and pensions of judicial officers, and into the cost of the 
 diplomatic service. This committee made a valuable report on the 
 
 J Hans. D. v. 165, pp. 1306-1359. 
 See also General Peel's remarks on 
 question of referring estimates to a 
 select committee, Ib. p. 940. On April 
 13, 1863, a motion to refer part i. of 
 the civil service estimates (on Public 
 \Vorka) to a select committee was 
 
 negatived. See a similar case on 
 May 26, 1864. On April 3, 1865, a 
 motion to refer the whole civil ser- 
 vice estimates to a select committee 
 was proposed, and withdrawn after 
 remarks from secretary of the Trea- 
 sury. Hans. D. v. 178, p. 717.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 747 
 
 duties of official persons of the highest rank, but generally adverse Prece- 
 to a reduction of salaries. 11 dents. 
 
 On March 10, 1857, Mr. Gladstone moved to resolve that, 
 ' in order to secure to the country that relief from taxation which 
 it justly expects, it is necessary, in the judgment of this House, to 
 revise and further reduce the expenditure of the state.' The 
 House of Commons had, a few days previously, censured the govern- 
 ment (which otherwise possessed the confidence of the House) for 
 the conduct of affairs in China, and the government had determined 
 to appeal to the country by a dissolution of Parliament. In order 
 to enable them to carry on the public service until the assembling 
 of a new Parliament, ministers applied to the House of Commons 
 for a ' vote on account,' for four months. Having no objection to 
 this course, and admitting it to be just and customary, Mr. Glad- 
 stone was yet of opinion that the proposed estimates were excessive. 
 He accordingly sought, by this motion, to compel the government 
 to re-consider their estimates before the re-assembling of Parlia- 
 ment, and to submit them, with considerable reductions, to the 
 judgment of the new House of Commons. The House did not 
 concur with Mr. Gladstone as to the propriety or expediency of 
 this motion, and it was negatived without a division. 
 
 On June 3, 1862, Mr. Stansfeld moved to resolve, that the 
 national expenditure is capable of reduction, without compro- 
 mising the safety, independence, or legitimate influence of the 
 country. In amendment, Lord Palmerston (the prime minister) 
 moved that the House, sensible of the necessity of economy, is at 
 the same time mindful of its obligation to provide for the security 
 of the country at home and the protection of its interests abroad, 
 and that it observes with satisfaction the decrease already effected 
 in the national expenditure, and trusts such further diminution, 
 may be made in it as the future state of things may warrant. 
 Besides this amendment, no less than five other amendments, either 
 to Mr. Stansfeld's, or to Lord Palmerston's motion, stood upon the 
 notice paper. One of them (Mr. Walpole's) was regarded by Lord 
 Palmerston as equivalent to a vote of want of confidence ; he there- 
 fore suggested that it should have the priority. The members who 
 were about to propose the other amendments agreed to withhold 
 them ; but Mr. Walpole declared that he did not intend a vote of 
 censure by his motion, yet, after Lord Palmerston's statement re- 
 specting it, he was not prepared to encounter the responsibilities 
 which would be entailed by the success of his amendment, and 
 therefore he would not move it. Lord Palmerston, in justifying his 
 
 k Com. Pap. 1850, v. 15, p. 179. taken forgiving effect to the recom- 
 See Treasury Minute of May 20, 1851, mendations of this committee. 2b. 
 recording the steps which have been 1851, v. 31, p; 379.
 
 748 THE ROYAL PEEROGATIVE. 
 
 Precr- own amendment, said that he hoped that the government would next 
 deats. year be able to present diminished estimates to Parliament. After 
 
 a long debate, Lord Palmerston's amendment was carried by a large 
 majority. In the two following sessions, upon opening the budget, 
 the chancellor of the exchequer referred to this resolution, and 
 showed that the government had succeeded in effecting considerable 
 reductions in the estimates for the ensuing year, with a reasonable 
 hope of further retrenchment in future. 1 Upon the accession of 
 the Derby administration to office, in 1866, Mr. Disraeli, the new 
 chancellor of the exchequer, took occasion to advert to this resolu- 
 tion, and to assure the House that the financial policy of the govern- 
 ment would be framed in accordance therewith. 
 
 On February 11, 1864, Sir H. Willoughby called the attention 
 of the House to the enormous increase of taxation and expenditure 
 within the last few years. The annual average of the public ex- 
 penditure during the years 1842 to 1846 was 50,250,000^., whilst in 
 1864 it amounted to nearly 70 millions. This amount of taxation 
 was levied in a time of peace, and was entirely independent of the 
 local taxation, which amounted to nearly twenty millions additional ! 
 In giving his explanations on this subject, the chancellor of the ex- 
 chequer stated that, owing to the great increase in the items of the 
 civil expenditure, the task of the Treasury in controlling the same 
 had become increasingly onerous and difficult, and could only be 
 effectually performed when the government was sustained by the 
 House of Commons in its efforts to resist additional expenditure.' n 
 
 On March 1, 1864, Mr. Marsh moved that the civil service and 
 miscellaneous estimates had been, for many years, rapidly increasing, 
 and ought to be reduced. After explanations from the secretary of 
 the Treasury as to the causes which had occasioned this increase, and 
 rendered it unavoidable, a brief debate ensued, which ended in the 
 withdrawal of the motion. 
 
 On February 26, 1866, Mr. White moved to resolve, that the 
 expenditure of the government has, of late years, been excessive ; 
 that it is taken in great measure out of the earnings of the people, 
 <fec. After a long debate, the motion was withdrawn. 
 
 On February 18, 1873, Mr. Vernon Harcourt moved, that the 
 present rate of public expenditure is excessive, and should be re- 
 duced, with a view to the diminution of the public burthens. An 
 amendment was proposed by government to appoint a committee of 
 inquiry into civil service expenditure, to which the House agreed. 
 
 The first classification of the miscellaneous civil ser- 
 
 1 Hans. D. v. 170, p. 200; Ib. v. m Ib. v. 184, p. 1289.' 
 
 174, p. 588. Ib. v. 173, p. 477.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 749 
 
 vice estimates was made in 1824. A new classification 
 was made in 1843, which still continues in force. But 
 pursuant to the recommendation of the Committee of 
 Public Accounts in 1867, the various sub-heads are now 
 classified for the purposes of the appropriation audit, 
 so as to define the expenditure to be controlled and 
 accounted for by each department of state. 
 
 The estimates of the supplies required by government Contents 
 for the service of the year are divided into separate estimate*. 
 votes, or resolutions, which appropriate specified sums 
 for services specially defined, and for the period of one 
 year. Some of the votes are for very large amounts, 
 but, practically, there is no more difficulty in dealing 
 with such votes than with any others, inasmuch as each 
 vote is accompanied, in the printed estimates, with a 
 list of the particular items, or heads, of expenditure, 
 which are intended to be defrayed out of the same. In 
 addition to the information thus afforded in regard to 
 the proposed expenditure, the printed estimates contain 
 numerous explanatory tables and notes, in relation to 
 particular branches of expenditure : and preliminary 
 abstracts, lists of accounting departments, and state- 
 ments of grants in aid of local taxation and expenditure. 
 The estimates are now submitted to the House of Com- 
 mons in much greater detail than formerly, in order to 
 meet the increasing demand for full and accurate in- 
 formation upon all matters which concern the public 
 expenditure. 13 
 
 Considerable improvements have recently been made 
 in the framing of the army and navy estimates.* 1 The 
 
 Com. Pap. 1808-9, v. 35, p. 1137. ' Rep. Sel. Com 6 , on Navy, Army, 
 
 Estimates for 1877-8, Civ. Serv. and and Ordnance Estimates. Com. Pap. 
 
 Revenue Dpts., 138 votes; army, 1847-48, v. 21 ; 1849, v. 9; 1850, v. 
 
 25 votes; navy, j 7 votes ; total, 180 10. Rep. Com 6 , on Pub. Accts. Com. 
 
 votes. Pap. 1864, v. 8, p. 340 ; Ib, 1865, v. 
 
 P Hans. D. v. 167, p. 56; Ib. v. 10, p. 41. 
 171, p. 322.
 
 750 THE ROYAL PREROGATIVE. 
 
 estimates for miscellaneous civil services r are now- 
 arranged under seven heads, or classes, of subjects, 
 Civil viz.: 1. Public works and buildings; 2. Salaries and 
 Service expenses of public departments ; 3. Law and justice ; 
 
 estimates. . A . . . J 
 
 4. .hducation, science, and art ; o. Colonial, consular, 
 and other foreign services ; 6. Superannuation and re- 
 tired allowances, and gratuities for charitable and other 
 purposes ; 7. Miscellaneous, special, and temporary 
 objects. Then follows, as a separate class, estimates 
 for the revenue departments, Post-office packet and 
 telegraph service. And a general index to the entire 
 estimates is appended. 
 
 It is worthy of remark that the English estimates, as a general 
 rule, contain but few grants in aid of private charities or local 
 benevolent institutions. It is considered that the practical result of 
 governmental aid to such institutions would be to dry up the 
 sources of private benevolence, upon which local charities must 
 chiefly depend, and to weaken the motives for their economical 
 management, thereby seriously injuring instead of promoting their 
 welfare. 8 
 
 The lords of the Treasury are of opinion that here- 
 after it will be more convenient, not only as a means of 
 facilitating discussion on the estimates in the House of 
 Commons, but also in the subsequent preparation and 
 audit of the appropriation accounts of the expenditure 
 incurred, that the services conducted under the respon- 
 sibility of distinct departments of the government should, 
 as far as possible, be grouped together in a distinct 
 series of votes. This opinion was concurred in by the 
 Committee of Public Accounts, 4 and has since been car- 
 
 r For account of misc. civ. serv. 35. Com. Pap. 1847-8, v. 18. Hans, 
 
 estimates, their classification, gradual D. v. 166, p. 1663. Petoon Taxation, 
 
 increase and revision, with view to p. 363. 
 
 reduction, see Peto on Taxation, p. * Treas. Minute, June 22, 1866. 
 
 310. Rpts. of Com e . on Misc. Exp. Com. Pap. 1866, v. 39, p. 143, &c. 
 
 in 1847-8; and Public Accts. in 1861 Rep. Com. Pub. Accts. 1866, v. 7, 
 
 and 1862. Mr. Gladstone, Hans. D. pp. 557, 564. Special Rep. (Exch. 
 
 v. 174, p. 538. and Audit Bill), Com. Pap. 1866, v. 
 
 Rep. Com e . Misc. Exp. pp. 27, 7, Evid. 193, 194, 207.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 751 
 
 ried out. u The civil service estimates are now preceded 
 by a statement showing the services in each class for 
 which the several departments will be required to 
 account, and to each vote is appended the sub-heads 
 under which it will be accounted for. Moreover, pur- 
 suant to the Act 31 Viet. c. 9, in regard to extra re- 
 ceipts, votes for the precise amount required for each 
 department are taken, while the receipts, heretofore 
 applied in reduction of said amounts, are now paid into 
 the exchequer. This system has caused a considerable 
 increase in the nominal amount of the votes, but it 
 enables the House to exercise a greater control over the 
 expenditure of the various departments/ 
 
 A careful and discriminative classification of votes, ciassifica- 
 and items of votes, in the annual estimates, materially estimates, 
 facilitates the classification of payments, limits the dis- 
 cretion of accountants, and leaves less room for differ- 
 ences of opinion in regard to the vote to which a 
 particular payment is chargeable. w It is therefore of 
 great importance that no pains should be spared in the 
 judicious preparation of the estimates. 
 
 When the estimates have been presented to the 
 House, they are ordered to be printed for the use of 
 members, and are referred to the Committee of Supply. 
 
 The sittings of the Committee of Supply then com- com- 
 mence. x As a general rule, no one but a minister of [^"f of 
 the crown is competent to move a grant of money. 7 
 
 There is one exception to this rule. By the usage of Parliament, 
 the estimates for the British Museum, after they have been approved 
 by the Treasury, are invariably introduced and moved by some 
 member of the governing body of that institution, irrespective of 
 his political opinions, the preference being given to one who is not 
 
 " Hans. D. v. 397, p. 1191. Civ. Pap. 1857. 2nd Seas. v. 9, pp. 527, 
 
 Serv. Est. 186S-9, and 1869-70. 677. 
 
 T Hans. D. v. 191, p. 1161. Civ. But in 1869 a vote on account 
 
 Serv. Est. 1869-70. Com. Pap. was taken before the presentation of 
 
 1868-9, v. 42, pp. 3, 12. the estimates, see ante, p. 740. 
 
 * Rep. Com e . Pub. Moneys, Com. ' Hans. D. v. 207, p. 1892.
 
 752 THE ROYAL PREROGATIVE. 
 
 E R ti. an ex-officio trustee.* This is confessedly an anomalous practice (see 
 
 mates for Lord H. Lennox's motion on the subject in the Commons on 
 British March 18, 1862) ; but it has the advantage of ensuring, as the re- 
 presentative in the House of this great national collection, one who 
 is familiar with its multifarious details, and able to afford minute 
 information concerning its actual condition and requirements. On 
 this account the administration have been hitherto unwilling to 
 change this arrangement for one more in accordance with the 
 principles of parliamentary government.* 
 
 The member of the administration who is charged with 
 the duty of representing the particular department 
 on behalf of which the grants are proposed, first ex- 
 plains to the committee whatever may be necessary to 
 satisfy them as to the general expediency and propriety 
 of the class of estimates under consideration, and then 
 proceeds to propose each grant in succession. When 
 the navy or army estimates are under the consideration 
 of the committee, it is customary to permit members to 
 animadvert upon the whole estimates, or upon naval or 
 military matters generally, before the first vote is taken ; 
 and this opportunity is usually taken by the mover, to 
 review the whole policy of the estimates. But, after 
 the first vote, the discussion is strictly confined to the 
 particular vote before the committee. b The civil service 
 estimates have hitherto been considered to be of too 
 miscellaneous a description to be dealt with in a general 
 statement ; accordingly the rule of limiting discussion 
 to the vote or item under consideration is adhered to 
 throughout. 
 
 But in 1877, in deference to opinions expressed 
 in the House of Commons, the chancellor of the ex- 
 chequer undertook that the secretary of the treasury, 
 
 * Mir. of Parl. 1840, p. 4537; b Ib. v. 181, pp. 1321, 1525; v. 
 
 Hans. D. v. 155, p. 430 ; Ib. v. 167, 223, p. 656. 
 p. 456. Ib. v. 181, p. 1783; v. 191, p. 
 
 a Hans. D. v. 169, p. 1655; Ib. 984. And see Rep. Com 6 , on Parl. 
 
 v. 176, p. 1358; Ib. v. 184, pp. Business, Com. Pap. 1871, v. 9, 
 
 1557,1563; v. 191, p. 3Jl ; v. 219, p. 29; May, Parl. Prac. ed. 1883, 
 
 p. 1595. p. 677.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 
 
 753 
 
 before moving these estimates, should give some general 
 explanations upon the progressive increase of civil ser- 
 vice expenditure^ This was accordingly done on April 
 5, 1877, on motion that the Speaker do leave the chair 
 to enable the House to resolve itself into Committee of 
 Supply. On the same occasion on July 10, the vice- 
 president of the Education Department proposed to make 
 a general statement, preliminary to the discussion of 
 the education votes ; but, as leading members objected 
 that due notice had not been given of this intention, this 
 course was not followed. 6 
 
 Each resolution of supply is proposed from the chair 
 in the following words : ' That a sum riot exceeding 
 /. f be granted to her Majesty ' for the object spe- 
 cified in the particular vote in the printed estimates. 
 This motion may be either agreed to or negatived, but 
 it is not competent for the committee to make any 
 alteration therein which could change the destination 
 of the vote, g or increase the amount proposed, 11 because 
 the House of Commons can only vote money pursuant 
 to the recommendation of the crown. In like manner, 
 ~it is irregular to move an instruction to the Committee 
 of Supply, as it is only competent for the committee to 
 consider the estimates which have been submitted to 
 the consideration of the House by the crown. 1 
 
 Expla- 
 nations on 
 going into 
 Com- 
 mittee of 
 Supply. 
 
 Reso- 
 lutions in 
 Com- 
 mittee of 
 Supply. 
 
 d Hans. D. v. 232, p. 1040 ; v. 233, 
 p. 125. 
 
 e Ib. v. 235, p. 1047. 
 
 f Votes of Parliament are not 
 taken for fractions of a pound. 
 
 * The Speaker, Hans. D. v. 71, 
 p. 295. Ib. v. 169, p. 1774 ; v. 173, 
 p. 1282. 
 
 h Mir. of Parl. 1834, p. 615 ; Hans. 
 D. v. 148, p. 392. So a motion to 
 increase the number of men in a vote 
 on the army estimates, though pro- 
 fessedly intended merely to rectify 
 an error in the calculations of minis- 
 ters, was declared to be irregular, 
 Ib. v. 169, p. 1267 ; and see ante, 
 p. 702. 
 
 VOL. I. 
 
 ! The Speaker, Mir. of Parl. 1828, 
 p. 1972. But see proceedings in case 
 of Capt. Ross, the Arctic navigator, 
 to obtain for him a grant of 5,000/. 
 Upon his petitioning the House of 
 Commons, with the consent of the 
 crown, his petition was referred to a 
 select com e .,reported upon favourably, 
 and then, his petition having been 
 previously referred to the Com*, of 
 Supply, a vote was agreed to in supply 
 on motion of a private member, to 
 grant him the sum recommended by 
 the select committee. Ib. 1834, pp. 
 608, 797, 843, 2864. And see a 
 similar case in regard to a vote pro- 
 posed by Mr. Plume, in Horn 6 , of 
 
 3c
 
 754 
 
 THE ROYAL PREROGATIVE. 
 
 Instruc- 
 tions to 
 Com- 
 mittee of 
 Supply. 
 
 Votes in 
 supply. 
 
 On May 18, 1863, ministers proposed a vote in Committee of 
 Supply on account of the packet service, to which was appended a 
 proviso that no part of the same should be applied to pay 
 Mr. Churchward for postal services under a contract which had 
 been condemned by the House itself.J An amendment was offered 
 to omit this proviso, but it was objected to as being irregular. The 
 chairman, however, ruled that it was in order, inasmuch as ' it did 
 not enlarge or divert the vote from any purpose.' k In answer to an ob- 
 jection made to the proviso itself, the chancellor of the exchequer con- 
 tended that, because a condition of this kind might be proposed on 
 behalf of the crown, it did not follow that a similar proposal could 
 be made by an independent member. Moreover, the proposal of 
 the crown did not affect the service itself, and was no precedent 
 for any vote which might limit or alter that service. 1 The minis- 
 terial proposition was accordingly agreed to. 
 
 On May 31, 1867, a resolution in Committee of Supply, to grant 
 20,000. towards the expense of erecting a building for the use of the 
 University of London, was amended on division, by adding a proviso, 
 ' That no part of such sum shall be applied to the erection of any 
 building according to either of the designs now exhibited. ' 
 Ministers opposed this amendment, but after the division agreed to 
 act upon it. Whereupon by common consent the proviso was 
 struck out when the resolution was reported." 1 
 
 The votes in Committee of Supply are usually pro- 
 posed for large sums for particular heads of services, but 
 as the separate items for which the supply is required 
 are detailed in the estimates, the practice of. the House 
 (as altered in 1857) permits of a question being put 
 that any item objected to * be omitted from the proposed 
 vote,' or, ' be reduced by the sum of - /.,' as the case 
 may be. Where a general reduction of a particular 
 vote is proposed, the question is first put upon the 
 smallest amount proposed to be granted ; and, in like 
 manner, if more than one amendment be offered, con- 
 formably to the ancient order of the House, * That 
 where there comes a question between the greater and 
 
 Supply, for the purchase of 1250 
 copies of Marshall's Digest of Statis- 
 tics. Ib. 1833, p. 1513. 
 
 I See particulars of this case, post, 
 p. 772. 
 
 k Hans. D. v. 170, p. 1884. 
 1 Ib. p. 2036. 
 
 ra Ib. v. 187, pp. 1463-1469, 1547, 
 1661 ; v. 212, p. 699.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 755 
 
 lesser sum, or the longer and shorter time, the least 
 sum and the longest time ought first to be put to 
 the question.' n After a motion for the reduction of a 
 particular item in a vote has been proposed from the 
 chair, it is not competent to propose a motion in rela- 
 tion to, or to debate, a previous item, but any question 
 in regard to the same may be raised upon the report of 
 the resolutions to the House. 
 
 Formerly when a motion had been put from the seduction 
 chair to omit or reduce an item in a vote, it was no of a vote> 
 longer competent to move for a reduction of the vote 
 generally. 1 " But in 1868 this practice was altered, and 
 a rule adopted to permit an amendment for a reduction 
 of the whole vote, after a decision of the committee 
 upon a particular item, on the ground that members 
 ought to be always free to adopt the more constitutional 
 course of moving the general reduction of a vote, leaving 
 it to ministers to determine in what way the retrench- 
 ment could be best carried into effect. But after a 
 question has been put for a reduction of the whole vote 
 no motion can be made to omit or reduce any item. q 
 But a motion for the reduction of a vote by a par 
 ticular amount, if negatived, may be followed by another 
 for a smaller reduction, provided only that a distinct 
 and separate issue is thereby submitted/ 
 
 It is irregular to move in Committee of Supply for Motions 
 the adoption of a general resolution in regard to any in Com - 
 
 . , r . J mittee of 
 
 particular vote, 8 or to move taat a particular vote be Supply, 
 referred to a select committee. But a vote can be re- 
 duced, with the ulterior object of moving in the House 
 for the appointment of a select committee to enquire 
 into the question connected therewith.* 
 
 May. Parl. Prac. ed. 1883, p. Ib. pp. 1025-1033, 1464-1466. 
 671. Hans. D. v. 172, p. 1026. T Ib. v. 236, p. 592. 
 
 Ib v. 179, p. 1286. ' Mir. of Parl. 1831, p. 1826 ; 
 
 p Ib. v. 148, p. 1083 ; v. 191, pp. 1831-2, p. 3472. 
 1009-1013. * Hans. U. v. 172, p. 131. 
 
 3 c 2
 
 756 
 
 THE ROYAL PREROGATIVE. 
 
 Postpone- 
 
 In supply 
 
 voted only 
 for the 
 current 
 year. 
 Money 
 
 other 
 com- 
 mittees of 
 the whole 
 House. 
 
 A vote proposed in Committee of Supply may not, in 
 Pi nt f form, be postponed, because there is no period 
 to which it can be postponed. 11 But the mover may, 
 with the consent of the committee, withdraw it, and 
 submit it again on another day, with or without altera- 
 tion, and either as a distinct vote, or in separate items/ 
 
 On June 15, 1863, Lord Palmerston moved, in Com- 
 mittee of Supply, for the adoption of a vote of 67,000/. 
 to purchase land at South Kensington. This formed 
 part of a general proposition for the purchase of the 
 International Exhibition building, the entire cost of 
 which had been stated in the estimates at 484, OOO/. 
 Of this amount, the one item of land alone had been 
 estimated at 172.000/. ; and objection was taken that 
 the government had no right, suddenly, and without 
 previous notice, to ask for a less sum than they had 
 proposed in the estimates to apply for. But it was ruled 
 by the chairman, and subsequently by the Speaker, that 
 there was nothing irregular in this proceeding^ On 
 June 8, 1865, the vote for temporary commissions was 
 taken for 30,702/., being 5, OOO/. more than was set 
 down in the estimates. No explanation was given as 
 to the reason for this alteration. x 
 
 The Committee of Supply considers the money to be 
 vote d for the current year. Where the proposed grant 
 is not part of the service of the current year as, for 
 instance, a permanent increase to judges' salaries it is 
 more regular to propose it in any other committee of 
 the whole House than the Committee of Supply, pro- 
 vided the Queen's recommendation is first signified, and 
 
 u Hans. T). v. 159, p. 549. 
 
 T Mir.ofParl. 1830, p. 1498; 1840, 
 p. 2867. 
 
 w Hans. D. v. 171, p. 937. Ib. v. 
 172, p. 74. On another occasion, 
 the government, without previous 
 notice, reduced an intended vote by 
 33.000Z. on account of circumstances 
 which had transpired since the fram- 
 
 ing of the estimates. Ib. v. 174, p. 
 830. Again, on May 9, 1864, the 
 vote for Misc. Services (Army) was 
 taken for 5,0001. less than the orig- 
 inal estimate, but the proceeding 
 excited no remark. Smith's Parl. 
 Rememb. 1864, p. 81. Hans. D. v. 
 218, p. 196. 
 
 * Smith, Parl. Rememb. 1865, p. 91.
 
 CONTROL OP PARLIAMENT OVER SUPPLIES. 757 
 
 on their report a Bill is ordered, or a clause inserted in 
 a Bill already before the House/ 
 
 Under such circumstances it has been considered allowable for a Money 
 private member to move to increase an amount proposed by votes - 
 ministers on behalf of a service which had been recommended by the 
 crown, in general terms, ' to the liberality of Parliament,' and to 
 propose an extension of the grant for a longer period. 2 But if the 
 royal message itself indicated the particular amount recommended to 
 be granted, it would not be competent for a private member to pro- 
 pose an extension of the same. a 
 
 On June 8, 1869, an independent member moved for the 
 appointment of a select committee to enquire into the causes of the 
 great excess of cost in prosecuting the war with Abyssinia over the 
 estimates submitted to Parliament. The motion was seconded by 
 the ex-minister for India, concurred in by the government, and 
 agreed to without a division. 15 This committee reported the 
 evidence taken on July 31, with a recommendation that they should 
 be reappointed in the next session. 
 
 On February 18, 1870, the House of Commons reappointed this 
 select committee, which reported 011 July 29. The report consisted 
 of a bare recital of facts to show the enormous excess of expendi- 
 ture for the service over its estimated cost ; but inasmuch as the 
 highest military authorities consulted on this point agreed, ' that the 
 nature of the work assigned to the expedition, and the peculiar 
 circumstances under which we made war in Abyssinia, rendered 
 even an approximate estimate of the cost utterly impossible,' the 
 committee refrained from imputing blame to anyone concerned. 
 The draft reports, and evidence appended to this report, contain 
 some valuable suggestions for the future guidance of large military 
 operations by the War Office and the Admiralty respectively. d 
 
 The entire sums proposed to be granted for particu- 
 lar services are not always voted at the same time, but 
 a certain sum is occasionally voted either ' on account ' 
 or as a vote of credit. 
 
 Votes of credit are usually asked for on behalf of votes of 
 contemplated war expenditure, when it is necessary to 
 have ample funds on hand, and impossible to determine 
 
 y See May's Prac. ed. 1883, p. 693. and ante, p. 702. 
 
 1 Case of Mr. Perceval's Family, b Hans. D. v. 196, pp. 1419-1439. 
 
 Parl. Deb. v. 23, pp. 187-202. c Com. Pap. 1868-69, v. 6, p. 1. 
 
 Hans. D. v. 148, pp. 387-392 ; Ib. 1870, v. 5, p. 1.
 
 758 THE BOYAL PREROGATIVE. 
 
 beforehand the exact amount required. 6 Nevertheless, 
 they should be strictly limited both as to their amount 
 and object. In two or three instances only between the 
 Ee volution and 1735 were unlimited votes of credit given 
 to the ministers of the crown for army or navy pur- 
 poses. Ever since, when the Commons have granted a 
 vote of credit, they have named a specific sum in the 
 Appropriation Act, and have prescribed the purpose to 
 which it must be applied/ 
 
 Votes ' on account ' were formerly restricted to oc- 
 casions of unexpected emergency, arising out of minis- 
 terial changes, when it was desirable to place at the 
 disposal of government funds for the public service 
 without specifically appropriating the same to particular 
 items of expenditure. In such cases it is usual to vote 
 a portion only of the yearly estimates, and in the follow- 
 ing session to enquire into the expenditure thereof, in 
 order to ascertain that it was duly appropriated to 
 legitimate purposes. g When Parliament is about to be 
 dissolved, upon a ministerial crisis, it is obviously im- 
 proper to call upon the House of Commons to vote 
 either the full amount or all the details of the proposed 
 estimates, and so commit the country to the financial 
 policy of ministers whose fate is about to be determined 
 by a general election. The duty of finally deciding 
 upon these estimates should be reserved for the new 
 House of Commons. Meanwhile the supply of credit 
 should be restricted to such an amount as may be abso- 
 lutely required for the public service, until the re- 
 assembling of Parliament, and the vote ' on account ' 
 should not be regarded as in any degree pledging the 
 House to an approval of the entire estimates. 11 
 
 e May's Prac. ed. 1883, p. 680. h Hans. D. v. 144, p. 2170. Ib. v. 
 
 Hans. D. v. 203, p. 1440. 158, p. 1667. This course was fol- 
 
 f Clode, Mil. Fore, of the Crown, lowed, upon pending ministerial 
 
 v.l, pp. 124-127; Com. Pap. 1868-9, changes, iu 1841, 1857, and 1850. 
 
 v. 35, p. 1171 ; and see post, p. 823. See May's Prac. cd. 1883, p. 678. 
 
 See 3 Hateell, pp. 213-215.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 759 
 
 Within the last few years, however, the practice of Surrender 
 
 i j i i i mi f unex- 
 
 takmg votes ' on account has become general. This pe nded 
 is owing to the introduction of a new rule, making all balance ' 
 grants in supply applicable only to ' payments to be 
 made within the financial year,' and requiring the 
 government to surrender into the exchequer, at the 
 end of the year, all unexpended balances. This change 
 of system was completely effected at the expiration of 
 the financial year terminating on March 31, 1863, when, 
 ' for the first time in our financial history, all the services 
 were required to surrender the balances standing to 
 their credit,' an arrangement which has necessitated an 
 application to Parliament, before the close of the first 
 quarter of the new financial year, for a vote ' on account,' 
 to meet the ordinary charges accruing therein^ But the 
 balances are not surrendered until the Public Accounts 
 Committee have reported upon the various appropriation 
 accounts of the past financial year, and decided what is 
 the right sum to surrender. Meanwhile they are avail- 
 able to meet expenditure of the said year, which has 
 been actually incurred, but which has not yet been 
 brought to account. k But this practice is not altogether 
 free from objection. When such a vote is submitted, it 
 is always for one large sum ' on account of the following 
 civil services ; ' and although allowable, it is neither usual 
 nor convenient to discuss the items in detail. 1 
 
 On July 10, 1863, on a vote for 3,78H. to complete a large 
 amount voted ' on account ' for civil contingencies, an item of 6,000. 
 was objected to, and the government consented to its being omitted. 
 But as they could not reduce a smaller sum by a larger, the vote 
 for 3,78H. was withdrawn altogether. 01 
 
 The House is thereby deprived of the opportunity of 
 
 j Com. Pap. 1868-9, v. 35, p. 142. Pap. 1871, v. 11, p. 613. 
 
 J Chanc. of Exch. in Hans. D. v. > Hans. D. v. 206, p. 1368. 
 
 170, p. 209. Ib. v. 195, p. 524; v. ra Ib. v. 172, p. 544. Seealso a dis- 
 
 210, p. 607. cussion on ' Votes on Account, '2b. v. 
 
 k 5th Rep. Coin". Pub. Ace. Com. 178, pp. 733-741.
 
 760 THE ROYAL PREROGATIVE. 
 
 considering, adequately, the particular items of any such 
 vote, until, on a future occasion, definitive votes are taken 
 for the balances required for each particular service. And 
 when the completion of the vote is asked for, it has been 
 urged that it may be late in the session, when the attend- 
 ance of members is thin, and the disposition of the 
 House adverse to minute investigation. 11 But the govern- 
 ment have endeavoured to meet this objection by taking 
 a vote ' on account ' for two or three months only, and 
 by a timely introduction of votes for balances. 
 
 On March 27, 1863, the chancellor of the exchequer said, 'The 
 practice to vote " on account " was entirely novel, because it was 
 incident to a system which had been adopted for the purpose of 
 giving effect to an important administrative improvement. It was 
 necessary to prepare a list of votes on which probable advances 
 would be required before there was an opportunity of bringing 
 them definitely before the House.' That ' was a practice to which 
 recurrence would necessarily have to be had in future years.' p 
 
 It is an established rule that a vote ' on account ' 
 should involve no new principle, but should merely pro- 
 vide for the continuation of services which had been 
 sanctioned in the previous year ; and it is the practice 
 not to take more than two or three months' supply, 
 except in certain particular cases of public emergency ; 
 so that the committee, in agreeing to votes * on account,' 
 are not pledged to the estimates for the year, in antici- 
 pation of the opportunity to be afterwards afforded of 
 voting them in detail. q 
 
 " See Mr. A. Smith's motion, on mittee in which votes 'on account' 
 
 June 29, 1861, deprecating this prac- of certain services were taken, defini- 
 
 tice, and observations thereon in tive votes of the balances themselves 
 
 T. Smith's Parl. Eememb. 1861, p. were passed through Committee of 
 
 135. See also Mr. Butt's motion on Supply. This gave rise to much 
 
 March 19, 1877. angry comment. Jb. v. 169, pp. 
 
 Hans. D. v. 200, p. 1583. 1953, 1967 ; v. 170, pp. 105-109. 
 
 P Ib. v. 170, p. 108. On this " Ib. v. 181, p. 1780 ; and see Ib. 
 
 occasion, through some casual in- v. 195, p. 523; v. 197, p. 1440; v. 
 
 advertence, it happened that later 200, p. 1583 ; v. 205, p. 1034; v. 211, 
 
 on at the same sitting of the com- p. 1049.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 761 
 
 On May 28, 1868, May 25, 1871, June 25, 1875, and on June 28, 
 1877, a second vote 'on account' of the civil services was taken, 
 the former vote, which was to defray these services in the one 
 case for two months, and in the other for six weeks only, having 
 been exhausted, so that a further advance, for a limited period, 
 became necessary because of unavoidable delays in proceeding upon 
 the estimates. But such a practice, however unavoidable under 
 certain circumstances, is admitted to be objectionable. 1 " 
 
 While the government are solely responsible for the Responsi- 
 
 ,. J . i TT bilityfor 
 
 propriety and extent of any application to the House to gra nt of 
 
 grant supplies, the Commons are themselves responsible 
 for voting the same. 8 The House looks to the executive 
 to state what is wanted, and to make known to them all 
 that is necessary to satisfy them of the expediency of the 
 grant. If the information communicated be not full and 
 satisfactory, it is always in the power of the House to 
 withhold the grant of any particular item until they are 
 satisfied with the reasons given for it. fc 
 
 It is the uniform practice of the House if, upon re- increasing 
 consideration on the report, it is thought expedient to storing an 
 increase the sum granted in Committee of Supply, or to l 
 restore an item which had been rejected therein, to re- 
 commit the resolution for that purpose. 11 
 
 On July 18, 1870, sixteen votes in Committee of 
 Supply, which had been incorrectly taken for higher 
 amounts than had been intended, were severally amended, 
 upon the report, by substituting the proper sums. v 
 
 It is the peculiar province of the government to decide 
 upon the several amounts required to carry on the public 
 service and to maintain the credit of the country at home 
 and abroad. None others are equally competent to form 
 a judgment on this question. On the other hand, the 
 vigilant oversight which is constitutionally exercised by 
 the House of Commons over the public expenditure is a 
 
 r Hans. D. v. 192, p. 1010 ; v. 206, 111. 
 p. 1309 ; v. S25, p. 628. 3 Hats. Free. p. 180 ; Hans. D. 
 
 Ib. v. 10], pp. 1192, 1748, 1770. v. 150, p. 1502. 
 
 * Smith's Parl. Reineinb. 1862, p. r Ib. v. 203, p. 465.
 
 762 THE ROYAL PREROGATIVE. 
 
 Effects of continual check upon ministers, and serves to prevent 
 suppiy S on profligate and extravagant outlay , w which, in times past, 
 ex 6 pu ( ! ) - lic when this control was less stringently applied, was of too 
 ture. frequent occurrence. The debates on the estimates, 
 though generally but thinly attended, have been produc- 
 tive of incalculable public advantage. 
 
 The late Joseph Hume was pre-eminently distinguished, through- 
 out his long parliamentary career, for his untiring vigilance and 
 patient labour in the cause of economy and retrenchment. Ade- 
 quately to fulfil such a duty, time, energy, and labour must be 
 devoted to the wearying, irksome, and self-denying work of becoming 
 thoroughly acquainted with a vast mass of details, by following from 
 point to point every item of public expenditure, and bringing to 
 bear upon it the force of independent judgment and the light of 
 public opinion..* 
 
 For, while it is impossible for a numerous representa- 
 tive-assembly to scrutinise details of expenditure, and 
 to form an accurate opinion in regard to all the items 
 embraced in the estimates, equally devoid of extrava- 
 gance or parsimony, nevertheless the moral influence 
 which is exercised over the government by criticising 
 the votes submitted for adoption in Committee of Supply 
 is a more efficient and desirable restraint upon improper 
 expenditure than even the formal rejection of particular 
 votes/ 
 
 Thus, on February 26, 1863, the government would have been 
 defeated on an amendment to omit an item of 134,000. for iron to 
 armour-plate wooden ships, had not Lord Palmerston given a 
 distinct pledge that no more of such ships should be built without 
 the express sanction of the House. 2 
 
 w See Smith's Parl. Rememb. 1861, 2166. It was placed in the Library. 
 
 P. 154; and Ib. p. 146, Chatham Ib. v. 186, p. 816. 
 
 Dockyard. y Sir S. Northcote, in Hans. D. v. 
 
 x Mr. Gladstone's eulogy upon Mr. 165, p. 890. Mr. Childers, Ib. v. 192, 
 
 Hume, Hans. D. v. 181, p. 1134. p. 938. 
 
 In commemoration of Mr. Hume's z Ib. v. 169, p. 853. See a further 
 
 great public services, the House of discussion on the same subject on 
 
 (Join, requested that his bust might March 12, 1863. And see Sir K. 
 
 be placed within the precincts of Peel's remarks on the Irish ' Agricul- 
 
 the House. Ib. v. 184, pp. 485-494, tural vote.' Ib. v. 179, p. 1251.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 7G3 
 
 The function of the House of Commons, in matters con- 
 of supply, is to exert a watchful but general control l^ie 
 over the executive government, with a view to prevent E the 
 
 11 i i i -111- House. 
 
 unnecessary outla} 7 , and to check abuses in the public 
 expenditure ; leaving to the ministers of the crown the 
 responsibility, which properly belongs to their position, 
 of asking for such supplies as the necessities of the state 
 require, and of enforcing to the utmost a strict economy 
 in the use of the funds entrusted to them. a 
 
 In the new edition of Lord Grey's valuable essay on Parliament- 
 ary Government (pp. 115, 221), he points out the evils arising 
 from the weakness of ministers in the House of Commons, 
 as exemplified in the extent to which votes in supply have 
 become less the expression of the deliberate views of the servants 
 of the crown as to what would be best for the public service 
 than of the opinion entertained at the moment by a fluctuating 
 majority, a state of things which must unavoidably engender jobbery 
 and reckless expenditure of the public treasure. b 
 
 In point of fact, since the introduction of parlia- items m 
 mentary government, it has only been on rare and mates re- 
 comparatively unimportant occasions that the demands ^f ct l d by 
 of the crown for supplies for particular services have mons. 
 not been complied with. As a general rule, whatever 
 sums ministers have stated to be required for the use of 
 the state, the Commons have freely granted. 
 
 In proof of this the following instances may be cited from the Prece- 
 parliamentary proceedings since 1857, as being the only cases where- dents - 
 in particular items in the annual estimates have been rejected by the 
 House of Commons in Committee of Supply : 
 
 On May 10, 1858, an item of 73,000. for the erection of a new 
 military hospital at Netley was negatived. On June 3, 1858, an 
 item of 1,0001. to defray the salary of the registrar of Sasines was 
 rejected. But next day, on report of the resolutions, the House 
 directed that the resolution which had contained this item should be 
 re- committed. Whereupon, on July 15, it was re -voted with the 
 addition of the salary previously struck out. c On July 13, 1858, 
 
 See Grey, Parl. Gov. new ed. Hans.D. v. 161, p. 189; v. 165, p. 940. 
 88. c Hans. D. v. 150, p. 1494. (Joiu. 
 
 b And see Ld. Grey's Speech in Jour. v. 113, pp. 211, 314,320.
 
 764 
 
 THE ROYAL PREROGATIVE. 
 
 Rejection 
 of par- 
 ticular 
 items 
 by the 
 House. 
 
 the House, on the report of resolutions from the Committee of 
 Supply, disallowed an item of 3001., to defray the salary of 
 the travelling agent of the National Gallery. On August 1, 1859, 
 the vote of 2,361?. for the Statute Law Consolidation Com- 
 mission was rejected.* 1 In 1860, the following items were re- 
 jected : On July 23, 1,2001. for erecting a building to hold the 
 Wellington funeral car ; on August 3, 1,600?. for two statues of 
 British sovereigns in the new Houses of Parliament; on August 14, 
 800?. for extra clerks at the Board of Trade ; and on August 15, 
 the vote to defray the salary of paymaster of civil services in 
 Ireland was reduced by 1,000?., but this was agreed to by the 
 government, as they contemplated the abolition of the office. 6 In 
 1861, the government submitted a smaller vote (340/.) for the re- 
 moval of the Wellington car to the crypt of St. Paul's, which was 
 agreed to. The vote for the statues in the new Houses of Parlia- 
 ment was also again submitted and agreed to. f In the same year, 
 on June 6, the navy estimates were reduced by 3,225?., being an 
 item for the extension of the Chatham dockyard, a work which, if 
 sanctioned by the House, would have occasioned an ultimate ex- 
 penditure of over 900,000?. In 1862, on March 6, a vote of 10,787?. 
 for enlarging the Royal Military College at Sandhurst was negatived, 
 but upon the report of the resolutions, the one which had contained 
 this item was re-committed, and upon satisfactory explanations 
 from government, the vote, as originally proposed, was agreed to on 
 March 13. On April 28, a vote of 5,000?. for Highland roads and 
 bridges was negatived. In 1863, on June 4, an item of 400?. for a 
 clerk of the works at Constantinople was rejected ; on July 2, a 
 vote of 105,000?. for the purchase, &c. of the Exhibition buildings at 
 South Kensington, was negatived ; % on July 10, a proposed item 
 of 6,000?. for expenses connected with the Thames Embankment 
 Bill of 1862, being objected to, was withdrawn. In 1864, on May 2 
 (upon motion of the secretary of the Admiralty), an item of 5,000?. 
 intended to be applied towards the construction of a dock at Malta 
 was negatived, to admit of further information being obtained as to 
 the proper site of the dock, agreeably to suggestions made by Opposi- 
 tion members in the House of Commons ; h on May 30, a vote of 
 4,000?. for the erection of a lunatic asylum in the Isle of Man (but 
 in the following session this vote was again proposed and agreed to),' 
 and on June 6, a vote of 10,000/. (on account of a total estimate of 
 150,000?.) towards the erection of a new National Gallery at Burling- 
 
 d Smith's 
 p. 150. 
 
 Parl. Rememb. v. 2, 
 
 Ib. 1861, p. 132 ; Hans. D. v. 
 1GO, p. 1325. 
 
 f Hans. D.v. 164, pp. 151, 170. 
 
 g For an account of rejection of 
 this vote, see 19tli Oen. v. 2, p. 66. 
 
 h Hans. D. v. 177, pp 1164, 
 1173. 
 
 ' Ib. v. 179, p. 597.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 765 
 
 ton House, were severally negatived. In 1865, and in 1866, all the 
 supply votes submitted by government were agreed to by the House 
 of Commons. In 1867, on July 22, the vote to defray expenses of 
 suppressing the slave trade was reduced by 7001., with a view to 
 occasion a reduction of the naval squadron on the west coast of 
 Africa.J 
 
 Independently, in the first instance, of the Committee Bills in- 
 of Su pply, there is another mode of initiating proceedings J^nejf 
 for the grant of public money namely, by the introduc- charges 
 tion of Bills for the construction of public works, the 
 establishment of new institutions, or for other purposes, 
 that necessitate, to a greater or less extent, new charges 
 upon the people. Sometimes the government is autho- 
 rised by such Bills to undertake the construction of cer- 
 tain public works, the cost of which is to be defrayed 
 out of the Consolidated Fund. k 
 
 But on July 30, 1866, in deference to objections made by members 
 of the House of Commons to the introduction, late in the session, of 
 a Bill to provide for the construction of certain additional works 
 connected with this great scheme of national defence, the government 
 withdrew the Bill, and agreed to proceed next year in the ordinary 
 form of presenting an estimate for these works, and voting the same 
 in Committee of Supply. 1 
 
 But usually such Bills contain a clause providing 
 that the charges in question shall be defrayed ' out of 
 moneys to be voted by Parliament.' Hitherto it has 
 been customary to permit Bills of this description to be 
 introduced by private members, without reference to 
 the government ; but this practice led to so much 
 irregularity that, in the session of 1866, a new standing Must be 
 order was adopted, requiring the recommendation of Bended 
 the crown to be given before the House will entertain by the 
 any motion that will involve a charge upon the public 
 revenue whether direct or out of moneys to be provided 
 
 J Hans. D, v. 188, p. 1900, 2074; Acts, passed in 1860 and following 
 and see Ib. v. 200, p. 833. years to 1869. 
 
 k See the Fortifications Expenses ' See post, p. 770.
 
 700 
 
 THE ROYAL PREROGATIVE. 
 
 Addresses 
 for ad- 
 vance of 
 money. 
 
 by Parliament. 111 This order is intended to place the 
 responsibility for such Bills, if not their initiation, in the 
 hands of the government. But, under any circumstances, 
 it will be incumbent upon the House of Commons to 
 exercise a strict oversight and control over measures of 
 this kind, as well as over the direct financial proposi- 
 tions of ministers. 
 
 Sometimes the House of Commons, either with or 
 without the previous recommendation of the crown, as 
 the case may be, agrees to address the crown to advance 
 money for some particular purpose, with an assurance 
 that the expenses to be incurred will be afterwards 
 made good by the House. But this practice is only jus- 
 tifiable under peculiar circumstances, which have already 
 en^a^ed our attention in a former part of this work. n 
 
 DO -l 
 
 Contracts There is. yet another method whereby it has been 
 services. 10 customary for public expenditure to be either pledged or 
 actually incurred by government to amounts in excess 
 of that which has been actually voted by Parliament 
 namely, by means of contracts, or other engagements, 
 entered into for the construction of public works, or the 
 performance of particular services for the public benefit. 
 Such contracts necessarily pledged the government to 
 prospective payments for a series of years, while the funds 
 required could only be obtained by annual votes in Com- 
 mittee of Supply, or by special Acts passed from time to 
 time, granting the necessary sums, the consent of Parlia- 
 ment to the continuance of the contract being assumed 
 from their concurrence in the initial payment proposed, 
 while their vote has been given, perhaps, in total igno- 
 rance of the terms of the contract itself. The attention 
 of Parliament was first directed to the irregularity of this 
 practice, and to the necessity for the exercise of a more 
 riid control over this branch of expenditure, in the year 
 
 See ante , p. 095. 
 
 See Hans. D. v. 171, 
 
 n See ante, p. 099. 
 402 406.
 
 CONTROL OP PARLIAMENT OVER SUPPLIES. 767 
 
 1859, in consequence of certain objectionable transac- 
 tions regarding contracts for postal and telegraphic ser- 
 vices that then transpired. A committee was appointed 
 by the House of Commons on the subject, and their re- 
 ports led to the adoption by the House of various reso- 
 lutions and standing orders, to be hereafter enumerated, 
 which were intended to assert and maintain the right of 
 the House to control the execution of such contracts. 
 By these rules, ample provision has been made to secure 
 that full information shall be given to the House when Require 
 any such contracts have been entered into, and that they pr o v ^a"of 
 shall invariably contain a clause declaring that the con- the House 
 sent of the House, either expressed or implied, is neces- mons. 
 sary to give them validity. Although at present these 
 rules merely extend to the case of certain specified 
 contracts, it has been admitted, by the highest authority, 
 that the executive has no constitutional right to make a 
 contract which shall be binding on the House of Com- 
 mons. 1 * It may, therefore, be safely assumed that here- 
 after no contracts, involving any considerable amount of 
 public expenditure beyond that which has been granted 
 for the service of the current year, will be carried out 
 until the sanction of Parliament has been obtained on 
 behalf of the same. 
 
 In fact, in the session of 1862, the constitutional con- Contracts 
 trol of the House of Commons over contracts received a 3 " 
 
 still more extended application, and was embodied in an works - 
 Act of Parliament. In a previous session (that of 1860), 
 the House had resolved to grant the sum of two million 
 pounds to construct necessary works for the fortification 
 of the British coast; and, in 1862, a Bill was brought in 
 to provide for a large portion of this expenditure. On 
 July 10, in committee on the Bill, a clause was proposed 
 by Sir Stafford Northcote to declare that any contracts to 
 
 P Mr. Gladstone in Hans. D. v. 157, p. 1412 ; and Ib. v. 189, p. 702. 
 And see ante, p. 488.
 
 7(58 THE ROYAL PREROGATIVE. 
 
 be entered into by government for this service which in- 
 volved the expenditure of a greater sum than that which 
 had been already voted by Parliament must be previously 
 approved of by the House of Commons. The ministry, 
 at first, opposed this clause. The chancellor of the 
 exchequer remarked that ' the practical wisdom and the 
 good or bad economy of such contracts was a matter on 
 which the House of Commons, as a deliberative assembly, 
 had not the opportunity of forming an opinion in the 
 same way as the executive government ; and it was not 
 according to usage that the government should be able 
 to relieve itself of its special responsibility with regard to 
 these contracts by a resolution of the House of Commons. 
 The responsibility of the government would be better 
 preserved by giving the House the power of interfering 
 with these contracts before they became valid than by ask- 
 ing the House to approve each of them by a resolution.' q 
 On a division, the clause was negatived by a majority 
 of five. On July 14, however, the ministry announced 
 their acceptance of this provision/ It accordingly ap- 
 pears in the statute to the following effect : ' That it shall 
 not be lawful for the secretary of state to enter into any 
 contract involving the expenditure of any sum greater 
 than that for which the authority of Parliament has been 
 specifically obtained, without inserting therein a clause 
 requiring that such contract shall not be binding until it 
 has lain for one month on the table of the House of 
 Commons without disapproval, or be formally approved 
 of within that period. 8 The object of this clause is not to 
 insist that every contract entered into by government for 
 the construction of these works shall be first submitted 
 TO be laid for the approval of Parliament, but that no such contract 
 shall be made for a greater sum than has been actually 
 
 ment. voted without the previous knowledge and consent of the 
 
 Hans. D. v. 168, p. 199. ' 25 & 26 Viet. c. 78. 2. See 
 
 Jb. pp. 290, 635. Smith's Pad. Rememb. 1862, p. 149.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 709 
 
 House of Commons, so that the government may not be 
 able to bind the House in such a way as to prevent entire 
 freedom of action whenever a further appropriation is 
 required.* 
 
 Moreover, in regard to the expenditure to be incurred 
 on behalf of these fortifications, it has been distinctly ac- 
 knowledged by the government that, while they would 
 be fully authorised to enter into contracts to amounts 
 not exceeding the total estimated cost of the works, the 
 general scheme of which had been sanctioned by Par- 
 liament, yet that the carrying out of any such contracts 
 must depend upon the consent of Parliament to vote the 
 sums required to make good the same, from time to 
 time." It was also stated that, with this additional grant, Contracts 
 * no new works' as to the prirciple of which the House ^ r ^ w 
 had not already pronounced would be undertaken ; and 
 furthermore that, when the schedule of the Bill was 
 under consideration, it would be competent for any 
 member to move ' that a particular work should not be 
 continued.' v The cost of these fortifications, as originally 
 estimated by the Palmerston administration, was a little 
 over five million pounds. From time to time, fresh 
 grants, to make up the appropriation for this service to 
 the required amount, were voted by Parliament. Mean- 
 while the estimated cost of the works grew to upwards 
 of seven millions. w But though additional sums of money 
 were asked for to execute the works, ' the number and 
 nature of the works to which the assent of Parliament 
 had been given ' remained unaltered. 
 
 In 1866, however, the newly-appointed Derby 
 government were of opinion that some extension of the 
 works was desirable. Accordingly, towards the close Fortifica- 
 of the session, they submitted a Bill to the House of S^fts!" 
 Commons to sanction the commencement of a new work, 
 
 * See Hans. D. v. 168, pp. 187- v Hans. D. v. 176, pp. 1533, 
 203 ; 16. v. 176, p. 1533. 1873. 
 
 u Ib. v. 172, p. 688. w See ante, p. 426. 
 
 VOL. I.
 
 770 THE ROYAL PREROGATIVE. 
 
 and to authorise the expenditure of 50,000/. on behalf 
 of the same. The money itself was not required, inas- 
 much as there were sufficient funds in hand, which had 
 been saved from former grants for fortifications. But 
 it was necessary to obtain the sanction of Parliament to 
 this change in the appropriation. The ex-chancellor of 
 the exchequer, and other leading members, strongly 
 objected to this Bill, for various reasons, but principally 
 on the ground that the proposal should have been made 
 ' in the estimates at the commencement of the session, 
 or at a time when the House was able to give its best 
 attention to the subject.' Whereupon the government 
 agreed to withdraw the Bill, and ' to proceed next year 
 in the ordinary and convenient form of presenting an 
 estimate for these works, so that the House would have 
 a fair opportunity of discussing the necessity for them.' * 
 In April 1867, a Bill was brought in to empower the 
 government to redistribute the moneys granted by the 
 Act 28 & 29 Viet. c. 61, pursuant to a revised estimate 
 appended thereto, and which forms the schedule of the 
 Act, as passed (30 Viet. c. 24). This Bill was introduced 
 upon mere motion, as it made no new appropriation for 
 fortification purposes. In the same session, however, 
 another Act was passed, based upon resolutions agreed 
 to in a committee of the whole, granting an additional 
 sum of 800,000/. for fortifications, the same to be ex- 
 pended in accordance with a detailed estimate annexed 
 to the Act (30 & 31 Viet. c. 145). And in 1869, by the 
 Act 32 & 33 Viet. c. 76, a final grant was made of 
 1,510,000/. to complete the works, and authority given 
 to abandon certain works previously sanctioned by 
 Parliament, but which had not yet been commenced. 
 In 1865, pursuant to the recommendations of the 
 
 * Hans. D. v. 184, p. 16G9- to undertaking of new works without 
 
 1677 ; v. 185, p. "289. See also direct sanction of Parliament, see 
 
 case of Harbours of Refuge, Ib. v.l 91, Com. Pap. 1868-9, v. 6, p. 531. 
 p. 1000 ; and ante, p. 433. In regard
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 771 
 
 Select Committee on the Royal Dockyards in 1864, and Dockyard 
 with a view to the more economical and expeditious 
 completion of certain works for the extension of the 
 dockyards at Portsmouth and Chatham, the government 
 obtained authority from Parliament for the Admiralty 
 to enter into contracts for a term not exceeding five 
 years, the maximum sum to be payable on behalf of 
 any such contract not to exceed 250, OOO/. in any one 
 year ; the same to be defrayed out of moneys to be 
 voted by Parliament, year by year, during the con- 
 tinuance of the contract ; a copy of every contract 
 entered into under this Act to be laid before both 
 Houses of Parliament within thirty days after it has been 
 made, or within thirty days after the next meeting of 
 Parliament, if such contract was made during the recess/ 
 
 On March 20, 1865, the House of Commons was in- Postal 
 formed, in answer to a question, that the new contract 
 with the West India and Pacific Steamship Company, for 
 carrying mails to Jamaica, &c., being terminable at six 
 months' notice, had no clause suspending its operation 
 ^until it had been one month before the House. A copy 
 of the contract was nevertheless laid upon the table. 2 
 
 The following narrative of the proceedings of the 
 Committee on Packet and Telegraphic Contracts in 1859 
 and 1860, and of the action of the House on their reports, 
 will throw additional light upon this subject, and will also 
 point out the steps that have been taken by the House 
 to impeach the validity or expediency of any contract. 
 
 It was on July 7, 1859, that, upon motion of the chancellor of Packet 
 the exchequer, a select committee was appointed to enquire into and anc * ?? le " 
 report on the manner in which contracts, extending over periods of Contracts 
 years, have, from time to time, been formed or modified by her Corn- 
 Majesty's government with various steam- packet companies for the m i ttee - 
 conveyance of the mails by sea ; and likewise into any agreements, 
 actual or prospective, which have been adopted at the public charge 
 for the purposes of telegraphic communications beyond sea ; together 
 
 >' By Act 28 & 29 Viet. c. 51 . And 170, p. 540. 
 see flans, D. v. 177, p. 1161. Ib. v. * Ib. v. 177, p. 1921.
 
 772 THE ROYAL PREROGATIVE. 
 
 Church- with any recommendations as to rules to be observed hereafter by 
 ward case. t ne government in making contracts for services which have not yet 
 been sanctioned by Parliament, or which extend over a series of 
 years. Owing to the late period of the session at which they com- 
 menced their labours, it was impossible for the committee to 
 complete their enquiry before the prorogation. They accordingly 
 confined their attention and devoted their first report to the 
 circumstances under which the contract between the executive 
 government and Messrs. Churchward and Jenkings for conveying the 
 mails between Dover and the French coast had been renewed.* The 
 extension had twice taken place, the last time on April 26, 1859, 
 when the contract (which would expire in 1863) was further ex- 
 tended until 1870. This was done upon the recommendation of the 
 Board of Admiralty, and in opposition to the views of the post- 
 master-general. 
 
 It appeared in evidence before the committee, that on the eve of 
 the last general election, when the extension of his contract was 
 under consideration at the Treasury, Mr. Churchward volunteered 
 his support, as an influential elector for Dover, to Captain Carnegie, 
 one of the lords of the Admiralty, if he should become a candidate 
 for that borough. He did this on the expectation that his contract 
 was to be renewed. The committee, however, fully exonerated all 
 the officers, both of the Admiralty and of the Treasury, with whom 
 the decision in regard to this contract rested, from being influenced 
 by any corrupt or political motive in granting the same. They did, 
 indeed, consider that the conduct of Mr. Murray, the private secre- 
 tary to the first lord of the Admiralty, was open to grave censure ; 
 but they had not sufficient evidence to show that any member of the 
 government was cognisant of the communications between Mr. 
 Murray, Mr. Churchward, and Captain Carnegie. 
 
 While declaring themselves most anxious for the fulfilment of all 
 engagements entered into in good faith between the government and 
 private individuals, the committee, nevertheless, submitted to the 
 House ' whether Mr. Churchward, in having resorted to corrupt ex- 
 pedients affecting injuriously the character of the representation 
 of the people in Parliament, has not rendered it impossible for 
 the House of Commons, with due regard to its honour and 
 dignity, to vote the sums of money necessary to fulfil the agreement, 
 to extend his contract from June 20, 1863, to April 26, 1870.' 
 
 A change of ministry having taken place since the last renewal 
 of this contract, the incoming administration, in deference to the 
 foregoing report, and to the general opinion of the House, tacitly 
 
 Report on Post Office and Telegraphic Contracts, Coin. Pap. 1855. 
 Sees. ii. v. 6, p. ] .
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 773 
 
 concurring therein, refused to recognise the amended contract, which Church- 
 entitled Mr. Churchward to a fixed sum per annum, but permitted ward 
 him to continue to conduct his postal service under the former con- 
 tract, under which he was ordinarily allowed a smaller amount, but 
 was authorised to make extra charges for certain special services. 
 This contract would remain in force until June 1863, and was free 
 from objection of any kind, it not having been included in the cen- 
 sure of the committee. 1 " 
 
 The friends of Mr. Churchward, however, were not willing that 
 his last contract should be thus set aside without a struggle. Ac- 
 cordingly, on March 27, 1860, Captain L. Vernon, who had been a 
 member of the afore-mentioned committee, moved to resolve that 
 this House, having considered the report and evidence presented by 
 the committee on packet contracts, is of opinion that the contract 
 entered into on April 26, 1859, between the lords of the Admiralty 
 and J. G. Churchward ought to be fulfilled. The chancellor of the 
 exchequer (Mr. Gladstone) opposed this motion, declaring that the 
 impartial finding of the committee was entitled to respect ; that 
 independently of their report it was clear from the evidence that 
 corrupt expedients, affecting injuriously the dignity of Parliament, 
 had been resorted to to obtain a renewal of this contract. Under 
 these circumstances, he added, the present ministry were under 
 no obligation to carry out the new contract, and the House were 
 not bound to vote the money, for ' the executive has no constitu- 
 tional authority to make a contract binding on the House of 
 -Commons.' Whereupon the motion was negatived on division. 
 
 Mr. Churchward strenuously remonstrated against the repudia- 
 tion of his last contract, and applied for leave to have the case 
 between himself and the Admiralty argued before the Court of 
 Queen's Bench ; but the Admiralty refused their consent to this 
 plan, declaring that they would do nothing that would admit the 
 validity of his claims or prejudice the decision of the House of 
 Commons. The government also informed Mr. Churchward that 
 they would only undertake to propose and support in Parliament 
 votes for his services up to June 1863. 
 
 As a final effort, Mr. Churchward notified the postmaster- 
 general, in February 1863, that he had submitted his case to 
 eminent counsel, who had advised him that his last contract was 
 good and valid ; and that, in the event of the department persisting 
 in refusing to recognise it, he was at liberty to proceed, by petition 
 of right, to recover compensation for damages thereby sustained. In 
 making this communication, he expressed his desire to avoid being 
 placed in antagonism with the government, and expressed his 
 willingness either to leave his case to a court of law or to the decision 
 
 Hans. D. v. 157, pp. 1370, 1408. e Ib. p. 14lL> ; v. 196, p. 1628.
 
 774 THE ROYAL PREROGATIVE. 
 
 Church- of arbitrators. The department took no notice of this offer, but in- 
 ward case, formed Mr. Churchward that his contract would terminate on June 
 20, 1863, and that tenders for the future conduct of the services in 
 question had been accepted, subject, however, to a provision that, if 
 Parliament should still vote the moneys which would be required to 
 pay Mr. Churchward, under the proposed extension of his contract 
 to April 26, 1870, the new arrangements were not to take effect. In 
 reply, Mr. Churchward reiterated his remonstrances against the 
 conduct of the government in treating his last contract as non- 
 existent, and repeated his assurances of his readiness and ability to 
 perform the same with efficiency up to its final termination. d 
 
 In order to bring this controversy to a definite conclusion, the 
 government took the unusual course of appending to a vote on 
 account of the packet service, proposed in Committee of Supply on 
 May 18, 1863, a statement that the same included provision for pay- 
 ments to Mr. Churchward for postal services to June 20, 1863, and 
 a proviso that no part of the vote should be applied towards any 
 further payment to him by virtue of his last contract with the Ad- 
 miralty, in respect to the period subsequent to that date. This con- 
 dition gave rise to a very animated debate, not only in committee, 
 but also on the reception of the report by the House on May 28. e 
 It was objected that it was quite unprecedented and foreign to the 
 proper functions of the Committee of Supply to submit to it any 
 motion other than one to agree to, reject, or reduce, a proposed grant ; 
 and that any such innovation in practice would be likely to lead to 
 very serious consequences, affecting the constitutional relations of 
 the House with the crown and with the Lords in the matter of 
 supply. On the other hand, it was urged that this proceeding, if 
 new, was not necessarily irregular ; that it was one which the ad- 
 ministration had chosen as being the most fitting method of carrying 
 out the recorded opinion of the committee of 1859, and of the House 
 in 1860, on Mr. Church ward's contract ; that it was impossible the 
 form of motion used on this occasion could be drawn into precedent 
 to justify a departure, under different circumstances, from the recog- 
 nised usage of Parliament in supply votes, inasmuch as the proviso 
 in question was proposed by the government itself as a condition 
 under which it asked for the money, and could not warrant a private 
 member in attempting to limit or change the application of a pro- 
 posed grant for a particular service ' It does not follow,' said the 
 chancellor of the exchequer, ' because a proposal of this kind may be 
 made by the crown, therefore a similar proposal may be made by an 
 
 d Papers on Packet Service (Dover Gen. Com. Pap. 1862, v. 27, p. 
 and Calais, &c.), Com. Pap. 1803, 411. 
 v. .'50, p. 007. Hep. of Postmaster- And see Harm. D. v, 172, p. 1020.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 775 
 
 independent member.' Moreover, ' the proposal of the crown refers Church- 
 to the exclusion of a particular individual from the performance of war< i case - 
 a stipulated service. It has no bearing on the service itself. It does 
 not limit or alter the service, and, consequently, it is no precedent 
 for any vote which might limit or alter that service.' f After much 
 debate, the ministerial proposition was agreed to upon a division. It 
 was afterwards inserted in the Appropriation Bill, and received the 
 full sanction of law. As a further security to government against 
 any claims that Mr. Churchward might continue to urge, similar 
 clauses were inserted in the Appropriation Acts of 1864 to 1870, 
 when the contract expired, and even subsequently to 1875, inclusive 
 (after which it was omitted from the Act), in deference to the 
 opinion of the law officers of the crown ; on account of an action, 
 commenced by Mr. Churchward, which was pending in the Exchequer 
 Chamber. 8 Nevertheless, Mr. Churchward commenced proceedings 
 in the Court of Queen's Bench against the Board of Admiralty by a 
 petition of right, claiming damages to the extent of 126,000. for in- 
 juries sustained by the cancelling of his contract. The case was 
 ably argued on behalf of the plaintiff, but the court (in November 
 1865) decided against him, on the ground that it would be unjust and 
 unwarrantable that the Admiralty should be obliged to carry out a 
 contract after Parliament had refused to make provision for the same. h 
 In the session of 1867, the proceedings against Mr. Churchward 
 became again the subject of a contest in the House of Commons, he 
 having, since the close of the previous session, been appointed a 
 -magistrate for the borough of Dover. His appointment was brought 
 under the notice of the House on March 1 5 ; * and on March 1 9 it 
 was moved to resolve that an address should be presented to the 
 Queen for his removal from the commission of the peace. This 
 motion was justified on the ground that Mr. Churchward had been 
 charged by a select committee of the House, in 1853, with bribery, 
 in promising to use his influence to obtain a situation for an elector, 
 in consideration of his vote at the election for Plymouth in 1852. 
 And also by the select committee in 1859, of resorting ' to corrupt 
 expedients affecting injuriously the character of the representation 
 of the people in Parliament.' In consequence of the last named 
 report it was alleged that the House had refused to sanction the re- 
 newal of his postal contract, and had renewed, year after year, its 
 votes of censure against him. An amendment to the proposed address 
 was moved by the friends of Mr. Churchward to substitute, for his 
 
 ' Hans. D. v. 170, p. 2036. 192 ; v. 216. pp. 1500, 1706 ; v. 218, 
 
 26 & 27 Viet. c. 99, 15 ; 27 p. 207. 
 
 & 28 Viet. c. 73. 17, &c.; 38 & h L. T. Rep. N.S. v. 14, p. 57; 
 
 39 Viet. c. 78, Sched. B. 13. Hans, and Best & Smith Rep. p. 807. 
 
 D. v. 207, pp. 310, 385 ; v. 212. p. Hans. D. v. 185, p. 1914.
 
 776 THE ROYAL PREROGATIVE. 
 
 Church- particular name, a general address that ' all persons in the commis- 
 ward case. s i on o f t ne peace,' who have been found guilty, either by a select 
 committee, or by a royal commission, of corrupt practices at parlia- 
 mentary elections or of being privy, or assenting thereto should be 
 removed from the magistracy. The main motion, as against Mr. 
 Churchward, was opposed by the government on the ground that he 
 had been unjustly treated, and that the decision of the committee of 
 1859 could not be accepted as conclusive against him. But they 
 were unable to induce the House to reject or postpone the amend- 
 ment, which was agreed to, on division, notwithstanding that the 
 chancellor of the exchequer expressed a hope that the House would 
 4 pause before assenting to a general proposition of the nature with- 
 out any examination into it.' k On March 25, her Majesty's answer 
 to the address was reported in these words, ' Concurring with you 
 in the propriety of discountenancing all such corrupt practices, I 
 will take into my serious consideration how that object may best be 
 accomplished.' ' The House was afterwards informed that the lord 
 chancellor was engaged in considering all the cases that came within 
 the scope of this address. 
 
 To return to the proceedings of the Committee on Packet and 
 Telegraphic Contracts. Having been unable to complete their en- 
 quiry in 1859, the committee was reappointed in the following 
 session, and made three reports. 
 
 Control of In their first report, the defects in the existing practice in regard 
 nentTover to contracts f r postal services entered into by the executive de- 
 postal partments were pointed out, and the necessity for a more efficient 
 contracts, control over the same by Parliament was strongly insisted upon. The 
 practice, introduced by the Derby administration, of inserting words 
 in postal contracts declaring the subsidies to be payable ' out of 
 moneys to be voted by Parliament,' although it introduced no new 
 principle in regard to the funds applicable to this service, distinctly 
 recognised that all such contracts were subject to the approval of 
 the House of Commons." 
 
 Sir Stafford Northcote informed the House that he had intro- 
 duced these words when he was financial secretary of the Treasury 
 in 1859, for the first time, into the Gal way postal contract, in order 
 ' to save the members of the government personally from actions 
 which might otherwise be brought against them, in the event of 
 Parliament, for any reason, declining to sanction the contract.' 
 From the want, however, of early information as to the terms of ex- 
 isting contracts, and the fact that, until called upon, in Committee 
 of Supply, to vote money on behalf of the same, the House was 
 
 " Hans. D. v. 186, pp. 167-207. n Ib v. 157, pp. 1397, 1400. 
 
 1 lh. pp. 4<!6, 471, Ib. v. 160, p. 1001 ; and sue Ib. 
 
 n Ib. p. 730. v. 163, p. 1103.
 
 CONTROL OP PARLIAMENT OVER SUPPLIES. 777 
 
 ignorant of the nature and extent of agreements entered into by the 
 executive government, it was obviously impossible for the House to 
 exercise its right of control with that freedom which is absolutely 
 essential for the right performance of its high functions. In the 
 interval between the execution of a contract and the application to 
 Parliament for a vote in supply on account thereof, heavy expenses 
 and liabilities are necessarily incurred by the contractors, so as to 
 render it a matter of peculiar hardship and difficulty for the House, 
 in the absence of any charge of fraud, misrepresentation, or corrupt 
 proceedings, to interpose and refuse to vote the moneys required to 
 carry out a contract which has been entered into by government 
 within the limits of its own authority.? Parliamentary control is 
 thereby practically excluded in regard to an important branch of 
 public expenditure. While it seems repugnant to the principles of 
 our constitution that the executive government should be free to 
 enter into contracts binding the country for prolonged periods, and 
 by anticipation, to the payment of vast sums, without the possibility 
 of any effective parliamentary check beyond the disapproval after 
 the evil had been accomplished, and when perhaps the ministers by 
 whom the contract was made were no longer in office, nevertheless 
 the committee were fully sensible of the difficulties attending any 
 change of system, which might result in a parliamentary canvass on 
 behalf of competing candidates for a public contract. They accord- Postal 
 ingly recommended that these transactions should remain altogether an< ^ ^el 
 in the hands of the executive, who should be free to execute any con- Contra 
 tract according to their own discretion and responsibility, 'but that 
 a clause should be inserted in all new contracts extending over a 
 period of years and creating a public charge for the conveyance of 
 mails by sea, or for the purpose of telegraphic communications 
 beyond sea, requiring that they shall not be binding until [they have 
 lain on the table of the House of Commons for one month, without 
 disapproval unless sooner] approved of by a resolution of the House.** 
 On July 13, 1869, this resolution was amended, by omitting the 
 words between brackets, and, together with the two following reso- 
 lutions, made standing orders of the House. 1 " 
 
 On June 19, 1873, the chancellor of the exchequer moved a 
 resolution that the Cape of Good Hope and Zanzibar Mail Contract s 
 be approved ; to which an amendment was proposed and carried for 
 the appointment of a select committee to enquire into the circum- 
 
 p See Hans. D. v. 157, p. 1864. proval of contracts by the House of 
 
 y First Report of Sel. Com 6 , on Commons, see ante, p. 492. 
 
 Packet and Telegraphic Contracts, r Hans. D. v. 197, p. 1818. 
 
 1860, pp. xiii.-xv. (in Com. Pap. 1860, ' Ib. v. 214, p. 1101; v. 216, p. 
 
 v. 14). For precedents of proceed- 686. 
 
 ings had in the approval or disap-
 
 778 
 
 THE ROYAL PEEROGATIVE. 
 
 stances under which the contract was made. The committee was 
 nominated on June 26 ; and reported on July 23, condemning the 
 contract and also another contract connected with it.* On August 
 1, two fresh contracts, framed in accordance with the recommenda- 
 tions of the committee, were laid on the table, and on August 4 
 were approved of by the House. 
 
 Finally, in view of the adoption of these standing orders, the con- 
 trol of the House of Commons over mail contracts must not be con- 
 sidered as a dormant power, to be evoked only in case of urgency, 
 but as an important element in the agreement between the govern- 
 ment and the contractors, which should be recognised by the parties 
 concerned." 
 
 On July 24, the foregoing recommendation was em- 
 bodied in a resolution, which was agreed to by the House 
 of Commons, together with two other resolutions, pro- 
 viding (1) for the early transmission to the House of any 
 such contracts, accompanied by a Treasury minute, 
 setting forth the grounds on which the same have been 
 executed, and declaring (2) that, when any such con- 
 tracts require to be confirmed by Act of Parliament, 
 they should not be dealt with as private Bills, and that 
 power to the government to enter into agreements by 
 which obligations at the public charge shall be under- 
 taken should not be given in any private Act/ Such 
 minutes ' ought to be verified by some responsible min- 
 ister acquainted with those grounds before presentation 
 to the House of Commons.' w The accidental omission 
 of a formal Treasury minute would prevent the House 
 from proceeding to consider the contract, until the de- 
 fect was supplied/ So far as Bills relating to govern- 
 ment contracts are concerned, these resolutions would 
 appear to have been superseded by a new standing 
 order, adopted by the House on March 4, 1861, and 
 which, without taking such measures out of the cate- 
 
 * Hans. B. v. 217, p. 1366. w Com. Pap. 1873, v. P, pp. 241, 
 u See Rep. Cora 8 . Zanzibar Con- 339, 369. 
 
 tract, Com. Pap. 1873, v. 9, pp. 242, Ib. p. 285 ; Hans. D. v. 216, p. 
 
 365. 1001. 
 
 Com. Jour. 1860, p. 413.
 
 CONTROL OP PARLIAMENT OVER SUPPLIES. 779 
 
 gory of private Bills, ensures that due attention shall be Control of 
 directed to them by requiring that the chairman of the m^t^ver 
 Committee oi Ways and Means shall make a special contracts - 
 report to the House previously to the second reading 
 of any private Bill by which it is intended to authorise, 
 confirm, or alter, any contract, with any department of 
 the government, whereby a public charge has been or 
 may be created, and providing for the due consideration 
 of such report by the House/ 
 
 The recommendations of the Packet and Telegraphic 
 Contract Committee of 1860, in their first report, were 
 principally founded upon the proceedings of govern- 
 ment in reference to the Galway contract ; and as a brief 
 narrative of this case will contribute to elucidate the 
 subject of parliamentary control over transactions of this 
 description, it is here subjoined. 
 
 In 1858, a private company, of which Mr. Lever was the Galway 
 managing director, established a line of steamers for commercial pur- contract, 
 poses, to ply between the ports of Galway, in Ireland, and New 
 York, in the United States. This scheme excited considerable 
 interest, especially in Ireland, and several deputations waited upon 
 the ministry, in the course of that year, urging the importance of 
 its being encouraged by government. After much negotiation 
 between the parties, it was at length agreed upon to allow this com- 
 pany a subsidy of 78,OOOZ. per annum for seven years, on condition 
 of its efficient performance of postal services between Ireland and 
 America. The proposed contract was disapproved of by the post- 
 master-general for several reasons. But it was formally authorised 
 by the Treasury for ' important considerations of commercial and 
 social advantage, in relation chiefly to Ireland.' There appeared to 
 be a general impression abroad, that political advantages to the party 
 then in power had been a chief inducement in the grant of these 
 privileges. Moreover, the contract was open to serious objection on 
 other grounds. Accordingly, when a change of ministry occurred in 
 the following year, one of the first acts of the new administration 
 was to procure the appointment of the Committee on Packet and 
 Telegraphic Contracts. As we have already seen, the committee 
 were unable to enter into any enquiry respecting the Galway Com- 
 pany during that session ; but upon their reappointment, in 1860, 
 
 y Stand. Ord. 1862, No. 78; case of the Edinburgh Improvement Bill, 
 Hans. D. v. 200, p. 241.
 
 780 THE ROYAL PREROGATIVE. 
 
 Galway the subject of this contract immediately engaged their attention. 
 
 contract. Meanwhile the contract had gone into operation, but as it contained 
 
 a clause expressly declaring that the subsidy was only payable ' out 
 
 of moneys to be voted by Parliament,' there was still opportunity for 
 
 its being set aside, if it were disapproved of by the House of Commons. 
 
 After careful investigation into the facts of the case, the com- 
 mittee, on May 22, reported their opinion that this contract had 
 been unwisely entered into ; that it had been given without 
 sufficient regard to the interests of Canada, whose line of ocean 
 steamers would have readily undertaken the new service on more 
 favourable terms, and that it was altogether an impolitic and 
 improvident arrangement. Nevertheless, as it was still open to the 
 House, in its own discretion, to decline to vote the necessary funds 
 to carry the contract into effect, the committee refrained from 
 making any recommendation on the subject. 2 
 
 On June 26, the committee presented a second report, stating 
 that they had been compelled to resume their enquiries into the 
 matter of the Galway subsidy, in consequence of the receipt of in- 
 formation pointing to the probability of a corrupt agreement having 
 been made between certain parties, in order to procure the postal 
 subsidy to the Galway line of steam-packets. They had accordingly 
 instituted a searching enquiry into these transactions, but had been 
 unable to convict the present contractors of any share therein. 
 They therefore deemed it most advisable to inform the House of the 
 whole particulars, and to leave the decision thereon entirely to the 
 judgment of the House, without suggesting any opinion of their 
 own. a No proceeding was taken by the House upon this report. 
 But on July 16, 1861, a petition was presented from Mr. Irwin, 
 one of the persons implicated by the committee in the fraudulent 
 transactions therein referred to, complaining of the conduct of 
 Mr. Lever ( a member of the House) as managing director of the 
 Galway Company. Mr. Lever not being in his seat, the petition 
 was withdrawn, but it was again brought up on July 19, when Mr. 
 Lever denied its allegations, and challenged enquiry. On this occasion 
 the petition was ordered to be printed for the use of members only. On 
 July 22, a motion was made that it be referred to a select committee, 
 upon which Mr. Lever entered into a detailed refutation of the 
 charges it contained against himself. The general sense of the 
 House' being against taking any further notice of the matter, the 
 motion was then withdrawn. b 
 
 Meanwhile the government had determined that the Galway con- 
 tract should proceed, and inasmuch as the select committee had ab- 
 
 First Report, Com", on Packet * Second Report, Ib. p. 529. 
 Contracts, Com. Pap. 1860, v. 14, b Hans. D. v. 164, pp. 077, 1178, 
 pp. 56-58. 1286.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 781 
 
 stained from recommending the cancelling thereof, notwithstanding Galway 
 the adverse conclusions they had arrived at respecting it, the secre- contract, 
 tary of the Treasury, in Committee of Supply, on August 9, 1860, 
 proposed a vote of 60,000. as a first instalment upon the same. In 
 submitting this motion, he frankly acknowledged the weight of 
 censure resting upon the contract, from the terms of the report of 
 the select committee, but nevertheless he expressed his ' strong 
 feeling that arrangements of this kind could not be set aside on mere 
 grounds of general policy or impolicy,' and declared that he did not 
 believe the House had ever refused to vote the estimate for a 
 contract merely on such grounds. To do so in the present instance, 
 when more than a year had elapsed since the contract had been 
 made, would, he contended, be unfair to the company. He further 
 showed that the fraudulent transactions, adverted to in the second 
 report of the committee, had taken place between parties who were 
 no longer connected with the company, and therefore it would be 
 wrong to visit the consequences of their misdoing upon the existing 
 directors and shareholders, who were entirely blameless in the 
 matter. The bargain made with the company might have been 
 a bad one for the public, but it would be still worse for the House, 
 under any pretence, to sanction a breach of faith, and establish a pre- 
 cedent of repudiating inconvenient obligations. This vote, notwith- 
 standing considerable opposition, was finally passed, on division, by 
 a large majority. 
 
 Their contract being thus acknowledged and confirmed by Par- 
 liament, the company endeavoured to fulfil their engagements. But 
 they did not succeed in accomplishing that which they had under- 
 taken, and after repeatedly receiving extensions of time, and other 
 indulgences, they were at length informed by the postmaster- 
 general that their contract was at an end. This decision naturally 
 excited much dissatisfaction among the friends of the company, and 
 on June 14, 1861, a committee was moved for, in the House of 
 Commons, to enquire into the circumstances attending the termi- 
 nation of the contract. The ministry did not oppose this motion 
 (although it was characterised by leading members on the other side 
 of the House as an undue encroachment upon the functions of the 
 executive government), and it was agreed to without a division. 
 The committee carefully investigated the case and, on July 23, 
 made an elaborate report thereon. In it they expressed their opinion 
 ' that the postmaster-general was justified in declining to continue 
 a contract which, in his judgment, at the time of its determination, 
 the company could not carry out efficiently.' But, they added, they 
 had reason to believe that ere long the company would be in posses- 
 sion of an efficient fleet of steamships, and should it be advisable to 
 
 Hans. D. v. 103, pp. 1071-1159.
 
 782 
 
 THE ROYAL PREROGATIVE. 
 
 Galway 
 contract. 
 
 Ocean 
 tele- 
 graph. 
 
 Ked Sea 
 and India 
 tele- 
 graph. 
 
 re-establish postal communication between the west of Ireland and 
 America, they thought the Galway Company were deserving of the 
 favourable consideration of the government." 1 This appears to have 
 been agreed to by the government, for, on August 6, Lord Palmer- 
 ston informed the House, that whenever there was a reasonable 
 prospect of the company being able to fulfil their engagements, they 
 would give a favourable consideration to their claims. 6 His lord- 
 ship renewed these assurances on June 24, 1862, f and again 
 on February 9, 1863.*? Whereupon, on March 20, 1863, Mr. 
 Baxter moved a resolution, declaring that the House was not 
 prepared to grant a sum of money to the Galway Packet 
 Company. He grounded his motion upon the allegation that 
 the renewal of the contract was wholly uncalled for, and could only 
 have proceeded from corrupt political motives. Lord Palmerston 
 repudiated this accusation, and contended that there had been 
 sufficient public reasons to justify the government in giving the 
 company another trial. On division, the motion was negatived by a 
 large majority. 11 On May 4, the government formally notified the 
 company of their willingness to renew the contract. On July 21, on 
 motion of Mr. Peel (the secretary of the Treasury), it was resolved, 
 without debate, that the said contract be approved. 1 
 
 Having disposed of the subject of postal contracts, the committee 
 of 1860 turned their attention to the remaining branch of enquiry, 
 concerning telegraph lines, to which their third report is devoted. 
 It briefly describes the various lines of Ocean telegraphs, on behalf 
 of which the executive government had entered into pecuniary agree- 
 ments. One of these was the Red Sea and India Telegraph line, 
 which was incorporated in 1859, and afterwards attained such an 
 unenviable notoriety. The committee explained the circumstances 
 under which the government had undertaken to assist this company. 
 They arose out of the political importance attributed to the project, 
 and its uncertainty as a commercial speculation. This induced the 
 government to guarantee 4^ per cent, on the capital of 800,000/. 
 for a period of fifty years. Unfortunately, whether intentionally or 
 otherwise does not clearly appear, this guarantee was not made con- 
 ditional on success, as in similar cases, but was absolute. It was 
 stipulated, however, that an Act of Parliament should be obtained 
 to confirm and carry out the agreement. This Act was brought in, 
 proceeded upon, and passed as a private BilU As originally intro- 
 duced, there was nothing in the Bill to show the nature and extent 
 of the pecuniary obligations incurred by the government. It is true 
 
 d Report on Royal Atlantic Steam 
 Navigation Company, Com. Pap. 
 1801, v. 12, p. 13. 
 
 " Hans. D. v. 164. p. 1891. 
 
 ' Ib. v. 1G7, p. 1023. 
 
 Ib. v. 160, p. 187. 
 h Ib. p. 1691. 
 
 1 Ib. v. 172, pp. 66, 1202 ; but see 
 Ib. v. 173, p. 1456. 
 J 22 & 23 Viet. c. 4.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 783 
 
 that in the House of Lords a copy of the agreement was afterwards 
 added to the Bill, by way of schedule ; but whilst under considera- 
 tion in the Commons, it contained no information as to the condi- 
 tions of the agreement, whereby members could judge of its propriety 
 or sufficiency. 11 The line had scarcely gone into operation before it 
 was evident that it was a complete failure, and all attempts to 
 remedy the disaster proved ineffectual. In taking notice of this 
 result, the committee abstained from commenting upon the mode of 
 constructing the telegraphic cable, and confined themselves to an 
 investigation of the contract itself. As to the conditions under 
 which such contracts should be entered into, the committee would 
 not venture to make any suggestions. But- they pointed out that it 
 was obviously not in the form of a private Bill that agreements of 
 this kind could be effectually brought under the notice and control 
 of Parliament ; and they were of opinion that no power to guarantee 
 dividends or interests, on the part of government, should in any 
 case be given by a private Act. 1 As the line continued inoperative, 
 and as doubts were entertained whether the government was strictly 
 bound to continue their annual payments to the shareholders under 
 such circumstances, the government, actuated by a high sense of 
 honour, and bearing in mind that, without doubt, the public had 
 understood that the agreement was unconditional, the possibility of 
 entire failure, after completion, having been overlooked on all sides, 
 introduced a Bill to declare ' that the guarantee contained in the 
 said agreement was not intended to be and is not conditional on the 
 line of telegraph of the company being in working order.' The 
 law officers of the crown had given their opinion that, under the 
 circumstances of the case, the government were wholly exonerated 
 from continuing to pay the money ; nevertheless, as a question of 
 good faith, ministers persevered in the Bill, and it became law. m 
 Until August 4, 1908, the government hold themselves liable for 
 the sum of ,36,054 per annum to meet this obligation. A moiety of 
 the amount, however, is repaid out of the revenues of India. 11 
 
 After the introduction of this Bill, the House proceeded to give 
 effect to the recommendations of the committee, though not pre- 
 cisely in the manner they had suggested, by the adoption of the 
 standing order already noticed, which prescribed the course of 
 procedure in respect to private Bills which are intended to authorise, 
 confirm, or alter, any contracts with government, so as to ensure 
 that the attention of Parliament shall be formally directed thereto. 
 
 k Third Report of Contracts, Com. Viet. c. 4. 
 
 Pap. 1860, v. 14, pp. 665, 666. Hans. n Com. Pap. 1867, v. 39, p. 739 ; 
 
 D. v. '.61, p. 250. Ib. 1868-9, v. 6, p. 619 ; Ib. 1872, 
 
 1 Tmrd Report, p. vi. v. 8, p. 78. 
 
 m Hans. D. v. 161, p. 2152. 24 Ante, p. 779.
 
 784 THE ROYAL PREROGATIVE. 
 
 The foregoing cases afford ample illustration of the 
 
 effectual control which is constitutionally exercised by 
 
 the House of Commons over the grant of public money. 
 
 But these examples have been confined to particular 
 
 Eight of items of proposed expenditure. There still remains an 
 
 to^us? 6 undisputed right, on the part of the House of Commons, 
 
 the sup- t o withhold altogether the supplies asked for on the part 
 
 of the crown. Before the introduction of parliamentary 
 
 government, this formidable instrument of attack was 
 
 often made use of to wrest from an arbitrary monarch 
 
 the redress of grievances. But now there is no longer 
 
 any need to resort to such an extreme measure, and this 
 
 once dreaded weapon * lies rusty in the armoury of 
 
 constitutional warfare.' 
 
 In 1781, Mr. Thomas Pitt proposed to delay the granting of the 
 supplies for a few days, in order to extort from Lord North a pledge 
 regarding the war in America. It was then admitted that no such 
 proposal had been made since the Revolution ; and the House 
 resolved to proceed with the Committee of Supply by a large 
 majority.? In the same session, Lord Buckingham moved, in the 
 House of Lords, to postpone the third reading of a Land Tax Bill, 
 until explanations had been given regarding the causes of Admiral 
 Kempenfeldt's retreat, but did not press it to a division.^ 
 
 On February 22, 1864, Mr. Bernal Osborne moved to postpone 
 the consideration of the navy estimates for three weeks, until the 
 papers relating to the Schleswig-Holstein question had been laid on 
 the table, the production of which he was of opinion had been un- 
 warrantably delayed. But the leaders of the Opposition were not 
 prepared to justify this extreme proceeding, though agreeing that 
 these papers ought to have been sooner produced, and the motion 
 was negatived on division. 
 
 Solitary < The precedent of 1784 r is the solitary instance in 
 
 LCe ' which the Commons have exercised their power of de- 
 laying the supplies. They were provoked to use it by 
 the unconstitutional exercise of the influence of the 
 crown ; but it failed them at their utmost need, and the 
 experiment has not been repeated. Their responsi- 
 bility, indeed, has become too great for so perilous a 
 
 Parl. Hist. v. 22, p. 751. Ib. p. 865. T See post, p. 823.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 785 
 
 proceeding. The establishments and public credit of 
 the country are dependent on their votes, and are not 
 to be lightly thrown into disorder. Nor are they driven 
 to this expedient for coercing the executive, as they 
 have other means, not less effectual, for directing the 
 policy of the state.' 8 
 
 The resolutions of the Committee of Supply are re- 
 ported to the House on a future day, they are then commit- 
 agreed to, disagreed to, or re-committed, as the case may ^ j 
 require. If, on consideration of the report, it be thought 
 necessary to increase the sum granted by the Committee 
 of Supply, the resolutions proposed to be increased must 
 be re-committed. The House may indeed lessen the 
 sum proposed to be granted without re-committal, but 
 to increase the amount would be to impose a charge 
 not previously sanctioned by the committee. 
 
 ' But these resolutions, although they record the 
 sanction of the House of Commons to the expenditure 
 submitted to them, and authorise a grant to the crown for 
 the objects specified therein, do not enable the govern- 
 ment to draw from the Consolidated Fund the money so 
 appropriated. A further authority is required, in the 
 shape of a resolution in Committee of Ways and Means, Votes in 
 which must be embodied in a Bill, and be passed through SeTo?" 
 both Houses of Parliament, before practical effect can be Wa y s and 
 
 i i m Means. 
 
 given to the votes in supply, by authorising the Ireasury 
 to take out of the Consolidated Fund, or, if that fund be 
 insufficient, to raise by exchequer bills fc on the security 
 of the fund, the money required to defray the expendi- 
 ture sanctioned by such votes. The votes in Committee 
 of Supply authorise the expenditure ; the votes in Com- 
 mittee of Ways and Means provide the funds to meet 
 that expenditure. 
 
 s May, Const. Hist. v. 1, pp. 470- Hans. D. v. 161, p. 1309 ; v. 165, 
 
 472. And see Hearn, Govt. of Eng. p. 131 ; v. 180, p. 285 ; Report on 
 
 pp. 357-360. Public Moneys, Com. Pap. 1857, 
 
 ' For the origin, history, and prac- 2nd Seas. v. 9, pp. 532-538. See 
 
 tice, in regard to exchequer bills, see also post, v. 2. 
 
 VOL. I. 3 E
 
 780 THE ROYAL PREROGATIVE. 
 
 ' The manner in which this provision is made is as 
 follows : As soon after the commencement of the session 
 as possible, when votes on account of the great services 
 have been reported, a resolution is proposed in Com- 
 mittee of Ways and Means for a general grant out of 
 the Consolidated Fund towards making good the supply 
 granted to her Majesty. 
 
 ' It is the salutary, judicious, and almost invariable rule of the 
 House not to enter upon questions of Ways and Means until the 
 House has passed its judgment upon those items of the expenditure 
 of the year which are at once the greatest and most variable viz. 
 the naval and military estimates ; ' and the chancellor of the ex- 
 chequer ordinarily refrains from making his financial statement 
 until these estimates have been passed." 
 
 ' This grant never exceeds the amount of the votes 
 actually passed in Committee of Supply ; upon this 
 ways and resolution a Bill is founded, which passes through its 
 various stages^ and finally receives the royal assent, at 
 a very early period of the session ; and then, but not 
 before, the Treasury are empowered to direct an issue 
 of the Consolidated Fund to meet the payments autho- 
 rised by the vote in supply of the House of Commons/ 
 
 It is one of the especial duties of the Speaker of the House of 
 Commons to see that no Ways and Means Bill covers a larger 
 amount than has been already voted in Committee of Supply, and 
 agreed to by the House. After the votes in supply have been 
 agreed to, the Speaker officially transmits a copy of them to the 
 comptroller of the exchequer, to acquaint him for what purposes, 
 and in what amounts, the Commons have sanctioned the outlay of 
 public money. w 
 
 1 The constitutional effect of this proceeding is that, 
 
 - Hans. D. v. 164, p. 866. Con- Com. Pap. ]863, v. 7, p. 479. See 
 cerning exceptions to this practice, Exchequer Act, 4 Will. IV. c. 15, 
 see post, p. 788. For instances of 11. And for examples of Ses- 
 unusual delay in passing estimates, sional Ways and Means Acts, see 
 see Hans. D. v. 207, pp. 1888, 1897. 13 Viet. c. 3, 7; 21 Viet. c. 6, 
 
 * May, Parl. Prac. ed. 1883, p. &c. 
 
 683 ; Hans. D. v. 136, pp. 1310, 1395. Com. Pap. 1857, 2nd Sees. v. 9, 
 
 Second Rep. Com*, of Pub. Accounts, p. 521.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 787 
 
 i 
 
 until the Queen and the House of Lords have assented 
 to the grant of ways and means, the appropriation of 
 the public money directed by the vote in supply of the 
 House of Commons is inoperative. These general grants 
 oT ways and means, upon account, provided by suc- 
 cessive Acts of Parliament during the session, in anti- 
 cipation of the specific appropriations embodied in the 
 Appropriation Act passed at the close of the session, may 
 be viewed as the form in which Parliament considers it 
 most convenient to convey their sanction to the ad 
 interim issue of public money upon the appropriation Ad in- 
 directed by the Commons alone, relying upon their final vtnces^f 
 confirmation being obtained at the close of the session. 3 " mone y- 
 The final grant of ways and means to cover the whole 
 of the supplies voted in the session is always reserved 
 for the Appropriation Act ; thus, although the House of 
 Commons at an early period of the session might have 
 voted the whole of the supplies of the year, they could. 
 still hold their constitutional check upon the minister 
 by limiting the grant of ways and means to an amount 
 sufficient only to last such time as they might think 
 ^proper to give him the means of carrying on the public 
 service, and they are by such limited grants at all times 
 enabled to prevent the minister from dissolving or pro- 
 roguing Parliament.' y 
 
 When the first report of the Committee of Supply Commit- 
 has been received by the House, and agreed to, a day ways an 
 is appointed for the House to resolve itself into a com- Means, 
 mittee ' to consider of ways and means for raising the 
 supply granted.' 
 
 It is in the Committee of Ways and Means that the The 
 budget, or financial statement of the chancellor of the * 
 exchequer, is usually made. In 1833, Mr. Hume moved 
 
 x See post, p. 823. the Chanc. of Excheq. observations 
 
 y Keport on Public Moneys, Com. in Hans. D. v. 136, pp. 1310-1326 
 
 Pap. 1857, Sess. 2, v. 9. Memo, on 1395. 
 
 Financial Control, pp. 26, 27. See 
 
 3 E 2
 
 788 THE ROYAL PREROGATIVE. 
 
 The an amendment to the motion for the Speaker to leave 
 udget. t ] ie gjjajj. O g O m f; Committee of Supply, the object of 
 which was to compel the chancellor of the exchequer to 
 open the budget before the army and navy estimates 
 were voted, but the amendment was negatived without 
 a division. 2 But several instances are cited by May 
 wherein the budget was brought forward in Committee 
 of Supply, or of Ways and Means, before the usual votes 
 for the service of the year had been taken. 8 
 
 The introduction of the budget has been thus de- 
 scribed :- ' Before, or soon after the close of each 
 financial year b [which ends on March 31], the chancellor 
 of the exchequer submits to the House of Commons a 
 general statement of the results of the financial measures 
 of the preceding session, and gives a general view of the 
 expected income and expenditure of the ensuing year ; 
 he intimates at the same time whether the government 
 intends to propose the repeal of any taxes, or the rais- 
 ing of money by the imposition of taxes, or by loan, or 
 otherwise. 
 
 Some years ago it was customary to estimate the revenue of the 
 coming year on an average of preceding years : after a time, to 
 base it on the receipts of the previous year ; but, in order to allow 
 for increase of population and consumption, it has gradually become 
 the practice to estimate the revenue at a higher amount than the 
 actual yield of the past year. c 
 
 This exposition of the state of the finances for the 
 past and ensuing year gives the House of Commons all 
 the necessary information to enable them to exercise an 
 important check upon the minister, by limiting his 
 means of raising money to the sums actually required 
 for the public expenditure. If his statement shows a 
 
 Mir. of Parl. 1833, p. 964. the financial year. See Com. Pap. 
 
 May, Parl. Prac. ed. 1883, p. 1868-9, v. 35, p. 813. 
 
 667. c Chanc. of Excheq. (Sir S. North- 
 
 b Changes have been made from cote), Hans. D. v. 218, p. 644 (Mr. 
 
 time to time, in the termination of Gladstone), Ib. p. 993.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 789 
 
 larger surplus revenue than the House of Commons 
 considers it prudent to leave as a margin to the govern- 
 ment, pressure is immediately brought to bear upon it 
 to procure a reduction of taxation ; d if, on the other 
 hand, the minister shows that the revenue will be 
 insufficient to meet the expenditure, it rests exclusively 
 with the House of Commons to grant or to refuse the 
 demands which may be submitted to them for meeting 
 that deficiency. The intention of this budget statement 
 is not only to lay before the House of Commons the 
 scheme of taxation for the ensuing year, but to satisfy 
 them that the public income to be raised in the year 
 will be sufficient, and no more than sufficient, to meet 
 the expenditure which the government proposes to 
 incur within the year.' e 
 
 In 1876, the chancellor of the exchequer included 
 for the first time in his budget a statement of the 
 operations of the Public Works Loan Commissioners, 
 under the amending Act of 38 & 39 Viet. c. 89 ; for 
 the purpose of bringing all loan transactions under the 
 notice and control of Parliament ; and of obtaining 
 authority to raise funds to provide for local loans 
 during the ensuing year/ 
 
 After the chancellor of the exchequer has concluded Questions 
 his financial statement, it is customary for members to Budget. 8 
 rise and put questions to the finance minister with 
 respect to any point which may require further ex- 
 planation. This is a convenient practice, and is much 
 to be preferred to that of raising, at once, a general 
 debate upon the budget, as it enables the whole minis- 
 terial scheme to be laid before the country in a com- 
 plete and intelligible shape g 
 
 d Remarkable instances of yield Lewis (Uhanc. of Excheq.), Ib. p. 
 
 of revenue in excess of estimate, 519. For the derivation of the word 
 
 Hans. D. v. 210, p. 615 ; v. 218, p. ' Budget,' see Statistical Jour. v. 29, 
 
 640. p. 325. 
 
 e Rep. on Public Moneys, Com. f Hans. D. v. 228, p. 1111. 
 
 Pap. 1857, Sess. 2, v. 9 ; Memo, on * Gladstone (Chanc. of Excheq.) 
 
 Financial Control, by Sir G. C. Hans. D. v. 183, pp. 165, 411.
 
 790 THE ROYAL PREROGATIVE. 
 
 Measures As a general rule, all propositions directly dealing 
 sTdered w i tn the revenue derivable from customs, excise, or 
 Budget assessed taxes, whether by way of increase or diminu- 
 tion, ought to be treated in connection with the financial 
 measures of the year, and should form part of the 
 budget of the chancellor of the exchequer ; so as to 
 admit of the House exercising its constitutional control 
 over all such measures at one and the same time, view- 
 ing them as parts of one comprehensive plan. h But 
 cases will sometimes arise wherein a departure from 
 this rule is expedient : as, for instance, when there 
 are reasons that make it desirable that a proposed duty 
 should take effect from an earlier period of the year 
 than that at which the financial statement is made ; * 
 or, where the object to be attained has no special 
 reference to the revenue, but is for the regulation of 
 trade. j 
 
 It is a recognised parliamentary rule, that no im- 
 portant measure can be advantageously considered by 
 the House immediately after the statement of its prin- 
 ciples by the minister of the crown. Thus the chancellor 
 of the exchequer submits the financial statement, but 
 never asks the assent of the House thereto until a future 
 day ; or if, for financial reasons, the affirmation is asked 
 of any particular proposition, it is always considered a 
 mere formal affirmation, and the merits of the question 
 remain open to further consideration. k But the budget 
 submitted on April 4, 1867, was an exception to the 
 general rule. Being simple, concise, and generally 
 acceptable, the resolutions of ways and means were 
 moved, debated, agreed upon, and ordered to be re- 
 ported to the House at the same sitting. 1 
 
 h Hans. D. v. 185, p. 499. k Mr. Gladstone, Hans. D. v. 185, 
 
 1 Duty on Dogs Bill, Ib. v. 185, p. 489. Ib. v. 186, p. 1130. Ib. v. 
 
 p. 474. 195, p. 433 ; v. 205, p. 1531. 
 
 J Sugar Duties. Ib. pp. 348, 355. ' Ib. v. 186, pp. 1110-1159. 
 
 May, Parl. Prac. ed. 1883, p. 693.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 791 
 
 All taxes are not necessarily proposed in the Com- Taxes 
 mittee of Ways and Means. Though the distinction is commit- 
 not always observed, it is the usual practice to confine *J J and 
 the deliberations of this committee to such taxes as are Means, or 
 more distinctly applicable to the immediate exigencies 
 of the public income; and to consider, in other com- 
 mittees of the whole House, all fiscal regulations, and 
 alterations of permanent duties, not having directly for 
 their object the increase of revenue. 111 Accordingly, it 
 is irregular to move, in Committee of Ways and Means, 
 a general motion concerning taxation as, ' that it is 
 expedient to equalise the duties levied on the descent 
 of real and personal property ; ' or, an amendment de- 
 precating an addition to the funded debt though it is 
 quite competent for a private member to propose a 
 scheme of taxation, to raise the supplies required for 
 the service of the year, by way of amendment to the 
 government proposition." 
 
 It is the invariable course, in Committee of Wayi 
 and Means, to submit to the House resolutions which 
 alter or impose taxation before those which are intended 
 simply to repeal taxation. Upon the moving of the 
 first resolution, though it may refer to but one specific 
 proposal, members may discuss the whole financial 
 statement. 5 
 
 Duties are either annually voted, upon the recom- Annual 
 mendation of the chancellor of the exchequer, in his manent 
 budget, or they are imposed for a term of years, or taxafclon 
 made permanent, by special Acts of Parliament. 11 Oc- 
 casionally certain duties heretofore voted annually are 
 made permanent ; r but while it is in the discretion of 
 
 ra May, Parl. Prac. ed. 1883, p. Mr. Gladstone, Hans. D. v. 224, 
 
 693. p. 290. 
 
 n Mir. of Parl. 1840, p. 3CM2 ; and Northcote, Financial Policy : 
 
 Ib. 1841, Sess. 2, p. 468. As to the passim. 
 
 right of members to propose schemes r Hans. D. v. 162, p. 1981 ; v. 174, 
 
 of taxation by way of substitute to pp. 1986, 2021. Smith's Parl. Hem. 
 
 the government plan, see ante, p. 711. 1864, p. 77. Hearn, Govt. of Eng. 
 
 Hans. D. v. 162, p. 1330. p. 357.
 
 792 THE ROYAL PREROGATIVE. 
 
 government to propose to Parliament a greater or less 
 amount of permanent taxation, from time to time, it is 
 not desirable ' to vary the constitutional practice of 
 always maintaining some large amount of taxation to 
 be annually voted by the House.' s It is right that the 
 great bulk of the revenue arising from taxation should 
 be levied under permanent Acts, in order to maintain 
 the public credit on a firm footing, and for the security 
 of the commercial interests of the country, which 
 would suffer if existing imposts were liable to frequent 
 change.* 
 Time to be it j s an important privilege of the House of Com- 
 
 allowed to 
 
 consider mons that sufficient time should be allowed for de- 
 
 liberation upon any proposition submitted by govern- 
 tions. ment relative to taxation or public expenditure." No 
 resolutions of the Committee of Ways and Means should 
 be reported to the House on the same day on which 
 they were agreed upon in committee ; except upon 
 ' urgent occasion.' v When reported, they may be 
 agreed to, negatived, or re-commit ted. w It is customary 
 to report such resolutions, and move the concurrence 
 of the House thereto, upon the day following that upon 
 which they have been agreed to in committee, in order 
 to avoid loss to the revenue by further delay/ Bills 
 are then ordered to be brought in to give effect to the 
 same, and every exertion is made by the government 
 to pass such bills with as little delay as possible ; con- 
 sistently with a due regard to the rules of Parliament 
 regulating the procedure in matters of taxation/ 
 
 Pending the ultimate decision of Parliament upon 
 
 Hans. D. v. 90, p. 1343. Smith, Parl. Kememb. 1860, p. 123. 
 
 1 Ib. v. 128, p. 951. Lord w 3 Hats. Free. 180. 
 
 Derby, Ib. v. 163, p. 724. Sir S. x Hans. D. v. 133, p. 46. 
 
 Northcote, Ib. v. 166, p. 1361. But y See case of Income Tax and In- 
 
 see Mr. Disraeli's observations on habited House Duties Bill, withdrawn 
 
 this point, Ib. v. 159, p. 1489. for certain irregularities of procedure. 
 
 u Ib. v. 137, pp. 1639, 1648. Hans. D. v. 206, p. 631. 
 
 ' Ib. v. 158, pp. 1161, 1208.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 793 
 
 any Bill, for the imposition or alteration of taxes, it is 
 customary for the executive government, upon their imme- 
 own responsibility, to give immediate effect to resolu- enforced 
 tions altering existing rates of duty, or imposing new 
 duties, as soon as they have been reported from com- 
 mittee, and agreed to by the House ; z unless, of course, 
 the resolutions had been agreed to pro forma, and with 
 a view that substantially the judgment of the House 
 should only be taken at a future stage. 3 But this does 
 not prevent the substance of such resolutions from being 
 again discussed, at future parliamentary stages, with a 
 view to their amendment or rejection. b But no new tax 
 imposed, or temporary tax continued, for the service 
 of the year, can be increased, except in Committee of 
 Ways and Means. A proposal to diminish a permanent 
 tax, however, or a tax already existing, whether origin- 
 ally submitted in Committee of Ways and Means or in 
 another preliminary committee, may be modified in the 
 committee on the Bill, provided only the existing tax is 
 not increased. 
 
 Meanwhile, the new taxes are authorised to be col- 
 lected by government, from the day named in the reso- 
 tion, or from the date of passing the same, because it is 
 not doubted that the Bill which imposes them, as from 
 the date of the resolution whereon it is founded, will 
 become law, by the concurrence of the two other 
 branches of the legislature. If such concurrence be 
 withheld, the resolution becomes inoperative, and the 
 duties levied by anticipation must be repaid to the 
 parties from whom they had been collected. 11 
 
 When there is any material reduction of an excise 
 duty, it is customary to allow a drawback to the manu- 
 
 1 Hans. D. v. 170, p. 636. 683-687. 
 
 Ib. v. 195, pp. 479, 631. d See the Att.-Gen. observations, 
 
 b Hans. D. v. 117, p. 1416; Ib. v. Hans. D. v. 99, p. 1316. Also Ib. 
 
 158, p. 930, &c. v. 166, p. 1274 ; v. 160, p. 1827. 
 e May, Parl. Pract. 1883, pp. 564,
 
 794 THE KOYAL PREROGATIVE. 
 
 facturers and wholesale dealers in respect of their 
 stocks ; but upon the reduction of a duty of Customs, 
 no such drawback is allowed. 6 
 
 New rates It is the invariable practice, when the duty on any 
 
 how" 1 * 7 particular article is raised, to levy the new rate of duty 
 
 levied. on stocks in bond, and cargoes afloat, when they are 
 
 entered for consumption. This sometimes operates preju- 
 
 dicially to the interests of merchants who have imported 
 
 largely of the article in question, with the expectation 
 
 that the duty will remain unchanged. But the hard- 
 
 ship is unavoidable, as it would not be consistent with 
 
 usage, or with the policy of government, to announce 
 
 beforehand their intentions in such a matter.* 
 
 The United States Tariff Act of 1861, which was passed on 
 March 2, and imposed new duties from April 1 of that year, con- 
 tained a clause ( 33), exempting 'merchandise in deposit in ware- 
 house or public store on April 1,' and merchandise 'actually on 
 shipboard, and bound to the United States, within fifteen days after 
 the passing of the Act,' from the additional duties. s 
 
 Duties Whenever the duty on spirits is increased by resolu- 
 
 tion of the House, it is customary to charge the increased 
 rate of duty upon all spirits in the hands of distillers, 
 whether they hold it in bond or duty paid ; but not to 
 charge the additional rate on spirits which have passed 
 into the hands of wholesale dealers, even though they 
 may have taken large and unusual quantities out of bond 
 in anticipation of the increased duty. In 1855 the 
 government desired to subject the article in the hands 
 of dealers to the increased rate of duty ; but precedents 
 were against it, and they abandoned the attempt. 11 
 
 On the other hand, if the duty on any foreign coin- 
 
 
 e Hans. D. v. 201, pp. 1770, 1786, Act of 1862, c. 163, 21, goods 
 
 1797. in bonded warehouses, &c. were 
 
 f Chanc. of the Excheq. Hans. D. exempted from additional duty, but 
 
 v. 99, p. 1315. not goods on shipboard. So also 
 
 g See also similar (though not the Tariff Act of 1864, c. 171, 
 
 identical) provisions in the United 19. 
 
 States Statutes for August 1861, h Hans. D. v. 137, p. 1789; Ib. v. 
 
 c. 45, 5. By the U. S. Tariff 140, p. 1853.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 795 
 
 modity be reduced, it is customary for the reduction of Duties on 
 duty to come into operation the day after the adoption j|j[JJ_ 
 of the resolution by the House ; and it is entirely con- dities. 
 trary to the usage of Parliament to allow any drawback 
 upon stocks of the article in the hands of dealers, whole- 
 sale or retail ; or to allow time for the disposal of their 
 stock before the new duty should be enforced. 1 But a 
 distinction has been drawn between manufacturers and 
 dealers ; and in 1870, upon the reduction of the sugar 
 duties, ministers agreed to allow a drawback of duty 
 on sugar remaining in any bonded warehouse, or under 
 process of manufacture on the premises of refiners, and 
 on stocks of manufactured sugar * in quantity not less 
 than 100 cwt., and in packages unbroken in the hands 
 of refiners,' when the reduction of duty took place. j 
 
 On May 4, 1865, the case of the retail tea dealers, who are Case of 
 obliged to keep large stocks on hand of duty-paid tea, and who the tea 
 would be great sufferers by the sudden reduction of duty thereon, 
 and the consequent influx of fresh stocks of tea at the reduced rate 
 of duty, was brought before the House. The chancellor of the 
 exchequer declared that, ' as a general principle, the time at which a 
 reduction of duty shall come into operation is regulated by large 
 considerations of public policy, and not by the convenience of retail 
 dealers ; ' and that he knew of ' no case, during the last twenty 
 years, in which, in regard to any article not about to undergo a 
 process of manufacture, but simply to be distributed to the cus- 
 tomers, time had been given to get rid of the stocks of the retailers.' 
 Nevertheless, as in the present instance there had been an expecta- 
 tion to the contrary, specially founded upon a declaration of the 
 government in 1863 in respect to the tea duty, he would consent 
 to postpone the reduction from May 6 to June 1, with an entry on 
 the Journals that the delay had been granted ' on special grounds.' 
 The resolution was amended accordingly. 11 
 
 The financial operations of government are not con- 
 fined to propositions concerning supply and taxation, 
 but necessitate various proceedings in the money market 
 
 1 Hans. D. (Chanc. of the Excheq.) J Ib. v. 201, pp. 1409, 1789. 
 v. 178, p. 1241 ; v. 195, p. 585 ; v. 200, k Ib. v. 178, pp. 1471-1500. 
 pp. 1680, 1720; v. 201, p. 1787.
 
 796 THE ROYAL PREROGATIVE. 
 
 for raising the supplies voted by Parliament, as well as 
 for the regulation and management of the public debt, 
 AH finan- But the spirit of the constitution requires that all im- 
 tions tcTbe portant operations which a finance minister may under- 
 laid before ^ a k e f or fa e p UD ii c service should come under the review 
 ment. of Parliament before they are carried into effect. Until 
 the year 1861 the government had the power, through 
 the medium of the commissioners for the Reduction of 
 the National Debt, of funding and re-funding exchequer 
 bills of every description (including supply exchequer 
 bills, deficiency bills, and ways and means bills), with- 
 out the cognisance of Parliament ; thus converting an 
 instrument which had been issued, under the sanction 
 of Parliament, for a temporary purpose, in anticipation 
 of the produce of the ordinary public revenue for the 
 year, into a part of the funded debt of the country. In 
 1861, however, a measure was passed, at the instigation 
 of the government, and in conformity with the recom- 
 mendations of the Public Moneys Committee of 1857, to 
 do away with this objectionable practice by amending 
 the law in regard to exchequer bills. 1 This Act, to- 
 gether with an amending statute, passed in the follow- 
 ing year, m has deprived the government of the power 
 of making any addition to the funded debt without the 
 authority of Parliament ; and it virtually requires the 
 chancellor of the exchequer to submit to the judgment 
 of Parliament all his financial transactions which may 
 effect any change in the condition of the funded or 
 unfunded public debt. n 
 
 The government have no right to fetter the judg- 
 ment of the House of Commons in any matter involving 
 a pecuniary liability upon the Exchequer. But when- 
 financia" d ever a l an > or financial contract, which has been 
 
 contracts. 
 
 1 24 Viet. c. 5. And see Mr. Glad- v. 165, p. 181. 
 
 stone's speech on introducing the Bill, n Mr. Gladstone, in Hans. D. v. 
 
 in Hans. P. v. 161, p. 1309. 170, p. 104 ; Ib. v. 186, p. 751. 
 
 m 25 Viet. c. 3. And see Hans. D. Ib. \. 186, p. 751.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 797 
 
 entered into by government upon its own responsi- 
 bility, is submitted for the approval of Parliament, the 
 sense of the House in regard to the same should be 
 expressed with as little delay as possible. 5 
 
 It is the practice to give immediate effect to reso- stocks, 
 lutions of the House of Commons with regard to the 
 commutation and redemption of public stocks ; and the 
 Speaker notifies parties concerned as soon as the reso- 
 lutions have been agreed to. q 
 
 In the exercise of their constitutional functions, the 
 House of Commons not infrequently dissent from the 
 financial propositions of ministers. Thus, in 1711, a 
 duty on leather was proposed, and rejected on a di- 
 vision by a majority of the House. But ministers did 
 not give up their point. They also brought forward a 
 motion for the same amount of duty upon ' skins and tan- 
 ned hides ' that is, leather under another name which 
 was agreed to by the House/ In 1767, on a proposal Budgets 
 to continue the land tax of four shillings in the pound amended* 
 for one year, an amendment, to reduce the tax to three J7 the 
 
 * . . House 
 
 shillings, was carried. This was the first occasion, since 
 the Eevolution, on which a minister had been defeated m 
 on any financial measure. 8 Throughout the French war 
 the Commons, with singular unanimity, agreed to every 
 grant of money, and to nearly every new tax and loan, 
 proposed by successive administrations.* But in 1796, 
 Mr. Pitt proposed a succession duty upon real property, 
 which being agreed to only by the casting vote of the 
 Speaker, he was reluctantly obliged to abandon." Again, 
 in 1805, Mr. Pitt's budget was amended by the rejecting 
 of the duty upon husbandry horses, against which the 
 landed gentry combined/ But in 1816, after the close 
 of the war with France, when the government were 
 
 P Hans. D. v. 132, p. 1490. * May, Const. Hist. v. 1, p. 471. 
 
 Ib. v. 126, p. 321. Stanhope's Pitt, v. 2, p. 369. 
 
 1 Parl. Hist. v. 6, p. 999. v Ib. v. 4,p. 267. 
 16. v. 16, p. 362.
 
 798 THE ROYAL PREROGATIVE. 
 
 desirous of continuing the property tax for a longer 
 term, in order to get rid of a portion of the burdens 
 occasioned by that protracted struggle, the feeling of 
 the House was so strongly opposed to the continuance 
 of war taxes after peace had been obtained, that the 
 chancellor of the exchequer was defeated, on the 18th 
 March, in Committee of Ways and Means, upon his 
 motion for the renewal of the property tax. After 
 this, he voluntarily abandoned the war duties upon 
 malt, amounting to about 2,700,000/. Altogether it 
 has been computed that the government lost, on this 
 occasion, about twelve millions of anticipated revenue- w 
 Donotne- It is somewhat remarkable that the great ministerial 
 changeo? defeat, recorded in the preceding paragraph, was so 
 ministry, quietly accepted by the government, and did not lead 
 to a ministerial crisis. But the true doctrine on this 
 point is that which was expressed by Lord John Eussell, 
 in 1851, after the government had sustained a defeat on 
 some financial proposition. He remarked that e ques- 
 tions of taxation and burdens are questions upon which 
 the House of Commons, representing the country, have 
 peculiar claims to have their opinions listened to, and 
 upon which the executive government may very fairly, 
 without any loss of its dignity, provided they main- 
 tain a sufficient revenue for the credit of the country 
 and for its establishments, reconsider any particular 
 measures of finance they have proposed.' 3 " To the 
 same effect, Mr. T. Baring, the under secretary for war 
 in Lord Palmerston's administration, said, in 1861, after 
 the rejection by the House of Lords of the Bill for the 
 repeal of the Paper Duties, which formed part of the 
 financial measures of government for that year, ' I am 
 happy that we live at a time when experience has shown 
 
 Hans. D. (1816), v. 33, p. 451. Hans. D. v. 116, p. 634. Sir R. 
 
 Knight, Hist, of England, v. 8, p. 53. Peel had expressed a similar opinion, 
 
 Yonpe, Life of Ld. Liverpool, v. 2, in 1841. See ante, p. 207. 
 pp. 270, &c.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 799 
 
 that a budget may be modified or rejected without any 
 change in the position of the ministry. I am glad that 
 we have seen budgets withdrawn, and fresh ones intro- 
 duced. We have seen taxes remitted, or taxes, the 
 remission of which, when proposed, has been refused, 
 without any effect upon the cabinet. In fact, a change 
 of the budget does not involve a change of ministry, 
 and I rejoice that it is so, because I think it would be 
 most unpardonable obstinacy on the part of public men 
 to adhere to the terms of a budget which was opposed 
 to the wishes and feelings of Parliament. It would be 
 unfortunate for the free exercise of the judgment of 
 this House, if the rejection of any portion of a budget 
 were to be construed into a vote of want of confidence.' y 
 
 In proof of the extent to which the financial mea- Prece- 
 sures of government have been subjected, from time to budgets 
 time, to modification at the hands of Parliament and amended 
 
 '. . or rejected 
 
 to point out under what circumstances the rejection of by the 
 their financial policy has been regarded by an adminis- commons. 
 tration as a token of their having forfeited the con- 
 fidence of the House of Commons the following par- 
 " ticulars are given of the various budgets which have 
 been amended or rejected by the House, from the epoch 
 of the Reform of Parliament in 1832. 
 
 The first budget submitted to a reformed House of Commons was Prece- 
 opened by the chancellor of the exchequer on April 19, 1833. Its dents, 
 details gave rise to no discussion at the time ; but shortly after- 
 wards several motions, on behalf of the agricultural interests, were 
 introduced and debated. One of them was, at the first, successful. 
 This was a motion proposed on April 26, by Sir W. Ingilby, to 
 reduce the malt tax from 20s. 8d. to 10s. per quarter. Notwith- 
 standing the opposition of ministers, the motion was carried by a 
 majority of ten. z On the next sitting day the chancellor of the 
 exchequer informed the House that this vote had considerably 
 embarrassed the government, the more so as its success might 
 probably lead the House to agree to another motion, about to be 
 submitted, for the repeal of the assessed taxes ; and that it would 
 
 y Hans. D. v. 162, p. 901. And see 205, p. 1658 ; v. 215, p. 1351. 
 Mr. Disraeli's observations, Ib. v. z Mir. of Parl. 1833, p. 1486.
 
 800 THE ROYAL PREROGATIVE. 
 
 Prece- occasion a loss of revenue amounting to 2,500,000?. Accordingly, 
 the government determined to afford the House an opportunity 
 1833. of reconsidering their vote, by moving (in amendment to the 
 motion to repeal the house and window taxes), on April 30, to 
 resolve ' That a great deficiency of revenue would be occasioned by 
 the reduction of the malt tax to 10s. per quarter, and by the repeal 
 of the taxes on houses and windows, which could only be supplied 
 by the substitution of a general tax upon property ; and that, as the 
 effect of that course would be to change the whole financial system 
 of the country, it would at present be inexpedient to adopt it.' a At 
 the time appointed this motion was proposed and agreed to ; an 
 amendment to omit therefrom so much as related to the malt tax 
 being negatived by 285 to 131. Whereupon Sir W. Ingilby moved 
 that the previous resolution be read, and that leave be given to 
 bring in a bill pursuant to the same. But on a division of 76 to 
 238, leave was refused. b On May 21 a motion for the repeal of the 
 taxes upon houses and windows was negatived by a large majority. 
 1841. None of the budgets presented to the House of Commons from 
 
 1833 to 1841 underwent any material alteration at the hands of the 
 House of Commons. But on April 30, 1841, Mr. F. T. Baring, chan- 
 cellor of the exchequer in Lord Melbourne's administration, sub- 
 mitted his budget to the House. One of its most prominent features 
 was a proposal to reduce the duty on foreign (or slave-grown) sugar 
 from 63s. to 36s. per cwt. The government at the same time 
 announced their intention to propose an alteration in the corn laws 
 by a reduction of the amount of protection then afforded to 
 the agriculturists of Great Britain. On May 7, Viscount Sandon, 
 on going into Committee of Ways and Means, moved to resolve that 
 the House was not prepared to consent to the proposed reduction of 
 the duty on slave-grown sugar, in view of the immense sacrifices 
 heretofore made for the abolition of slavery and the slave-trade, and 
 in prospect of a supply of free-labour sugar from the British colonies. 
 After a protracted debate from May 7 to May 18, Lord Sandon's 
 resolution was carried. The government, instead of regarding this 
 defeat as decisive of their fate, gave notice of their intention to move 
 for the adoption of the usual annual sugar duties. Sir Robert Peel, 
 not wishing to offer any factious opposition to the government, 
 or to stop the supplies, supported this motion ; but, in order to elicit 
 the opinions of the House in regard to the ministry upon a direct 
 issue, he proposed a vote of want of confidence, which, being agreed 
 to on June 4, led to the dissolution of Parliament. A majority 
 
 Mir. of Parl. 1833, p. 1502. ing, when it was cited as a precedent 
 
 b Ib. p. 1548. See tlie observa- on a similar occasion. Hans. D. v. 
 tions of Mr. Disraeli on this proceed- 75, p. 1028.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 801 
 
 adverse to the ministry were returned to the new House of Com- Prece- 
 mons ; they were again defeated upon an amendment to the address, dents, 
 when they retired from office, and were replaced by the administra- 
 tion of Sir Robert Peel as first lord of the Treasury, the Right 
 Hon. Henry Goulburn being chancellor of the exchequer. 
 
 Sir R. Peel continued in office for five years, but he was so uni- 
 formly successful in his financial policy that the progress of his 
 financial measures through Parliament seldom gave rise to any 
 formidable opposition. But an exception must be made to the 
 budget of 1844, which excited great hostility, and was nearly the 
 occasion of the overthrow of the government. 
 
 The annual financial statement for the year 1844 was made by 1844 
 Mr. Goulbum on April 29. He adverted therein to the question of 
 the sugar duties ; but it was not until June 3 that the proposed 
 alteration in these duties was formally submitted to the House. On 
 the eve of the expiration of a treaty with the slave-holding state of 
 Brazil, which, while it lasted, bound Great Britain to admit Bra- 
 zilian sugar on as favourable terms as that of the free countries of 
 Java or Manilla, the government proposed a 24s. duty on British, 
 and a 34s. duty on foreign free-grown sugar. These rates did not 
 satisfy the West India interest, who (after an amendment had been 
 proposed, and negatived, for the admission of slave-grown sugar on 
 the same footing with free) contended for a proportionate reduction 
 of duty on sugars from the British colonies, so as to leave the pre- 
 sent relative rates unchanged. Accordingly, on June 14, in com- 
 mittee on the Sugar Duties Bill, an amendment was proposed by 
 Mr. Miles, to reduce the relative rates above mentioned from 24s. 
 and 34s. respectively, to 20s. and 30s. ; and further to impose 
 a discriminating duty in regard to certain descriptions of foreign 
 free-grown, sugar of 14s. This amendment was carried against the 
 government by a majority of 20. The vote was taken on the 
 question, ' That the words proposed to be left out [i.e. the govern- 
 ment scheme] stand part of the clause,' which was negatived. The 
 committee then reported progress. On the next sitting-day the 
 committee again sat, and Sir R. Peel announced the intentions 
 of government. He stated that ministers felt it necessary, on 
 grounds of commercial and financial policy, to adhere to their 
 original proposition, and that he must ask the committee to reconsider 
 their vote. He therefore moved, as an amendment to the motion 
 that the words proposed by Mr. Miles, in lieu of those struck out of 
 the clause by the vote of June 14, be inserted, that the rates of 
 duty originally proposed by government be substituted. In the 
 course of the debate which ensued, Sir R. Peel having intimated 
 that, if defeated upon this occasion, ministers would consider that 
 they had lost the confidence of the House, the government amend- 
 YOL. I. 3 P
 
 802 THE ROYAL PREROGATIVE. 
 
 Prece- ment was agreed to. Objections were taken to this proceeding on 
 dents. the point of form, but they were overruled. 11 
 
 1848. On February 18, 1848, Lord John Russell being the first lord 
 
 of the Treasury, and Sir Charles Wood chancellor of the exchequer, 
 the budget was brought forward by Lord John Russell. His scheme 
 was received with great disfavour by the House of Commons, and 
 by the public at large, especially the proposed renewal and increase 
 of the income tax. Though an adverse motion on this subject, by 
 Mr. Hume, was negatived, the feeling in the House against the 
 increase of this tax was too strong to be disregarded. Accordingly, 
 on February 28, the chancellor of the exchequer made a new 
 financial statement, in which he announced that the government, in 
 deference to the wishes of the House and the country, would not 
 press for an increase of the income tax. Later in the session, on 
 June 30, Sir Charles "Wood made another statement, consequent 
 upon the great loss of anticipated revenue by the withdrawal of the 
 proposed additional income tax, without the adoption of other 
 measures for making up the deficiency. Finally, on August 25, he 
 produced what was called his ' fourth budget,' in which he reviewed 
 at length the financial prospects of the year. 6 
 
 1860. The budget of 1850 was brought forward by Sir Charles Wood 
 
 on March 14. It included a proposal for the revision of the stamp 
 duties, which, although intended to reduce this tax as a whole, 
 would have the effect of increasing it in certain cases. In conse- 
 quence of the opposition which this part of his financial scheme 
 encountered, the chancellor of the exchequer was induced to agree 
 to a material reduction of his proposed rates ; but this concession 
 failed to satisfy his opponents, who carried an amendment for a 
 further reduction of the duty. After this defeat, the government 
 took no more steps in the matter for about a month, when Sir 
 Charles Wood stated that they were prepared to proceed with the 
 Bill, with a small advance on the proposed rate, as amended. This 
 arrangement was accepted by the House. f Besides their defeat on 
 this question, the government were defeated in respect to two 
 other questions of taxation, by the introduction of Bills for the re- 
 peal of the duty on attorneys' and proctors' certificates, and in rela- 
 tion to the duty on bonded spirits in Ireland. The first-mentioned 
 Bill was carried through to a third reading, notwithstanding the 
 opposition of the government, but was finally thrown out at this 
 
 c Hans. D. v. 75, pp. 907, 986, f The total loss of revenue by 
 
 1011, 1082, 1162. Com. Jour. June the remissions of this Bill amounted 
 
 14, 17, and 20, 1844. See Martin's to about half-a-million per annum, 
 
 Prince Consort, v. 1, p. 226. being 200,000/. more than had been 
 
 d Hans. D. v. 75, p. 1019. contemplated by government when 
 
 ' Northcote, Financial Policy, pp. they introduced the measure. Annual 
 
 100-110. Register, 1850, pp. 119-123.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 803 
 
 stage. The other Bill did not proceed beyond a first reading, owing to Prcce- 
 the lateness of the session. Both these measures were again brought dents, 
 forward in the following session, but, through the exertions of the 
 government, were finally rejected. 8 
 
 Next year, the budget was introduced on February 17. It met 1851. 
 with an unfavourable reception from the public. February 21 
 was fixed upon for its discussion in committee, but, before that day 
 arrived, the government sustained a defeat on Mr. Locke King's 
 County Franchise Bill, and resigned office. Their retirement was 
 however attributed, at least in part, to the unpopularity of their 
 financial policy. Owing to the inability of the Conservative party 
 to form an administration, the late ministers resumed their places. 
 On April 4, Sir Charles Wood again brought forward his budget in 
 nearly the same shape as before. But, on May 2, Mr. Hume suc- 
 ceeded in carrying an amendment, to limit the duration of the 
 income tax to one year, instead of three years as proposed in the 
 budget. He afterwards obtained the appointment of a select com- 
 mittee to enquire into the mode of assessing and collecting this 
 impost. Twice during this session the ministry sustained defeats 
 upon a motion of Lord Naas respecting the mode of levying the duty 
 on home-made spirits when taken out of bond. But at a subsequent 
 stage they retrieved their position, and succeeded in negativing the 
 Bill introduced by Lord Naas to carry out his project. 11 Notwith- 
 standing these defeats, the government remained in office until their 
 final overthrow in February 1852, when they were replaced by a 
 Conservative ministry. 1 
 
 On December 3, 1852, the budget was introduced by the new 1852. 
 chancellor of the exchequer, Mr. Disraeli. It met with formidable 
 opposition at the outset, and although an attempt, on the part of 
 Mr. Thomas Duncombe, to dispose of it as a whole, on the question 
 that the Speaker do now leave the Chair, was unsuccessful ; yet, as 
 soon as the House went into committee, and the first resolution by 
 which it was proposed to double the existing house tax was submitted, 
 all the opposing parties combined against it. Rival sections found 
 themselves able to join in defeating the ministerial scheme in the 
 aggregate, though differing amongst themselves as to the merits of its 
 several parts. After a protracted debate, the government were 
 defeated on December 16, by a majority of 19, whereupon they re- 
 tired from office. At this time, ministers had no assurance of sup- 
 port from the majority in the House of Commons, upon their policy 
 generally ; accordingly it was expedient that they should retire, 
 although constitutional usage did not necessitate their resignation.* 
 
 g Northcote, Financial Policy, pp. ' Northcote, pp. 142-165. 
 124. 165. J Ib. pp. 174-181. And see ante, 
 
 h Ann. Pee-. 1851, p. 102. Hans. p. 222. 
 D. v. 116, p. 631. 
 
 3 v '2
 
 804 THE ROYAL PREROGATIVE. 
 
 "Prece- On April 18, 1863, Mr. Gladstone, as chancellor of the exchequer, 
 
 dents. introduced his first budget. Though full of startling conceptions 
 
 1853. an d new financial ideas, it was received on the whole with consider- 
 able favour. In one or two particulars, however, Mr. Gladstone 
 was compelled to modify his scheme. A proposition for the revision 
 of licenses upon certain trades, though not rejected by the House, 
 met with so much opposition out of doors that it was ultimately aban- 
 doned. Mr. Gladstone was also unsuccessful in his endeavour to 
 effect a readjustment of the advertisement duty. Before the budget 
 was brought in, a resolution had been carried, in opposition to the 
 government, in favour of the total repeal of this duty. In conse- 
 quence of this defeat, the government were obliged to give way, and 
 consent to the abandonment of this duty. The Bill for the repeal of 
 the attorneys' certificate duty was again introduced, notwithstanding 
 the resistance of government, but it was defeated at a subsequent 
 stage. In other respects the financial measures of the government 
 were passed through the House of Commons without much diffi- 
 culty. 1 * 
 
 1854. The budget for 1854 was introduced by Mr. Gladstone on March 
 6, but the growing demands of the war with Russia rendered it 
 necessary for him to bring forward a second financial scheme on 
 May 8. These measures gave rise to much debate, but were not 
 subjected to any alteration. 
 
 1S60. Nothing occurred in respect to any of the budgets of the suc- 
 
 ceeding years to call for remark until that of February 10, 1860, 
 which was presented by Mr. Gladstone. It included a proposal for 
 the repeal of the paper duty, thereby remitting taxation to the 
 amount of more than one million pounds. 1 The Bill to give effect to 
 this measure was strenuously opposed in its passage through the. 
 House of Commons, and was thrown out in the House of Lords. m 
 This circumstance had no other remarkable result except that it led 
 to the adoption, in 1861, of different arrangements in reference to 
 the fiscal legislation required for the service of the year. Instead of 
 introducing several distinct Bills upon the resolutions reported from 
 the Committee of Ways and Means for the imposition of taxes, the 
 several propositions were all included in one Bill. In this way the 
 government were enabled to renew their measure for the repeal of 
 the paper duties, and to carry it successfully through both Houses. 
 Much dissatisfaction, however, was expressed at the magnitude and 
 complexity of this Bill, and at the curtailment of the opportunities 
 for discussing the various points involved therein, on account of 
 
 k Northcote, pp. 183-217. ings in both Houses in regard to this 
 
 1 Hans. I), v. 162, p. 908. case, see post, p. 809. 
 
 m For a narrative of the proceed-
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 805 
 
 their being all embraced in one measure. Accordingly, in com- Prece- 
 rnittee on the Bill, it was agreed that it should be divided into three, dents, 
 namely, the Inland Revenue, Stamp Duties, and Spirits Sale Bills, 
 all of which received the concurrence of the House of Lords. 
 
 In 1862 the budget propositions were again included in one Bill, 1862. 
 which was probably the largest ' Money Bill ' that had ever been 
 introduced into the imperial Parliament, as it dealt with between 
 twenty-two and twenty-three million pounds of public taxation. On 
 this occasion no attempt was made to alter the form of procedure, 
 though it was severely commented upon in both Houses. 11 The only 
 alteration that was made in this budget was by the introduction in 
 the House of Commons, on May 12, of an amendment in respect to 
 beer and spirit licenses, to which the government gave their consent. 
 
 The budget of 1863 contained two proposals which encountered 1863. 
 serious opposition within and without the walls of Parliament. Of 
 these one was a provision to subject charities to the operation of the 
 income tax, from which they had been previously exempt. Mr. 
 Gladstone defended this item of his budget with great skill, in an 
 elaborate argument. Nevertheless, he declared at once that the 
 government had no wish or intention to press its acceptance upon 
 the House ' by the means which a government may exert.' ' The 
 House must be responsible for its rejection.' After a full debate, in 
 which no * independent member declared himself ' favourable to the 
 scheme, Mr. Gladstone withdrew this provision without taking the 
 sense of the committee upon it. The other obnoxious recommenda- 
 tion in this budget was a proposal to impose a license duty upon 
 clubs. In deference to the requests that were made to him ' from 
 all quarters,' Mr. Gladstone consented to withdraw this item.P 
 
 The financial proposals of the government contained in the budget 1864. 
 of 1864 were adopted substantially as they were submitted to the 
 House of Commons. <i 
 
 The budget of 1865 contained propositions affecting the stamp 1865. 
 duties, income tax, and the duties on tea and on fire insurances. 
 These were severally agreed to by the House of Commons. But a 
 question arose in regard to the time when the proposed reduction 
 of the duty on tea should take place. The government proposed 
 that the new duty should go into operation on May 6 ; but a strong 
 case was made out for delaying the time until June 1 ; and although 
 opposed on general principle to the amendment, the chancellor of 
 the exchequer finally consented to the adoption of a proviso, to be 
 
 n See Hans. D. May 12 and 30, impose a Legacy Duty on Charitable 
 
 1862 ; and ante, p. 176. Bequests in Ireland. Ib. p. 1773. 
 
 Hans. D. v. 170. pp. 1102, 1125. P Ib. pp. 846, 1365, 1395. 
 
 He also withdrew a resolution to q Ib. v. 176, p. 1858.
 
 808 . 
 
 THE ROYAL PREROGATIVE. 
 
 Prece- 
 dents. 
 
 1866. 
 
 added to the resolution, ' That, on special grounds, the said reduc- 
 tion shall not take effect until June 1, 1865. >r 
 
 The budget of 1866 was introduced by Mr. Gladstone, the chan- 
 cellor of the exchequer, on May 3. In the month of July a change 
 of ministry took place. On July 23, the new finance minister, Mr. 
 Disraeli, informed the House, that in order to raise the necessary 
 funds to meet certain supplementary estimates which the incoming 
 administration had felt it their duty to submit to Parliament, they 
 had resolved upon relinquishing the Bill, which had passed its 
 second reading, for the conversion of certain terminable annuities 
 towards the liquidation of a portion of the national debt. This 
 was the only alteration effected in the financial proposals of the 
 ex-ministry. 
 
 In proceedings in Parliament upon matters of supply 
 and taxation, the two Houses do not stand on precisely 
 the same footing. Although the consent of both Houses 
 is indispensable to give legal effect and validity thereto, 
 yet, from a very early period, the Commons have suc- 
 ceeded in maintaining their exclusive right to originate 
 all measures of this description. They have gone 
 further, and have claimed that such measures should 
 be simply affirmed or rejected by the Lords, and should 
 not be amended by that House in the slightest par- 
 ticular. The Lords have practically acquiesced in this 
 restriction ; although they have never formally con- 
 sented to it. 8 
 
 A similar question has been frequently raised as to whether 
 Legislative Councils in the colonies, whether elected or nominated, 
 can claim the right to amend Money Bills. This claim has been 
 sometimes, though rarely, admitted by the Houses of Assembly, 
 who generally insist upon the strictest limitation of the powers of 
 the Upper Chamber, in conformity with the prevailing practice of 
 the imperial Parliament. 
 
 A very strong argument in defence of amendment was made by 
 the Legislative Council of South Australia, in 1857, to a Bill to 
 repeal tonnage duties on shipping.* 
 
 r Hans. D. v. 178, pp. 1 471-3500. and 101. This case is also noted in 
 
 s Ib. v. 163, pp. 720, 722. Forster's South Australia (London, 
 
 ' Proceedings Parl. S. Australia, I860), pp. 169-177. 
 1857-8, v. 1, passim; v. 2, Nos. 71
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 807 
 
 The difficulties which arose in South Australia between the two 
 Houses in regard to the amendment of Money Bills led to a formal 
 agreement, adopted in November 1857, which merely conceded to 
 the Legislative Council the right of making formal amendments to 
 such Bills, though not to money clauses therein ; but admitting 
 suggestions to be offered by the Legislative Council even in respect 
 to the parts of such Bills which deal with money or taxation. This 
 arrangement has since continued in operation, and has worked 
 well." 
 
 In the session of the South Australian Parliament, which closed 
 on November 17, 1876, 'the Legislative Council suggested that the 
 House of Assembly should strike out from the second Loan Bill, for 
 887,800?., the item of 123,760?. for improvements at Port Victor, 
 and the Bill was returned to the Assembly ; but that chamber, by a 
 majority of fifteen, decided not to adopt the suggestion of the 
 Council. That body decided, by a majority of one, not to withdraw 
 the suggested amendments, and the measure therefore dropped. The 
 government introduced another Bill, omitting the items objected to 
 by the Council, which was passed.' v 
 
 A similar conflict took place between the two Houses in New 
 Zealand in 1872, which was complicated by the terms of a colonial 
 statute, passed in 1865, which expressly conferred upon both Houses 
 the privileges exercised by the imperial House of Commons. It 
 was finally agreed that the questions involved in this dispute should 
 be referred for the opinion of the law officers of the crown in 
 ~England. w They were of opinion that the Parliamentary Privileges 
 Act of 1865 did not confer upon the Legislative Council any larger 
 powers than they had antecedently possessed in regard to Money 
 Bills, and that the particular amendment made by the Council was 
 one which would not have been allowed by the imperial House of 
 Commoiis. x 
 
 The questions in controversy between the two Houses 
 in matters of supply have been elaborately discussed in 
 the 3rd vol. of Hatsell's Precedents, and in May's Trea- 
 tise on the Practice of Parliament : it would therefore 
 
 1874, 
 Assy. 
 
 'The Colonies','" Jan. 20, 1877, ' w N. Zealand Pap. 1872. A. No. 
 
 p. 2. For statement of respective con- 1, p. 05. 
 
 stitutional rights of the two Houses * Ib. A. No. 1, B. Ib. Parl. Deb. 
 
 in matters of supply, see report ol Sel. Sept. 3, 1872; Com. Pap. 1860, v. 
 
 Com 6 . Leg. Ass*. Victoria, on 300ct. 46, p. 466.
 
 808 THE ROYAL PREROGATIVE. 
 
 be superfluous to enter upon them here ; suffice it to 
 say that the proceedings between the two Houses on 
 this subject are now in strict conformity with the reso- 
 lution of the Commons on July 3, 1678, which declared 
 Supplies, that ' all aids and supplies, and aids to his Maiesty in 
 
 the snlfi -r> v i r in 
 
 -Parliament, are the sole gift of the Commons ; and all 
 Bills for the granting o? any such aids and supplies 
 ought to begin with the Commons, and that it is the 
 undoubted and sole right of the Commons to direct, 
 limit, and appoint in such Bills the ends, purposes, con- 
 siderations, conditions, limitations, am qualincations7)f 
 such grants ; which ought not to be changed or altered 
 by the House of Lords.' 
 
 Without abandoning the abstract right of dealing 
 with Bills of supply and taxation as they may think fit, 
 the Lords seldom attempt to make any but verbal 
 alterations, in which the sense or intention is not 
 affected ; but even in regard to these, when the Com- 
 mons have accepted them, they have made special 
 entries in their journal recording the character and 
 object of the amendments, and their reasons for agree- 
 ing to them/ 
 
 Of late years an attempt has been made, by an 
 ingenious process of reasoning, to establish a distinction 
 between the right of the Lords to reject a Bill imposing 
 a tax and one repealing a tax. But this distinction is 
 
 *^ i^J^***^^^*^^ 
 
 fallacious, and is not warranted either by precedent z or 
 by constitutional authority. 11 The only ground for such 
 a difference is the fact that taxes being levied on behalf 
 of the sovereign, when she, by her responsible financial 
 advisers, is desirous of renouncing any specific tax, and 
 the Commons assent to the repeal of the same, it is not 
 customary, under ordinary circumstances, for the Lords 
 
 i See May's Parl. Prac. ed. 1883, Com. Pap. 1860, v. 22, pp. 125-134- 
 p. 030, citing precedents. See Cox, Inat. p. 188. 
 
 * Report of Com 6 , on Tax Bills,
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 800 
 
 i 
 
 to oppose the wishes of the sovereign and of the other 
 House. The control of the public finances by the House 
 of Commons is a constitutional right, and they are pre- 
 sumed to be the best judges of the financial condition 
 of the state, its obligations and requirements. Never- 
 theless, every Bill to impose or repeal a tax involves 
 other considerations besides those which are purely 
 questions of revenue ; it necessarily includes principles 
 of public policy, or of commercial regulation, and on 
 points of this kind the Lords, as a co-ordinate branch 
 of the legislature, are constitutionally free to act and 
 advise as they may judge best for the public interests. 
 It is true that the peculiar privileges of the Commons 
 in regard to supply and taxation should ordinarily 
 restrain the Lords from intermeddling with the details 
 of financial schemes propounded by the government 
 and agreed to by the popular branch, but circumstances 
 may occur when the exercise by the House of Lords 
 of their right to accept or reject any measure affecting 
 the finances of the nation may be most beneficial to the 
 -interests of the community at large; and it would be 
 unwarrantable to deny them the possession of this right 
 because it might be expedient that it should be re- 
 sorted to upon extraordinary occasions. 
 
 The relations between the two Houses in matters of supply and Paper 
 taxation will be further illustrated by a narrative of the paper duties 
 case. We have already seen b that in the year 1858 the House of 
 Commons, by the adoption of an abstract resolution, condemned the 
 continuance of the paper duty as a permanent source of revenue. 
 Accordingly, in 1860, a measure for the repeal of this impost was 
 submitted by the chancellor of the exchequer in his budget, and in 
 due course was sent up to the House of Lords in a separate Bill. 
 The paper duty yielded a revenue of 1,300,000?. per annum, to 
 make up for the loss of which it was proposed to add a penny in the 
 pound to the income tax. This recommendation was agreed to by 
 both Houses ; but the Lords refused to concur in the remission of 
 the paper duties, on the ground that the state of the public finances, 
 and the condition of the country, then on the eve of war with China, 
 
 b See ante, p. 716.
 
 BIO THE EOYAL PKEROGATIVE. 
 
 Paper did not warrant the sacrifice of such a large amount of revenue'. 
 Other injurious consequences were also predicted as likely to result 
 from a repeal of the duty on this article of manufacture. Where- 
 upon the second reading of the Bill was postponed for six months. 
 After the House of Commons became officially cognisant of this fact, 
 by the report of a committee appointed to ascertain the fate of the 
 Bill, they appointed a committee to search the journals of both 
 Houses, in order to ascertain the practice of Parliament with regard 
 to the several descriptions of Bills imposing or repealing taxes. 
 On June 29, this committee reported numerous precedents, which 
 were set forth with great care and perspicuity ; but they refrained 
 from offering any opinion, or from making any comments upon 
 the practice of each House, except to illustrate and explain. On 
 July 5, Lord Palmerston c (the premier) proposed to the House of 
 Commons the following resolutions : 
 
 ' 1 . That the right of ^granting aids and supplies to the crown is in 
 the Commons alone, as an essential part of their constitution ; and 
 the limitation of all such grants, as to the matter, manner, measure, 
 and time, is only in them. 2. That although the Lords have ex- 
 ercised the power of rejecting Bills of several descriptions relating 
 td taxation by negativing the whole, yet the exercise of that power 
 by them has not been frequent, and is justly regarded by this House 
 with peculiar jealousy, as affecting the right of the Commons to 
 grant the supplies and to provide the ways and means for the 
 service of the year. 3. That to guard for the future against an 
 undue exercise of that power by the Lords, and to secure to the 
 Commons their rightful control over taxation and supply, this 
 House has in its own hands the power so to impose and remit taxes, 
 and to frame Bills of Supply, that the right of the Commons as to 
 matter, manner, measure, and time may be maintained inviolate.' 
 
 It was not proposed to follow up these abstract propositions with 
 any action in reference to the Bill for the repeal of the paper duties, 
 because the legal and technical right of the Lords to refuse their 
 assent to that Bill was not disputed by the government, who never- 
 theless thought it necessary that the protest implied in the adoption 
 of these resolutions should be recorded. They were accordingly 
 agreed to by the House, on July 6, without a division, but after a 
 full debate. In the course of the discussion the following points 
 were strongly insisted upon. The first resolution, it was remarked, 
 seems to have been, copied from an ancient precedent on the Com- 
 
 It since appears that Lord Pal- ' done a useful thing ' in throwing out 
 
 merston himself though protesting this Bill. Martin, Pr. Consort, v. 5, 
 
 officially against the proceedings pp. 100, 132, 134. 
 was of opinion that the Lords had
 
 CONTROL OF PARLIAMENT OVEE SUPPLIES. 611 
 
 mons Journals for 1692, the language whereof, though correct in Paper 
 the main, has been noticed by Hallam, in his Constitutional History, duties 
 as that which cannot be precisely vindicated or approved, for it 
 appears (however unintentionally) to deny the right of the Lords to 
 a free concurrence in matters of supply ; which is contrary to the 
 express admissions of the second resolution.* 1 It is well known that 
 the Lords have never formally acknowledged any further privilege 
 to the Commons than that of originating Bills of Supply ; and 
 although in practice they have for a long period acquiesced in the 
 claim of the Commons that they should not alter or amend any 
 Money Bill, yet their right to reject such measures as a whole is as 
 undoubted as their right to express agreement therein. It is granted 
 that the power of taxation is one that peculiarly appertains to the 
 House of Commons ; and that it is their privilege, in providing sup- 
 plies for the service of the year, should they think fit, ' to combine 
 the whole into one scheme,' that must be accepted or rejected by the 
 Lords, without any attempt to alter or vary the details of the finan- 
 cial arrangements composing the same. 6 Yet the propriety and 
 expediency of such a course, in every instance, may be seriously 
 impeached. We have already seen/ in the case of Palmer, when 
 the Commons proposed to grant a sum of money to a person whose 
 claims to compensation were open to dispute, that they included the 
 appropriation in a separate Bill, for the avowed purpose of affording 
 to the Lords an opportunity of considering that grant distinctly 
 from the other grants of the year. In like manner, in the immea- 
 ^surably more important instance of the financial propositions of the 
 government, it properly belongs to the Lords to judge, not merely 
 of the general expediency of the proposed scheme, when regarded 
 as a whole, and of its probable results upon the country at large, 
 but also to consider the various questions of commercial legislation 
 and public policy that may be involved in its details. The House 
 of Lords has an onerous duty to perform in respect to every Bill, 
 financial or otherwise, that may be sent to it from the other chamber, 
 in submitting the same to careful revision, for the purpose of re- 
 straining hasty or improvident legislation, and sanctioning by its 
 wisdom, influence, and authority whatever may be necessary to pro- 
 mote the public good. This can only be adequately performed when 
 full opportunity is afforded for pronouncing an independent judg- 
 ment upon every separate question which the Lords may be called 
 upon to decide. 8 
 
 d Hans. D. v. 159, pp. 1419, 1487. See also Ed. Rev. v. 115, p. 211, &c. 
 
 e Ib. pp. 1389, 15G5. For a reference to ancient precedents, 
 f See ante, p. 703. and an able and ingenious argument 
 g In support of this view, see in opposition to the claims and pro- 
 Jurist. N.S. v. 6, pt. 2, pp. 235, 299. ceedings of the Lords on this occa-
 
 812 THE BOYAL TEEROGATIVE. 
 
 Paper On July 17, Lord Fermoy moved the House of Commons to resolve 
 
 duties 'that the rejection by the Lords of the Bill for the repeal of the 
 paper duties is an encroachment on the rights and privileges of the 
 House of Commons ; and it is therefore incumbent upon this House 
 to adopt a practical measure for the vindication of its rights and 
 privileges.' He based this proposition on the erroneous construction 
 of the first resolution moved by Lord Palmerston, and which Hallam 
 by anticipation had condemned, and also on the alleged necessity for 
 following up the foregoing resolutions with some decisive action. 
 But the ministry opposed this motion, and the previous question was 
 proposed thereon and negativ~d. h 
 
 In the following session (1861), the chancellor of the exchequer, 
 conformably to the principle asserted in the third resolution afore- 
 said, embodied his whole budget propositions, including resolutions 
 for the repeal of the paper duty, in one Bill. Great exception was 
 taken to this course by a powerful minority in the House of Com- 
 mons, and it underwent considerable discussion on May 13 and 16. 
 It was urged that, although such a proceeding was undeniably in 
 accordance with some former precedents, and a strictly allowable 
 method of disposing of the financial measures of the year, yet that 
 the practice for the last thirty or forty years had been to insert the 
 propositions of the budget in several Bills ; that it was not desirable 
 to include multifarious matters, such as the repeal and the imposi- 
 tion of taxes in one Bill, even though the subjects were cognate ; 
 that the Lords have never formally abandoned their right to amend 
 Money Bills, though leading members of that House may have done 
 so, when speaking in its behalf ; that admitting such a claim to be 
 inconsistent with the privileges of the Commons in regard to supply, 
 yet that the balance of the constitution requires that the Lords 
 should possess a controlling power in all matters of legislation, 
 whether financial or otherwise, and that they ought not to be driven 
 to the alternative of rejecting the whole supplies for the year and 
 thereby jeopardising the public credit, the existence of the ministry, 
 
 sion, see various articles in Smith's propriation Bills should invariably 
 
 Parl. Remembrancer, 1800, pp. 123- be distinct and separate measures. 
 
 162, 172, 179, 194. And see the See also the 'Correspondence,' and 
 
 speech of Lord 11. Montagu, in the ' Further Correspondence,' ' respect- 
 
 II. of C. March 20, 186*3, in refer- ing the non-enactment of the Appro- 
 
 ence to conduct of the II. of Ass y . of priation Act in Victoria,' presented 
 
 the colony of Victoria, in claiming to Parliament in 1866. And see 
 
 the right to tack a Tariff Hill to the ' Correspondence,' and ' Further Cor- 
 
 Appropriation Bill, with a view to respondence,' on a similar question of 
 
 compel the Leg. Council to accept difference between the two Houses of 
 
 tlus same, contrary to the instructions the Legislature in Victoria, presented 
 
 laid down by the sec. of state for to Parliament in 1878. 
 the colonies, that Revenue and Ap- h Hans. D. v. 159, pp. 2078-2106.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 813 
 
 and the welfare of the state or of being obliged to agree to a Bill p a p e r 
 containing many distinct and separate provisions, all of which they duties 
 were not disposed to accept ; that while the extreme right of the case - 
 Commons may be held to justify the embodying of all the budget 
 resolutions in one Bill, yet that this power should not be exercised 
 except on extraordinary occasions, and that ordinarily no proceed- 
 ings should be resorted to that would deprive the Lords of the 
 opportunity of exercising a deliberate judgment on every distinct 
 legislative proposition, until after continued provocation, and the 
 repeated exercise, by the Lords, of their right to reject measures 
 forming part of the financial scheme agreed to by the Commons ; 
 which extreme right of the Lords ought to be reserved for rare and 
 exceptional occasions ; and, finally, that it was quite unprecedented 
 for a financial Bill which had been rejected by the Lords to be after- 
 wards embodied in another Bill, sent up and passed by them in that 
 shape ; so that, at all events, the course now proposed was prema- 
 ture, and ought not to have been adopted until after successive 
 failures to induce the Lords to agree to the repeal of the paper duty 
 in a separate Bill. Nevertheless, the Bill was sent to the Lords in 
 the shape it had been introduced by the government. Its second 
 reading was moved in that House on June 7. In the course of the 
 debate thereon, Lord Derby, while asserting that the Bill was open 
 to objection in point of form, did not attempt to dispute the strict 
 right of the Commons to include all the financial arrangements of 
 the year in one measure, alleging that the Lords could, if they 
 deemed it expedient, vindicate their privileges by dividing the Bill 
 into two or more parts. He also clearly showed that the Lords h'ad 
 never formally abandoned their right to amend a Money 'Bill," lind 
 that in the opinion of eminent constitutional authorities, they would 
 be warranted in such an act, should it be necessary to vindicate 
 their freedom of deliberation, and to prevent the enacting of a 
 measure which they regarded as objectionable. 1 He added that 
 there were ' repeated cases of financial measures being amended by 
 the House of Lords, and the amendments being accepted by the 
 House of Commons ' (after, of course, the formal assertion of their 
 privileges, by laying aside the Bill, and re -introducing it, as amended). 
 Notwithstanding these objections, no attempt was made to oppose 
 the passing of this Bill, or to introduce any amendments therein ; 
 its opponents contenting themselves with recording, in an able and 
 elaborate protest, all the arguments that had been adduced against 
 it.J Toulmin Smith, in his Parliamentary Remembrancer for 1861, 
 although he had sided against the Lords in the beginning of the 
 
 Hans. D. v. 163, p. 720. 
 
 Ib. p. 11G6. Lords' Jour. v. 93, p. 378.
 
 814 THE ROYAL PREROGATIVE. 
 
 controversy, condemned the present proceeding of the Commons, as 
 betokening a lack of ' ordinary courtesy and self-respect,' ' really 
 amounting to a declaration that the House of Lords shall be over- 
 ridden, without scruple, whenever the Commons want to pass a Bill 
 that cannot be safely trusted on the stage of fair discussion.' k 
 
 commons Following the precedent so successfully established 
 include tne c l iance ll or O f the exchequer determined to introduce 
 
 the whole . L 
 
 budget the budget propositions of 1862 in one general Bill. 1 
 tfon S U ~ Leading members of the Commons strenuously protested 
 i?,? ne against this course, as being a serious restriction upon 
 
 Bill. . . . . . 
 
 the opportunities for discussing these important financial 
 measures, but without avail. This was probably the 
 largest 'Money Bill ' ever passed, as it dealt with between 
 twenty-two and twenty-three million pounds of public 
 taxation. It was commented upon somewhat severely 
 in the House of Lords on this ground, but the colonial 
 secretary (the Duke of Newcastle) contended that the 
 new practice of combining the whole budget resolutions 
 in one Bill was merely a resort to former constitutional 
 usage, and was sanctioned by high authority. Lord 
 Derby considered that this course was more open to ob- 
 jection on the part of the Commons than of the Lords, 
 inasmuch as it ' deprives the House of Commons of some 
 of the most valuable means which they have at their 
 disposal of duly debating and fully considering the 
 financial measures of the government.' So far as the 
 Lords were concerned, ' the one course interposes to 
 us no greater obstacle than the other ; because, as it is 
 perfectly within our province and our right to reject a 
 particular proposition in a single Bill, so it is equally 
 within our competence to reject that same proposition 
 when incorporated with others,' n and leave to the 
 Commons the consequences of their own proceeding. 
 After some further debate, the Bill was concurred in 
 
 k Parl. Remerab. 1861, p. 88 ; and ' Hans. D. v. 106, p. 772. 
 see pp. 100, 101, 118; also Martin, '" Ib. pp. 15G1-J5G7. 
 Pr. Consort, v. 5, p. .'Ml. n Ib. v. 1G7, p. 180.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 815 
 
 without amendment. In like manner, the financial pro- 
 positions of government in each year from 1862 to 
 the present time have all been included in one Bill. 
 And in 1869 ministers persisted in the same course of 
 procedure, notwithstanding urgent representations by 
 Opposition members that it would greatly facilitate the 
 course of public business in the House of Commons if 
 the financial resolutions of that year were embodied in 
 two separate Bills. p 
 
 We will now proceed to consider the subject of Money 
 Money Bills, which are of three kinds, viz. Tax Bills, 
 Bills of Supply, and Bills of Appropriation. All these 
 Bills have a peculiar form ofpreamble, which intimates 
 that the revenue or grant of money is the peculiar gift 
 of the House of Commons, and such Bills are invariably 
 presented for the royal assent by the Speaker of the 
 House of Commons. q 
 
 Tax Bills, for raising revenues to be applied towards 
 .the services of the current year, are founded upon re- 
 solutions of the Committee of Ways and Means. 
 
 In like manner, Bills of Supply, or rather of Ways 
 ~and Means, authorising an advance out of the Consoli- 
 dated Fund, or the issue of exchequer bills, towards 
 making good supplies which have been voted by the 
 House of Commons for the service of the year, emanate 
 from the Committee of Ways and Means, in the wav 
 which has been already described/ 
 
 When the Committees of Supply and Ways and 
 Means have finished their sittings, a Bill is introduced, 3 
 which enumerates every grant that has been made 
 
 during the session, appropriates the several sums, as 
 voted by the Committee of Supply, wnicn shall be 
 
 Hans.D. v. 170, p. 851 ; v. 183, p. with considerable inconveniences. 
 1128 ; May, Parl. Prac. ed. 1883, p. P Hans. D. v. 195, p. 600. 
 650. On May 17, 1866, Mr. Disraeli Cox, Inst. 108. 
 took occasion to reiterate his convic- " See ante, p. 786 
 tion that thia course was attended s 'Ilans. D. v. 189, p. 1340.
 
 816 THE KOYAL PREROGATIVE. 
 
 issued and applied to each separate service, and directs 
 that the said supplies shall not be used for any other 
 than the purposes mentioned in the said Act. This is 
 known as the Consolidated Fund Bill, or, more generally, 
 as the Appropriation Bill. By this Act, which completes 
 the financial proceedings of the session, the supply votes, 
 originally passed by the Commons only, receive full 
 legislative sanction. The appropriation is always re- 
 served for the end of the session, and it is irregular to 
 introduce any clause of appropriation into a revenue 
 or~other BilljDassing thn5u^~^arlTament . _at an^earlier 
 period ; for the questions of ways and means and of 
 appropriation should be kept perfectly distinct. i 
 Duty of By constitutional practice, the Speaker of the House 
 
 speaker ^ Commons, as the guardian of its privileges, is required 
 in matters to take oversight of the financial proceedings of the 
 Dp3 ' House during the session, and it is his duty to ascertain 
 that every Bill for giving ways and means to the Trea- 
 sury is kept within the amount of the votes in supply 
 already granted. At the close of the session he checks 
 the final balance between the full amount of the votes in 
 supply and the ways and means previously authorised, 
 and limits the final grant of ways and means in the Ap- 
 propriation Act to that amount. 11 
 
 Appropri- The constitutional rule, now so well understood and 
 clauses in acknowledged, ' That the sums granted and appropriated 
 Bins of by f^ Commons for any special service should be applied 
 by the executive power only to defray the expense of 
 that service,' v although not wholly unrecognised in 
 earlier times, w was first distinctly enunciated and par- 
 tially enforced soon after the Eestoration. But it was 
 not until the Ee volution of 1688 that this great prin- 
 
 1 The Speaker, in Mir. of Parl. u Report on Pub. Moneys, Coin. 
 
 1841, p. 931 ; and see Hans. D. v. Pap. 1857, Sess. 2, v. 9. Mem. on 
 
 170, pp. 1897, 1914 ; and Earl Grey's Financial Control, pp. 5, 27, 76. 
 
 Colonial Policy, v. 1, p. 421. But v 3 Hatsell, 210. 
 
 this was not formerly the case : see w See Hargrave's Judicial Argu- 
 
 Parl. D. v. 9, p. 032. * ments, v. 1, pp. 397-402.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 817 
 
 ciple was finally established and incorporated into the 
 system of parliamentary government/ At this epoch 
 Solicitor- General (afterwards Lord) Somers and Mr. 
 Sacheverel, by special direction of the House of Com- 
 mons, framed some appropriation clauses with great 
 care, which were included in the statute 1 Wm. & 
 Mary, s. 2, c. 1, and are given in full in Hatsell, vol. 
 iii. Appendix, No. 15. These clauses were not for- 
 mally repeated in subsequent Bills of Supply, but they 
 are referred to as to be ' put in force and practised ' in 
 various succeeding statutes. Thenceforth it became 
 the established and uniform practice, ' that the sums 
 granted by the House of Commons for the current ser- 
 vice of the year should, by a special appropriation, 
 either in the act for levying the aid or in some other 
 act of the same session, be applied only to the services 
 which they had voted.' This doctrine has been en- 
 forced, from time to time, by penalties imposed by Acts 
 of Parliament upon officers of the Exchequer and others 
 who should divert or misapply the moneys granted to 
 .any other purpose ; and a violation of the same is a 
 misdemeanour, that has been declared to be a sufficient 
 ground for a parliamentary impeachment/ 
 
 The modern form of the appropriation clause, after Form of 
 enumerating the grants of the session, and applying priation 
 them to their respective services, is as follows : 4 That clause - 
 the said aids and supplies shall not be issued or applied 
 to any use, intent, or purpose, other than those before 
 mentioned, or for the other payments, &c. directed to 
 be satisfied by any Acts of Parliament, &c., of this 
 session.' A clause of this description was invariably 
 inserted in the annual Appropriation Acts up to the 
 year 1869. On two occasions, in 1857 and in 1859, 
 where two sessions were held in one year, it was 
 
 " 3 Hats. 202. Sees. 2, v. 9, p. 567 ; and see Hans. 
 
 * If). 206. Cases cited in Lord D. v. 164. p. 1740. 
 Monteagle's Report, Com. Pap. 1857, 
 
 VOL. I. 3 G
 
 818 
 
 THE ROYAL PREROGATIVE. 
 
 Authority 
 given to 
 use sur- 
 pluses of 
 army and 
 navy 
 grants to 
 make 
 good de- 
 ficiencies 
 therein. 
 
 Subject to 
 approval 
 of the 
 House of 
 Commons. 
 
 omitted in the acts of the second session on technical 
 grounds, arising from the fact of two parliaments being 
 convened in each of those years. But, in point of fact, 
 it has been authoritatively stated, that though, as a 
 declaration of constitutional principle, the said clause 
 might reasonably be inserted in any Appropriation Bill, 
 yet that ' it was in point of law mere surplusage, be- 
 cause the government had no authority to appropriate 
 those moneys to any other purposes than those for 
 which Parliament had appropriated them.' z Accord- 
 ingly, since 1870, the clause has been omitted ; and the 
 Act itself materially simplified and abbreviated. 
 
 The Appropriation Act also contains a provision, 
 that the expenditure for navy and army services shall 
 be confined to those services respectively, but that ' if 
 a necessity shall arise for incurring expenditure not 
 provided for in the sums appropriated ' for the said 
 services, ' and which it may be detrimental to the pub- 
 lic service to postpone until provision can be made for 
 it by Parliament in the usual course,' application shall 
 be made to the Treasury, who are empowered to 
 authorise such additional expenditure to be temporarily 
 defrayed out of any surpluses which may have accrued 
 by the saving of expenditure upon any votes within the 
 same departments ; ' provided that the House of Com- 
 mons shall be duly informed thereof, in order to make 
 provision for such deficient expenditure as may be 
 determined ; and provided also, that the aggregate 
 grants for the navy and army services shall not be 
 exceeded.'* 
 
 The manner in which the observance of the Appro- 
 priation Act is secured, and the circumstances under 
 which any deviation from the strict rule of parliament- 
 
 * Mr. Gladstone, in Hans. D. v. 
 1G4, p. 1745. But the Treasury 
 may refrain from expending money 
 
 granted for a particular purpose, if 143, p. 563. 
 not satisfied with the propriety of 
 
 the expenditure. Ib. v. 204, p. 1069. 
 37 & 38 Viet, c. 56, 4 ; see 
 further, post, vol. 2. Hans. D. v.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 819 
 
 ary appropriation is permissible, will engage our atten- 
 tion in the next volume. 
 
 It only remains, in this branch of our enquiry, to 
 add a few remarks upon the progress of the Appropria- 
 tion Bill through Parliament. 
 
 The constitutional restrictions upon the grant of Proce- 
 money otherwise than through the Committee of Supply, 
 necessarily confine the action of the House of Commons P5Pr, 
 
 J tion Bill 
 
 in respect to money votes to the proceedings ot this at its 
 committee, and to the decision upon their resolutions, 
 
 J 
 
 when reported to the House. A motion to address the 
 crown, that a vote which had been reported from Com- 
 mittee of Supply, and agreed to by the House, should 
 not be expended, was declared by the Speaker to be 
 irregular and out of order. b Technically, such vote 
 could, of course, be struck out of the Appropriation 
 Bill. But in practice this Bill has been defined by 
 Lord Palmerston to be ' simply a form that is required 
 by the constitution, and not a Bill to give rise to any 
 discussion.' And while he did not ' dispute the power 
 -or right of the House to make any alteration it pleased 
 in a Bill as it passed through its several stages, it had 
 never been a custom, by alterations in the Appropria- 
 tion Bill, to rescind the previous acts and votes of this 
 House.' d Amendments which did not affect the deter- 
 minations of the Committee of Supply have, though 
 very rarely, been made in the Appropriation Bill during 
 its progress through the House. 6 
 
 No obstruction should be offered to the passage of 
 the Appropriation Bill through the House, except un- 
 der extraordinary circumstances. f Debates and amend- 
 ments upon the several stages thereof are governed by 
 the rules applicable to other Bills, and must therefore 
 be relevant to the Bill, or some part of it, and should 
 
 * Hans. D. v. 164, p. 1500. 176, p. 1866. 
 
 c Ib p. 1502. e See Com. Jour. July 22, 1858. 
 
 d Ib. pp. 1750, 1751 ; and see v. f Hans. D. v. 217, pp. 1257, 1358. 
 
 3 G 2
 
 820 
 
 THE ROYAL PREROGATIVE. 
 
 Final 
 state- 
 ment of 
 estimated 
 revenue 
 and ex- 
 penditure 
 for en- 
 suing 
 year. 
 
 not be allowed the latitude practised on going into 
 Committees of Supply and of Ways and Means. g But 
 this rule does not preclude a member from making 
 observations upon the general conduct of public busi- 
 ness or from bringing a question of foreign or domestic 
 policy before the House, upon the motion for going into 
 committee on this Bill, or upon the second or third read- 
 ing, if it be a question that ' arises out ' of any of the 
 votes thereby appropriated. 11 
 
 In 1863 the chancellor of the exchequer (Mr. Glad- 
 stone) introduced the practice of submitting to the 
 House, upon the third reading of the Appropriation 
 Bill, a rectified statement of the estimated revenue and 
 expenditure for the ensuing year. He pointed out the 
 alterations which had been made in the original esti- 
 mates since they had been introduced, in consequence 
 of certain items of revenue which had been asked for 
 by government not having been granted by the House ; 
 and noticed the effect of certain items of expenditure 
 which had been authorised pursuant to supplemental 
 estimates upon the general balance, as stated on the 
 opening of the budget. 1 
 
 In 1864 Mr. Gladstone made a similar statement, 
 upon the motion for going into committee on the 
 Appropriation Bill ; j but not in 1865. On July 23, 
 1866, Mr. Disraeli informed the House of the altered 
 position of the public finances since the budget of his 
 predecessor in office had been submitted. But these 
 have been exceptional cases ; as a rule it is now ad- 
 mitted that the government should make their budget 
 statement as explicit and accurate as possible, and not 
 so as to need subsequent rectification. 11 
 
 ' Hans. D. v. 143, pp. 560, 641 ; 
 Ib. v. 180, p. 836. 
 
 h Ib. v. 143, p. 643; v. 176, p. 
 1859. Ib. v. 189, p. 1526 ; v. 213, pp. 
 644, 709 ; v. 226, pp. 652-683, 778 ; 
 v. 231, pp. 821, 1119, 1168. 
 
 ! Ib. v. 172, p. 1268. 
 
 J Ib. v. 176, p. 1857. 
 
 k Sir S. Northcote and Mr. Glad- 
 stone in Hans. D. v. 226, pp. 513, 
 522.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 821 
 
 On account of the formal character of the Appro- A 
 
 -rv.'n , , , , . ,, ation Bill 
 
 pnation Bill, it had been customary to abstain irom to be 
 printing it for the use of members. But as complaints P nnted - 
 were made of alterations in the wording of the Bill 
 having been occasionally made which were unknown 
 to members generally, it was resolved, on March 24, 
 1863, that henceforth a sufficient number of copies of 
 all Appropriation Bills should be printed, and delivered 
 to members applying for the same, in time for consi- 
 deration before the committal of such Bills. 1 In 1865, 
 the Appropriation Bill was presented to the House in a 
 much improved shape. m In 1869, the attention of the 
 House was directed by a private member to an altera- 
 tion in the Appropriation Bill, empowering the Treasury 
 to ' borrow on the credit of the same,' from any quarter 
 they might think fit, instead of, as in all previous Ap- 
 propriation Bills, from ' the Bank of England ' only n 
 While the concurrence of the Lords is necessary to 
 every Bill of Supply, it has been customary of late years 
 for such measures to be agreed to by the House of Lords 
 without amendment or even debate. 
 
 When the Appropriation Bill has passed both Tobepre- 
 Houses, and is ready for the royal assent, it is returned by the 
 into the charge of the Commons until the time ap- ^j^ 
 pointed for the prorogation of Parliament, when it is royal 
 carried by the Speaker to the bar of the House of " 
 Peers, and there received by the clerk of the Parlia- 
 ment, for the royal assent. When the sovereign is 
 present in person, the Speaker prefaces the delivery 
 of the Money Bills with a short speech. 'The main Speech 
 criterion by which the topics of these speeches have speaker 
 been selected appears to have been the political import- on P re - 
 
 SGntilDfiT 
 
 ance of the measures which have employed the attention Money 
 of the House of Commons during the preceding session, * 
 
 1 Hans. D. v. 169, pp. 730, 1863. Ib. v. 198, pp. 1146, 1282. 
 
 m Ib. v. 180, p. 717. See ante, p. 806.
 
 THE ROYAL PREROGATIVE. 
 
 Presenta- unlimited by any consideration of their progress or their 
 oney failure.' Even ' the peculiar privilege and concern of 
 bins. the House of Commons ' has been noticed in such ad- 
 dresses. 1 * 
 
 Referring to the defence made by Mr. Speaker Abbott, in 1813, 
 of one of such speeches, Sir Erskine May characterised it as ' an act 
 of indiscretion, if not disorder, which placed him in the awkward 
 position of defending himself, in the chair, from a proposed vote of 
 censure. From this embarrassment he was delivered by the kind- 
 ness of his friends, and the good feeling of the House, rather than 
 by the completeness of his own defence.' 1 
 
 On one occasion some observations of Sir Fletcher 
 Norton, in his speech on presenting the Supply Bill, 
 became the subject of remark and complaint in the 
 House of Commons, on account of their uncourtly 
 style ; but his friend Mr. Fox, having come to the 
 rescue, Sir Fletcher was formally thanked by the 
 House for his speech/ At the close of the Speaker's 
 address, the Money Bills are tendered for the royal 
 assent, which they receive before any of the other Bills 
 awaiting the royal sanction, and in a peculiar form of 
 words, which acknowledge the supply to be the free 
 gift of the Commons. 8 
 
 On the first day of the Session of 1873, the Speaker of the 
 Assembly of South Australia presented to the House a formal pro- 
 test against the action of the ministry, on the closing day of the 
 previous session, in interfering to prevent him from presenting to 
 the governor the customary Money Bills for the royal assent.* 
 
 Any deviation from the constitutional rule of par- 
 liamentary appropriation of supplies granted for the 
 public service is to be regarded with great jealousy. 
 
 P Parl. D. v. 27, pp. 479, 481. 1873. App. No. 45, p. 6. Eeso- 
 
 And see Colchester Diary, v. 2, in lution of the House thereupon, p. 20. 
 
 loco. For statement in regard to Bills 
 
 i May, Const. Hist. v. 2, p. 376, ra. which by custom ought to be pre- 
 
 T Ib. v. 1, p. 200. sented for royal assent by the 
 
 May, Parl. Prac. ed. 1883, p. 090. Speaker, vide Ib. 1872, No. 176. 
 1 South Australia Parl. Proc.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 823 
 
 Note the proceedings had, in both Houses, when at a period of 
 public emergency, in 1734, the Commons were induced to empower 
 the crown to apply out of the aids of the year such sums as the 
 exigency of public affairs might require. The Act 7 Geo. IT. c. 12, 
 12, containing this provision, was protested against by the 
 House of Lords, and is censured by Hatsell as a measure entirely 
 subversive of the rules of Parliament in the grant of supplies." 
 
 Nevertheless it will sometimes occur as when a minis- 
 terial crisis has necessitated a speedy dissolution of 
 Parliament, or when military operations on a large scale Votes of 
 are about to be undertaken for the defence of the em- 
 pire, or the prosecution of a foreign war that it is 
 deemed expedient to entrust the government with 
 means for carrying on the public service, for a limited 
 period, by votes of credit for large sums, instead of by 
 specific appropriations i'or the several branches of pub- 
 lic expenditure, as in the case of the ordinary supplies. 
 But this proceeding is only justifiable upon occasions 
 cf great and unforeseen emergency, which do not admit 
 of delay ; or which may render it inexpedient for the 
 House to commit itself to the details of expenditure 
 -included in the estimates prepared by an existing 
 ministry whose tenure of office has been condemned. 
 It is incumbent upon the House, under such circum- 
 stances, to limit the supply of credit to the bare neces- 
 sity of the state, for the period which must elapse before 
 the reassembling of Parliament ; and to require the 
 sums so granted to be properly accounted for at the 
 earliest possible period/ 
 
 But whether the supplies are voted in large sums whether 
 or in detail, it is equally necessary that they should voted 7 ^ 
 be included in an Act of Appropriation, whereby the tfooorin 
 
 / 1 T 1 1 A "I 1 1 ClGti&llj Sill. 
 
 sanction of the three branches of the legislature is Appropn- 
 given to the expenditure of the money voted by the J^aiiy 
 
 House of Commons. necessary. 
 
 In 1784 a case occurred which it was feared would have led to 
 
 3 Hats. pp. 190, 213. v See ante, p. 758.
 
 &JUUH. a * /.t u i< -M, i *~1 L*~~ ^ c-/> j 
 
 824 THE ROYAL PREROGATIVE. 
 
 serious consequences. The prime minister, Mr. Pitt, was in a 
 minority in the House of Commons, and it was well known that he 
 was only waiting for the supplies in order to dissolve Parliament. 
 The estimates had passed through the Committee of Supply, when, 
 on January 12, the House of Commons resolved that anyjublic 
 No Appro- officer who, in reliance upon the votes in supply, should cause to be 
 pnation p~aidany sums of money for the public service,~after the prorogation 
 1784. f Parliament, and without the express authority of an Act of 
 
 Appropriation, would be guilty of ' a high crime and misdemeanor, 
 a daring breach of a public trust, derogatory to the fundamental 
 privileges of Parliament, and subversive of the constitution.' 
 Nevertheless, the prorogation and dissolution of Parliament took 
 place before the passing of the Appropriation Act. The new House 
 of Commons was favourable to Mr. Pitt's administration, and it 
 appearing, by returns furnished to the House, that ministers had 
 abstained from using any moneys not actually granted by law, but 
 such as the exigencies of the state imperatively required, no further 
 proceedings were had upon the matter. w The supplies in question 
 were however re-voted in the next session, and included in the 
 Appropriation Act 24 Geo. III. Sess. 2, c. 44. 
 
 There have been only one or two other instances since the Re volu- 
 tion of thft pjv\rflg3,tit>n of Parliament before an Act of Appropriation 
 Or in had been passed. One took place in 1807, when a new Parliament 
 
 1 807. which had been in existence only about four months was dissolved, 
 
 in the midst of the session, for the purpose of strengthening the 
 government by an appeal to the country on the question of the 
 Roman Catholic claims. On this occasion the ordinary supplies had 
 been voted by the House of Commons, but ' the Irish Money Bills 
 had not been passed,' and ' none of the sums which had been voted 
 for the public service were appropriated, for no Appropriation Act 
 had been passed.' The dissolution of Parliament under these cir- 
 cumstances was severely commented upon by constitutional autho- 
 rities in the new Parliament. x The chancellor of the exchequer, 
 in defending the course pursued by ministers, declared that during 
 this interval there had been no irregular issue of public money, for 
 that ' the public expenditure had been maintained out of the sums 
 appropriated by Parliament ; ' clauses of appropriation having been 
 inserted in certain Bills passed in the previous session, although 
 there had been no general Appropriation Act. ' In the issues that 
 had taken place, therefore, the government had acted according 
 to law, and under the authority of Parliament.' ? On the death of 
 
 " 3 Hataell, 206-209. See the chequer in 1807, on this case. Parl. 
 comments and explanations of Mr. D. v. 9, p. 631. 
 Perceval, chancellor of the ex- * Ib. p. 618. > 2b. p. 631.
 
 CONTROL OF PARLIAMENT OVER SUPPLIES. 825 
 
 George III. in 1820, the Commons, in anticipation of a dissolution Or in 
 oJTSHRment, voted certain temporary supplies, which were not 1820. 
 appropriated by Act of Parliament in that session. Objections were 
 raised to these votes in the House of Lords, as being an infringe- 
 ment of the right of their lordships to assent to the grant of supplies ; 
 but it was ultimately resolved ' that this House, from the state of 
 public business, acquiesce in these resolutions, although no Act may 
 be passed to give them effect.' 2 Again, in 1831, owing to the ex- Or in 
 citement occasioned by the rejection of the Reform Bill in the House 1831 - 
 of Lords, Parliament was hurriedly dissolved in April, before the 
 passing of an Appropriation Act. The new Parliament met on 
 June 14, when all the grants of the former session were re-voted in 
 Committee of Supply.* 
 
 Hans. D. v. 41, pp. 1631-1635. May's Prac. ed. ]883, p. 640, n.
 
 INDEX. 
 
 ABE 
 
 ABERDEEN, EARL, administra- 
 tion of, 222, 257 
 
 Abstract resolutions, 411, 700 
 
 Abyssinian war, report of com- 
 mittee to enquire into cost of, 757 
 
 Account, votes on, 767- 760 
 
 Acquisition of territory by the 
 Crown, consent of Parliament 
 not necessary to, 373 
 
 Act of Settlement, 108 
 of Uniformity, obligations of, 517 
 
 Ad interim advances of money, 787 
 
 Adair, Mr., his right to evict his 
 tenants contested, 582 
 
 Addington, Mr., his administration, 
 147, 254 
 
 Addresses to the Crown for advance 
 of money, 700, 766 
 
 Adelaide University, incorporated 
 powers of, 600 
 
 Administration (the): in Parliament, 
 8, 32, 33 ; how to increase its 
 strength, 31 ; benefits of a stable, 
 33 ; of the Marquis of Rocking- 
 ham, 139; of Lord Shelburne, 
 140; of Duke of Portland, 142, 
 157; of Mr. Pitt, 143, 153; of 
 Mr. Addington, 147 ; of Lord 
 Grenville, 155 ; of Mr. Perceval, 
 161; of Lord Liverpool, 168; of 
 Mr. Canning, 177 ; of Lord Gode- 
 ricb, 179 ; of Duke of Wellington, 
 182; of Earl Grey, 188; of Lord 
 Melbourne, 193, 200; of Sir R. 
 Peel, 195, 212 ; of Lord Russell, 
 217, 234; of Lord Derby, 219, 
 228, 236 ; of Lord Aberdeen, 222 ; 
 of Lord Palmerston, 224, 234 ; of 
 Mr. Disraeli, 238 ; of Mr. Glad- 
 stone, 246 ; annals of, 138-252 ; 
 tabular view of, 253-258 
 
 ARM 
 
 Admiralty, conduct of the board in- 
 vestigated, 534-536, 543, 673 
 
 Advances of public money, 726 ; 
 precedents, 726-730 
 
 Advertisement duty, motion to re- 
 duce, 715 
 
 Advice to the sovereign carries re- 
 sponsibility with it, 118 
 
 Afghanistan papers, debate on, 357 
 
 Albert, Prince, his character and 
 public conduct, 299. See also 
 Consort, Prince 
 
 Alexandra, seizure of the, 573 n. 
 
 Ambassadors and envoys, office of, 
 360 ; not to be controlled by Par- 
 liament, 361 
 
 American war, how brought to a 
 close, 353 
 
 Anglo-Saxon nobles, 51 
 - polity, 49-56, 58 
 
 Anne, Queen, personal acts of, 276 
 
 Annual charges, 738 
 
 Appointments : to office, 615 ; in 
 the Church, 618 ; in the army and 
 navy, 618, 619 
 
 Appropriation Act, 787, 816, 819; 
 clause in the Bill of Supply, 817 ; 
 Bill, procedure upon, 819-825; 
 presentation of, 821 ; prorogation 
 of Parliament before passing an, 
 824 
 
 Arbitration in international disputes, 
 354 
 
 Aristocratic element in House of 
 Commons, 13 
 
 Arms, investigation by Parliament 
 into. 532 
 
 Army and navy : subject to minis- 
 terial control, 121, 527 ; preroga- 
 tive concerning, 520-554 ; a stand- 
 ing, maintained by consent of
 
 828 
 
 INDEX. 
 
 ARE 
 
 Parliament, 52 1 , 524 ; Discipline 
 and Regulation Act, 523; com- 
 mander of the forces, 528 ; sub- 
 ject to parliamentary control, 529 ; 
 absolute power of the Crown to 
 remove officers of, 530 ; ministe- 
 rial explanations in exercise of 
 prerogative concerning, 533 ; pre- 
 cedents, 533-548 ; secret societies 
 in, 537 ; enquiries into system of 
 promotions in, 545 ; Indian officers, 
 546 ; appointments, how made, 
 61 H; pensions to widows and 
 orphans in the, 658 ; grants, au- 
 thority to use surpluses for de- 
 ficiencies, 818. See also Troops 
 
 Arrow, affair of the, 226 
 
 Attorney-general ordered to prose- 
 cute offenders, 575 
 
 Aida Regia, 151-63 
 
 Australia, democratic institutions 
 in, 21 
 
 BALANCE of powers under prero- 
 gative government, 5 
 
 Balance, unexpended, surrender of, 
 759 
 
 Banks, Canadian, report of com- 
 mittee on insolvent, 605 
 
 Barber, Mr. W. H., case of, 586 
 
 Barons forced to recognise the rights 
 of the burgesses, 09 
 
 Barry, Mr., case of, 678 
 
 Barwis v. Keppel, 521 n. 
 
 Bath, order of, appointments to, 591 
 
 Bath and Wells, case of the bishop 
 of, 573 n. 
 
 Baylis v. Bradley, 30 n. 
 
 Beales, Mr. E., case of, 631 
 
 Bedchamber question, 20] , 202, 292 
 
 Bell, J., case of, 586 n. 
 
 Bethell, Mr., case of, 685 
 
 Bewicke, Mr., case of, 687 
 
 Bills : suspended and resumed at 
 next session, 388 ; royal veto 
 upon, 407 ; injunction may be 
 issued on certain, 605 ; involving 
 money charges must be recom- 
 mended by the Crown, 693, 765. 
 See also Public, Private 
 
 Birch's case, 663 n. 
 
 Births of eminent statesmen, dates 
 of, 341 
 
 Bisliops, fsee Church of England 
 
 Bode, Baron de, case of, 705 
 
 CAT 
 
 Boroughs (nomination J use of, 13; 
 
 in the hands of peers, &c., 125 
 Boxer, Colonel, case of, 678 
 Bradley v. Baylis, 30 n. 
 Bribery practices, investigations into, 
 
 575 
 British coast fortifications, estimates 
 
 for contracts, 767-770 
 
 Museum, estimates, 751 
 
 subject, rights of, 366, 379 
 Bromley, Sir R., case of, 637 n. 
 Brougham, Lord, on a weak minis- 
 try, 32 ; on the kingly office, 
 311 ; resolutions on prerogative of 
 mercy, 566 
 
 Brudenell, Lord, case of, 540 
 Budget : local, 728 ; introduction of 
 the, 787-790 ; questions upon the, 
 789 ; measures considered in the, 
 790 ; amended and rejected by 
 the House, 797-799 ; precedents 
 of, 799-806 ; the whole resolutions 
 included in one Bill, 814; final 
 statement of estimated revenue 
 and expenditure, 820. See also 
 Estimates 
 
 CABINET : the connecting link be- 
 tween Crown and Parliament, 3; 
 made responsible to Parliament, 
 104, 106 ; not to withhold advice 
 from the sovereign, 158 ; objec- 
 tion to appointing contending in- 
 terests in formation of, 166 ; 
 Council, 323 ; council not attended 
 by the sovereign, 335 ; unity of 
 responsibility in, 494. See also 
 Sovereign, Ministers 
 
 Canada, debates on military defence 
 of, 436 n. 
 
 Canning, Mr., his administration, 
 177, 255, 327 ; case of, as ambas- 
 sador, 361 
 
 Canton, affair of the Arrow at, 226 
 
 Cape of Good Hope and Zanzibar 
 mail contract, 777 
 
 Capital sentence, remission of, 558- 
 
 569 
 
 - punishment, report of committee 
 on, 558 n. 
 
 Caroline, Queen, case of, 128-130 
 
 Castro v. the Queen, 574 . 
 
 Cathedrals, report of committee on 
 state of, 433 
 
 Catholic question, 123, 124, 127,
 
 INDEX. 
 
 829 
 
 CAT 
 
 146,160, 152, 153,155-157,163, 
 165, 172, 174, 175, 177, 184, 185, 
 215 
 
 Cattle plague, legislation on the, 
 410 
 
 Certificates, Bill to reduce duty on, 
 715 
 
 Cession of territory by the Crown, 
 372 
 
 Chambers: legislative, arguments in 
 favour of two, 39 n. ; 43 . ; ditto 
 in favour of a single, 40 n. ; origi- 
 nally sat together, 71 
 
 Chaplains to House of Commons, 
 665 
 
 Charges, annual, 738 
 
 Charles I. and the House of Com- 
 mons, relations between, 96 ; his 
 execution, 98 
 
 Charters, prerogative in granting, 
 598-608 ; to universities, 599, 600 
 
 Chartist prisoners, 566 
 
 Checks and balances in government, 
 a paper on futility of, 7 n. 
 
 China, enquiry into mortality of 
 troops in, 547 
 
 Church of England : legal position 
 of, 502-519 ; in England, 502 ; the 
 sovereign the supreme governor 
 of, 504 ; in the colonies, 606 ; 
 _in Canada, 513; in foreign lands, 
 616; Act of Uniformity, 517; 
 patronage, how distributed, 618 ; 
 increased accommodation in the 
 country, motions on, 708 
 
 Churchward and Jenkins, contract 
 case of, 754, 772-776 
 
 Civil contingencies, 730 
 
 list, 349, 350, 656 
 
 service : principles of perma- 
 nence in, 613 ; American system, 
 613, 614 ; nominations, 621 ; pro- 
 motions, 621 ; competitive exami- 
 nations, 623, 626: appointments, 
 625 ; must not engage in politics, 
 631, 633, 649; fidelity in, 632; 
 exercise of franchise by, 632, 634 ; 
 power of dismissal from, 629-631, 
 635 ; work outside of office, 636 ; 
 pensions, 637 ; expenditure, 638- 
 642 ; organisation, 643 ; report of 
 a commission on, 643- 645, 676 ; 
 regulation of salaries, 646, 648, 
 661-667, 679 ; ex-officials subject 
 to recall, 647 ; political influence 
 on behalf of, forbidden, 649 ; pen- 
 
 COM 
 
 sions to widows and orphans, 
 657; estimates, 743, 750, 751- 
 753, 759, 761. See also Public 
 officers 
 
 Clerks, the, of both Houses, 628 
 Coalition (the) ministry, 1783, 142 
 
 definition of, 237 
 
 Coast fortifications, contracts for, 
 
 767-770 
 
 Cochrane, Lord, case of, 585 
 Cockburn, Chief Justice, charge in 
 
 the case of Nelson and Brand, 
 
 548-551 
 
 Colenso controversy, 508-510 
 Colleges, see Universities. 
 Collier, Sir A. P., case of, 678 
 Colonial defences, 435 
 
 bishops, 511, 515 
 
 Church, position of the, 506 
 Colonies, Church of England in, 
 
 506-516 
 
 Combermere v. Dickson, 347 n., 498 n. 
 
 Commander-in-Chief, office of, 122, "7 9 
 528 ; motion to reduce salary of, 
 671 
 
 Commissions of enquiry, 431 
 
 Committee of Supply, 751 ; dis- 
 cussion on military and naval 
 estimates before first vote, 762 ; 
 civil service, estimates in, 752. 
 See also Supply 
 
 Committees: intrusions of, in con- 
 cerns of executive government, 
 419 ; select, on public questions, 
 428-439 ; nature and construction 
 of, 429, 430; result of enquiries 
 of, 431 ; precedents of proceedings 
 of committees, 432-439 ; have not 
 power to recommend compensation 
 to individuals for losses unless by 
 previous sanction of the Crown, 
 692; in Cape of Good Hope, 
 cannot recommend grants of land, 
 699 
 
 Commons, House of: relations be- 
 tween House of Lords and, 37 ; 
 position of the, 43; decides the 
 fate of ministries, 44 ; rising power 
 of the, 71, 72 ; when its power 
 was fully attained, 73 ; early 
 efforts to check the Privy Council, 
 76; advise increase of the Coun- 
 cil, 79 ; emancipated from control 
 of the Crown by abolition of 
 nomination boroughs, &c., 136; 
 right to express opinion on choice
 
 850 
 
 IXDEX. 
 
 COM 
 
 of ministers by the sovereign, 
 197 ; right to advise the Crown, 
 417 ; defects of, 418 ; encroach- 
 ments of, 421 ; cannot lay restric- 
 tions on exercise of royal preroga- 
 tive, 425; does not vote money 
 unless required by the Grown, 
 689 ; and only on application of 
 the Crown, 699 ; resolution or 
 address in favour of particular 
 expenditure, 699 
 
 Commune concilium regni, 60, 65 
 
 Competitive examination, system of, 
 623, 626 
 
 ' Confederate Rams,' case of, 574 n. 
 
 Confidential reports, 442; papers 
 withheld from Parliament, 359, 
 360 
 
 ' Conservative ' and ' Liberal,' origin 
 of terms, 137 n. 
 
 Consolidated Fund, 733, 737 
 
 Consort, Prince, death of the, 288 ; his 
 aid to the Queen, 289 ; household 
 of, 293 ; as private secretary to 
 the Queen, 298 ; constitutional 
 position of, 299-304 ; his services, 
 304 
 
 Constitution : contrast between 
 theory and practice of the, 6 ; 
 Mr. Disraeli on the, 25; growth 
 of, 104 ; denned, 384 
 
 Constitutional government: defini- 
 tion of, 1 ; development, 69 ; re- 
 view of the history of, from 
 Norman Conquest to William of 
 Orange, 102; Epoch of 1782, 
 138 
 
 Contracts: entered into by public 
 departments, 488-493 ; control of, 
 by Parliament, 488, 490, 766- 
 784 ; standing orders concerning, 
 490 ; that require approval of 
 House of Commons, 493 ; for pub- 
 lic service, in excess of estimates, 
 766, 768 ; require sanction of Par- 
 liament, 767 ; for military works, 
 ib. ; for new works, 769 ; postal, 
 771, 776-784; packet and tele- 
 graphic, 771 
 
 Convictions, erroneous, 685-588 
 
 Convocations of the Church, 504, 
 505 
 
 Corn law question, 208-210, 212- 
 214,216 
 
 Coronation oath, article on, 57 n. 
 See also Sovereign 
 
 CBO 
 
 Corporate vested rights in United 
 States, 606 
 
 Corporations : power to create, 598, 
 601 ; private, 602 ; power of 
 Parliament to dissolve, 603; pre- 
 cedents concerning, 603-606 
 
 Correspondence, private and confi- 
 dential, publication of, 360 n. ; 
 motion for, 441 
 
 Corrupt practices, 575 
 
 Council of State, organisation of, 98- 
 100 
 
 Councillors, had power to arrest 
 during period of ' Government by 
 Councils,' 93 
 
 Councils, government by, 88 
 
 County families, influence of, 34. 
 See also Governing families 
 
 Courts-martial, precedents of parlia- 
 mentary enquiry into sentences of, 
 531, 538 ; papers concerning, re- 
 fused to Parliament, 539 
 
 Credit, votes of, 757 
 
 Crimean War, 47 ; enquiries into, 
 540-542 
 
 Cromwell abolishes the Council of 
 State, 100; his council, 101 
 
 Crown (the) : powers to be exercised 
 through ministers, 3 ; and the 
 House of Commons, obsolete pre- 
 rogatives of, 6; and House of 
 Lords, ancient rights though dor- 
 mant not disallowed, 7 ; necessity 
 for strengthening its influence in 
 Parliament, 19, 24 ; effects of 
 democratic reform in Parliament 
 on, 23 ; advisers of the, 59 ; power 
 of, under Henry VIII., 89 ; cannot 
 take notice of business depending 
 in Parliament, 117; waning 
 authority of the, 136 ; ought not 
 to maintain, for a length of time, 
 a government against will of the 
 House, 211; distinction between 
 lands granted by state and private 
 property of the, 350 n. ; and foreign 
 powers, intercourse between, 355 ; 
 doubtful if territory may be ceded 
 by the, without consent of Parlia- 
 ment, 372 ; and the issue of Orders 
 in Council, 457 ; may not add to, 
 alter, or dispense with any law, 
 459 ; patronage, 622 ; absolute 
 power of, to dismiss public servants, 
 629-631, 635; taxation initiates 
 with, 710 ; may not receive gifts
 
 INDEX. 
 
 831 
 
 CUM 
 
 or loans without consent of Par- 
 liament, 724 ; debts due to the, 
 how remitted, 725, 730. See also 
 Parliament, Prerogative, Sove- 
 reign 
 
 Cumulative vote, 27 
 
 Cunard mail contracts, 492 
 
 Curia reyis, 60-63 
 
 Customs officers, remuneration of, 
 680, 684 
 
 DANISH claims, case of, 706 
 Darling, General, case of, 537 
 Dartmouth College, case of, 607 
 Dawkins, Lieutenant-Colonel, case 
 
 of, 631 n. 
 
 Deacles, the Messrs., case of, 681 
 Debates, prejudicial, should not be 
 
 allowed, 441 
 Debts : unfunded, 738 ; due the 
 
 Crown, how remitted, 725, 730 
 Decorations, rule concerning foreign, 
 
 590 
 
 Defeat of ministers, see Ministers 
 Democracy, articles on, 21 n. 
 Democratic reform, effects of, on the 
 
 Crown in Parliament, 23 
 Denmark, invasion of, 371 
 Departmental regulations, 464 ; dis- 
 cussed in Parliament, 482 
 Derby, Earl, first administration, 
 
 219, 257 ; second administration, 
 
 228, 257; third administration, 
 236, 258 ; on the influence of the 
 sovereign, 313 
 
 Despatches, when to be withheld 
 from Parliament, 358, 359; eti- 
 quette concerning, 359 ; premature 
 communication of, 441 
 
 Dickson v. Comber mere, 347 n., 498, 
 530 
 
 Diocesan synods, in England, 505 ; 
 in the colonies, 512 
 
 Disembodied militia, estimates, 739 
 
 Dismissals from commissions of the 
 peace, 582 n. 
 
 Dispensing power of the Crown, 459 
 
 Disraeli, Right Hon. B., administra- 
 tions of, 238, 258 
 
 Dissolution, prerogative of, when 
 it may be advised or opposed, 207, 
 
 229, 231, 232, 239, 240, 251. See 
 also Ministers 
 
 Dockyard labourers, 683; works, 
 771 
 
 EST 
 
 Douglas, Lord, case of, 680 
 Dundonald, Lord, case of, 585 
 Duty : on certificates, Bill to reduce, 
 715; on advertisements, motion 
 to reduce, ib. ; on paper and hops, 
 716; on fire insurance, 717; on 
 railway passengers, 719 ; on malt 
 tax, 720 ; on male servants, 721 ; 
 new rates of, 793 ; when collected, 
 ib. ; how levied, 794 ; on spirits, 
 ib. : on foreign commodities, 795. 
 See also Taxation, Taxes 
 
 ECCLESIASTICAL, prerogative in 
 matters, 501 
 
 Edmunds, Mr. L., case of, 685 
 
 Education, in Ireland, 426; com- 
 mittee of Privy Council, regula- 
 tions and functions of, 465-469 ; 
 office, inspectors' reports, 444-449 ; 
 minutes to be laid before Parlia- 
 ment, 465 ; how submitted to 
 the House of Commons, 468 
 
 Election, Parliamentary, of executive 
 officers unconstitutional, 143 
 
 Elections : interference of peers at, 
 11 ; influence of peers at, 12, cor- 
 rupt practices at, 575 
 
 Electric Lighting Act (1882), powers- 
 of the Board of Trade in respect 
 to the, 475 
 
 Elizabeth, Queen, government of, 
 and her Parliament, 93, 94 
 
 Elphinstone, Lord, case of, 534 
 
 Endowed Schools Act, report of 
 committee, 477 
 
 Endowments, Parliament the su- 
 preme trustee of, 472 
 
 Engledue, Lieutenant, case of, 674 
 
 Enquiry, proceedings of Court of, 
 not to be laid before Parliament. 
 531, 538 
 
 Episcopal Church in Canada, 512 
 
 Erroneous convictions, 585-588 
 
 Established Church, see Church of 
 England 
 
 Estimates : presentation of, 739-742 ; 
 supplementary, 740, 742; civil 
 service, 743, 750 ; precedents of 
 efforts to submit, to a select com- 
 mittee, 744-746; precedents of 
 motions to reduce, 746-748 ; clas- 
 sification of, 749, 751 ; contents of, 
 749 ; contain few aids to private 
 charities, 750 ; for a full account
 
 832 
 
 I1TOEX. 
 
 EVI 
 
 of the civil service, 750 n. ; for 
 British Museum, ib. ; portion of, 
 voted ' on account ' in unexpected 
 emergencies, 758 ; public expen- 
 diture in excess of, 766, 768. See 
 also Supply, Votes 
 
 Evidence given by public officials in 
 court, 498 
 
 Exchequer, gross receipts to be paid 
 into the, 734 ; bills, 786 
 
 Executive authority : abuse of, 456 ; 
 limits to, 457. See also Ministers 
 
 Executive legislation, control of, by 
 Parliament, 470. See also Minis- 
 terial, Ministers 
 
 Expenditure: resolution or address of 
 House in favour of special grant 
 of, 699; must originate in Com- 
 mittee of Supply, 700 ; motions 
 for reduction of, 746 ; precedents, 
 746-748 
 
 Eyre, Governor, case of, 554 
 
 FEES payable on patent of digni- 
 ties, 592 w. 
 
 Fenianism, information withheld on, 
 440 
 
 Fennelly's case, 568 
 
 Financial measures: time allowed to 
 consider, 792 ; contracts and loans, 
 796 ; propositions included in a 
 Bill, 815. See also Budget, Supply 
 
 Fire insurance, motion to reduce 
 duty on, 717 
 
 Fitzwilliam, Earl, dismissal of, 634 
 
 Foreign affairs, opinions expressed in 
 Parliament on, 379, 380 
 
 nations, interference by Parlia- 
 ment with internal concerns of, 
 373 
 
 policy : censure of, 37 ; Parlia- 
 ment should be informed of, 355 ; 
 advantages of doing so, 356 ; ob- 
 jections to its publicity on part of 
 foreign governments, 356 
 
 powers and the Crown, inter- 
 course between, 355 
 
 Forestal inclosures, 436 
 
 Fortifications on the coast, proceed- 
 ings in Parliament concerning, 426, 
 493, 769 ; contracts for, 767-770 
 
 Fourdrinier's patent case, 692 n. 
 
 France, democratic institutions in, 
 21 
 
 Franchise, evils of enlarging, 21, 22 ; 
 
 GOV 
 
 exercise of, by civil servants. 632, 
 
 634. See also Public officers, Reform 
 Freeman, Mr , article on origin of 
 
 representation, 51 n. 
 French government, despatch from, 
 
 on right of asylum, 227 
 Frost, Williams, & Jones, case of, 
 
 564, 567 
 Fulford & Wellstead, case of, 574 n. 
 
 GALLEY, W., case of, 586 n. 
 
 Galway postal contracts, 492, 776, 
 779-782 
 
 George I., as a sovereign, 276 ; per- 
 sonal acts of, 276, 277 
 
 II., as a sovereign, 276 ; personal 
 acts of, 277-279 
 
 III., his character and conduct, 
 112, 279, 312 ; his friends as ad- 
 visers, 114; they formed a distinct 
 party, 115; shaped his own policy, 
 121 ; quarrel with his Ministers, 
 123; his personal influence, 124; 
 mental malady and proceedings on, 
 147, 339-342; personal acts of, 
 279-283 
 
 -IV., character of, 126; as a 
 sovereign, 127; personal acts of, 
 283, 284 
 
 ' Gerrymandering,' 28 n. 
 
 Gidley v. Palmerston, 499 
 
 Gifts or loans to Crown or depart- 
 ment of state illegal without 
 consent of Parliament, 724 
 
 Gladstone, Right Hon. Mr., article 
 on first Reform Act, 20 n. ; admin- 
 istrations of, 246, 258 ; remarks on 
 expedition of public business, 478 ; 
 his budgets, 804 
 
 Goderich, Lord, his administration, 
 179 ; never met Parliament, 182 ; 
 cause of retirement, 255 
 
 Governing families, their influence, 
 12, 34, 125, 132. See also Whig 
 families 
 
 Government: parliamentary, defined, 
 1 ; by prerogative, effect of, 4 ; 
 importance of a strong, 19 ; by 
 councils, when ended, 94 
 
 stores : sale of, 645 ; parliamen- 
 tary control over, 725 ; not per- 
 mitted to give away stores, 725 
 
 Governor of Victoria, correspondence 
 relating to recall of, 577 n.
 
 INDEX. 
 
 833 
 
 GRA 
 
 Grand Remonstrance, 97 
 Grant, Captain, case of, 709 
 Grant: resolutions and address for a 
 special, 699-701 ; the House may 
 increase a special, 702 ; a perma- 
 nent, 737 
 
 Great Council, the, 65, 73 
 Green, Rev. Mr., case of, 569 
 Grenville administration, 121, 155- 
 
 254 
 
 Grey, Earl, suggestions on reform, 
 26; objections to his plan, 28; 
 plan to strengthen ministers in 
 Parliament, 81 ; administration, 
 188, 255; on the kingly office, 
 313 
 
 Gross receipts : to he paid into the 
 Exchequer, 734 ; brought under 
 more immediate control of Parlia- 
 ment, 734-737 
 Gurney, Baron, case of, 680 
 
 HALL'S case of pardon, 663 n. 
 
 Hampden, case of Rex v. Hampden, 
 458 
 
 Hanover, pension to king of, 681 
 
 Hanoverian dynasty, 111 
 
 Harbour at Holyhead, 437 
 
 Harbours of refuge, 433 
 
 Hardwicke, Lord, twice refused to 
 affix great seal to treaties when 
 required by George II. to do so, 
 107 
 
 Hartlepool Railway Company, 603 
 
 Havens, Mr., case of, 582 n. 
 
 Heathcote v. North Staffordshire 
 
 Railway Company, 606 n. 
 - Mr., case of, 673 
 
 Holt, King v. Parsons, 654 n. 
 
 Holyhead Harbour, report of com- 
 mittee on, 437 
 
 Homes v. the Queen. 344 n. 
 
 Honours : prerogative in granting, 
 589-597 ; not necessarily at insti- 
 gation of ministers, 589 ; proceed- 
 ings in Parliament in relation to, 
 590 
 
 Hop duty, motion to reduce, 716 
 
 House of Commons: representation of 
 the Crown, aristocracy, and com- 
 monalty in the, 9, 13; introduction 
 of ministers therein, 9, 110; its con- 
 stitutional position, 43; difficulty 
 of controlling, since Reform Act, 
 132 ; is a council of control and 
 
 JUD 
 
 advice, 164 ; not to interfere with 
 
 the Crown in nomination of its 
 
 servants, ib. 
 Household, royal, appointment of 
 
 members of, 290-294 ; removal of 
 
 officers of, 291 
 
 Hulk system, complaints against, 679 
 Hume, Mr. J., his labours on behalf 
 
 of economy, 762 
 Hutchinson v. Palmer, 495 n. 
 
 IMPEACHMENT of ministers, 108 
 Inclosure Commissioners, powers of, 
 
 471,474 
 Inclosures of royal forests, report of 
 
 committee on, 436 
 Income tax, motion to reduce, 714 
 Indemnity, Bill of, 655 
 India, fate of Bill for the govern- 
 ment of, 116 
 Indian army : employment of, out of 
 
 India, 523; officers of, grievances, 
 
 546 
 Injunctions on Bills in Parliament, 
 
 605 
 Insolvent Debtors' Court, officers of, 
 
 682 
 Intervention in foreign affairs, 373- 
 
 380 
 
 Ionian Islands, cession of, 372 
 Irish Coercion Bill (1834), 193, 194, 
 
 217; (1881), 476 
 
 Established Church question, 193, 
 198, 200, 201, 238, 240, 241, 245 
 
 magistrates, cases concerning, 
 581-584 
 
 Court of Chancery, motion to 
 alter constitution, 677 
 
 Irwin, Mr., case of, 345 
 
 JAMAICA BILL, defeat of ministry 
 on, 200 ; arguments in the case of, 
 653 n., 554 
 
 Jervis, Captain, case of, 538 
 
 Jews in Parliament, 409 
 
 Judges: proceedings against, in Par- 
 liament, 571, 578 ; conduct of, not 
 to be lightly impugned. 574; notes, 
 ordered to be presented, 578 n. ; 
 necessary qualifications of, 586 ; in 
 Ionian Islands, case of, 676 
 
 Judicature, court of, 483 
 
 Judicial tribunals, curtailment of 
 powers, 483 
 
 3 H
 
 834 
 
 INDEX. 
 
 JUD 
 
 Judicial^ appointments, how con- 
 ferred, 619, 677 
 
 Judiciary, matters concerning the, 
 571-588 
 
 Jurors, enquiries concerning, 584 
 
 Justice, administration of, subject to 
 parliamentary control, 570-588 ; 
 erroneous convictions, 585 
 
 KEMPENFELDT expedition, 534 
 
 Kennedy, Mr. T. F., case of, 675 
 
 Keppel v. Barwis, 521 n. 
 
 King, Sir A. B., case of, 703 n. 
 
 King (Anglo-Saxon), office of the, 
 60, 53, 55 ; (Norman) election of 
 the, 56 ; power of the, 57 ; councils 
 of, 60-63; Henry II. and his 
 council, 66 
 
 ' King can do no wrong,' 2, 263 
 
 relations between the sovereign 
 and his ministers, case of, as early 
 as 1316, 77 ; secretary of the, 91 ; 
 vote in 1649 to abolish the office 
 of, 98 
 
 King's council : regulated by Parlia- 
 ment, 79 ; restrained by the Com- 
 mons, 79, 85 : development of, 81 , 
 82 ; business before, 85, 86 ; com- 
 plaints against, 87 
 
 4 King's friends,' party of the, 114 
 
 King's household, removals from, on 
 petition of the House of Commons, 
 SO 
 
 Kingrly office, see Crown, Royal func- 
 tions, Sovereign 
 
 LADIES of the bedchamber, 292, 
 
 293 
 
 Lafayette, General, case of, 376 
 Lancaster, Earl of, bis constitutional 
 
 demands, 77 
 
 house of, constitutional reign of, 
 80 
 
 Landed interest, representation of, 
 
 25 
 Lands, distinction between, assigned 
 
 by state to Crown and private 
 
 property of Crown, 360 n. 
 Laval University, case of, protest 
 
 concerning powers conferred on, 
 
 600 
 Law courts, when established, 63 
 
 officers, opinions of, not submitted 
 
 LOR 
 
 to Parliament, 576, 577 ; pre- 
 cedents, 577 
 
 Leeds Bankruptcy Court case, 684 
 Legal immunity of ministers, 498, 
 
 499 
 
 Legislation in the absence of an 
 executive government, 247 
 
 report on, by means of provisional 
 orders, 476 
 
 Legislative : (early), assemblies, 68 ; 
 measures between both Houses, 
 389; facility of, 390-400; powers, 
 jealousy of Parliament in entrust- 
 ing, 482 
 
 Letters from sovereign princes, eti- 
 quette concerning, 360 
 
 opening at post office, report of 
 committee on, 432 
 
 ' Liberal ' and ' Conservative,' origin 
 of terms, 137 n. 
 
 Life peerages, 593 
 
 Liverpool, Lord, his administration, 
 168, 254 
 
 Loans, or gifts : not permitted to 
 Crown or public departments 
 without consent of Parliament, 
 724 ; parliamentary control of, 
 725 ; how made and remitted, 
 725, 726, 730 ; to foreign powers, 
 731 ; precedents, ib. ; transactions, 
 789 ; financial contracts, 796 
 
 London University, resolution con- 
 demning the elevation of the 
 building, 450 
 
 Lopez, Sir M., case of, 565 
 
 Lord Lieutenant of Ireland, and re- 
 mission of sentences, 667 
 
 dismissals of, from office, 611 
 
 Lords, House of : its dorm ant powers, 
 7 ; its constitutional position, 36 ; 
 relations with House of Commons, 
 37 ; free from sectional interest, 
 38 ; seldom initiates legislation, 
 ib. ; important services of, 39 ; 
 ability to estimate public opinion, 
 40 ; should not give persistent 
 opposition to House of Commons, 
 41 ; reasons why it should have 
 confidence of the nation, 42 ; ori- 
 gination of measures in the, ib. ; 
 reform of. for and against, 42, 43 ; 
 does not decide the fate of minis- 
 ters, 44 ; controls, amends, and 
 revises legislation from the Com- 
 mons, 389 ; suggestions from pri- 
 vate members on Monev Bills,
 
 IXDEX. 
 
 835 
 
 LUC 
 
 603; practice upon petitions for 
 aid, and financial enquiries, 690 ; 
 controversy between House of 
 Commons and, as to right of 
 enquiry into expenditure, 697 ; 
 recommendations of, involving 
 expenditure, 697, 698 
 Luc an, Lord, case of, 582 n. 
 
 MACDONNELL, Mr., case of, 565 
 
 M'Mahon, Colonel, private secretary 
 to George IV., 295, 669 
 
 M'Neil, Sir J., case of, 591 
 
 Magistrates, proceedings in Parlia- 
 ment for removal of, 582 
 
 Magna Carta, 66, 68 
 
 Mail and telegraph contracts, 491. 
 See also Contracts 
 
 Maitland, Sir P., case of, 672 
 
 Male servants, Bill to reduce duty on, 
 721 
 
 Maloney, constable, case of, 579 n. 
 
 Mult tax, motion to reduce duty of, 
 720 
 
 Manchester, Bishop of, v. Attorney- 
 General, 461 n. 
 
 Martial law, 548-553 ; responsibility 
 of ministers in, 553 
 
 Maximilian, Emperor, remarks on 
 proposal to record opinion of 
 "House on murder of, 375 n. 
 
 Meath, case of the Crown solicitor 
 for, 671 n. 
 
 Melbourne, Lord, his administra- 
 tions, 133, 193, 200, 255, 256; 
 abstract of defeats sustained by, 
 202 ; number of unsuccessful Bills 
 introduced by, 203; acts as the 
 Queen's private secretary, 297 
 
 Melbourne University, powers con- 
 ferred on, 599, 600 
 
 Melville, Lord, impeachment of, 
 154 
 
 Members of Parliament, payment of, 
 70 
 
 Mercy, exercise of prerogative of, 554- 
 569 ; strictly confined to criminal 
 offences, 556 ; wrongful exercise 
 of prerogative of, 269 
 
 Merit, motion in House of Lords for 
 order of, 590 
 
 Middlemiss v. Attorney-General, 
 495 n. 
 
 Military law, 526 
 
 reseive funds, discussion on, 724 
 
 MIN 
 
 Militia, the, 525 ; dismissal of officers 
 of, 630; (disembodied), estimates 
 of, 739. See also Army 
 
 Ministerial defeats in Parliament, 
 144, 202-205 
 
 financial propositions, 797 
 
 interregnum, 162-168, 176, 225, 
 334 
 
 measure should not be con- 
 sidered immediately after state- 
 ment of its principles, 790 
 
 oligarchy, dangers of, 885 
 
 responsibility : progress, and ex- 
 tent of, 2, 3, 111, 118, 265, 273, 
 274, 384, 417, 541; theory of, 
 135 ; for the dismissal of their 
 predecessors, 135, 196, 329 ; when 
 first acknowledged, 264 ; for acts 
 of the Crown, $66, 266 ; for the 
 official acts of their subordinates, 
 628 
 
 supremacy over officials, 629 
 trust, 385 
 
 Ministers : responsible for exercise of 
 kingly authority, 2, 3 ; in the 
 House of Commons, 34 ; ought 
 not to have seats ex-officio, ib. ; 
 right to retire without incurring 
 displeasure of the sovereign, 77, 
 78 ; impeachment of, 108 ; when 
 the right to dismiss, should be 
 exercised, 134 ; absence of, does 
 not remove the right to free dis- 
 cussion, 183 ; but not desirable 
 in disputable measures, ib. ; to 
 what extent a defeat should com- 
 pel a resignation, 203-206, 207, 
 208, 210, 216, 232, 243 ; resigna- 
 tion before meeting of Parliament, 
 244, 251 ; the channel of commu- 
 nication with the Crown, 267 ; 
 their appointment and dismissal 
 by the Crown, 316, 330, 334; 
 entitled to fair trial in Parliament, 
 318 ; sovereign's right to nominate, 
 ib. ; accept office without a 
 majority in the House of Com- 
 mons, 319; how far they are 
 selected by the sovereign, 324, 
 331 ; must possess the confidence 
 of Parliament, 328 ; sanction of 
 the Crown in appointment of a 
 new, 333 ; must have the implicit 
 confidence of the sovereign, 335 ; 
 responsibility of, for exercise of 
 prerogative, 384; duty to shield
 
 836 
 
 INDEX, 
 
 MIN 
 
 the Crown from personal obloquy, 
 385 ; free exercise of executive 
 functions, 415 ; how controlled by 
 Parliament, 415, 416; account- 
 able to Parliament, 421 ; when 
 papers are refused by, 443 ; duty 
 of, to protect interests of private 
 individuals in Parliament, 451 ; 
 abuse of executive authority, how 
 to be dealt with, 456 ; remedy 
 against illegal or oppressive acts 
 of, 493, 496, 498; immunity of, 
 in courts of law, 494,498, 499; 
 sworn to keep the sovereign's 
 counsel secret, 497 ; not to divulge 
 council secrets in courts of law, 
 497 ; responsibility of, for control 
 of the army and navy, 527, 528. 
 See also Privy Councillors, Ministry 
 
 Ministry : evils of a weak, 32 ; of 
 'all the talents,' 121, 155; new, 
 constitutional confidence in, 150 ; 
 dismissal of, explanations to the 
 House, 157 ; in accepting office, 
 become responsible for dismissal 
 of preceding ministry, 195, 196 ; 
 delays in forming, 320 ; formation 
 of a new, 330; right of a sove- 
 reign to take advice of a peer on, 
 334. See also Ministerial respon- 
 sibility, Ministers 
 
 Minorities, representation of, 29 ; 
 articles against, 29 n. ; minority 
 administrations in House of Com- 
 mons, 196,217,219,228 
 
 Minutes of council : rightful limits of, 
 464 ; on educational matters, 465 
 
 Monahan, Chief Justice, case of, 
 573 n. 
 
 MonarchicaJ and aristocratic ele- 
 ments, rights of, to representation 
 in the Commons, 24 
 
 Money Bills: by private members, 
 693 ; suggestions from the House 
 of Lords on, ib. ; Bills imposing 
 public charges have caused abuse, 
 894; new standing orders re- 
 garding, 695, 696 ; Lords' practice 
 different, 696 ; concerning prac- 
 tice in the colonies, 806, 807 ; 
 the various kinds of, 815; speech 
 of the Speaker on presenting, 821, 
 822 
 
 - charges, Bills involving, 765 ; 
 must be recommended by the 
 Crown, ib. 
 
 NOR 
 
 Money : resolutions or address of 
 House in favour of particular 
 grants, 699-701 ; House may 
 increase a special grant, 702*; 
 advances of public, 726-730; 
 addresses for, 766; ad interim 
 advances, 787. See also Supply 
 
 Montfort, Simon de, 67 
 
 Montreal and Kingston Railway, 
 charter granted, 607 
 
 Morrison, Rev. Dr., motion rejected 
 to grant a pension to the family of 
 the late, 682 
 
 Motions : for papers should not con- 
 tain argumentative matter, 453 ; 
 formal, to take the sense of the 
 House on pecuniary questions, 
 702 ; precedents concerning, 703- 
 709 ; for reduction of expenditure, 
 746 ; precedents, 746-748 
 
 Mozambique, consul at, case of, 677 
 
 Muir, Palmer, &c., case of, 563 
 
 Mutiny Act, 622-523 
 
 NATIONAL council, attempt of, to 
 elect officers of state, 79 
 - Gallery, proceedings to deter- 
 mine site of, 426 
 
 Navarino, consideration of claims of 
 officers engaged in battle of, 701 
 
 Navy and army, prerogative relat- 
 ing to, 520-554; enquiries into 
 promotions, 534-536, 543. See 
 also Army 
 
 Negotiations pending, papers con- 
 cerning, 357, 359 
 
 Negro apprenticeship in the colonies, 
 423 
 
 Nelson and Brand, Chief Justice 
 Cockburn's charge in case of, 548- 
 551 
 
 New courts of justice, motion con- 
 cerning, 449 
 
 works, not to be undertaken 
 without sanction of Parliament, 
 769, 770 
 
 Newport, Sir J., case of, 681 
 
 New Zealand, episcopate, 513-515; 
 
 University, 601 
 
 Nobility, liberal tendencies of the, 35 
 Nomination boroughs, 13, 14 ; effect 
 
 of abolition of, 16 
 
 of ministers by the Crown, 324 
 Norman polity, 58-68 
 
 North, Lord, his administration, 138
 
 INDEX. 
 
 837 
 
 NOR 
 
 North Staffordshire Railway Co. v. 
 Heathcote, 606 n. 
 
 OATHS in Parliament, 409 
 O'Brien, William S., case of, 558 
 Officers of army and navy, control of 
 
 the Crown over, 529 
 and offices : protection to, 495 ; 
 public, 609-688; political and 
 non-political, 612 ; appointment 
 to, 615-621 ; judicial, 619 ; in the 
 gift of judges, 620; parliament- 
 ary, 627 ; subordination of, to a 
 political head, 629 
 
 - Crown has absolute power to 
 dismiss, 630 ; must not engage in 
 politics, 631, 633, 649 ; fidelity in, 
 632 ; public despatch prohibiting 
 offensive letters to press, 632 n. 
 See also Public officers, Civil ser- 
 vice 
 
 Offices of courts of law held for life, 
 630 n. 
 
 Official papers: discretion in with- 
 holding from Parliament, 357, 
 359 ; extracts given in certain 
 cases, 357 ; parliamentary grounds 
 for ordering, 453 
 
 Officials. See Officers, Civil service, 
 Public officers 
 
 Opinions, legal, for the executive 
 government considered confiden- 
 tial documents, 576 
 
 Orange lodges, address to discou- 
 rage, 423 
 
 Orders in council : authority of the 
 Crown in, 457, 460-463; ille- 
 gality of, issued by the Stuart 
 sovereigns, 458 ; when they re- 
 quire the sanction of Parliament, 
 462 
 
 - and minutes of council and de- 
 partmental regulations under con- 
 trol of Parliament, 464 
 
 Ordinary council, 64 
 
 Ordnance, case of the office of lieut.- 
 
 gen. of, 670 
 Orsini, refugee, 227 
 Overend, Gurney & Co. v. the Queen, 
 
 576 n. 
 Oxford and Cambridge University 
 
 Reform Acts, 472 
 
 PALMER, Mr., case of, 703 
 
 PAR 
 
 Palmer v. Hutchinson, 495 n. 
 
 Palmerston, Lord, his administra- 
 tions, 224, 234, 257, 258 
 
 Paper duties, 716, 809-814 
 
 Papers : when communicated to Par- 
 liament and when refused, 439- 
 443 ; cost of furnishing, to Parlia- 
 ment, 443 ; concerning private 
 affairs, ib. ; parliamentary reason 
 must be given for ordering official, 
 453 
 
 Pardon : prerogative of, 554 ; article 
 on, 556 n. ; cases of Toomer, 
 Scott, Greenland, Wager & Hall, 
 563 n. ; precedents of proceeding 
 in Parliament on pardoning offen- 
 ders, 563-569. 
 
 Parliament: introduction of minis- 
 ters into, 9 ; authority of the 
 Crown in, 19 ; functions of, 72 ; 
 when first annually convened, 74 ; 
 dissolution of, when justified, 206, 
 229, 314; cases of, from 1782- 
 1880, 253-258 ; effect of its pre- 
 rogative, 387 ; a new, not neces- 
 sarily convoked ' without delay,' 
 209 ; advises the Crown on the 
 formation of a ministry, 317 ; 
 should sustain the Crown in a 
 foreign war, 354 ; not to commu- 
 nicate direct with foreign sove- 
 reigns, 362 ; nor receive commu- 
 nications directly from them, 363 ; 
 communicates with legislatures 
 through the executive, 364 ; 
 ought not to legislate on matters 
 for negotiation, 371 ; result of ne- 
 gotiations to be made known to, 
 ib. ; what constitutes Parliament, 
 386 ; its dependence upon the 
 Crown, ib. ; no dissolution on de- 
 mise of the Crown, 387 ; effect of 
 prorogation, ib.; assembling of. 
 405 ; opening of, ib. ; independ- 
 ence of, 406 ; communications 
 between Crown and, ib. ; revolu- 
 tions of, 407 ; may advise the 
 Crown in any matter, 414 ; right 
 of enquiry into all acts of admini- 
 stration, 416 ; interference by, in 
 details of government, 419, 420, 
 427; limits of control, 420; in- 
 formation given to, or withheld 
 from, 439, 440 ; jurisdiction over 
 private corporations, 451, 452 ; 
 control of, over minutes of council
 
 838 
 
 INDEX 
 
 PAR 
 
 and departmental regulations, 
 464 ; supreme trustee of endow- 
 ments, 472 ; motions to reduce 
 contracts on Houses of, 489 ; con- 
 trol of, over army and navy, 524, 
 520 ; right to full information in, 
 532, 576 ; does not justify inter- 
 ference in details of administra- 
 tion, ib. ; functions of, over courts 
 of justice, 571 ; limits of interposi- 
 tion, 572-574 ; cannot entertain 
 matters which are in province of a 
 jury, 573 n. ; legal opinions not 
 submitted to, 576, 577 ; votes of 
 thanks by, 593-597 ; power to 
 dissolve corporations, 603 ; ap- 
 pointment of officials of, 627 ; 
 representation of every public 
 department therein, 628 ; right 
 of, to investigate into abuse of 
 appointments or dismissals from 
 office, 659,660, 667; addresses 
 of, for contingent expenses, 661 ; 
 salaries of employe's in both 
 Houses, 661-666 
 
 Parliamentary government : defined, 
 1 ; to what it owes its success, 17 ; 
 development of, 45 ; its peculiar 
 advantages, 46 ; proceedings be- 
 tween the two Houses, 389 ; fa- 
 cility of, 390-400 ; officers, 627 
 Parsons v. King, Holt, 554 n. 
 Partition treaties, case of the, 106 
 Party government, authorities pro 
 and con, 9, 10 n. ; defined, 9 ; 
 origin of, 9, 111 
 
 Patronage : in the hands of an out- 
 going administration, 209 ; abuse 
 of, 610; political, 616, 617; ex- 
 tent of, m Great Britain, 622 ; 
 abolished in civil service, 626 ; of 
 Board of Admiralty, 673 
 Payment of members of Parliament, 
 
 70,71 
 
 Peace, right of making, and declaring 
 war, 351-355 ; how far subject to 
 Parliament, 351 
 
 Peel, Sir R., remarks on Reform Bill, 
 
 23 n. ; his administrations, 134, 
 
 195, 212, 255, 256; statue of, 
 
 motion concerning, 451 
 
 Peerages, creation of, 592 ; for life, 
 
 693 
 
 Peers : interference of, at elections, 
 11 ; case of names of, struck off 
 voters' lists, 1 1 n. ; influence of, at 
 
 POS 
 
 elections, 12 ; administrative ca- 
 pacity of, 36 ; indifference to legis- 
 lative duties, 41 ; privilege of, to 
 audience with the sovereign, 266 ; 
 creation of, 592 ; disqualified, 593. 
 See also Lords, House of 
 Pensions, how granted, 654-658 ; 
 abuses of the pension list, 655 ; 
 restrained by Parliament, 656 ; 
 civil list, ib. ; in army and navy, 
 658. See also Public officers, Super- 
 annuation 
 
 Perceval, Mr., his administration, 
 161, 254 ; assassination of, 162 ; 
 objection raised to pecuniary pro- 
 vision for family, 169 ; appoint- 
 ment to chancellorship, duchy of 
 Lancaster, 668 
 Permanent grants, 737 
 Pesth, consulship at, case of, 677 n. 
 Petitions of right, 343-348 ; return 
 of, fiated by her Majesty, 345 n. ; 
 case of Mr. Irwin, 345 ; in Euro- 
 pean governments and America, 
 344 n. ; return of, 345 n. 
 for aid to be recommended by 
 
 the Crown, 691, 699 
 Peto, Sir M., and London, Chatham, 
 and Dover Railway Company, 453 
 Phillips' insurance case, 658 n. 
 Pitt, Mr., his administrations, 119, 
 143, 153, 253, 254; plan of par- 
 liamentary reform, 126; lists of 
 defeats of, 144 n. ; remarks of, on 
 explanation to Parliament on re- 
 tirement of ministers, 149w. ; re- 
 signs office, but acts as chancellor 
 of exchequer till appointment of 
 his successor, 147 ; death of, 154 
 Poland, affairs of, 377, 378 
 Poles, vote proposed by ministry 
 increased by House for the dis- 
 tressed, 702 
 
 Police force, complaints against. 578 
 Polignac, Prince, case of, 376 
 Political and non-political offices,612 
 Poor Law Bills, 209 
 Portland, Duke of, his administra- 
 tions, 142, 157, 253, 254 
 Portsmouth and Chatham dockyards, 
 
 contracts, 771 
 
 Portuguese Slave Trade Bill, pro- 
 ceedings on, 371 
 
 Post office: Sunday labour in the, 
 425 ; opening letters at the, 432 ; 
 employe's, 683
 
 INDEX. 
 
 839 
 
 POS 
 
 Postal contracts, 771, 776-784 ; con- 
 trol of Parliament over, 776,. 779. 
 See also Contracts 
 
 Pottinger, Sir H., case of, 591 
 
 Premature communication of des- 
 patches, 441 
 
 Prerogative government defined, 4 ; 
 downfall of, 95 
 
 definition of, 314 ; in connection 
 with Parliament, 383; defined, ib.; 
 responsibility of ministers for ex- 
 ercise of, 384 
 
 Court, alleged abuses in, 578 
 Prime minister : empowered to select 
 
 his own colleagues, 324, 331 ; is 
 the choice of the sovereign, 327 ; 
 case of the choice of by his col- 
 leagues, 326; and the sovereign, 
 336 
 
 Prince Consort, position and duties 
 of a, 299. See also Albert, Con- 
 sort 
 
 Prison Acts, rules pursuant to, 475 
 Prisoners, treatment of, 584 
 Private affairs of persons or compa- 
 nies not to be enquired into by 
 Parliament, 451 
 
 Bills : effect of prorogation on, 
 388 ; legislation of, 401-405 
 
 companies : and Parliament, 
 451 ; constitutional doctrine as 
 to sacredness of rights of, in the 
 United States, 451 n. 
 
 correspondence between minis- 
 ters and members not to be con- 
 sidered as official documents, 
 441 
 
 secretary to the sovereign, 294 
 Privy Council: advisers of the Crown, 
 
 59; in Parliament, 75, 76; growth 
 of, 76; first assumption of title 
 of, 84 ; division into commissions 
 (1553), 90 ; the sovereign may 
 summon anyone to the, and can 
 dismiss a member of the, 323 ; 
 decisions of, questioned in Parlia- 
 ment, 449. See also Minutes of 
 council, Orders in council 
 
 councillors : early impeachment 
 of, 80 : their appointment and 
 responsibility, 107, 116,323,328, 
 334 ; selection, appointment, and 
 dismissal of, 316-334: must keep 
 the king's counsel secret, 497 
 
 Prize money, distribution of, 531 n., 
 591 n., 701,723 
 
 PUB 
 
 Proclamations, their constitutional 
 limits, 460. See also Orders in 
 council 
 
 Property the basis of representation, 
 10; influence of, 12 
 
 Prorogation of Parliament, first. 74 n. ; 
 effect of prorogation, 387, 388 
 
 Prosecution, mode of conducting, in 
 the case of Regina v. Overend, 
 Gurney, Co., 576 n. 
 
 Protests from peers on Reform Bill 
 (1867), 16 n. 
 
 Provisional legislation : growth of, 
 484 ; simplifies parliamentary 
 legislation, 485; the system of, 
 470-488 ; when submitted to Par- 
 liament, 471 ; advantages of, 485 ; 
 list of Acts confirming, ib. \ persons 
 aggrieved by, 486 ; defects in the 
 system, 487 
 
 Public Bills, procedure on, 391-400 
 
 charge. See Supply, Grant, Mo- 
 tions 
 
 contracts, 488 
 
 departments: report of committee 
 on, 438 ; legislation by, 470-500 ; 
 representation of, in Parliament, 
 628; may not give away stores. 
 725 
 
 moneys : report of committee on, 
 433 ; parliamentary control over 
 the issue and expenditure of, 824. 
 See also Addresses, Bills, Treasury 
 
 officers : bound to give informa- 
 tion to Parliament, 444; rights 
 of the Crown in relation to, 609 ; 
 political and non-political appoint- 
 ments, 612, 618 ; advantages of 
 permanency in the civil service, 
 613 ; promotions not to be in- 
 fluenced by politics, 621, 649 ; com- 
 petitive examinations, 623, 676 ; 
 all subordinated to some political 
 head. 629 ; for what cause they 
 may be dismissed, 630, 635 ; their 
 exercise of the franchise, 632 ; 
 should abstain from interference 
 in politics, 633 : pensions and re- 
 tiring allowances, 637, 654, 655, 
 679, 681 ; salaries, how regulated, 
 646 ; their appointment, direction 
 and remuneration, how far subject 
 to parliamentary control, 659, 
 668-688 ; parliamentary officers 
 and servants, 661-666; ministers 
 of state, 679 ; revenue officers
 
 840 
 
 INDEX. 
 
 PUB 
 
 paid out of receipts, 736. See also 
 Patronage, Treasury 
 Public opinion in relation to Parlia- 
 ment, 17, 18 
 
 revenue, sources of, 782 ; when 
 insufficient, 733 
 
 Schools Act, powers of, 478 ; com- 
 missioners of public schools, powers 
 of, 479-481 
 
 service, fidelity in, 632. See also 
 Civil service ,Officers, Public Offi- 
 cers 
 - Works Loan Commissioners, 789 
 
 QUARTERMASTERS in the army, 
 
 enquiry into, 545 
 
 Queen v. Lords of the Treasury, 496 n. 
 Queen's counsel, origin of, 60 
 University, Ireland, case of the 
 
 charter of, 600 
 
 RAILWAY Amalgamation Bills, 
 403 
 
 passenger duty, motion to reduce, 
 719 
 
 Railways, rights of the Crown in the 
 
 use of, for troops, 532 
 motion to aid, in Ireland, 708 
 
 Receipts, gross, to be paid into the 
 exchequer, 734 ; brought under 
 more immediate control of Par- 
 liament, 734-737 
 
 Red Sea and India Telegraph line, 
 case of, 782 
 
 Redress in the abuse of executive 
 authority, 456 
 
 Reed's case, 667 n. 
 
 Reform : probable consequences of 
 further, 22 ; dangers of democracy 
 on the constitution, 23 ; Mr. Pitt's 
 scheme of, 126 
 
 - Bill (1830) : effects of, 131 ; 
 report of committee on, 188; when 
 introduced, ib. ; difficulties of carry- 
 ing, in the House of Lords, 190, 
 191 
 
 - (1832), effect of, 20, 131,136 ; 
 its enactments, 189 
 
 - (1858), defeat of the Govern- 
 ment on, 229-233 
 
 - (1866), 233, 235 
 
 (1867), protest from peers on, 
 Ifln.; effect of, 21, 29-31 
 Relations between both chambers, 37 
 
 ROY 
 
 Rendlesham v. Tabor, 11 n. 
 Reports of officials to departments 
 are confidential, 442 
 
 Representation : true basis of, 10, 11 ; 
 choice of local celebrities for, 15 ; 
 of the landed interest, 25 ; statis- 
 tics of, 26 ; of minorities, 29 ; 
 authorities on, 28 n., 29 n. ; article 
 on origin of, 51 n. 
 
 Representative system : excellences 
 of our, 1 6 ; rise of, 66 ; origin of, 
 67 ; the earliest, ib. 
 
 Resolutions of either House : effect of 
 a prorogation of Parliament on, 
 388; how far binding, 407-412, 
 699 ; abstract, 411 ; in favour of 
 the repeal of particular taxes, 
 713 
 
 Returns, cost of furnishing, 443. See 
 also Papers 
 
 Revenue officers, their exercise of 
 the franchise, 632 ; salaries of, 
 736 
 
 Revenues : public, how derived, 732 ; 
 when insufficient, 733 ; gross re- 
 ceipts paid into the Exchequer, 
 734-737 ; how to estimate the, 
 788, 820 
 
 Reversions, Bill to abolish, 422 
 
 Revolution of 1688, its effects, 3, 4, 
 8, 34, 102, 263 
 
 Rewards, prerogative in granting, 
 589-597. See also Honours 
 
 Rights, popular, when first attained, 
 73 
 
 Riot Act, 549 
 
 Ritual Commission, 505 
 
 Riviere des Prairies, tolls, 607 
 
 Rockingham administration, 139, 
 253 
 
 Roman Catholic question, 123, 146, 
 162, 155, 184; Bill to remove 
 civil disabilities in the army and 
 navy, 156, 157. See also Catholic 
 question 
 
 Ross, Captain, case of, 753 n. 
 
 Royal Academy and Parliament, 452 
 
 charters, 598-608 
 
 functions : delegation of, 338 ; in 
 abeyance, 339 ; proceedings to 
 supply defect in, 340, 341 ; income, 
 349, ' 350 ; pardons, 556, 557 ; 
 proclamations, see Orders in coun- 
 cil ; sign manual, 336 ; when dis- 
 pensed with, 337 ; veto upon Bills, 
 407. See also Household
 
 INDEX. 
 
 841 
 
 ROY 
 
 Royal grants must be brought under 
 notice of ministers, 83, 84 
 
 Rule and authority, the source 
 of, 2 
 
 Russell, Lord, his administrations, 
 217, 234, 257, 258 
 
 ST. KATHARINE'S HOSPITAL, 
 
 motion concerning, 477 
 Salaries of officials, 646, 648, 661- 
 667, 679, 680, 683, 684, 736. See 
 also Parliament, Public officers 
 Sale of government stores, 645, 
 
 725 
 
 Scheldt expedition, 267 
 Schools, withholding royal assent to 
 endowed, schemes, 473. See also 
 Universities 
 Scott v. the Queen (Petition of 
 
 Right), 344 n. 
 
 Scott's case of pardon, 563 n. 
 Seal, the great, 82, 83 
 Second chamber, advantages of, 40 ; 
 
 articles for and against, ib. n. 
 Secret dispatch, premature disclosure 
 
 of, 228 
 
 societies in the army, 537 
 Secretary of state : office of, 269 ; the 
 channel of communication with 
 -the sovereign, 270 ; also with 
 foreign powers, 355 
 Select committees not to encroach 
 on administrative functions, 419 ; 
 to consider administrative and 
 other public questions, 428 
 Sentence, remission of, when Parlia- 
 ment may interpose, 561 ; enquiries 
 of ministers, 562 ; memorials to 
 Parliament in, 563, 564 
 Shelburne administration, 140, 253 
 Simon de Montfort, 67 
 Sinking funds, particulars regarding 
 
 several, 737 n. 
 Slito, enquiry on erection of, into a 
 
 free port, 377 
 Smith, Baron, proceedings against, 
 
 574 ., 579 
 Soldiers, authority for dismissing 
 
 private, 530 n. 
 Solicitor to the Home Department, 
 
 office of, 671 
 
 Somers, Lord, impeachment of, 106 
 Sound dues, levy of, 378 
 South American Confederacy, pro- 
 posed address to recognise, 376 n. 
 
 VOL. I. 
 
 sov 
 
 South Kensington, estimates for 
 
 purchase of, 756 
 
 Sovereign : power of, under parlia- 
 mentary government, 2; who 
 may advise, 116; never without 
 those responsible for his actions, 
 158; full statutory style and title 
 of, 259 n. ; supremacy of, 259 ; 
 perpetuity of, 260 ; coronation of, 
 ib. ; oath of, ib. ; on the office of, 
 260, 275, 309 ; personal irrespon- 
 sibility of, 261, 264, 265, 343, 347 ; 
 his subjection to the law, 261; 
 succession to the Crown, 262 ; 
 personal rule of, ib. ; eflect of 
 wrongful acts of, 265, 266 ; public 
 audience with, ib. ; foreign com- 
 munications with, 267, 270 ; offi- 
 cial reports to be made through a 
 minister, 267 ; secretary of state, 
 the means of communication with 
 the, 269 ; must act through a 
 minister, 270 ; justice and laws 
 enacted in his name, 271 ; presence 
 of, at debates discontinued, 272 ; 
 attempt of George IV. to take 
 command of the army, ib. ; per- 
 sonal acts of, not under the cog- 
 nisance of law, 274 ; can personally 
 do no act of government, ib. ; im- 
 personality of, 275 ; personal acts 
 of government, ib. ; right of, to a 
 private secretary, 295; constitu- 
 tional position of, 305-314 ; duty 
 of, 307 ; importance of the office, 
 309; ceremonial and personal func- 
 tions, ib, ; social pre-eminence of, 
 310; Lord Brougham on the, 311 ; 
 Earl Grey on the', 313 ; Earl Derby 
 on the, ib. ; political influence of 
 the, 315 ; appointment and dis- 
 missal of ministers, 316, 323, 331 ; 
 right to nominate ministers, 318 ; 
 personal inclinations in choice of 
 ministry, 323, 332 ; may summon 
 anyone to the privy council, or 
 dismiss a member from it, 323 ; 
 etiquette in writing to, 336 ; use of 
 the royal sign manual, 336, 337 ; 
 delegation of royal functions, 338 ; 
 absence from the realm, ib. ; abey- 
 ance of royal functions, 339 ; per- 
 sonal immunity, 347 ; personal acts 
 of, not amenable to authority, 
 348; personal acts and opinions 
 not cognisable by Parliament, 348 ; 
 
 3 I
 
 842 
 
 INDEX. 
 
 SPE 
 
 as a witness, 349 ; as a church- 
 warden, ib. ; royal prerogatives in 
 connection with Parliament, 383. 
 See also Crown, King, Ministers, 
 Parliament, Prime Minister 
 
 Speaker of House of Commons : no 
 longer the nominee of a party, 252 ; 
 address to the Crown on his 
 behalf, 592, 665; his duty in 
 regard to Supply grants, 786, 816 ; 
 his speech on presenting Money 
 Bills for the royal assent, 821 
 
 Standing army, provisions for, 94 
 
 orders of Parliament, their vali- 
 dity, 388 
 
 Star Chamber, 92 ; when abolished, 
 93 
 
 Stockdale v. Hansard, 408 
 
 Stocks, redemption of, 797 
 
 Stockton & Hartlepool Railway Co., 
 606 n. 
 
 Subjudice, matters, 573 
 
 Sugar duties, case of the, 800 
 
 Sullivan v. Spencer, 495 n. 
 
 Sunday labour in post-office, 425 
 
 Superannuation, 650-658, 682; al- 
 lowances to public officers, 653 ; 
 just claims may be enforced, 654 n. 
 See also Pensions 
 
 Supplies: objection to granting, pend- 
 ing appointment of ministers, 171 ; 
 cannot be raised by prerogative, 
 458 ; and taxation, prerogative in, 
 689-721 ; restrictions on Parlia- 
 ment in matters of, 690 ; granted 
 only on demand of the Crown, 
 690, 891 ; petitions or motions for 
 aid only recommended by the 
 Crown, 691 , 699 ; exceptions to 
 this rule, 699 ; grant of, by Parlia- 
 ment, 722, 723, 732; control of 
 Parliament over, 722-825 ; must 
 be obtained by Parliament grant, 
 723 ; temporary advances on 
 responsibility of Government, 726 ; 
 peculiar rights of the Commons in 
 the grant of, ib. 806 ; permanent 
 grants, 737 ; charges annually 
 voted, 738; presentation of the 
 estimates, 739 ; supplementary 
 estimates, 742 ; on the revision of 
 the estimates by a select com- 
 mittee, 744 ; motions for reduction 
 of expenditure, 746 ; proceedings 
 in Committee of Supply, 751; votes 
 are only for current year, 756 ; 
 
 TAX 
 
 votes of credit and votes on ac- 
 count, 757, 758 ; items in the 
 estimates rejected by the House, 
 763 ; right of the House to refuse, 
 784 ; precedents for delaying, ib. ; 
 votes in Committee of Ways and 
 Means, 785 ; money advanced in 
 anticipation of Appropriation Act, 
 787 ; all financial operations to 
 be submitted to Parliament, 795 ; 
 rights of the Lords in the consi- 
 deration of, 806, 808; rights of 
 Legislative Council in colonies in 
 consideration of, 806, 807 ; Bills 
 of Supply and Appropriation , ib. ; 
 duties of Speaker in matters of, 
 816 ; appropriation clauses in Bills 
 of, ib. ; surpluses on army and 
 navy grants, use of, 818 ; Appro- 
 priation Act is necessary for, 823. 
 See also Taxation, Treasury 
 
 Supply, Committee of: House may go 
 into, pending appointment of min- 
 isters, 148 ; resolutions or addresses 
 recommending grant of money 
 originate in, 700 ; appointment of 
 committee, 732 ; sittings of, 751 ; 
 explanations before going into, 
 753 ; resolutions in, ib. ; irregular 
 to move an instruction to, ib. ; 
 precedents of instruction, 754 ; 
 votes in, ib. ; motions in, 755 ; 
 motions may not be postponed, 
 756 ; votes are only for current 
 year, ib. ; increasing or restor- 
 ing an item in, 761, 785; effects 
 of debates in, on public expendi- 
 ture, 762 ; controlling influence of 
 House on, 762, 763 ; precedents of 
 rejection of items by the House, 
 763-765 ; resolutions reported 
 from, 785 
 
 Surrender of unexpended balance, 
 759 
 
 Sussex, Duke of, case of, 708 
 
 Sutton v. Johnston, 531 
 
 Sutton, Mr. Speaker, case of, 703 n. 
 
 Synods, diocesan, 504 
 
 TABOR v. Rendelsham, 11 n. 
 
 Talbot v. Talbot, 681 n. 
 
 Tamworth manifesto, 196 . 
 
 Tax Bills, proceedings on, 815 
 
 Taxation: by prerogative illegal, 
 458, 723 ; and supply, prerogative 
 in, 689-721 ; motions concerning,
 
 INDEX. 
 
 843 
 
 TAX 
 
 should proceed from ministers, 
 709, 710; restrictions on Parlia- 
 ment in, ib. ; precedents, 711; 
 ministers not obliged to answer en- 
 quiries concerning,^.; amendments 
 to ministerial scheme of, 711, 798 ; 
 proposed, may be amended in the 
 House, 712, 714-721, 798, 799 ; 
 precedents, ib. ; motion for reduc- 
 tion or repeal not expedient by a 
 private member, 713 ; abstract 
 resolutions on, ib. ; precedents of 
 reduction of, 714-721 ; resolu- 
 tions submitted in Committee 
 of Ways and Means, 791 ; consists 
 of annual and permanent duties, 
 ib. ; when new votes of duty are 
 to be levied, 793 ; may be modified 
 or rejected by the House without 
 affecting the ministry, 798, 799; 
 rights of the Lords in matters of, 
 808-814 
 
 Taxes : when proposed, 791 ; new, 
 can only be increased in Committee 
 of Ways and Means, 793. See also 
 Duty, Taxation 
 
 Taylor, Colonel H., private secretary 
 to George III. and William IV., 
 294-297 
 
 Tea dealers, case of, 795 
 
 Telegraph contracts, 491 ; and 
 Packet Contracts Committee, 771 ; 
 and postal contracts, 777, 782 
 
 Territory, new, see Acquisition 
 
 Thames Embankment, motion con- 
 cerning, 450 
 
 Thanks, votes of, by Parliament, 
 593-597 
 
 Theatres in Lent, restrictions against, 
 423 
 
 Thorn's case, 568 
 
 Thorogood, J., case of, 556 n. 
 
 Tobin v. the Queen, 346 n. 
 
 Toomer's case of pardon, 563 n. 
 
 Totnes writs, 410 n. 
 
 Tramways, metropolitan, 486 
 
 Transfers of army and navy grants, 
 see Treasury 
 
 Treasure trove, 731 
 
 Treasury : regulates salaries and pen- 
 sions of public officers, 646 ; em- 
 powers army and navy departments 
 to use their surplus votes for defi- 
 ciencies, 818 ; duties of the board 
 of, in regard to public officials, 648, 
 649 ; chest, 730 
 
 VOT 
 
 Treaties: right of making, 365; right 
 of colonies to make, ib. ; powers 
 of Parliament in regard to, 366, 
 367 : article on obligations of, 
 366 n. ; right to withhold informa- 
 tion from Parliament concerning, 
 368; alleged violation of, 369; 
 when still pending, ib. 
 
 Troops in China, mortality of, 547 
 
 their employment by the magis- 
 tracy, 549. See also Army, Indian 
 army 
 
 Tufnell, T. G., case of Petition of 
 Right, 500, 629 n. 
 
 Tulloch, Colonel, case of, 591 
 
 Turnbull, Mr., case of, 677 
 
 UNEXPENDED balances of Supply 
 grants to be repaid to Exchequer, 
 759 
 
 Unfunded debt, 738 
 
 Uniformity, obligations of the Act of, 
 517 
 
 United States of America: working 
 of their democratic institutions, 
 21 ; objectionable tenure of office 
 therein, 614 ; practice in regard to 
 the time of levying new duties, 794 
 
 Universities, charters of, 599, 600 ; 
 procedure in founding, 601 
 
 University Reform Acts, term to be 
 submitted, 472 
 
 VESTED rights of corporations in 
 United States, 607 
 
 Vice-Chancellor, enquiry as to lan- 
 guage and demeanour of a, in 
 court, 572 n. 
 
 Victoria, Queen : her conduct as a 
 sovereign, 136, 287 ; personal acts 
 of, 287, 288 ; her wise exercise of 
 prerogative, 288 ; her attention to 
 affairs of state, 289 ; private secre- 
 tary to, 297 ; influence exercised on 
 behalf of public morality, 309 n. ; 
 articles on, by Mr. Gladstone, 311 n. 
 
 Victoria, governor of, correspond- 
 ence relating to recall of, 577 n. 
 
 Volunteer corps, formation and con- 
 trol of, 525 
 
 Voters' lists, case of peers' names 
 being struck off, 11 n. 
 
 Votes of thanks by Parliament, 593- 
 597
 
 844 
 
 INDEX. 
 
 VOT 
 
 Votes, grouping of, 750 ; in supply, 
 754 ; reduction in, 755 ; not to be 
 postponed, 756; asking for more 
 or less than in original vote, ib. ; 
 other than for current year, ib. ; 
 
 - of credit, 757, 823 
 
 on account, 757-760 
 
 WAGER'S case of pardon, 563 n. 
 
 Walcheren expedition, case of the, 
 268, 536 
 
 Walewski, Count, despatch of, 358 
 
 War : declaration of, requires signa- 
 tures of all the Cabinet, 108 ; 
 right of declaring and making 
 peace, 351-355 ; how far subject 
 to Parliament, 351 ; Parliament 
 must sustain the Crown in a 
 foreign, b53 
 
 Warrants, general, 494 
 
 Ways and Means : votes in Committee 
 of, 785 ; Bill of, 786 ; duties of the 
 Speaker in respect to, ib. ; Com- 
 mittee of, 787 ; irregular to move 
 general motion concerning taxa- 
 tion in, 791 : resolutions submitted 
 concerning taxation, ib. ; resolu- 
 tions should not be reported to 
 House on same day as agreed 
 upon, 792. See also Supply 
 
 Wellington, Duke of, wished to 
 retain command of the army when 
 premier, 182 ; proposed grant for 
 annuity, 702 n. 
 
 West Hartlepool Railway and Dock 
 Co., 603 
 
 Westbury, Lord Chancellor, case of, 
 684 
 
 ZAN 
 
 Whig families, their influence, 112; 
 claim to nominate the king's 
 ministers, 126, 323, 326 
 
 Whitehaven rioters, release of, 
 564 n. 
 
 Wilde, II. S., case of, 684 
 
 William III. summoned as a consti- 
 tutional sovereign, 108 ; his own 
 adviser in foreign affairs, 109 ; 
 appoints the first parliamentary 
 administration, 110 
 
 IV., his conduct as a sovereign, 
 285 ; reign of, 130-136 ; and the 
 Reform Bill, 131, 191 ; dismissed 
 his ministers upon insufficient 
 grounds, 133; personal acts of, 
 285-287 
 
 Windsor and Annapolis Railway 
 case, 461 n. 
 
 Witans, the, 51 
 
 Witenagemot, the, 51-55 ; power to 
 depose the sovereign, 54 
 
 Withholding royal assent to endowed 
 schools schemes, 473 
 
 Woods, Mr. W., case of, 688 
 
 YEOMANRY CAVALRY, vote to 
 
 defray the cost of drilling, 709 
 York, House of, unconstitutional 
 
 reign of, 80 
 Duke of, enquiry into his public 
 
 conduct, 669 
 Yorkshire, West Riding of, assize 
 
 town, 449 
 Young, R., case of, 657 n. 
 
 ZANZIBAR and Cape of Good Hope 
 Mail Contract, 777 
 
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