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LEADING CASES
IN
CONSTITUTIONAL LAW.
LEADING CASES
IX
CONSTITUTIONAL LAW
BRIEFLY STATED.
WITH INTRODUCTION AND NOTES.
BY
ERNEST C. THOMAS, ESQ.,
u
LATE SCHOLAR OF TRINITY COLLEGE, OXFORD, AND BACON SCHOLAR
OF THE HON. SOCIETY OF GRAY'S INN.
JUDICIA ENIM ANCORAE LEGUM SUNT UT LEGES REIPUBLICAE.
SECOND EDITION.
LONDON:
STEVENS & HAYNES,
BELL YARD, TEMPLE BAR.
1885.
TN322.
T5
LONDON
BRADBURY, AGNEW, & CO. LD., PRINTERS, WHITEFRIARS.
HENJtY MORSE STEPHEN*
PREFACE
TO THE SECOND EDITION.
I NEED only say by way of introduction -to the
present edition, that the demand for this little book
during the time it has been out of print has been
such as to convince me, that it has been found
useful to those for whose use it was originally
published, and is now again committed to the
press.
A sufficient explanation of vtjie design of this
work will be found in the following paragraphs,
which I repeat here from the Preface to the First
Edition.
" Some knowledge of the chief cases in Constitu-
tional Law is now required in many examinations,
and is obviously necessary to the thorough student
of our constitutional history. Yet there has existed
no book briefly setting out the main principles decided
in these cases, which are scattered through many
volumes, and buried in prolix reports. Even Dr.
Broom's book, although, in spite of its thousand
- Oi
08302
vi Preface to the Second Edition.
pages, it is the nearest approach to anything of
the kind, lacks the brevity and conciseness which
are so necessary for the student.
" What I have endeavoured to do is to extract
the essence of the cases with which the student is
expected to be familiar, preserving always some-
thing of the concrete circumstance that is so helpful
to the memory ; to add, where necessary, a short
note to the individual case ; and to subjoin to each
important group of cases some general remarks in
the shape of a Note. The cases are so arranged
as to be convenient for ready reference, and while
the treatment is very concise, I hope that it is
sufficiently accurate."
The technical way in which legal arguments are
conducted in Court, and the fact that students
usually take up the study of Constitutional History
and Law before they have learnt how to find their
way among the innumerable volumes of the reports,
make a convenient guide to them the more neces-
sary. But it need hardly be added that the student
should by no means neglect to examine for himself
the reports "at large."
E. C. T.
3, HARCOURT BUILDINGS, TEMPLE,
January, 1885.
TABLE OF CONTENTS.
PAGE
PREFACE .......... v
AUTHORITIES QUOTED, with Abbreviations . . . - . x
TABLE OF CASES summarised or cited .... xiv
INTRODUCTION i
LEADING CASES :
The Case of Monopolies . . . . . .11
The Case of Proclamations . . . . . . 13
Thomas v. Sorrel . . . . . . . .14
Godden v. Hales 15
Seven Bishops' Case 1 6
Bate's Case (Case of Impositions) . . . . . 20
Rex v. Hampden (Case of Ship money) . . . -23
NOTE I. On the Dispensing Power . . . . 26
Barnardiston v. Soame 28
Ashby v. White 30
Case of Lord Shaftesbury . . . . . -33
Rex v. Eliot, Hollis and Valentine . . . . . 34
Rex v. Lord Abingdon . . . . . . 36
Rex v. Creevey . 37
Burdett v. Abbot 38
Stockdale v. Hansard . . . . . . . 40
Sheriff of Middlesex's Case 42
Howard v. Gosset . . . . . . . . 43
Bradlaugh v. Erskine ....... 44
Bradlaugh v. Gosset . . . . . . . . 45
NOTE II. On Privilege of Parliament and the Law
Courts 46
Calvin's Case 48
NOTE III. On Allegiance and Aliens . . . . 40
viii Table of Contents.
PAGE
Campbell v. Hall ........ 50
Bankers' Case 51
Viscount Canterbury v. The Attorney-General . . 5 2
Tobin v. The Queen 53
The Queen v. The Lords Commissioners of the Treasury 54
NOTE IV. On Remedies against the Crown . . 55
Darnel's Case (Five Knights' Case) 57
Shanley v. Harvey 58
Sommersett's Case 59
Forbes v. Cochrane . . . . . . . 60
Case of Le Louis 6 1
Case of the Slave Grace 62
Pigg v. Caley 63
Rex v. Broadfoot 65
Wilkes v. Wood 67
Leach v. Money . . . . . . . . 68
Entick v. Carrington 69
NOTE V. On General Warrants . . . . . 70
Lane v. Cotton 72
Macbeath v. Haldimand 73
Gidley v. Lord Palmerston . . . . . . 74
Grant v. Secretary of State for India . . . . . 75
Fabrigas v. Mostyn 76
Cameron v. Kyte . . 77
Hill v. Bigge 78
Phillips v. Eyre 79
Musgrave v. Pulido 80
Tandy v. Earl of Westmoreland . . . . . . 8 1
Luby v. Lord Wodehouse 82
Sullivan v. Earl Spencer 83
NOTE VI. On the Liability of Governors ... 84
Grant v. Sir Charles Gould 86
Sutton v. Johnstone 87
Dawkins v. Lord Rokeby . . > 88
Madrazo v. Willes 90
Buron v. Denman . . . . . . . . 91
NOTE VII. On the Liability of Officers Military
and Naval ........ 92
Prohibitions del Roy (Case of Prohibitions) . . . . 94
Floyd v. Barker . . . . . . . '95
Table of Contents. ix
PAGE
Bushell's Case . . . 9 6
Hamond v. Howell
Houlden v. Smith .
Kemp v. Neville .
Fray v. Blackburn
Calder v. Halket .
NOTE VIII. On the Liability of Judges
Astley v. Younge .
Munster z. Lamb
Seaman r. Netherclift .
Wason r. Walter
Curry v. Walter .
Usill v. Hales .
Davison 7,'. Duncan
APPENDIX.
Attorney- General v. Bradlaugh . ..112
INDEX . "S-' 2 3
AUTHORITIES QUOTED.
WITH THE ABBREVIATIONS USED.
Adolphus & Ellis, King's Bench Reports,
1834-41, 12 vols Ad. & E.
Barnewell & Alderson, King's Bench
Reports, 1817-22, 5 vols. . . . B. & Aid.
Barnewell & Cresswell, King's Bench Re-
ports, 1822-30, 10 vols. . . . B. & C.
Best & Smith, Queen's Bench Reports,
1861-69, 10 vols B. &S.
Blackstone, Henry, Reports . . . H. Bl.
Blackstone, Sir W., Commentaries on the
Law of England, i5th ed., 4 vols. . . Comm.
Broderip & Bingham, Common Pleas, &c.,
Reports, 1819-23, 3 vols. . . . Brodr. & B.
Broom, H., Constitutional Law, 1866 . . Br.
Burrow, Reports Burr.
Campbell, Lord, Lives of the Chan-
cellors, 8 vols., 8vo .... Camp. Chanc.
Campbell, Lord, Lives of the Chief Jus-
tices, 3 vols. 8vo.
Campbell, Reports ..... Campb.
Carrington & Marshman, Reports . . Carr. & M.
Chitty, Reports Chitty.
Clarendon, Lord, Hist, of the Rebellion,
Oxford, 1849, 7 vols., 8vo.
Coke, Institutes Coke, Inst.
Coke, Reports Rep.
Common Bench Reports, New Series,
20 vols. C. B. N. S.
Authorities Quoted. xi
Cowper, Reports ..... Cowp.
Cox, H., Institutions of the English
Government ..... Cox, Inst. Engl. Gov.
Croke, Reports (Charles I.) . . . Cro. Car.
Dodson, Admiralty Reports, 2 vols. . . Dods. Adrn. R.
Dow, Reports, 6 vols Dow.
Dyer, Reports Dyer.
East, King's Bench Reports . . . East.
Eden, Chancery Reports . . . . Eden.
Ellis & Blacktmrn, Reports . . . E. & B.
Ellis, Blackburn, & Ellis, Reports . . E., B. & E.
Espinasse, Nisi Prius Reports . . . Esp.
Exchequer Reports Exch.
Forsyth, Cases and Opinions in Constitu-
tional Law, 1869.
Foster, Crown Law .... Foster.
Foster & Finlason, Reports . . . . F. & F.
Freeman, Reports, K. B.
Gardiner, S. R., History of England,
1603-1642, 10 vols.
Haggard, Admiralty Reports . . . Hagg. Adm. R.
Hallam, Constitutional History of Eng-
land, yth ed., 8vo, 3 vols. . . . Hall. C. H. E.
Hearn, Government of England, 1867 . Gov. Engl.
Irish Common Law Reports . . . Ir. C. L. R.
Irish Reports I. R.
Knapp, Privy Council Cases . . . Knapp, P. C. C.
Law Journal L. J.
Law Reports, 1865 . . . . L. R.
Law Times Reports . . . . . L. T.
Lofft, Reports % .... Lofft.
Mason's Reports (U.S.) . . . . Mason.
Maule & Selwyn, Reports . . . M. & S.
May, Constitutional History of England . May, C. H. E.
May, Parliamentary Practice, 9th ed. . May, P. P.
Meeson & Welsby, Reports . . . M. & W.
Xll
Authorities Qiwted.
Modern Reports
Moore, Privy Council Cases . . .
Morison's Dictionary of Decisions (Scotch)
Noy, Reports
Parliamentary History . . . .
Phillips, Reports, 2 vols.
Phillips, State Trials prior to 1688, 2 vols.
1826
Queen's Bench Reports, 18 vols.
Raymond, Lord, Reports, 3 vols. .
Rushworth's Historical Collections . .
Shower, Cases in Parliament .
Shower, Reports
Siderfin, Reports .....
Skinner, Reports
Smith, Leading Cases, 8th ed.
Starkie, Reports
State Trials : ed. Howell, 34 vols., 1809-26
Stephen, Sir J. F., History of the Criminal
Law, 3 vols
Taswell-Langmead, Constitutional His-
tory, 2nd ed., 1880 . . . .
Term Reports
Todd, Parliamentary Government in Eng-
land, 2 vols., 1867
Vaughan, Reports, fol
Weekly Reporter
Wheaton's Reports (U.S.)
Wilson, Reports, 3 vols
Mod.
Moo. P. C. C.
Mor. Diet.
Noy.
Parl. Hist.
Phill.
Phill. S. T.
Q. B.
Lord Raymond,
Rushw.
Show. P. C.
Show.
Sid.
Skinn.
Smith, L. C.
Stark.
S. T.
Hist.
Tasw.-Langm. C. H.
T. R.
Todd, Parl. Gov.
Vaughan.
W. R.
Wheaton.
Wils.
Authorities Quoted. xiii
OTHER ABBREVIATIONS ARE :
L. C. J., Lord Chief Justice of the King's, or Queen's, Bench.
C. J., Chief Justice of the Common Pleas.
L. J., Lord Justice of Appeal.
J., Mr. Justice.
C. B., Lord Chief Baron.
B., Mr. Baron.
H. L., House of Lords.
P. C., Privy Council.
Sc. Cam., or S. C. ^Scaccarii Camera), Exchequer Chamber.
Q. B., Queen's Bench.
C. P., Common Pleas.
Ch. Div., Chancery Division ; Ex., Exchequer ; Ex. Div., Ex-
chequer Division ; Ch. D., Chancery Division ; Q. B. D., Queen's
Bench Division.
A.-G., Attorney-General.
S.-G., Solicitor-General.
\
TABLE OF CASES
SUMMARIZED OR CITED.
Antelope, The
Ashby v. White
As/ley v. Younge .
Attorney -Generals. Brad-
laugh .
1 Aylesbury Men '
Hankers' Case .
Barnardiston v. Soame
Banvis v. Keppel
Bates Case .
Bradlaugh v. Erskine
Gosset .
Brook v. Montague
Burdettv. Abbot
Buron v. Denman
Butler v. Crouch
Calder v. Halket .
Calvin s Case .
Cameron v. Kyte .
Campbell v. Hall .
Canterbury v. Att.-Gen.
Case of Eton College
Impositions
Monopolies .
Proclamations .
Prohibitions .
the Seven Bishops
Lord Shaftesbury
Craw v. Ramsey
dpal Cases are printed in Italics.
PAGE
PAGE
. 6l
Crouch's Case . . .
63
. 130
Cullen v. Morris
3 2
. 104
/-
Currey v. Walter . . .
109
. 112
/ f
Damport v. Sympson
106
3 1
Darnel's Case . . .
57
Davison v. Duncan .
37
CT
Dawkins v. Lord Rokeby .
88
J
Pnulri
89
Doe d. Thomas v. Acklam
49
93
Doyle v. Falconer
44
Dutton v. Howell . .
85
45
. 106
East India Co. v. Sandys .
ii
. 38
Entick v. Carrington
69
9 1
63
Fabrigas v. Mostyn .
76
Feather v. The Queen . .
12
Fenton v. Hampton .
38
. IOI
o
Five Knights Case . .
57
. 48
Flewster v. Royle
66
77
Fleyer v. Crouch . . .
63
. 50
Floyd v. Barker
95
. 52
Forbes v. Cochrane
60
. 26
Fox, Ex parte .
66
20
ii
Fray v. Blackburn . .
100
. 94
Gidley v. Lord Palmer ston
74
r 16
Godden v. Hales
15
33
Goffin v. Donnelly . .
107
. 48
Grantv. Gould
80
Table of Cases.
xv
PAGE
PAGE
Grant v. Secretary of State
Palmer v. Hutchinson
74
for India . . . .
75
Pappa 7'. Rose .
102
Hammond v. Howell
97
Phillips v. Eyre . . .
79
Harvey v. Lord Aylmer .
84 Pigg v. Catty .
*3
Hettihewage Siman Appu
Prideaux v. Morrice . .
29
v. Queen's Advocate
74 Proclamations, Case of
13
Hill v. Bigge . . .
78 Prohibitions, Case of
94
Hodgkinson v. Fernie
92 Purcell v. Sowler . . .
in
Hodgson v. Scarlett .
106 i
Houlden v. Smith
98
Howard v. Gosset
43
Queen v. The Commis-
sioners of Inland Re-
Jewison v. Dyson . . .
39
venue ....
Queen v. Lords Commis-
56
Kemp v. Neville
99
sioners of the Treasury .
54
Kielly v. Carson . . .
38
King v. Lords of the Trea-
sury
S6
Reg. v. Eyre
85
y
Knight v. Wedderburn . .
j
59
Rex v. Broadfoot . .
65
(^reevey , ,
37
Eliot, Hollis and
La Jeune Eugenie .
61
Valentine . .
34
Lane v. Cotton . . .
72 1 Hampden
2 3
Leach v. Money
68
Hobhouse . .
42
Le Louis . . . .
61
T /j t* j^7 A 1} /*? cf s3 f\ -ft
36
Lines v. Lord Charles
Picton . . .
85
Russell.
43
Clrinttfbi 1
95
Luby v. Lord Wodehouse .
82
T^nV^V^
66
Wall . . .
85
Macbeath v. Haldimand . 73
Macclesfield, Earl of, v.
Starkey . . . 95
Madrazo v. Willes . . 90
Monopolies, Case of . .11
Munster v. Lamb , .105
Mus grave v. Pulido . 88
Neville v. Stroud . . . 28
Nicholson v. Mouncey . 92
O'Byrne v. Lord Harting-
ton . . .83
O'Grady v. Cardwell . . 74
Scott v. Stansfield
Seven Bishops Case . .
Shaftesbury's Case, Lord .
Shanley v. Harvey . .
Sheri/ of Middlesex's Case
Ship Money, Case of
Slave Grace's Case . .
Sommersett s Case
Speaker of Legislative As-
sembly of Victoria v.
Glasse ....
Stockdale v Hansard . .
Sullivan v. Earl Spencer .
Sutton v. yohnstone
33
58
42
II
59
39
40
83
87
XVI
Table of Cases.
PAGE
Taafe v. Dowries . .102
Tandy v. Lord Westmore-
land 8 1
Thomas v. Churton . . 89
The Queen .
Sorrel
To bin v. The Queen
Tozer v. Child .
Usill . Hales
53
14
53
3 2
no
Warden v. Bailey
Was on v. Walter .
Whitfield v. Lord le
Spencer
Wilkes v. Lord Halifax
Wood .
Wynne v. Middleton
PAGE
87
108
De
72
70
67
29
LEADING CASES
IN
CONSTITUTIONAL LAW,
INTRODUCTION.
WHERE there exists a body of laws regulating the Constitu-
\ tionai Law-
distribution and exercise of the supreme power m a where to be
community, and a Court entrusted with its interpreta- found -
tion, the term Constitutional Law has a very definite
application. That is the case, for example, in the
United States. In England, on the other hand, where
there is no written constitution, this law exists in a much
looser shape, and can only be collected from legal deci-
sions, parliamentary precedents, and actual practice.
We are here concerned with constitutional usage only Importance
in so far as it has been established or illustrated by the decisions,
decisions of the law-courts. Although these are far
from covering the whole extent of constitutional prac-
tice, we shall see that many of the most important
principles of the Constitution have come under the dis-
cussion and determination of the Courts. That part of
our constitutional law should have been made by the
judges, will not surprise anyone who knows how enor-
mous has been their influence in the whole field of
English law. 1
For practical purposes we must take the term ' Con- Constitu-
tional Law
"The whole of the rules of Equity and nine-tenths of the rules of
Common Law have in fact been made by the judges." Mellish, L. J., in
its extent.
Allen v. Jackson, L.R. I Ch. Div. 405.
2 Constitutional Law.
stitutional Law ' to include not only what Austin calls
' constitutional law proper/ but also what he calls
' administrative law/ the two branches making up to-
gether ' the law of political conditions, or public law/ x
Constitutional law proper, in his view, only 'fixes the
constitution or structure of the given supreme govern-
ment.' Administrative law determines the mode in
which the sovereign power is to be exercised, either by
the sovereign power itself, or by the subordinate poli-
tical officers to whom portions of the sovereign power
may be delegated.
Its object Or we may put it in another way perhaps, and say
the prevention .. 1T ,-... .'
and remedy of that Constitutional Law has for it object security against
misgovern- misrule, and remedy in the event of misrule. And we
ment. 7
shall for the present be chiefly concerned with this latter
aspect of constitutional law. We shall consider a par-
ticular class of injuries and delinquencies arising from
^ the misuse of the power bestowed upon rulers and ad-
ministrators, and the remedies provided for them by the
tribunals of the country.
Its relation to An attempt has been made in one of the few works
mSreTe- LaW upon ^ s su ^J ect to elaborate a contrast between Con-
sented, stitutional Law and Common Law, and to ' illustrate the
relation between them.' 2 Constitutional law is there
said to mean ' the aggregate of doctrines and sanctions
directly tending to the maintenance of our social union ; '
and common law, ' the aggregate of rules and maxims
directly tending to the maintenance of private rights/
The antithesis here attempted does not really exist ;
there is no such line of demarcation between constitu-
tional law and common law. They are not disparate
and independent branches of law. Constitutional law is
simply a portion of the common law, and is included in
it as the part is included in the whole. The distinction
is not only useless and untrue it is even dangerous. It
1 i Austin, Jurispr. 4th ed. pp. 73, 274.
2 Broom, Const. L. pp. vii., viii.
Introduction. 3
is precisely this notion that the constitutional law was
above and beside the common law, that has caused some
of the chief difficulties of our constitutional history. It
explains not only the exaggerated claims of the Stuart
monarchy, with its pretence of a divine authority not
subject to the laws, but it also explains the compara-
tively recent attempt on the part of the House of
Commons to assert what has been called ' a supremacy
not short of the divine right of Charles or of James.' l
What may be said is, that constitutional law is that part The true re-
of common law which deals directly with the exercise of latlon -
the functions of government, sometimes securing the sub-
ject against unfair abuses of original or delegated power;
sometimes protecting the ministers of government in the
proper execution of their duties.
The supreme power in this country is lodged in the The Consti-
people, but is exercised, as to the matter of form, ^J^
through a parliament consisting of king, lords, and
representatives of the commons. The main functions of
.government are twofold the Legislative and the
Executive.
Of these, the former is carried out in the main by i. Legislative,
parliament itself, although certain minor powers of legis-
lation are delegated to the crown in council, to subor-
dinate officers, and even to certain private corporations.
The Executive function, on the other hand, is exercised Executive,
entirely by delegates, under the direction of the crown,
itself in this respect the delegate of parliament. It may a. Adminis-
be divided into an Administrative and a Judicial depart-
_, b. Tudicitive.
ment. The latter function is evidently, m theory at
least, of a merely remedial nature. Supposing the laws
to be always perfectly intelligible, and always perfectly
obeyed, there would be no necessity for the interference
1 Hearn, Government of England, p. 2. Lord Camden reminds us, in
his judgment in Entick v. Carrington, that "Serjeant Ashley was com-
mitted to the Tower in the 3rd of Charles I. by the House of Lords for only
asserting in argument that there was a law of State different from the
Common Law" : 19 S. T. 1073.
Constitutional Law.
Summary.
' Leading
cases. '
of courts of justice. The judges are called in either to
enforce obedience to the laws (more strictly, perhaps, to
determine for the guidance of the Executive, whether
the laws have been disobeyed) ; or to decide between
contending parties, each, perhaps equally anxious to
obey the laws when known, as to their proper inter-
pretation.
Briefly, then, we may say that the Legislative function
is the supreme power of making laws : the Administra-
tive function is the supreme power of executing them :
and the Judicative (or Judicial) function is the supreme
power of interpreting them when called upon.
We may now proceed to look in cases and judicial
decisions for illustrations and proofs of the constitutional
limitations of these several branches of the supreme
power, taking them in the order here laid down.
One caution must be borne in mind as to the use of
the term ' Leading Cases.' The ordinary use of the