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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



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