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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



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