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point might lead to a serious conflict between the two Houses, and
possibly between the courts of law and the House of Commons,
induced the House of Lords, in 1858, to pass a bill empowering
either House to agree to a resolution admitting Jews to sit and vote,
upon their taking a suitable declaration, in lieu of the oath imposed
by law. This compromise was agreed to by the other House, and
the vexed question was thus finally determined, so far as the ad-
mission of Jews to a seat in the House of Commons was concerned.!*
No such resolution, however, was ever adopted by the House of
Lords. Nevertheless, by an Act passed in 1866, the oath required
to be taken by members of both Houses of Parliament was altered,
so as to omit the words ' on the true faith of a Christian,' thereby
rendering a Jew eligible for a seat in either House. q

Cattle. In 1866, when immediate legislation was called for, to stay the

ravages of the cattle plague, and yet the question itself was beset
with so many difficulties as to render it impossible for Parliament to
agree to a measure without patient and careful consideration of the
whole matter, it was suggested by the Earl of Derby, that general
resolutions should be adopted by both Houses of Parliament, autho-
rising the government to deal with the subject by orders in council,
upon certain main principles to be laid down in the resolutions,
such orders to remain in force until Parliament had matured a Bill
upon the subject. But Earl Russell (the premier) and Earl Grey
both objected that this would be a dangerous and unwarrantable
proceeding. Accordingly, it was not pressed upon the consideration
of the House/

In 1876, the attention of the House of Commons
was called to an unconstitutional practice which had



Com. Pap. 1857, Sess. 2, v. 9, " 29 Viet. c. 19. Life of Sir F.

p. 477 ; and see May, Parl. Prac. ed. Goldsuiid, p. 62.

1883, p. 20(5. ' Hans. D. v. 181, pp. 441-445,

Flans. L). v. 151, p. 1372. 503. See also the case of the Totne<,

21 & 22 Viet. c. 49. &c , Writs, Hans. D. v. 100, p. 674.



IN RELATION TO PARLIAMENT. 411

grown up, since 1868 in allowing referees, being paid
officers of the House, appointed to serve as assessors
or advisers upon private bill committees, the power of
voting thereon, as though they were ele'cted members
of Parliament. The right of referees to sit on com-
mittees had been conferred, by a resolution of the
House in 1868 which did not specify any power of
voting ; but such power had, in fact, been exercised ever
since. Whereupon, on February 18, a select com-
mittee was appointed to enquire into the matter and
particularly as to the legality and expediency of the
exercise of the power of voting by the referees. 8 The
committee reported their unanimous conclusion, that it
was inconsistent with ancient parliamentary usage, and
contrary to constitutional principle, to allow the referees
the right of voting.* Whereupon it was ordered, that
it be an instruction to committees on private bills, that
referees, appointed to such' committees, may take part
in all the proceedings thereof, but without the power of
voting."

In the ordinary course of procedure, resolutions of Abstract
either HouSe of Parliament should be the embodiment J^s?ob-
of well-ascertained opinions, or facts, as a basis or pre- i^ti<
liminary step towards some proximate parliamentary
action. Mere abstract resolutions upon any question,
while they are too commonly regarded as allowable
weapons in the exigencies of party warfare, are open to
grave objection. They are generally made use of to
assert a principle, perhaps undeniable in itself, but
which it would be impossible or inexpedient to carry
out at the time. They have, accordingly, a tendency
to fetter the present action of government, to precipi-
tate the solution of great public questions, before they
are ripe for settlement, and to impede the current of



Hans. D. v. 227, p. 485. Com. Pap. 1876, v. 14, p. 4.

u Hans. D. v. 2:18, p. 616.



412 THE ROYAL PREROGATIVE

useful legislation. Upon these grounds the most emi-
nent statesmen have concurred in condemning them. v



o



Thus in 1865, Mr. Gladstone said : 'I have never concealed my
strong opinion that a resolution of this House, unless relating to a
matter of grievance or recommending the reduction of a burden
oppressive to the community, does not demand great consideration
from the government.' w Again, in 1870, he observed, that 'as a
rule, this House proceeds by Bill, and not by resolution. The
framer of a Bill is under the necessity of thinking out and through
all parts of his subject, and of presenting it to the House in such a
manner as will bear testimony that he has thought it through
and will give the House some means of judging whether his means
are adapted and well proportioned to his ends.' Whereas, by an
abstract resolution, ' we are called upon, at a moment's notice, to
pledge ourselves irrevocably to the utterance of opinions which are
subject to doubt and hesitation in every conceivable way, and which
ought never to be entertained with a view to adoption unless they
have been subjected to severe scrutiny. 1

The prerogative that will first engage our attention
is that which concerns the executive authority of the
crown in the administration of public affairs. This
prerogative is of such widespread and pervasive opera-
tion, as to include, in a certain sense, every other. Our
remarks in reference thereto, and the authorities cited,
will accordingly be of general application, and will con-
tribute, it maybe hoped, to the solution of any question
that may arise out of the constitutional relations
between the Crown and Parliament.

Our comments upon this prerogative in the sub-
sequent chapters are divisible into four heads : I.
General principles which govern the relations between



T Lid. Altborp and Lid. Stanley pies to be afterwards embodied in

(Earl of Derby), Mir. of 1'arl. 1835, legislative measures is equally o l >-

p. 082; Sir R. Peel, ib. 1840, p. jectionable, Seeti. v. 200, pp. 1130-

.'{524; Marq. of Lansdowne, Hans. 1140.

1). v. 94, p. 177; Mr. Cardwell, ib. w Ib. v. 178, p. 3S; and see ib. v.

v. 125, p. 615; Mr. Disraeli, 6. v. 216, p. 730.

151, p. 125; ib. v. 214, p. 1931 ; Mr. Ib. v. 201, p. 522; and Mr.

Gladstone, &. v. 161, p 1448. Any Grant Duff, ib. p. 843. See also ib.

attempt to obtain from ministers a v. 211, p. 406.
premature admission of the priuci-



IN RELATION TO PARLIAMENT. 413

ministers of the crown and the two Houses of Parlia-
ment in matters of administration, with precedents
illustrative thereof. II. The practice of Parliament in
the appointment of select committees to enquire into
administrative questions. III. Practice in regard to
the granting or withholding, by the executive, of in-
formation desired by either House of Parliament. IV.
Circumstances which may require the interposition of
Parliament to restrain the illegal exercise of executive
authority : in relation (more specially) to (1) orders in
council and royal proclamations ; (2) minutes of com-
mittees of council, and other departmental regula-
tions ; (3) contracts entered into by public depart-
ments ; (4) the remedy against illegal or oppressive
acts by ministers of the crown.



414 THE ROYAL PREROGATIVE



CHAPTER VII.

1. GENERAL PRINCIPLES WHICH GOVERN THE RELATIONS
BETWEEN THE CROWN AND PARLIAMENT IN MATTERS
OF ADMINISTRATION.

Pariia- FREEDOM of speech in Parliament is an essential part of

ment may , ... . /.-n T ^ mi M

advise the the liberties 01 Englishmen. Ihis privilege was guaran-
crown in tee( j j^ ^ -p^ Q f Righ tSj an( } j t includes a licence to

matter. discuss all matters affecting the public welfare, whether
the same have been formally commended by the crown
to the consideration of Parliament or not. From the
time of Edward III. to our own day, Parliament has
freely exercised the right of tendering advice to the
sovereign, unasked, upon matters the final determination
of which appertained to the sovereign alone. The House
of Lords, as representing the ancient Great Council of
the realm, always possessed this right ; and after the
House of Commons arose, its position, as the Grand
Inquest of the kingdom, justified it in claiming similar
privileges. The two Houses of Parliament collectively
represent the whole community, and are the Great
Council of the nation, while ' ministers are merely the
council of the prince.' a They are, therefore, entitled
to approach the sovereign with advice or remonstrance
upon all affairs of state, and in regard to every griev-
ance under which any subjects of the realm may be
suffering. But it is equally necessary to remember that
Parliament is designed for counsel and not for rule for



Rt. Hon. C. W. Wynn, Mir. of Tarl. 1835, p.



IN MATTERS OF ADMINISTRATION. 415

advice, and not for administration. There are some
prerogatives with the exercise of which the Houses of
Parliament must ordinarily refrain from intermeddling,
lest their intrusion should be equivalent to an unwar-
rantable interference with executive functions.

The true responsibility of ministers depends upon Free
their freedom in exercising the lawful authority of the of e execu-
crown. Without freedom of action there can be no ji ive ..

., .,. . . functions.

genuine responsibility. It is this which renders it so
essential to the successful working of parliamentary
government that ministers should be sustained by a pre-
dominant party in the legislature, who are prepared, on
general grounds of public policy, to approve their acts,
and to assume a measure of responsibility for their con-
duct in office. b De Lolme, in anticipating the events
that would be likely to destroy the fair fabric of the
English constitution, strikingly remarks that, ' when the
representatives of the people shall begin to share in
the executive authority,' the government will be over-
thrown.

Great weight must necessarily be attributed to the
opinions of either House of Parliament on public affairs ;
but, under ordinary circumstances, those opinions are haa ' ent -
constitutionally expressed by the degree of support they
consent to afford to the ministers of the crown in the
conduct of the government. If the Queen's ministers
possess the confidence of Parliament, it is inexpedient
and unwise, as a general rule, to interefere with their
decisions in regard to the details of administration,
except in cases wherein it may appear that the public
interests have been injuriously affected by the action of
ministers.

The abstract right of Parliament, in this matter, has
been asserted by the best constitutional authorities.



* Ed. Rev. v. 108, p. 285.

De Lolme, Const, pp. 430-450. And see Cox, Inst. p. 3.



410 THE ROYAL PREROGATIVE

Thus, Earl Russell says : ' The two Houses of Parliament
constitute the Great Council of the king, and upon what-
ever subject it is his prerogative to act it is their privi-
lege and 'even their duty to advise. Acts of executive
government, however, belong to the king.' d And of
the House of Commons Burke says : ' It is their privi-
lege to interfere, by authoritative advice and admonition,
upon every act of executive government, without ex-
ception.' e In 1784 the House of Commons resolved
in conformity with the report of a select committee to
search for precedents on the subject : ' That it is con-
stitutional and agreeable to usage for the House of
Commons to declare their sense and opinions respecting
the exercise of every discretionary power which, whether
by Act of Parliament or otherwise, is vested in any body
of men whatsoever for the public service.'*
night of In 1788, on a motion for enquiring into the conduct

enquiry. Q t j ie ^ c ] ra i ra lty in a certain matter, Mr. Pitt (the prime
minister), said : ' That the House had a constitutional
power of enquiring into the conduct of any department
of the government, with a view either to censure or
punishment, was unquestionable ; and whenever a case
was made out strong enough to warrant a suspicion of
abuse that deserved either censure or punishment, he
should ever hold it to be the indispensable duty of the
House to proceed to enquire.' Mr. Fox, on the same occa-
sion, remarked, that ' it was the constitutional province
and the undoubted duty of the House to watch over
the executive departments, and where they had cause
to suspect abuse, to institute an enquiry, with a view
either to censure or punishment.' g In 1809, the irre-
gular promotion of Lord Burghersh to higher military
rank, contrary to the prescribed regulations, was com-
plained of in the House of Commons, and notwithstand-

d Russell, Eng. Const, p. 151. v. 2, p. 369.

e Rowlands, En;;. Const, p. 498. f Parl. Hist. v. 24, pp. Jttl-.^l.

See also Wynn, in Tarl. Deb. N. S., * Ib. v. 27, pp. 277, 281.



IN MATTERS OF ADMINISTRATION. 417

ing the claim of the secretary for war (Lord Castle-
reagh) that * it was part of his Majesty's prerogative, as
the undoubted head of the army, to dispense with his
own regulations when he thought proper ; ' it was
insisted, on the part of Lord Temple, that ' the House
of Commons had over that, as well as over every other
branch of the royal power, a privilege to enquire and
control.' Whereupon, on a division, ministers were
defeated, and compelled to cancel the objectionable
promotion. 11

It is now an acknowledged principle that ' every act
done by the responsible ministers of the crown having
any political significance is a fit subject for comment
and, if necessary, for censure in either House of Parlia- Rights of
ment.' ! The House of Commons, says May, ' has a mon?to"
right to advise the crown even as to the exercise of the a^ 1 * 6 the
prerogative itself; and should its advice be disregarded
it wields the power of impeachment, and holds the
pursestrings of the state.' ]

In like manner, Canning defined the House of Commons to be a
council of control, as well as a council of advice ; and declared that
in cases of adequate importance, especially where the prerogative
Vas concerned, it should endeavour, by the timely interposition of
advice, to prevent the necessity of control. k

But it is evident that these extraordinary powers of when

necessit
requires,



interference ought not to be evoked except upon special



necessity ; as a general principle, Parliament should
confide in the discretion of the responsible advisers of
the crown, who are the trustees of the royal prerogative
for the rightful administration of the same. So long as
Parliament continues its confidence in ministers, it ought
to be willing to leave the exercise of the prerogative in
their hands, unfettered by restrictions in regard to its
exercise, and should ordinarily refrain from interference



h Fonblanque, Life of Gen. Bur- D. v. 171, pp. 1720, 1728.

goyne, p. 458, n. i May, Const Hist. v. 1, p. 458.

1 Earls Derby and Russell, Hans. k Parl. D. v. 23, p. 267.

VOL. I. E B



418 THE ROYAL PREROGATIVE

therewith. The general responsibility of ministers for
the wisdom, policy, and legality of the measures of
government should be sufficient guarantee, in all ordi
nary cases, for the faithful discharge of the high
functions entrusted to them. In fact, ' the ministry of
the day are responsible for everything that is done in
any department of the state ; ' and while ' it is true that
the House of Commons ought to have a control and
supervision over every such department, its functions
are those of control, not of administration.' l l The
House can interfere with great advantage in prescribing
the principles on which the executive government shall
be carried on ; but beyond that it is impossible for the
legislature to interfere with advantage in the details of
the administration of the country.' m

Defects Mr. Frederic Harrison, in an essay, n points out the ominous

defects recently apparent in our system of government by Parlia-
ment. He shows that the peculiar character of the House of Com-
mons as ' the aristocratic public council of a governing class was
put an end to by the Reform Bill of 1831.' That since then, the
House has gradually, and insensibly, but ' practically usurped
executive functions, and really has become the executive.' Its
existing constitution and methods are totally incompatible with
the efficient discharge of such functions. He suggests as a remedy
(1) that the question must be settled, ' Is the House of Commons
the proper body to carry on the executive of this vast empire, or
directly to control the executive in all the minutiae of business 1 '
If these functions are still to be exercised, ' there is no half-way
house between the present dead-lock and the transfer of all details
of Bills to a complete system of Revising Committees,' consisting
of between ten and twenty members each and other business to
properly constituted standing committees. Besides this reform, in
favour of which he urges some weighty reasons, it is imperative to
curtail and revise the great and growing abuse of ' questions to



1 Palmerston, Hans. D. v. 150, p. servations in his Life of Fox, v. 3,

1357 ; and Ib. v. 164, p. 999. And p. 311 ; Rep. Com 6 . Board of Admi-

see Prof. Austin's observations on ralty; Corns. Pap. 1861, v. 5, pp. 335,

this point, Plea for the Constitution, 363 ; Evid. 2612, 2905 ; Fitz James

p. 24. Stephens on Parl. Govt. in Con. Rev.

m Cobden, Hans. D. v. 176, p. v. 23.
3909. See also Earl Russell's ob- n 19th Cen. v. 10, p. 317.



IN MATTERS OF ADMINISTRATION. 419

ministers,' which now occupy an enormous and greatly dispropor-
tionate amount of time and attention. Some effectual means must
also be devised to put an end to excessive and unprofitable debate,
on any and every subject. Proceedings on public Bills must not be
put an end to by the close of a session, and private Bills must be
largely transferred to other tribunals.

The New Rules, passed in the autumn session of 1882, were not
designed merely to suppress obstruction, but to facilitate the pro-
gress of public business. To effect this it was deemed necessary ' to
curtail the legitimate rights of the Opposition, and to introduce
novel machinery into the ancient practice of Parliament.'

Any direct interference, by resolution of Parliament, inter-
in the details of government is inconsistent with and
subversive of the kingly authority, and is a departure
from the fundamental principle of the British constitu- of govern-
tion, which vests all executive authority in the sovereign, E
while it ensures complete responsibility for the exercise
of every act of sovereignty. Experience has uniformly
demonstrated the unfitness of large deliberative assem-
blies for the functions of government. The intrusion of
parliamentary committees into matters which appertain
to the jurisdiction of the executive government is equally
to be deprecated, as it tends inevitably to the overthrow
"of all genuine responsibility, and the substitution instead
of an arbitrary tyrannical power. p During the reign of
Charles I. the Long Parliament assumed, on the part of
its committees, various executive functions ; but this is
admitted to have been a usurpation, and it is now
acknowledged without dispute that all acts of adminis-
tration belong exclusively to the crown.

Parliament does not interfere directly in carrying on the
executive government ; the supreme executive authority belongs to
the crown, nor do the measures adopted by its ministers in the
exercise of this authority require the previous sanction of Parlia-
ment, i

See Mr. Curtis's paper on the > Grey, Parl. Govt. new ed. p. 22

New Rules, Fort. Rev. v. 33, p. 19. and p. 9, n. See Sir C. Wood, Hans.

p See the injurious operation of D. v. 175, p. 259. And see a curious

Standing Com* in the U.S. Congress, case cited ante, p. 370.
North Am. Rev. v. 118, p. 12.

E B 2



420 THE ROYAL PREROGATIVE

interfer- Accordingly, no resolution of either House of Par-

ence of,. -i v -i . i i

Pariia- liament which attempts to adjudicate in any case that is
within the province of the government to determine
or, to define the mode in which any prerogative of the
crown should be exercised has of itself any force or
effect/ If it be intended merely to express the sense of
the House upon some objectionable system, practice, or
act of administration, or to complain of an existing
grievance and suggest a remedy, Parliament is perfectly
competent to entertain and pass a resolution on the
subject, or to approach the crown, by address, with
advice upon the same. It then becomes the duty of
the government to give respectful consideration to the
matter, but nevertheless to decide upon the course to
be followed on their own responsibility. Sometimes,
indeed, the government themselves invite the assistance
of Parliament to institute, by means of select com-
mittees, enquiries into questions of administration, for
the purpose of obtaining the fullest information to
enable them to accomplish some desirable reform ; or
express their willingness to be guided in a particular
matter by the general sense of parliamentary opinion.
But where the government deprecate interference, or
refuse to concur in any such recommendation, the
persistence of the House therein would either amount
to an infringement of the royal prerogative, or it would
be tantamount to a vote of censure upon the existing
administration. And it would be highly irregular to
confer supervisory or administrative duties in matters of
public concern upon private members of either House
of Parliament. 8

' The limits,' says May, ' within which Parliament,
or either House, may constitutionally exercise a control
over the executive government have been defined by
usage upon principles consistent with a true distribu-



See post, pp. 5GG, 667. * Hans. D. v. 234, p. 1785.



IN MATTERS OP ADMINISTRATION. 421

tion of powers in a free state and limited monarchy.
Parliament has no direct control over any single depart-
ment of the state. It may order the production of
papers for its information ; it may investigate the con-
duct of public officers and may pronounce its opinion
upon the manner in which every function of govern-
ment has been or ought to be discharged ; but it cannot
convey its orders or directions to the meanest executive
officer in relation to the performance of his duty. Its
power over the executive is exercised indirectly, but not
the less effectively, through the responsible ministers of
the crown. These ministers regulate the duties of every
department of the state, and are responsible for their
proper performance to Parliament as well as the crown.
If Parliament disapprove of any act or policy of the
government, ministers must conform to its opinion or
forfeit its confidence. In this manner the House of
Commons, having become the dominant power of the
legislature, has been able to direct the conduct of the
government and control its executive administration of
public affairs, without exceeding its constitutional
_ powers.' *

Since the passing of the Eeform Act of 1867, the Encroach-
House of Commons has shown a disposition to en- en * of

i T i i L f tlie Corn-

croach, more and more, upon the sphere of government, mons.
It now ' claims to have a voice in every subject before
it is decided. By means of questions proposed to
ministers, which have enormously multiplied in number
and importance within the last few years, it controls
and directs the course of administration to a degree
never dreamt of for many years after the [first]
Eeform Bill."

* Every measure of the ministers of the crown,' says Minister
Lord Grey, ' is open to censure in either House ; so ^b^to*"
that when there is just or even plausible ground for Parlia -

1 May, Const. Hist. v. 1, p. 457.

u Mr. Lowe, M.P., Fort, Rev. v. 22, p. 444.



422 THE ROYAL PREROGATIVE

objecting to anything they have done or omitted to do,
they cannot escape being called upon to defend their
conduct. By this arrangement, those to whom power
is entrusted are made to feel that they must use it in such
a manner as to be prepared to meet the criticisms of
opponents continually on the watch for any errors they
may commit, and the whole foreign and domestic policy
of the nation is submitted to the ordeal of free dis-
cussion.' v

The following cases may be adduced in illustra-
tion of the foregoing doctrine. They are entered in
chronological order, a rule which will be generally ob-
served in the series of precedents hereinafter quoted :



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