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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


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.


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.


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

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-

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.



in his
not amen-
able to

acts and
of sove-
reign and

family not
by Parlia-

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.


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

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.


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

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.


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.



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


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.


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.




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

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.


mission to the impartial judgment of friends ' had been
hitherto advocated by the crown, and will be hereafter

Online LibraryAlpheus ToddOn parliamentary government in England : its origin, development, and practical operation (Volume 1) → online text (page 33 of 85)